Petition for Writ of Certiorari — Health Freedom Defense Fund, Inc., a Wyoming Not-for-Profit Corporation, et al., Petitioners v. Alberto Carvalho, in His Official Capacity as Superintendent of the Los Angeles United School District, et al.

Supreme Court briefDec 23, 2025

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No. 25-___

IN THE

Supreme Court of the United States

————

HEALTH FREEDOM DEFENSE FUND INC., et al.,

Petitioners,

ALBERTO CARVALHO, et al.,

Respondents.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

SCOTT J. STREET

Counsel of Record

JOHN W. HOWARD

JW HOWARD ATTORNEYS, LTD.

201 South Lake Avenue

Suite 303

Pasadena, CA 91101

(213) 205-2800

sstreet@jwhowardattorneys.com

Counsel for Petitioners

December 23, 2025

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

1. Does this Court’s opinion in Jacobson v.

Commonwealth of Massachusetts, 197 U.S. 11 (1905),

limit a court’s review of government mandated

medical treatments to the highly deferential rational

basis review or does Jacobson require heightened

scrutiny based on a balancing test, as the Court held

in Cruzan v. Director of Missouri Department of

Health, 497 U.S. 261 (1990)?

2. If, as the Ninth Circuit held, Jacobson limits

courts to rational basis review, should it be overruled

or limited to its specific facts because it is inconsistent

with modern constitutional scrutiny, including this

Court’s opinions in Cruzan and Sell v. United States,

539 U.S. 166 (2003), which explicitly recognized a

person’s fundamental interest in rejecting unwanted

medical treatments?

(i)

LIST OF ALL PARTIES

The petitioners are Health Freedom Defense Fund,

Inc. (“HFDF”), a Wyoming non-profit corporation, and

Sandra Garcia, Hovhannes Saponghian, Norma

Brambila, and California Educators for Medical

Freedom. The respondents are Alberto Carvalho,

Ileana Davolos, George McKenna, Monica Garcia,

Scott Schmerelson, Nick Melvoin, Jackie Goldberg,

Kelly Gonez, and Tanya Ortiz Franklin, all sued in

their official capacities as executives or board

members of the Los Angeles Unified School District.

CORPORATE DISCLOSURE STATEMENT

Petitioners have no information to disclose under

Rule 29.6.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............................

LIST OF ALL PARTIES .....................................

CORPORATE DISCLOSURE STATEMENT .....

TABLE OF AUTHORITIES ................................

OPINIONS BELOW ............................................

CONSTITUTIONAL PROVISIONS AT ISSUE .

STATEMENT OF JURISDICTION ....................

INTRODUCTION ................................................

STATEMENT OF THE CASE ............................

REASONS FOR GRANTING THE PETITION..

THE NINTH CIRCUIT MISCONSTRUED JACOBSON AND FAILED TO

APPLY THE BALANCING TEST THAT

JACOBSON AND CRUZAN REQUIRE ..

ONLY THIS COURT CAN RECONCILE

JACOBSON AND CRUZAN AND

DECIDE WHETHER JACOBSON IS

STILL GOOD LAW OR SHOULD BE

OVERRULED ...........................................

CONCLUSION ....................................................

II.

APPENDIX

(iii)

TABLE OF AUTHORITIES

CASES

Page(s)

Agostini v. Felton,

521 U.S. 203 (1997) ...................................

Boone v. Bozeman,

217 F. Supp. 2d 938 (E.D. Ark. 2002) ......

Buck v. Bell,

274 U.S. 200 (1927) ................................... 4, 17

Cavuoto v. Buchanan Cnty. Dep’t of Soc.

Servs.,

605 S.E.2d 287 (Va. Ct. App. 2004) ..........

Compassion in Dying v. State of Wash.,

79 F.3d 790 (9th Cir. 1996) .......................

Cruzan v. Director of Missouri Department

of Health,

497 U.S. 261 (1990) ............ 3, 4, 9, 11-16, 18, 19

Curtis v. Inslee,

154 F.4th 678 (9th Cir. 2025) ................... 5, 16

Dobbs v. Jackson Women's Health Org.,

597 U.S. 215 (2022) ............................... 2, 11, 19

Gargiul v. Tompkins,

704 F.2d 661 (2d Cir. 1983), cert.

granted, judgment vacated, 465 U.S.

1016 (1984) ................................................

Gill v. Off. Of Pers. Mgmt.,

699 F. Supp. 2d 374 (D. Mass. 2010)........

Griswold v. Connecticut,

381 U.S. 479 (1965) ................................... 10, 13

Guertin v. State,

912 F.3d 907(6th Cir. 2019) ......................

TABLE OF AUTHORITIES—Continued

Page(s)

Heller v. Doe by Doe,

509 U.S. 312 (1993) ...................................

Jacobson v. Massachusetts,

197 U.S. 11 (1905) ................................. 2-5, 8-19

Kimble v. Marvel Entertainment, LLC,

576 U.S. 446 (2015) ...................................

Massachusetts v. U.S. Dep’t of Health &

Hum. Servs.,

682 F.3d 1 (1st Cir. 2012) .........................

Mills v. Rogers,

457 U.S. 291 (1982) ...................................

Missouri v. McNeely,

569 U.S. 141 (2013) ...................................

3-4

O’Connor v. Donaldson,

422 U.S. 563 (1975) ...................................

Olmstead v. United States,

277 U.S. 438 (1928) ...................................

Planned Parenthood of Se. Pa. v. Casey,

505 U.S. 833 (1992) ...................................

Poe v. Ullman,

367 U.S. 497 (1961) ...................................

Rivas v. United States,

368 F.2d 703 (9th Cir.1966), cert. denied,

386 U.S. 945, 87 S.Ct. 980, 17 L.Ed.2d

875 (1967) ..................................................

Roe v. Wade,

410 U.S. 113 (1973) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Roman Cath. Diocese of Brooklyn v.

Cuomo,

592 U.S. 14 (2020) .....................................

Schmerber v. California,

384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d

908 (1966) ..................................................

Sell v. United States,

539 U.S. 166 (2003) ....................... 12, 13, 16, 19

United States v. Ayala-Bello,

995 F.3d 710 (9th Cir. 2021) .....................

Washington v. Glucksberg,

521 U.S. 702 (1997) ................................... 11, 16

Williams v. DeLeon,

No. 115-CV-00543-SKOPC, 2018 WL

4352902 (E.D. Cal. Sept. 11, 2018) ..........

Witt v. Department of the Air Force,

527 F.3d 806 (9th Cir. 2008) ..................... 12, 13

Youngberg v. Romeo,

457 U.S. 307 (1982) ...................................

CONSTITUTION

U.S. Const. amend. V ................................. 1, 7, 13

U.S. Const. amend. XIV ............................. 1, 7, 13

STATUTES

26 U.S.C. § 4132 ...........................................

28 U.S.C. § 1254 ...........................................

vii

TABLE OF AUTHORITIES—Continued

RULES

Page(s)

Sup. Ct. R. 10(c) ............................................

OTHER AUTHORITIES

Jeffrey D. Jackson, Classical Rational

Basis and the Right To Be Free of

Arbitrary Legislation, 14 Geo. J.L. & Pub.

Pol y 493 (2016) .........................................

L. Tribe, American Constitutional Law

(1978) .........................................................

PETITION FOR WRIT OF CERTIORARI

Petitioners seek a writ of certiorari to review the

judgment of the Ninth Circuit Court of Appeals which

affirmed an order granting judgment on the pleadings

for Respondents.

OPINIONS BELOW

The opinion of the Ninth Circuit’s en banc panel was

reported at 148 F.4th 1020 (9th Cir. 2025), and is

included in its original form in Appendix (“App.”) A.

