Emily Dahl v. Bd. of Trs. of W. Mich. Univ.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0234p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

EMILY DAHL; HANNAH REDOUTE; BAILEY KORHORN;

│

MORGAN OTTESON; JAKE MOERTL; KIA BROOKS;

│

AUBREE ENSIGN; REILLY JACOBSON; TAYLOR

│

WILLIAMS; KAELYN PARKER; ANNALISE JAMES;

│ No. 21-2945

MAXWELL HUNTLEY; SYDNEY SCHAFER; DANIELLE >

NATTE; NICOLE MOREHOUSE; KATELYN SPOONER, │

Plaintiffs-Appellees, │

│

│

v. │

│

BOARD OF TRUSTEES OF WESTERN MICHIGAN │

UNIVERSITY; EDWARD MONTGOMERY, KATHY │

BEAUREGARD; TAMMY L. MILLER, │

Defendants-Appellants. │

┘

On Emergency Motion to Stay Injunction Pending Appeal

United States District Court for the Western District of Michigan at Grand Rapids;

No. 1:21-cv-00757—Paul Lewis Maloney, District Judge.

Decided and Filed: October 7, 2021

Before: GUY, McKEAGUE, and READLER, Circuit Judges.

_________________

COUNSEL

ON MOTION: Michael S. Bogren, PLUNKETT COONEY, Grand Rapids, Michigan, for

Appellants. ON RESPONSE: David Kallman, GREAT LAKES JUSTICE CENTER, Lansing,

Michigan, for Appellees.

No. 21-2945 Dahl, et al. v. Bd. of Trs. of W. Mich. Univ., et al. Page 2

_________________

ORDER

_________________

PER CURIAM. Western Michigan University, a public university, requires student-

athletes to be vaccinated against COVID-19, but it considers individual requests for medical and

religious exemptions on a discretionary basis. Sixteen student-athletes applied for religious

exemptions. The University ignored or denied their requests and barred them from participating

in any team activities. The student-athletes then sued, alleging, among other things, that

University officials violated their free exercise rights. The district court preliminarily enjoined

the officials from enforcing the vaccine mandate against plaintiffs. Now, the officials ask us to

stay the injunction and proceedings in the district court pending appeal. Although it is a close

call, because the free exercise challenge will likely succeed on appeal, the factors considered in

granting a stay favor the student-athletes. Accordingly, we decline to issue a stay.

I.

According to a recently announced University policy, “to maintain full involvement in

the athletic department” at Western Michigan, students must be vaccinated against COVID-19.

The policy, as announced by text message, states that “[m]edical or religious exemptions and

accommodations will be considered on an individual basis.” Several student-athletes sought

religious exemptions. In some cases, the University denied the student-athlete’s application,

stating that the applicant would have “[n]o participation in Intercollegiate sports.” In other cases,

the University failed to respond but still barred the student-athlete from further participation in

college sports. And the University official who processed the applications confirmed that she

barred every unvaccinated student-athlete from “engag[ing] in team activities.”

This lawsuit followed. Sixteen student-athletes alleged that University officials violated

their rights under federal and state law, including the First Amendment’s Free Exercise Clause.

The district court issued a preliminary injunction allowing plaintiffs to participate in team

activities without being vaccinated. The district court’s order did, however, allow the University

to require plaintiffs to wear face coverings and take COVID-19 tests to participate in athletic

No. 21-2945 Dahl, et al. v. Bd. of Trs. of W. Mich. Univ., et al. Page 3

events. In conjunction with their appeal of that ruling, defendants asked the district court to stay

the injunction. The district court, however, denied the motion to stay. Defendants now ask us to

stay both the preliminary injunction and the district court’s proceedings during the appeal.

II.

To determine whether to grant a stay pending appeal, we consider “(1) the likelihood that

the party seeking the stay will prevail on the merits; (2) the likelihood that the moving party will

be irreparably harmed; (3) the prospect that others will be harmed by the stay; and (4) the public

interest in the stay.” Crookston v. Johnson, 841 F.3d 396, 398 (6th Cir. 2016). While no single

factor necessarily is dispositive, Coal. to Def. Affirmative Action v. Granholm, 473 F.3d 237, 244

(6th Cir. 2006), the first—the likelihood of success—in many instances will be the

“determinative factor” in our analysis, Thompson v. DeWine, 959 F.3d 804, 807, 812 (6th Cir.

2020) (per curiam).