The Ninth Circuit’s panel opinion was reported at 104

F.4th 715 (2024), and is included in its original form in

App. B. The district court’s opinion was not published

but is included in App. C.

CONSTITUTIONAL PROVISIONS AT ISSUE

The Fourteenth Amendment provides, in relevant

part: “nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.” The Fifth Amendment, as

incorporated against the States by the Fourteenth

Amendment, provides, in relevant part: “No person

shall … be deprived of life, liberty, or property, without

due process of law.”

STATEMENT OF JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1254.

The Ninth Circuit issued its en banc opinion on July

31, 2025. The Court extended Petitioners’ deadline to

file this petition to December 28, 2025.

INTRODUCTION

This petition poses one of the most important

constitutional questions the Court can consider:

whether the Court should reconsider or clarify one of

its prior decisions.

It is an important duty. And it is not one the Court

takes lightly. The doctrine of stare decisis requires

fidelity to past precedents. “But as the Court has

reiterated time and time again, adherence to precedent is not ‘an inexorable command.’” Dobbs v.

Jackson Women's Health Org., 597 U.S. 215, 262

(2022) (quoting Kimble v. Marvel Entertainment, LLC,

576 U.S. 446, 455 (2015)). And it “is at its weakest

when we interpret the Constitution ….” Agostini v.

Felton, 521 U.S. 203, 235 (1997) (quotations omitted).

So here. This case presents a burning question of

federal law that has not been, but should be, answered

by this Court; namely, are there any meaningful limits

on a government’s ability to impose medical mandates

in the name of public health? During the most recent

pandemic, courts treated this Court’s 1905 opinion in

Jacobson as a blank check that allows governments to

issue mandates of every sort (even closing supposedly

“non-essential” businesses) with such intrusions

typically subject only to “rational basis” review, a

measure of constitutional review that one scholar has

described as “no test at all” because it operates “on the

basis of what the legislature ‘could have thought,’

without regard to what the legislature’s actual

purpose was or whether that purpose or any other

legitimate purpose is actually served by the legislation.” Jeffrey D. Jackson, Classical Rational Basis

and the Right To Be Free of Arbitrary Legislation, 14

Geo. J.L. & Pub. Pol y 493, 494 (2016).

This overly broad reading of Jacobson is inconsistent with pre-pandemic interpretations of Jacobson,

including Cruzan, which described Jacobson as a case

in which “the Court balanced an individual’s liberty

interest in declining an unwanted smallpox vaccine

against the State’s interest in preventing disease.”

Cruzan, 497 U.S. at 278 (emphasis added). Moreover,

Jacobson did not use the term “rational basis” review.

Nor did it dwell on what the City of Cambridge

might have been thinking when enacting the smallpox

vaccine mandate that Mr. Jacobson challenged.

Instead, the courts in Jacobson relied on evidence that

the City put forth about the benefits of the smallpox

mandate under the circumstances and then they

balanced that evidence of a public health benefit to the

intrusion on Jacobson’s interest in bodily autonomy.

As the dissenting Ninth Circuit judges observed,

Jacobson’s holding should be limited to a shot that

prevents the spread of disease. After all, that is how

the law defines a vaccine. See 26 U.S.C. § 4132(a)(2)

(“The term ‘vaccine’ means any substance designed to

be administered to a human being for the prevention

of 1 or more diseases.”). Thus, a shot that does not

prevent disease, which only reduces the symptoms of

disease, should not be controlled by the vaccine-related

decision in Jacobson. It should be treated as a medical

treatment and, under Cruzan, subject to heightened

scrutiny, based on the submission of evidence, not on a

“rational basis” test that is no test at all, and which

allows judges to speculate about what the government

thought.

This is not a new right. The Court has long

recognized “that any compelled intrusion into the

human body implicates significant, constitutionally

protected privacy interests.” Missouri v. McNeely,

569 U.S. 141, 159 (2013). In Cruzan, the Court made

clear that a person has a liberty interest in refusing

unwanted medicine. Cruzan, 497 U.S. at 278. In doing

so, it implicitly rejected the logic of cases like Buck v.

Bell, 274 U.S. 200 (1927), in which the Court upheld

the forced sterilization of a young woman and in which

Justice Oliver Wendell Holmes famously wrote:

“The principle that sustains compulsory vaccination is

broad enough to cover cutting the Fallopian tubes.

Three generations of imbeciles are enough.” Id. at 207

(citing Jacobson).

Decisions like that faded after World War II.

Compulsory vaccination laws were largely relegated to

public elementary schools and, even then, families

could decline the shots for philosophical, religious or

medical reasons. Educated autonomy became the

norm. That changed during the most recent pandemic.

That is unfortunate. And while most governments

backed away from the mandates after a few years—

LAUSD tried to moot this case by rescinding its policy

twice, including immediately after a disastrous appellate argument—they did not change their positions.

They insist that the government’s police power trumps

personal autonomy during an emergency. And they

insist that Jacobson precludes people from presenting

evidence in court to challenge the government’s

emergency actions.

The Ninth Circuit agreed. The en banc panel refused

to consider the tension between Jacobson and Cruzan

and other medical treatment-based autonomy cases. It

said only this Court can reconcile Jacobson and

Cruzan. The Court should grant review and do that.

That is the only way to square Jacobson with modern

constitutional scrutiny and ensure that this outdated

decision does not continue to imperil the lives and

livelihoods of people like Petitioners, who just wanted

to make their own health decisions, free of pressure

from the government and their employer.

Time is of the essence. The Ninth Circuit’s flawed

analysis in the en banc opinion is already affecting

other cases. For example, in Curtis v. Inslee, 154 F.4th

678, 692 (9th Cir. 2025), a Ninth Circuit panel held

that “Jacobson and Carvalho foreclose Employees'

substantive due process claim regarding the purported

“right to refuse an investigational drug without

penalty or pressure.”” (Emphasis added.) In a published

opinion, it affirmed the dismissal of a substantive due

process claim that, like this case, specifically alleged

that the COVID-19 shots were not vaccines because

they did not prevent the spread of disease. And it

treated Jacobson as a bedrock principle of constitutional law whose logic and result cannot be questioned.

Forced medication is a gross violation of the most

basic and fundamental of human rights. Thus, medical

mandates of all sorts should be abhorrent to a free and

just society. At minimum, people in a free society

should be allowed to walk into a courtroom and hold

such mandates to constitutional scrutiny, with at least

some presentation of evidence required to justify the

intrusion. It is time for this Court to make that clear

and to set forth a clear standard that balances the

private and public interests at stake.

STATEMENT OF THE CASE

The underlying case challenged LAUSD’s adoption

of a policy that required its employees to get the

COVID-19 shot to keep their jobs. LAUSD issued the

initial policy on March 4, 2021. ECF No. 65 at 2 That

prompted Petitioners to file a lawsuit challenging the

policy (the “First LAUSD Case”). Id.1

Under pressure from that lawsuit, LAUSD diluted,

and effectively rescinded, the policy by giving

employees who did not want to get the shot the option

of regular testing. ECF No. 65 at 2-3. LAUSD then

convinced the district court to dismiss the First

LAUSD Case based on the ripeness doctrine. Id.

Seventeen days later, after representing to the court

that it did not intend to implement a COVID injection

mandate, LAUSD adopted a new policy that required

all employees to get the COVID-19 shot to keep their

jobs. ECF No. 65 at 3. The new policy eliminated

testing as an accommodation for those who did not

wish to take the COVID shot (in fact, the policy

required that even the “vaccinated” employees undergo

regular COVID testing) and it implied that most

requests for religious and medical accommodations

would be denied. Id. at 40. That turned out to be true,

as several of the Petitioners sought an accommodation

to the mandate for religious and medical reasons but

were told that the district would not accommodate

them, period, and at least 500 people were eventually

fired. Id. at 20-21.

Since they were sued in their official capacities, the Petition

refers to actions taken by Respondents as being taken by

“LAUSD.”

In response, Petitioners filed this case. The Second

Amended Complaint alleged several claims. But the

only ones still at issue were the first and second causes

of action. The first alleged that LAUSD’s new COVID

policy violated its employees’ fundamental right to

privacy under the substantive component of the Due

Process Clause. ECF No. 65 at 22-24. The complaint

identified the relevant right as the right to bodily

autonomy related to medical treatments and it

invoked this Court’s robust bodily integrity case law to

support Petitioners’ claim. Id. The complaint also

alleged that the COVID-19 shots are not “vaccines” as

federal law defines that term because they do not

prevent people from becoming infected with the virus

that causes COVID-19. The most the shots can do is

reduce the severity of an infected person’s symptoms

(although even that is debated). Thus, the shots are

medical treatments like medication and other

therapeutics that people take when they are, or may

become, sick. Id. at 13-17, 22-24.

The complaint highlighted some issues with the

COVID-19 shots. For example, it cited evidence that

people would have to get an endless stream of boosters

to maintain the shot’s efficacy, leading to a “regular

cycle of vaccination and revaccination.” ECF No. 65

at 19 (quotations omitted). It also cited evidence that

people who took the COVID shots became sicker than

people who did not take them. Id. at 16-20. And it

discussed the significant, and growing, evidence of

adverse reactions that people have reported in connection with the shots. Id. at 19-20. The individual

plaintiffs cited these reasons, among others, for not

wanting to take the COVID-19 shots. Id. at 20-21.

The district answered the second amended complaint on April 7, 2022. ECF No. 66. The parties agreed

to a case management and discovery schedule that

would have allowed trial to take place in March 2023.

ECF No. 52. But, in late July 2022, the district changed

its strategy and filed a motion for judgment on the

pleadings. ECF No. 74. The district court granted the

motion. App. C.

A three-judge Ninth Circuit panel reversed. App. B.

It did so after LAUSD tried to moot the case by voting

to rescind the challenged policy immediately after the

appellate argument. Ninth Circuit ECF No. 49. But

the Ninth Circuit then voted to take the case en banc

and, after argument, the en banc panel issued its

opinion on July 31, 2025. App. A. It rejected LAUSD’s

argument that the case was moot. Id. at 13a-17a. But

it affirmed the district court’s order of judgment on the

pleadings because it believed that Jacobson requires

that a challenge to a vaccine mandate be judged under

rational basis review, which is not based on the

presentation of evidence but on speculation about

what the government might have been thinking, and

because it believed that most (if not all) vaccine

mandates survive that scrutiny under Jacobson. Id. at

18a-28a. Two judges dissented from that portion of the

opinion. Id. at 34a-42a.

REASONS FOR GRANTING THE PETITION

I. THE NINTH CIRCUIT MISCONSTRUED

JACOBSON AND FAILED TO APPLY THE

BALANCING TEST THAT JACOBSON

AND CRUZAN REQUIRE

The Court should grant the petition because it

involves an important question of federal law that only

this Court has the authority to answer and because it

is necessary to protect the fundamental liberty interests

that generations of Americans fought to protect.

The Court may grant a writ of certiorari where

“a state court or a United States court of appeals has

decided an important question of federal law that has

not been, but should be, settled by this Court, or has

decided an important federal question in a way that

conflicts with relevant decisions of this Court.” U.S.

Supreme Court Rule 10(c). That rule applies here, as

the Ninth Circuit’s en banc opinion rested entirely on

a misunderstanding of this Court’s precedents, including Jacobson and Cruzan. For example, the en banc

opinion concluded that, under Jacobson, “the constitutionality of a vaccine mandate, like the Policy here,

turns on what reasonable legislative and executive

decisionmakers could have rationally concluded about

whether a vaccine protects the public’s health and

safety, not whether a vaccine actually provides

immunity to or prevents transmission of a disease.

Whether a vaccine protects the public’s health and

safety is committed to policymakers, not a court or a

jury.” App. A at 22a. Thus, according to the Ninth

Circuit, “Jacobson simply does not allow debate in the

courts over whether a mandated vaccine prevents the

spread of disease. Jacobson makes clear that it is

up to the political branches, within the parameters of

rational basis review, to decide whether a vaccine

effectively protects public health and safety.” Id.; see

also id. at 26a-27a (devoting just one paragraph of

conclusory analysis to this question).

That misreads Jacobson and ignores the development of constitutional law during the past 120 years.

Substantive due process is not a novel concept, but this

Court began discussing it more explicitly only in the

second half of the twentieth century. The second

Justice Harlan explained this in 1960, stating that

constitutional “‘liberty’ is not a series of isolated

points” but “a rational continuum which, broadly

speaking, includes a freedom from all substantial

arbitrary impositions and purposeless restraints, and

which also recognizes, what a reasonable and sensitive

judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to

justify their abridgment.” Poe v. Ullman, 367 U.S. 497,

543 (1961) (Harlan, J., dissenting).

A majority adopted Justice Harlan’s position four

years later in Griswold v. Connecticut, 381 U.S. 479

(1965). See Planned Parenthood of Se. Pa. v. Casey, 505

U.S. 833, 849 (1992) (recognizing this). Justice Byron

White concurred in Griswold but wrote separately to

explain why. In doing so, he rejected the dissent’s

argument that “the Court is without authority to

ascertain whether a challenged statute, or its application, has a permissible purpose and whether the

manner of regulation bears a rational or justifying

relationship to this purpose. A long line of cases makes

very clear that this has not been the view of this

Court.” Griswold, 381 U.S. at 504 n.* (White, J.,

concurring). One of the cases Justice White cited for

that proposition was Jacobson. Eight years later,

Justice Douglas explained that privacy “rights, though

fundamental, are likewise subject to regulation on a

showing of compelling state interest.” Roe v. Wade, 410

U.S. 113 at 213 (1973). Jacobson was one of the cases

he cited, and he distinguished it from Roe by noting

the compelling state interest in Jacobson, which

Justice Douglas defined as: “Vaccinations to prevent

epidemics ….” Id. at 215 (emphasis added).2

This trend continued during the latter part of the

twentieth century. In fact, by 1990, the Court was

describing Jacobson as a case in which “the Court

balanced an individual’s liberty interest in declining

an unwanted smallpox vaccine against the State’s

interest in preventing disease.” Cruzan, 497 U.S. at 278

(emphasis added); see also O’Connor v. Donaldson,

422 U.S. 563, 582-83 (1975) (Burger, C.J., concurring)

(citing Jacobson when explaining that “a State may

confine individuals solely to protect society from the

dangers of significant antisocial acts or communicable

disease”). That was consistent with the en banc

opinion in the Washington v. Glucksberg, 521 U.S. 702

(1997) right-to-die case, where the Ninth Circuit cited

Jacobson to justify the use of a higher standard than

rational basis review, saying: “The [Supreme] Court

has been applying a balancing test in substantive due

process cases at least since 1905, when in Jacobson v.

Massachusetts … ‘the Court balanced an individual’s

liberty interest in declining an unwanted smallpox

vaccine against the State’s interest in preventing

disease.’” Compassion in Dying v. State of Wash., 79

F.3d 790, 799 (9th Cir. 1996) (en banc) (quoting

Cruzan, 497 U.S. at 278); see also id. at 804 (noting “the

Dobbs “stated unequivocally that nothing in this opinion

should be understood to cast doubt on precedents [like Griswold

and other privacy cases] that do not concern abortion.” Dobbs, 597

U.S. at 295.

Court’s ninety-year-old practice of using a balancing

test in liberty interest cases that raise important

issues of the type before us”).

The Ninth Circuit was not the only court to reach

that conclusion. The Sixth Circuit also relied on

Jacobson in finding that a competent adult has a

constitutional right to refuse unwanted medical treatment.” Guertin v. State, 912 F.3d 907, 920 (6th Cir.

2019). Others referred to Jacobson and Cruzan as

involving a balancing test. See, e.g., Williams v.

DeLeon, No. 115-CV-00543-SKOPC, 2018 WL 4352902,

at *9 (E.D. Cal. Sept. 11, 2018) (describing Jacobson as

case in which Supreme Court “balanced an individual’s liberty interest in declining an unwanted smallpox vaccine against the State’s interest in preventing

disease”); Cavuoto v. Buchanan Cnty. Dep’t of Soc.

Servs., 605 S.E.2d 287, 288 (Va. Ct. App. 2004)

(discussing competent adult’s interest in refusing

unwanted medical treatment and describing Jacobson

as “balancing” case); Boone v. Bozeman, 217 F. Supp. 2d

938, 955-56 (E.D. Ark. 2002) (citing Cruzan for the

proposition that, in this context, deciding “whether [an

individual’s] constitutional rights have been violated

must be determined by balancing his liberty interests

against the relevant state interests” (quotations omitted)).

Likewise, in Witt v. Department of the Air Force, 527

F.3d 806 (9th Cir. 2008), a Ninth Circuit panel reversed

an order dismissing a substantive due process claim

brought by a female Air Force commander who alleged

that she had been suspended from duty because she

was a lesbian. The court applied something more than

rational basis review, but something less than strict

scrutiny, to that claim. It did so based on a forcedmedication case, Sell v. United States, 539 U.S. 166,

178-80 (2003), in which this Court “recognized a

‘significant’ liberty interest ... and balanced that

liberty interest against the ‘legitimate’ and ‘important’

state interest ‘in providing appropriate medical treatment to reduce the danger that an inmate suffering

from a serious mental disorder represents to himself

and others.’” Witt, 527 F.3d at 818 (quoting Sell, 539

U.S. at 178); see also Youngberg v. Romeo, 457 U.S. 307,

321 (1982) (deciding “whether respondent’s constitutional rights [under Substantive Due Process Clause]

have been violated must be determined by balancing

his liberty interest against the relevant state interests”); Mills v. Rogers, 457 U.S. 291, 299 (1982) (noting

that substantive part of due process analysis “involves

a definition of that protected constitutional interest, as

well as identification of the conditions under which

competing state interests might outweigh it”).

Jacobson also recognized the possibility that government would overreach or act arbitrarily. Jacobson, 197

U.S. at 38. And it recognized the need for judicial

intervention if, for example, a person could show “that

he is not at the time a fit subject of vaccination, or that

vaccination, by reason of his then condition, would

seriously impair his health, or probably cause his

death.” Id. In other words, contrary to the Ninth

Circuit’s opinion, a review of modern case law makes

abundantly clear that Jacobson required heightened

scrutiny of mandated medical treatments. It applied a

balancing test in which it acknowledged the need to

gather and present evidence under certain circumstances.

That was the part of Jacobson that this Court relied

on in Cruzan. For more than 100 years, that was

Jacobson’s legacy. It was not until recently that courts

reinterpreted Jacobson to reject challenges to compulsory health policies without any presentation of

evidence. Even then, courts often took pains to

emphasize the narrowness of their rulings. For

example, Second Circuit Judge James Oakes invoked

Jacobson when considering a lawsuit brought by a

kindergarten teacher accused of being incompetent.

He explained: “Although compulsory vaccinations,

Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358,

49 L.Ed. 643 (1905), compelled blood tests, Schmerber

v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d

908 (1966), and rectal cavity searches, Rivas v. United

States, 368 F.2d 703 (9th Cir.1966), cert. denied, 386

U.S. 945, 87 S.Ct. 980, 17 L.Ed.2d 875 (1967),

have from time to time been upheld where there is

clear necessity, procedural regularity, and little or no

physical risk, ... ‘in each case ... [the] government’s

burden was to provide more than minimal justification

for its action.” Gargiul v. Tompkins, 704 F.2d 661, 66970 (2d Cir. 1983) (Oakes, J., concurring), cert. granted,

judgment vacated, 465 U.S. 1016 (1984) (quoting L.

Tribe, American Constitutional Law 914-15 (1978))

(emphasis added).

Applying typical rational basis review to a substantive due process claim grounded in a person’s liberty

interest in rejecting unwanted medical treatment

conflicts with Jacobson and Cruzan. It does not force

the government to provide more than minimal justification for its action. It does not require that the

government justify anything at all. Rational basis

review allows a judge “to hypothesize about potential

motivations of the legislature, in order to find a

legitimate government interest sufficient to justify the

challenged provision.” Gill v. Off. Of Pers. Mgmt., 699

F. Supp. 2d 374, 387 (D. Mass. 2010), aff ’d sub nom.

Massachusetts v. U.S. Dep’t of Health & Hum. Servs.,

682 F.3d 1 (1st Cir. 2012). It requires the plaintiff to

“negative every conceivable basis which might support

[the policy], whether or not the basis has a foundation

in the record.” Heller v. Doe by Doe, 509 U.S. 312, 320321 (1993) (quotations omitted).

Rational basis review is the appropriate test to

apply in an equal protection case that does not involve

a suspect classification. See United States v. AyalaBello, 995 F.3d 710, 715 (9th Cir. 2021). And it may be

equivalent to the level of scrutiny at one end of the due

process balancing test. But it is not the right test to

apply in a substantive due process case involving

government action that interferes with an individual’s

fundamental interest in bodily autonomy because it

does not allow for the balancing that Jacobson and

Cruzan require to justify such intrusions. It does not

allow for the gathering and presentation of evidence.

Put simply, Jacobson did not say that only the

political branches can decide whether a particular shot

would prevent infection. And Jacobson did not bar

consideration of the surrounding circumstances in

assessing the constitutionality of a compulsory health

policy. Indeed, visitors to Cambridge could have opted

out of the smallpox mandate in Jacobson by paying

a small fine or by seeking an exemption, making

any interference with individual freedom “avoidable

and relatively modest.” See Roman Cath. Diocese of

Brooklyn v. Cuomo, 592 U.S. 14, 24 (2020) (Gorsuch, J.,

concurring). The Ninth Circuit was wrong to suggest

that it does.

II. ONLY THIS COURT CAN RECONCILE

JACOBSON AND CRUZAN AND DECIDE

WHETHER JACOBSON IS STILL GOOD

LAW OR SHOULD BE OVERRULED

The Ninth Circuit erred in construing Jacobson to

(1) apply rational basis review whenever a person

challenges a mandatory vaccination policy and (2) to

uphold such a policy, on the pleadings, so long as the

government cites public health in enacting it.

Not every error justifies review, of course. But this

one comes from an en banc panel that disregarded its

own prior interpretation of Jacobson from Glucksberg.

It would not even consider Petitioners’ arguments

about how the substantive due process analysis has

changed without guidance from this Court. App. A at

26a-27a. And it is not alone. As the Ninth Circuit

observed, most of the circuit courts have taken the

same approach during the COVID pandemic, with

none willing to consider Jacobson under Cruzan, Sell

and other more recent constitutional cases. Id. at 28a

n.13. The Ninth Circuit again refused to think deeply

about Jacobson in Curtis, saying that “Jacobson and

Carvalho foreclose Employees' substantive due process

claim regarding the purported “right to refuse an

investigational drug without penalty or pressure.”

Curtis, 154 F.4th at 692 (emphasis added.) Thus, this

is the only court that can reconcile Jacobson, Cruzan

and Sell. This is the only court that can decide whether

a person’s fundamental interest in rejecting unwanted

medical treatment extends to all people and all

medications or whether it is limited to life-saving

medical treatment and shots that prevent disease

(thus qualifying as a “vaccine” under federal law)

offered under certain circumstances.

Those are not rhetorical questions. Judge Lee’s

dissent in the en banc opinion explained why. The

majority held that Jacobson barred a challenge to

“vaccination requirements regardless of whether such

vaccines actually provide immunity and prevent the

spread of disease or whether they provide no immunity

and merely render COVID-19 less dangerous to those

who contract it ….” App. A at 26a. Judge Lee countered:

“If we accept the majority’s holding that a state can

impose a vaccine mandate just to ‘lessen the severity

of symptoms’ of sick persons—without considering

whether it lessens transmission and contraction of this

disease—then we are opening the door for compulsory

medical treatment against people’s wishes …. Indeed,

under the majority’s reasoning, we are only a step or

two from allowing the government to require COVID19 patients to take, say, Ivermectin if the government

in its judgment believes that it would ‘lessen the

severity of symptoms.’” Id. at 41a-42a (Lee and Collins,

JJ., dissenting).

An ivermectin mandate would just be the starting

point. Under the Ninth Circuit’s reasoning, the government could compel a woman to have an abortion to

avoid a high-risk pregnancy if the government believes

it would serve public health. Buck v. Bell lives on in

this era of “government knows best” public health

policies.

The Court should stop that now. Personal health

decisions are a fundamental part of individual liberty.

And we learned during the second half of the twentieth

century that public health can be protected without

compromising personal autonomy. That is why

Jacobson faded from memory after World War II. One

wonders how it was resurrected and turned into a

bedrock principle of constitutional law, a case whose

holding cannot be questioned or even examined in the

depth normally given by an en banc panel. Perhaps

judges did not read the opinion closely. Perhaps they

did, and they simply decided not to think critically

about the constitutional problems that arise when the

government forces people to put something into their

body against their will. Perhaps they viewed the

COVID-19 pandemic as a once-in-a-century event, an

emergency that justified suspending typical legal

analysis for the public good.

If so, that was a mistake. “Experience should teach

us to be most on our guard to protect liberty when the

government’s purposes are beneficent. Men born to

freedom are naturally alert to repel invasion of their

liberty by evil-minded rulers. The greatest dangers to

liberty lurk in insidious encroachment by men of zeal,

well-meaning but without understanding.” Olmstead

v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J.,

dissenting).

Well-meaning but without understanding. Judge

Lee’s dissent echoed that wisdom, pointing out that,

despite their best efforts, during the COVID pandemic,

“the government—and the scientific establishment—

were wrong about a lot of things.” App. A at 36a.

Shouldn’t people be allowed to challenge the government when it is wrong? What precedent does it set to

say, as the Ninth Circuit did here, that judicial review

is simply not available to those aggrieved?

The Court should grant certiorari to correct the

flawed interpretation given to Jacobson by the Ninth

Circuit and other circuits that have considered it

during the pandemic. It should reconcile Jacobson

and Cruzan and make clear what other courts said

before the pandemic: that when the government

interferes with a person’s fundamental interest in

bodily autonomy—the right to choose what to do with

his or her body—courts must apply a balancing test,

not the rational basis review that allows courts to

hypothesize about the government’s rationale and

which precludes people from presenting evidence to

challenge the government’s means.

That may require overruling Jacobson or limiting it

to its facts. “[S]tare decisis is not a straitjacket.” Dobbs,

597 U.S. at 294. But that is what Jacobson became

during the pandemic. This Court should make sure

that ends. Either reconcile Jacobson with Cruzan and

Sell or disavow Jacobson. Americans must know if

they have a right to reject unwanted medical treatment, even during a pandemic. Judges also deserve to

know how to interpret Jacobson considering Cruzan

and Sell. And governments should know whether the

definition of a “vaccine” still matters—whether a shot’s

failure to prevent infection renders it a medical treatment that is subject to heightened judicial scrutiny.

CONCLUSION

For the foregoing reasons, Petitioners respectfully

request that the Court grant the petition for a writ of

certiorari.

Respectfully submitted,

SCOTT J. STREET

Counsel of Record

JOHN W. HOWARD

JW HOWARD ATTORNEYS, LTD.

201 South Lake Avenue

Suite 303

Pasadena, CA 91101

(213) 205-2800

sstreet@jwhowardattorneys.com

Counsel for Petitioners

December 23, 2025

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: OPINION, United States Court

of Appeals for the Ninth Circuit (Filed July 31,

2025) .....................................................................

APPENDIX B: OPINION, United States Court

of Appeals for the Ninth Circuit (Filed June 7,

2024) .....................................................................

43a

APPENDIX C: ORDER GRANTING

DEFENDANTS’ MOTION FOR JUDGMENT

ON THE PLEADINGS, United States District

Court Central District of California

(September 2, 2022) .............................................

76a

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

————

No. 22-55908

D.C. No. 2:21-cv-08688-DSF-PVC

————

HEALTH FREEDOM DEFENSE FUND, INC., a Wyoming

Not-for-Profit Corporation; JEFFREY FUENTES;

SANDRA GARCIA; HOVHANNES SAPONGHIAN;

NORMA BRAMBILA; CALIFORNIA EDUCATORS FOR

MEDICAL FREEDOM,

Plaintiffs-Appellants,

ALBERTO CARVALHO, in his official capacity as

Superintendent of the Los Angeles Unified School

District; ILEANA DAVALOS, in her official capacity as

Chief Human Resources Officer for the Los Angeles

School District; GEORGE MCKENNA; MONICA GARCIA;

SCOTT SCHMERELSON; NICK MELVOIN; JACKIE

GOLDBERG; KELLY GONEZ; TANYA ORTIZ FRANKLIN, in

their official capacities as members of the Los

Angeles Unified School District governing board,

Defendants-Appellees.

————

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

————

Argued and Submitted En Banc March 18, 2025

San Francisco, California

Filed July 31, 2025

Before: Mary H. Murguia, Chief Judge, and Kim

McLane Wardlaw, Consuelo M. Callahan, John B.

Owens, Mark J. Bennett, Bridget S. Bade, Daniel P.

Collins, Kenneth K. Lee, Danielle J. Forrest, Salvador

Mendoza, Jr. and Roopali H. Desai, Circuit Judges.

Opinion by Judge Bennett;

Dissent by Judge Owens;

Partial Dissent by Judge Lee

————

OPINION

————

SUMMARY*

————

COVID-19 Vaccination Policy

The en banc court affirmed the district court’s judgment

on the pleadings in favor of the Los Angeles Unified

School District (LAUSD) in an action brought pursuant

to 42 U.S.C. § 1983 alleging that LAUSD’s COVID-19

vaccination policy (the Policy), which required all

employees to be fully vaccinated, violated plaintiffs’

substantive due process and equal protection rights.

Plaintiffs alleged that the Policy violated their

fundamental right to bodily integrity in refusing

medical treatment because COVID-19 vaccines are

therapeutic treatments that reduce symptoms but do

not prevent infection or transmission and additionally

This summary constitutes no part of the opinion of the court.

It has been prepared by court staff for the convenience of the

reader.

pose significant health risks to the recipients.

Plaintiffs also alleged that the Policy violated their

right to equal protection because it arbitrarily

classifies employees based on their vaccination status.

As a threshold issue, the en banc court held that this

case was not moot. Although LAUSD rescinded the

Policy shortly after oral argument before the threejudge panel, the court could still grant effective relief

by ordering reinstatement of the individual plaintiffs

who remain terminated from their original positions

under the Policy.

On the merits, the en banc court, joining all the

sister circuits that have considered substantive due

process challenges to COVID-19 vaccine mandates,

held that the Policy was subject to rational basis

review because Jacobson v. Massachusetts, 197 U.S. 11

(1905), which upheld a smallpox vaccine mandate,

remains binding. Jacobson holds that the constitutionality of a vaccine mandate, like the Policy here,

turns on what reasonable legislative and executive

decisionmakers could have rationally concluded about

whether a vaccine protects the public’s health and

safety, not whether a vaccine actually provides

immunity to or prevents transmission of a disease.

The Policy survives such review, as the LAUSD

could have reasonably concluded that COVID-19

vaccines would protect the health and safety of its

employees and students. For this reason, plaintiffs’

equal protection claim also failed under rational basis

review. The en banc court therefore affirmed the

district court’s order granting LAUSD’s motion for

judgment on the pleadings.

Dissenting, Judge Owens wrote that the court lacks

jurisdiction because the case is moot, given that there

is no longer any policy for the court to enjoin or declare

unlawful. Nothing in the record (or the world) even

hints at the possibility that LAUSD would resurrect

its COVID-19 vaccine mandate. The majority’s

assertion that the complaint’s boilerplate language

fairly encompassed a request for employment

reinstatement did not survive close inspection.

Dissenting in part, Judge Lee, joined by Judge

Collins, wrote that although he agrees that the case is

not moot, he believes that the court should not affirm

the dismissal of this lawsuit without permitting the

plaintiffs to offer evidence to rebut government

officials’ far-reaching claims. Contrary to the majority,

he read the Supreme Court’s decision in Jacobson as

applying only if a vaccine prevents the transmission

and contraction of a disease. The plaintiffs here

plausibly claimed—at least at the pleading stage—

that the COVID-19 vaccine mitigates serious

symptoms but does not “prevent transmission or

contraction of COVID-19.” And if that is true, then

Jacobson’s rational basis review does not apply, and

the court must examine the vaccine mandate under a

more stringent standard of review. Ultimately, the

plaintiffs may be wrong about the COVID-19 vaccine,

but they should be given a chance to challenge the

government’s assertions about it.

COUNSEL

Scott J. Street (argued) and John W. Howard, JW

Howard Attorneys Ltd., San Diego, California; George

R. Wentz Jr., The Davillier Law Group LLC, New

Orleans, Louisiana; for Plaintiffs-Appellants.

Keith A. Jacoby (argued) and Connie L. Michaels,

Littler Mendelson PC, Los Angeles, California; Carrie

A. Stringham, Littler Mendelson PC, San Diego,

California; for Defendants-Appellees.

Leigh A. Salmon, Senior Assistant Attorney General;

Benjamin Gutman, Solicitor General; Dan Rayfield,

Attorney General; State of Oregon, Salem, Oregon;

Rob Bonta, Attorney General, State of California, San

Francisco, California; Kathleen Jennings, Attorney

General, State of Delaware, Wilmington, Delaware;

Kwame Raoul, Attorney General, State of Illinois,

Chicago, Illinois; William Tong, Attorney General,

State of Connecticut, Hartford, Connecticut; Anne E.

Lopez, Attorney General, State of Hawai‘i, Honolulu,

Hawai‘i; Anthony G. Brown, Attorney General, State of

Maryland, Baltimore, Maryland; Andrea J. Campbell,

Attorney General, Commonwealth of Massachusetts,

Boston, Massachusetts; Keith Ellison, Attorney

General, State of Minnesota, St. Paul, Minnesota; Raul

Torrez, Attorney General, State of New Mexico, Santa

Fe, New Mexico; Charity R. Clark, Attorney General,

Office of the Vermont Attorney General, Montpelier,

Vermont; Brian L. Schwalb, Attorney General, District

of Columbia, Washington, D.C.; Peter F. Neronha,

Attorney General, State of Rhode Island, Providence,

Rhode Island; Dana Nessel, Attorney General, State of

Michigan; Lansing, Michigan; Matthew J. Platkin,

Attorney General, State of New Jersey, Trenton, New

Jersey; Letitia James, Attorney General, Office of the

New York State Attorney General, Albany, New York;

Nicholas W. Brown, Attorney General, State of

Washington, Olympia, Washington; Edward E.

Manibusan, Attorney General, Commonwealth of the

Northern Mariana Islands, Saipan, Northern Mariana

Islands; for Amici Curiae States of Oregon, California,

Connecticut, Delaware, Hawai‘i, Illinois, Maryland,

Massachusetts, Michigan, Minnesota, New Jersey,

New Mexico, New York, Rhode Island, Vermont, and

Washington, and the District of Columbia, and the

Commonwealth of the Northern Mariana Islands.

Sloan R. Simmons, Alyssa R. Bivins, and Ryan I.

Ichinaga, Lozano Smith LLP, Sacramento, California;

Kristin Lindgren-Bruzzone, California School Boards

Association’s Education Legal Alliance, West

Sacramento, California; for Amicus Curiae California

School Boards Association’s Education Legal Alliance.

Gregory Dolin, Mark Chenoweth, and Jenin Younes,

New Civil Liberties Alliance, Arlington, Virginia, for

Amicus Curiae New Civil Liberties Alliance.

OPINION

BENNETT, Circuit Judge:

This case concerns the Los Angeles Unified School

District’s (“LAUSD”) COVID-19 vaccination policy

(“Policy”), which essentially required all of its employees

to be fully vaccinated. As relevant here, Plaintiffs1 filed

suit under 42 U.S.C. § 1983, claiming that the Policy

violated their Fourteenth Amendment substantive due

process and equal protection rights. The district court

granted judgment on the pleadings to the LAUSD.2

Plaintiffs appeal. We have jurisdiction under 28 U.S.C.

§ 1291 and affirm.

As a threshold issue, this case is not moot. Although

the LAUSD rescinded the Policy shortly after oral

argument before the three-judge panel, a court could

still grant effective relief by ordering reinstatement of

“Plaintiffs” are the Health Freedom Defense Fund, California

Educators for Medical Freedom, and certain individuals who are

or were employed by the LAUSD.

Defendants are LAUSD employees and board members,

named in their official capacities. For simplicity, we refer to

defendants collectively as the “LAUSD.”

the individual Plaintiffs who remain terminated from

their original positions under the Policy.

On the merits, we hold that the Policy is subject to

rational basis review because Jacobson v. Massachusetts,

197 U.S. 11 (1905), is binding and controls. The Policy

survives such review, as the LAUSD could have

reasonably concluded that COVID-19 vaccines would

protect the health and safety of its employees and

students. For this reason, Plaintiffs’ equal protection

claim also fails under rational basis review. We

therefore affirm the district court’s order granting the

LAUSD’s motion for judgment on the pleadings.

BACKGROUND AND PROCEDURAL HISTORY3

On January 30, 2020, the World Health Organization

declared COVID-19 a public health emergency. The

next day, President Trump and the Secretary of Health

and Human Services (“Secretary”) declared COVID-19

a public health emergency. These emergency declarations

were renewed and extended into at least 2021. In

February 2021, President Biden extended the emergency

declaration because more than “500,000 people in th[e]

Nation ha[d] perished from the disease.” The Secretary

renewed his emergency declaration in January, April,

and July 2021.

On August 13, 2021, the LAUSD issued the Policy

challenged here. The Policy established a mandatory

These facts are based on the allegations in the operative

second amended complaint, which we accept as true and construe

in Plaintiffs’ favor. See Fleming v. Pickard, 581 F.3d 922, 925 (9th

Cir. 2009). We also consider documents incorporated into the

complaint by reference. See Webb v. Trader Joe’s Co., 999 F.3d

1196, 1201 (9th Cir. 2021). We GRANT Plaintiffs’ motion to take

judicial notice that the LAUSD voted to withdraw the Policy on

September 26, 2023. Dkt. No. 46.

vaccination requirement for all LAUSD employees.

Under the Policy, employees had to be fully vaccinated4

against COVID-19 by October 15, 2021. The Policy

allowed employees to apply for religious or medical

exemptions. But even “exempt” employees were

excludable from the workplace “[i]f a risk to the health

and safety of others [could not] be reduced to an

acceptable level through a workplace accommodation.”

The Policy explained that its purpose was to “provide

the safest possible environment in which to learn and

work.”

At the time the LAUSD issued the Policy, health

experts had been recommending that individuals get

COVID-19 vaccinations and had been reporting that

such vaccinations are effective in preventing and

spreading the disease. For example, the U.S. Centers

for Disease Control and Prevention (“CDC”) reported

that COVID-19 vaccines “are highly effective at

protecting vaccinated people against symptomatic and

severe COVID-19,” and “[f]ully vaccinated people are

less likely to become infected” and “less likely to get

and spread SARS-CoV-2.” Interim Public Health

Recommendations for Fully Vaccinated People, CDC

(July 28, 2021), https://stacks.cdc.gov/view/cdc/108355

[https://perma.cc/AMW8-KH3Z]. The director of the

CDC reiterated that COVID-19 vaccines prevent

“severe illness and death.” Madeline Holcombe &

Christina Maxouris, Fully Vaccinated People Who Get

a Covid-19 Breakthrough Infection Can Transmit the

Virus, CDC Chief Says, CNN Health (Aug. 6, 2021),

https://edition.cnn.com/2021/08/05/health/us-coronavi

The Policy defines “fully-vaccinated” as having “received the

first and second doses of the vaccine (or, in the case of Johnson &

Johnson, the single required dose) and [having] completed the

two-week period that follows to ensure maximum immunity.”

rus-thursday/index.html [https://perma.cc/Z5RV-UPLR].

Other experts urged that “[g]etting more people

vaccinated . . . w[ould] help prevent other—potentially

even more aggressive—variants from arising in the

future.” Id. A former CDC director explained that

“outbreaks . . . w[ould] not be as explosive in areas with

higher vaccination coverage.” Id. And a children’s

hospital president characterized “adult vaccination” as

a “simple solution” to protect children from COVID-19.

Id.

After the LAUSD issued the Policy, health experts

continued to urge the public to get vaccinated. Indeed,

the CDC reported that “[v]accines remain the best

public health measure to protect people from COVID19, slow transmission, and reduce the likelihood of

new variants emerging.” Omicron Variant: What You

Need to Know, CDC (Dec. 9, 2021), https://stacks.

cdc.gov/view/cdc/112430 [https://perma.cc/B4EG-5QMR].

The CDC recommended that “everyone 5 years and

older protect themselves from COVID-19 by getting

fully vaccinated.” Id.

In November 2021, Plaintiffs filed this suit

challenging the Policy. The operative second amended

complaint (“SAC”) alleges that, under the Policy, the

LAUSD threatened to terminate employees who failed

to get the COVID-19 vaccination. According to the

SAC, the LAUSD terminated at least two of the

individual Plaintiffs based on their refusal to get

vaccinated.

Although the SAC asserts several state and federal

law claims, the only claims before us are Plaintiffs’

Fourteenth Amendment substantive due process and

equal protection claims brought under 42 U.S.C.

§ 1983. As to their due process claim, Plaintiffs allege

that the Policy violates their fundamental right to

10a

bodily integrity in refusing medical treatment, as the

vaccines are “therapeutic treatments for COVID and

not vaccines at all.” According to Plaintiffs, COVID-19

vaccines do not prevent infection or transmission of

COVID-19. Instead, the vaccines “only reduce

symptoms of those who are infected by COVID,” and

thus they are medical “treatments” and not traditional

vaccines. The SAC also alleges that the COVID-19

vaccines “cause a significantly higher incidence of

injuries, adverse reactions, and deaths than any prior

vaccines that have been allowed to remain on the

market, and, therefore, pose a significant health risk

to recipients.”

Plaintiffs also claim that the Policy violates their

right to equal protection because it arbitrarily

classifies employees based on their vaccination status.

The SAC alleges that vaccinated and unvaccinated

employees are similarly situated because both groups

can be infected with and transmit COVID-19. Thus, in

Plaintiffs’ view, the Policy arbitrarily treats the

unvaccinated differently.

In terms of relief, the SAC seeks “[t]emporary,

preliminary, and permanent injunctive relief restraining

[the LAUSD] from enforcing” the Policy. It also

contains a general prayer for relief for “such other and

further relief as the Court may deem just and proper.”

The LAUSD moved for judgment on the pleadings

under Federal Rule of Civil Procedure 12(c), and the

district court granted the motion in September 2022.

The court determined that, under Jacobson, the

substantive due process claim failed because the Policy

did not violate any fundamental right and survived

rational basis review. The district court also decided

that the equal protection claim failed under rational

basis review. The district court’s order permitted

11a

Plaintiffs to amend their equal protection and ADA

claims. Plaintiffs declined to do so and instead timely

appealed.

A divided three-judge panel of our court vacated the

district court’s order and remanded. Health Freedom

Def. Fund, Inc. v. Carvalho, 104 F.4th 715, 718 (9th Cir.

2024), vacated and reh’g en banc granted, 127 F.4th

750 (9th Cir. 2025). Before addressing the merits, the

panel considered whether the case had become moot in

light of the LAUSD’s recent recission of the Policy

(twelve days after oral argument). Id. at 721–22.

Applying the voluntary cessation exception to

mootness, the panel majority determined that the case

was not moot because the LAUSD had failed to show

it was reasonably clear that the Policy would not be

reinstated.5 Id. at 722–24. Judge Hawkins dissented

from the majority’s mootness determination. Id. at

728–32 (Hawkins, J., dissenting). In his view, the case

was moot “[b]ecause there [wa]s no longer any policy

for the court to enjoin or declare unlawful.” Id. at 732

(Hawkins, J., dissenting).

On the merits, the panel majority held that the

district court erred in applying Jacobson. Id. at 724–

25. The majority reasoned that Jacobson did not apply,

much less control, because it addressed only those

vaccines that provide immunity and prevent transmission. Id. Because Plaintiffs alleged that COVID-19

See Rosemere Neighborhood Ass’n v. EPA, 581 F.3d 1169, 1173

(9th Cir. 2009) (“Under [the voluntary cessation exception to

mootness], the mere cessation of illegal activity in response to

pending litigation does not moot a case, unless the party alleging

mootness can show that the ‘allegedly wrongful behavior could

not reasonably be expected to recur.’” (quoting Friends of the

Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189

(2000))).

12a

vaccines, unlike traditional vaccines, do not provide

immunity and prevent transmission (and the court

must accept those allegations as true at the judgmenton-the-pleadings stage), the panel majority held that

Jacobson did not apply. Id. Therefore, the panel

vacated the district court’s order and remanded for

further proceedings. Id. at 725.

The LAUSD petitioned for rehearing en banc. Dkt.

No. 56. While it continued to urge that the case was

moot, the LAUSD also argued that the three-judge

panel had misapplied Jacobson, creating a conflict

with our sister circuits. Id. at 13–17. A majority of

our active judges voted to rehear this case en banc, and

we vacated the three-judge panel opinion. Health

Freedom, 127 F.4th 750.

STANDARD OF REVIEW

“We review de novo an order granting a Rule 12(c)

motion for judgment on the pleadings. We must accept

all factual allegations in the complaint as true and

construe them in the light most favorable to the nonmoving party.” Fleming v. Pickard, 581 F.3d 922, 925

(9th Cir. 2009) (citation omitted). Along with the

complaint, we may also consider documents incorporated into the complaint by reference and matters of

which we may take judicial notice. Webb v. Trader Joe’s

Co., 999 F.3d 1196, 1201 (9th Cir. 2021). “Judgment on

the pleadings is properly granted when there is no

issue of material fact in dispute, and the moving party

is entitled to judgment as a matter of law.” Fleming,

581 F.3d at 925.

13a

DISCUSSION

We first explain why this case is not moot even

though the Policy has been rescinded. “The test for

mootness of an appeal is whether the appellate court

can give the [plaintiff] any effective relief in the event

that it decides the matter on the merits in his favor. If

it can grant such relief, the matter is not moot.” Garcia

v. Lawn, 805 F.2d 1400, 1402 (9th Cir. 1986) (emphasis

added). In the context of injunctive relief, a case is not

moot if the court is able to “undo” the effects of the

alleged illegal action. Id.; see, e.g., id. (“The question [of

mootness] thus becomes whether we can now give

[plaintiff] effective relief which would ‘undo’ the effects

of the alleged retaliatory action . . . .”).

The SAC seeks “injunctive relief restraining [the

LAUSD] from enforcing the [Policy]” and “other and

further relief as the Court may deem just and proper.”

The SAC also alleges that one of the individual

Plaintiffs was terminated from employment by the

LAUSD for refusing to be vaccinated and another was

“separated from his employment with LAUSD” after

objecting to being vaccinated. There is no suggestion

that these individuals have been reinstated,6 and so

construing these allegations in Plaintiffs’ favor, see

Fleming, 581 F.3d at 925, we accept that these individuals remain terminated from their original positions.

Given the SAC’s broad request for any proper

injunctive relief, along with the allegations that

individual Plaintiffs have been terminated under the

Indeed, during en banc oral argument, Plaintiffs’ counsel

represented that at least one individual remains terminated from

his original full-time position. Oral Arg. at 1:47–2:12.

14a

Policy and have not been reinstated to their prior

positions, the SAC fairly encompasses a request for

reinstatement. See Garcia, 805 F.2d at 1402–04

(noting that reinstatement to a prior position can be a

proper injunctive remedy). Because reinstatement

would undo some effects of the alleged illegal action—

the LAUSD’s enforcement of the Policy—a court could

grant effective relief despite the Policy’s rescission.7

Thus, this case is not moot.8 See id. at 1402–03

(holding, in an action seeking an injunction, that the

case was not moot because the court could order

reinstatement of the plaintiff to his prior position); see

also Norris v. Stanley, 73 F.4th 431, 433 n.1 (6th Cir.

2023) (holding, in similar circumstances, that the case

was not moot despite rescission of the vaccine policy at

issue because, among other reasons, there was no

“indication that [the university] ha[d] undone any of

the negative employment actions faced by [some of the

During en banc oral argument, Plaintiffs’ counsel confirmed

that if the case were remanded, Plaintiffs would explicitly seek

reinstatement for all the individual Plaintiffs who have not been

reinstated to their former positions. Oral Arg. at 52:14–52:25.

For this reason, the LAUSD’s motion to dismiss is DENIED,

Dkt. No. 49, and we need not (and do not) decide whether the

voluntary cessation exception to mootness applies. We also need

not address whether our recent decision in Kohn v. State Bar of

California, 87 F.4th 1021 (9th Cir. 2023) (en banc), cert. denied,

144 S. Ct. 1465 (2024), would permit Plaintiffs to seek damages

against the LAUSD. See Health Freedom, 104 F.4th at 726–27 (R.

Nelson, J., concurring) (opining that Kohn may conflict with our

precedent holding that California school districts have sovereign

immunity under the Eleventh Amendment); id. at 727 n.2 (R.

Nelson, J., concurring) (“If LAUSD does not have sovereign

immunity, Plaintiffs may be able to amend to raise a monetary

claim, which would be another reason this case is not moot.”).

15a

plaintiffs], so the harm plaintiffs faced ha[d] not been

removed”), cert. denied, 144 S. Ct. 1353 (2024).

Our precedent supports that this case is not moot.

In Neighbors of Cuddy Mountain v. Alexander, 303

F.3d 1059 (9th Cir. 2002), the plaintiffs sought an

injunction to stop a timber sale on national forest land.

Id. at 1064–65. Although the timber sale had been

completed, we held that the case was not moot because

the alleged “harm to old growth species may yet be

remedied by any number of mitigation strategies.” Id.

at 1066. Significantly, we held that such mitigation

measures were fairly requested in the complaint

because “[i]n addition to an injunction, [the plaintiffs’]

complaint request[ed] ‘such further relief as may be

necessary and appropriate to avoid further irreparable

harm.’” Id. In so holding, we noted that our prior case

law had recognized that we “may construe such

requests for [other appropriate] relief ‘broadly to avoid

mootness.’” Id. (quoting Headwaters, Inc. v. Bureau of

Land Mgmt., 893 F.2d 1012, 1015 n.6 (9th Cir. 1989));

see also Oregon Nat. Desert Ass’n v. U.S. Forest Serv.,

957 F.3d 1024, 1032 n.7 (9th Cir. 2020) (explaining

that, even though the complaint “ask[ed] for injunctive

relief only with respect to claims that [were] not on

appeal,” “we c[ould] consider further injunctive relief

in deciding whether th[e] appeal [wa]s moot” because

the complaint “also request[ed] ‘any such further relief

as requested by the Plaintiffs or as this Court deems

just and proper’” (citing Neighbors of Cuddy Mountain,

303 F.3d at 1066)).9

Judge Owens’s dissent argues that Neighbors of Cuddy

Mountain’s mootness rationale should be limited to “the narrow

context of [National Forest Management Act] and [National

Environmental Policy Act] violations.” Owens Dissent at 33. But

we do not read Neighbors of Cuddy Mountain as suggesting such

16a

Contrary to Judge Owens’s suggestion in his dissent,

Arizonans for Official English v. Arizona, 520 U.S. 43

(1997), does not undermine our conclusion that this

case is not moot. In Arizonans for Official English, the

Supreme Court noted that we had held that the case

was not moot because the plaintiff ’s broad request for

“other relief ” could encompass a request for nominal

damages. Id. at 60 (quoting Yniguez v. Arizona, 975

F.2d 646, 647 n.1 (9th Cir. 1992) (per curiam)). The

Supreme Court reversed that holding—but not because

we relied on the broad request for other relief. Rather,

a limitation. See 303 F.3d at 1065–66. Indeed, in Neighbors of

Cuddy Mountain, our mootness analysis derived from the

generally applicable and longstanding principle that “a case is

moot only where no effective relief for the alleged violation can be

given.” Id. at 1065; see also Garcia, 805 F.2d at 1402 (noting that

“[t]he test for mootness of an appeal”—“whether the appellate

court can give the appellant any effective relief in the event that

it decides the matter on the merits in his favor”—“goes back at

least to” the Supreme Court’s decision in Mills v. Green, 159 U.S.

651