Our review of the district court’s decision to issue a preliminary injunction is “highly

deferential.” DV Diamond Club of Flint, LLC v. Small Bus. Admin., 960 F.3d 743, 746 (6th Cir.

2020) (citation omitted). We will not overturn a preliminary injunction unless the district court

“relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an

erroneous legal standard.” S. Glazer’s Distribs. of Ohio, LLC v. Great Lakes Brewing Co.,

860 F.3d 844, 849 (6th Cir. 2017) (citation omitted). A factual finding, it has been colorfully

analogized, is clearly erroneous if it “strike[s] us as wrong with the force of a five-week-old,

unrefrigerated dead fish,” Carvajal Vasquez v. Gamba Acevedo, 931 F.3d 519, 528 (6th Cir.

2019) (citation omitted), and we review legal determinations de novo, S. Glazer’s Distribs.,

860 F.3d at 849.

III.

Beginning, then, with the likelihood that defendants will succeed on the merits of their

appeal, we focus on the strength of plaintiffs’ free exercise claim. Monclova Christian Acad. v.

Toledo-Lucas Cnty. Health Dep’t, 984 F.3d 477, 482 (6th Cir. 2020) (“[P]reliminary

injunctions in constitutional cases often turn on the likelihood of success on the merits . . . .”

No. 21-2945 Dahl, et al. v. Bd. of Trs. of W. Mich. Univ., et al. Page 4

(citation omitted)). To prevail, plaintiffs must show that defendants burdened their religious

exercise and that defendants’ conduct cannot withstand the appropriate level of scrutiny.

A.

The First Amendment, as incorporated through the Fourteenth Amendment, prevents a

state from “prohibiting the free exercise” of religion. U.S. CONST. amend. I; see Mount Elliott

Cemetery Ass’n v. City of Troy, 171 F.3d 398, 403 (6th Cir. 1999). Burdens on one’s free

exercise may be direct, as where a state criminalizes a particular faith or religious practice. See

Emp. Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872, 877–78 (1990). But “indirect coercion or

penalties on the free exercise of religion, not just outright prohibitions,” also trigger scrutiny

under the Free Exercise Clause. Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct.

2012, 2022 (2017) (citation omitted). Accordingly, a policy that forces a person to choose

between observing her religious beliefs and receiving a generally available government benefit

for which she is otherwise qualified burdens her free exercise rights. See Fulton v. City of Phila.,

141 S. Ct. 1868, 1876 (2021); Trinity Lutheran, 137 S. Ct. at 2023. The reason is simple:

denying a person “an equal share of the rights, benefits, and privileges enjoyed by other citizens”

because of her faith discourages religious activity. Lyng v. Nw. Indian Cemetery Protective

Ass’n, 485 U.S. 439, 449 (1988). Consider Fulton. There, a city gave a foster agency the choice

of foregoing a contract to place children with foster parents, which it deemed its religious

“mission,” or “approving relationships inconsistent with its beliefs.” 141 S. Ct. at 1876. By

putting that choice to the foster agency, the city impaired the foster agency’s ability to exercise

its faith. Id. at 1876. Similarly, Sherbert v. Verner held that denying unemployment benefits to

a Seventh-day Adventist for not working on the Sabbath burdened her religious exercise.

374 U.S. 398, 400–03 (1963).

A party may mount a free exercise challenge, it bears noting, even where it does not have

a constitutional right to the benefit it alleges is being improperly denied or impaired. That has

long been true; the Supreme Court recognized over 50 years ago that “[i]t is too late in the day to

doubt that the liberties of religion and expression may be infringed by the denial of or placing of

conditions upon a benefit or privilege” as opposed to a right. Sherbert, 374 U.S. at 404

(collecting cases). And the Supreme Court has reinforced that principle time and again.

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Take, for example, Trinity Lutheran. There, a church sought to participate in a state program

that awarded grants for playground resurfacing “on a competitive basis to [nonprofits] scoring

highest based on several criteria.” Trinity Lutheran, 137 S. Ct. at 2017. The church met

these criteria, but the state denied its application solely because it was a religious entity. Id. at

2017–18. That decision, the Supreme Court explained, offended the Free Exercise Clause

because it discouraged the church from exercising its First Amendment rights even though the

church lacked “any entitlement to a subsidy.” Id. at 2022–24.

Application of these benchmarks leads us to conclude that the University’s failure to

grant religious exemptions to plaintiffs burdened their free exercise rights. The University put

plaintiffs to the choice: get vaccinated or stop fully participating in intercollegiate sports. The

University did not dispute that taking the vaccine would violate plaintiffs’ “sincerely held

Christian beliefs.” Yet refusing the vaccine prevents plaintiffs from participating in college

sports, as they are otherwise qualified (and likely were recruited) to do. By conditioning the

privilege of playing sports on plaintiffs’ willingness to abandon their sincere religious beliefs, the

University burdened their free exercise rights. See id.

Defendants respond that the Free Exercise Clause only prevents them from forcing

plaintiffs to choose between their faith and a “generally available benefit,” which, they say, does

not aptly describe playing college sports. But in the free exercise context, “generally available”

refers to “the baseline against which burdens on religion are measured.” Locke v. Davey, 540

U.S. 712, 726 (2004) (Scalia, J., dissenting). For instance, state grants awarded to nonprofits

“scoring highest based on several criteria” are generally available to eligible entities even though

only 14 organizations (out of 44 applicants) received one. Trinity Lutheran, 137 S. Ct. at 2017–

18, 2024; see also Locke, 540 U.S. at 727 (Scalia, J., dissenting) (noting that a state may

condition a generally available benefit on “academic performance, income, and attendance at an

accredited school”). It follows that all plaintiffs must show is that they are “otherwise eligible”

to play intercollegiate sports—that is, eligible apart from the regulation that burdens their

religious exercise. See Trinity Lutheran, 137 S. Ct. at 2021. And there is no question plaintiffs

are otherwise eligible, as they are already student-athletes.

No. 21-2945 Dahl, et al. v. Bd. of Trs. of W. Mich. Univ., et al. Page 6

Plaintiffs’ unique ability to play sports helps frame our analysis with respect to the

“coercion or penalt[y]” aspect of a free exercise claim. Id. at 2022. The Free Exercise Clause,

we reiterate, “protects against ‘indirect coercion or penalties on the free exercise of religion.’”

Id. (citation omitted). For purposes of assessing whether the University has exerted coercive

force or threatened a penalty to impede one’s free exercise right, our focus is on student athletes.

Fair enough, the University’s vaccine mandate does not coerce a non-athlete to get vaccinated

against her faith because she, as a non-athlete, cannot play intercollegiate sports either way. But

the mandate does penalize a student otherwise qualified for intercollegiate sports by withholding

the benefit of playing on the team should she refuse to violate her sincerely held religious beliefs.

As a result, plaintiffs have established that the University’s vaccination policy for student-

athletes burdens their free exercise of religion.

B.

Of course, not every burden on the free exercise of religion is unconstitutional. A neutral

law of general applicability “need not be justified by a compelling governmental interest” even if

the law incidentally burdens religious practices. Smith, 494 U.S. at 886 n.3; see also Mount

Elliott Cemetery, 171 F.3d at 403 (explaining that the state may “regulat[e] behavior associated

with religious beliefs”). But a law that is not neutral and generally applicable “must undergo the

most rigorous of scrutiny.” Monclova Christian Acad., 984 F.3d at 479 (quoting Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993)).

As the Supreme Court recently reaffirmed, a policy that provides a “mechanism for

individualized exemptions” is not generally applicable. Fulton, 141 S. Ct. at 1877 (citation

omitted). Accordingly, where a state extends discretionary exemptions to a policy, it must grant

exemptions for cases of “religious hardship” or present compelling reasons not to do so. Id.

(citation omitted). For example, a city that requires foster agencies to certify same-sex couples

as foster parents “unless an exception is granted by the Commissioner . . . in his/her sole

discretion” must provide a compelling reason not to extend a religious exemption to a Catholic

foster agency. Id. at 1878. Similarly, a state that denies unemployment benefits to persons who

refuse a suitable job “without good cause” must identify a “compelling state interest” not to grant

an exemption to a Seventh-day Adventist who would not work on the Sabbath. Sherbert, 374

No. 21-2945 Dahl, et al. v. Bd. of Trs. of W. Mich. Univ., et al. Page 7

U.S. at 401, 406; cf. Klaassen v. Trs. of Ind. Univ., --- F. Supp. 3d. ---, 2021 WL 3073926, at *25

(N.D. Ind. July 18, 2021), aff’d, 7 F.4th 592 (7th Cir. 2021) (holding that a university’s vaccine

mandate was neutral and generally applicable, and therefore subject to rational basis review,

when it provided a non-discretionary religious exemption to students).

The University’s vaccine mandate likewise provides a “mechanism for individualized

exemptions.” The policy says that “all student-athletes” must provide proof of at least one dose

of a COVID-19 vaccine “to maintain full involvement in the athletic department.” But

“[m]edical or religious exemptions and accommodations will be considered on an individual

basis.” The University later provided forms on which student-athletes could request an

“accommodation” to or an “exemption” from the vaccine mandate for religious reasons. And,

like the city in Fulton and the state in Sherbert, the University retains discretion to extend

exemptions in whole or in part. For this reason, the policy is not generally applicable. As a

result, the University must prove that its decision not to grant religious exemptions to plaintiffs

survives strict scrutiny. See Fulton, 141 S. Ct. at 1881.

Defendants resist this conclusion on several fronts. To start, they assert that the

University’s policy is neutral and generally applicable under Fulton and Sherbert because the

University refused to allow any unvaccinated player to participate in college sports. But

defendants’ emphasis on how they in fact executed the policy ignores the Supreme Court’s

instruction that we put front and center the terms of the policy itself, as the “creation of a formal

mechanism for granting exceptions renders a policy not generally applicable, regardless whether

any exceptions have been given.” Fulton, 141 S. Ct. at 1879. That is so, the Supreme Court

explained, because the existence of a system to grant individualized exceptions “‘invite[s]’ the

government to decide which reasons for not complying with the policy are worthy of solicitude,”

id. (citation omitted), which, we note, fairly describes the policy at issue here. The University’s

policy says it evaluates whether to grant religious exemptions “on an individual basis,” thereby

rendering the policy not generally applicable regardless of whether the University has granted

any exemptions.

Next, defendants ask us to consider that “[e]very student who applied for a religious

exemption received one.” To that end, the official who evaluated plaintiffs’ applications claims

No. 21-2945 Dahl, et al. v. Bd. of Trs. of W. Mich. Univ., et al. Page 8

she “in fact granted them an exemption from the vaccine requirement.” But these

representations do not square with the record. In at least two cases, the University barred

plaintiffs from practice and competition without responding to their requests for exemptions. As

for the rest, the University stated, in writing, that it had “denied” them exemptions. Based on the

University’s own documentation, the district court’s factual finding that plaintiffs did not receive

exemptions does not strike us as erroneous, let alone clearly so.

True, the University did maintain plaintiffs’ athletic scholarships and did not formally

dismiss them from their teams. But that is not the same thing as granting an exception from the

University’s policy of conditioning “full involvement in the athletic department” on vaccination

status. After all, the purported exception plaintiffs received did not allow them to play college

sports. Yet playing on the team (and not just receiving a scholarship) is their goal, a point the

University itself recognized. See, e.g., Religious Accommodation Request Form at 1, Dahl v.

Bd. of Trs. of W. Mich. Univ., No. 1:21-cv-757 (W.D. Mich. Sept. 13, 2021), ECF No. 15-7

(noting that plaintiffs sought exemptions that would allow them to keep “participating in

Intercollegiate sports”). And by all accounts, plaintiffs have successfully achieved that goal, at

least historically. Two have been team captains. Several have won All-Mid-American

Conference awards or been named to All-Mid-American Conference or All-Region teams. They

sought exemptions to continue those athletic endeavors, not simply to be “listed as a player on

the team website,” as the University offered. Because the University’s “exemption” would not

allow plaintiffs to engage fully in team activities, the district court did not clearly err by finding

that the University denied plaintiffs’ requests for exemptions in substance as well as form.

Finally, defendants invite us to decide this case based on the following assumption: that

the University’s policy forbids all unvaccinated student-athletes from participating in sports but

allows those with medical or religious objections to retain their scholarships and avoid dismissal

and discipline. The policy’s text, however, says nothing of the sort. We thus see no error—

much less clear error—in the district court’s finding that “[t]he policy Defendants describe[] is

not the policy Defendants sent to their student athletes.” Dahl v. Bd. of Trs. of W. Mich. Univ.,

No. 1:21-cv-757, slip op. at 7–8 (W.D. Mich. Sept. 13, 2021).

No. 21-2945 Dahl, et al. v. Bd. of Trs. of W. Mich. Univ., et al. Page 9

C.

Because the University’s policy is not neutral and generally applicable, we analyze the

policy through the lens of what has come to be known as “strict scrutiny.” Fulton, 141 S. Ct.

at 1881. That manner of scrutiny requires defendants, to prevail, to show that the University’s

failure to exempt plaintiffs serves “‘interests of the highest order’ and is narrowly tailored to

achieve those interests.” Id. (citation omitted). The University’s interest in fighting COVID-19

is compelling. See Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (per

curiam). But the University falters on the narrow tailoring prong. For one, public health

measures are not narrowly tailored if they allow similar conduct that “create[s] a more serious

health risk.” Id.; see Lukumi Babalu Aye, 508 U.S. at 544–45 (comparing the risks posed by

ritual animal slaughter, hunting, and garbage disposal). That is the case at the University, which

allows non-athletes—the vast majority of its students—to remain unvaccinated. One need not be

a public health expert to recognize that the likelihood that a student-athlete contracts COVID-19

from an unvaccinated non-athlete with whom she lives, studies, works, exercises, socializes, or

dines may well meet or exceed that of the athlete contracting the virus from a plaintiff who

obtains a religious exemption to participate in team activities. For another, narrow tailoring is

unlikely if the University’s conduct is “more severe” than that of other institutions. Brach v.

Newsom, 6 F.4th 904, 931 (9th Cir. 2021). To that point, several other universities grant

exemptions from their COVID-19 mandates. See, e.g., Klaassen, 7 F.4th at 593; Wade v.

Univ. of Conn. Bd. of Trs., --- F. Supp. 3d ---, 2021 WL 3616035, at *1 (D. Conn. Aug. 16,

2021); see also Univ. of Mich., U-M COVID-19 DATA (Oct. 5, 2021, 8:33 AM),

https://campusblueprint.umich.edu/dashboard/ (reporting that approximately 2% of students at

the University of Michigan’s Ann Arbor campus have received COVID-19 vaccine exemptions).

Defendants, it bears noting, provided the district court with an affidavit stating that

COVID-19 vaccines are “the most effective and reasonable way to guard against” the virus. We

do not dispute that assessment. But the question before us “is not whether the [University] has a

compelling interest in enforcing its [vaccine] policies generally, but whether it has such an

interest in denying an exception” to plaintiffs, and whether its conduct is narrowly tailored to

achieve that interest. Fulton, 141 S. Ct. at 1881. Defendants present neither evidence nor

No. 21-2945 Dahl, et al. v. Bd. of Trs. of W. Mich. Univ., et al. Page 10

argument on that score. To the contrary, they contend only that their conduct survives rational

basis review.

To sum up, defendants likely violated plaintiffs’ First Amendment rights. The critical

first stay factor thus favors plaintiffs. See Thompson, 959 F.3d at 807 (noting that “the

likelihood of success on the merits often will be the determinative factor” to obtain a stay during

an appeal (citation omitted)).

IV.

The remaining stay factors largely involve dueling considerations regarding who

presumably will be harmed with (or without) a stay. And those considerations are less clear cut

than our merits analysis. For example, the University presumably faces some risk that an

unvaccinated player who participates in full with her team may spread COVID-19 to her

teammates, threatening a forfeit of one or more games and possible (and arguably irreparable)

financial or reputational injury to the University. But that possibility is somewhat speculative,

and it fails to consider the broader picture. For one, the preliminary injunction applies only to

plaintiffs—sixteen people—and the University’s policy, even when enforced, does not limit an

athlete’s exposure to unvaccinated University students at large. For another, under the terms of

the preliminary injunction, the University may still require plaintiffs to wear masks at practice

and get tested for COVID-19, presumably ameliorating at least some risk associated with their

participation. And then consider the interests of plaintiffs and the public more broadly.

Enforcement of the University’s policy likely would deprive plaintiffs of their First Amendment

rights, an irreparable injury. See Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001). Proper

application of the Constitution, moreover, serves the public interest, Coal. to Def. Affirmative

Action, 473 F.3d at 252, as “it is always in the public interest to prevent the violation of a party’s

constitutional rights,” G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079

(6th Cir. 1994). On balance, plaintiffs’ strong likelihood of success on their free exercise claim

carries the day.

No. 21-2945 Dahl, et al. v. Bd. of Trs. of W. Mich. Univ., et al. Page 11

* * * * *

We do not doubt defendants’ good faith, nor do we fail to appreciate the burdens

COVID-19 has placed on this nation’s universities. To that point, our holding is narrow. Other

attempts by the University to combat COVID-19, even those targeted at intercollegiate athletics,

may pass constitutional muster. See Klaassen, 7 F.4th at 593. But having announced a system

under which student-athletes can seek individualized exemptions, the University must explain

why it chose not to grant any to plaintiffs. And it did not fairly do so here.

For these reasons, the motion for a stay of the preliminary injunction and the district

court’s proceedings pending appeal is DENIED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk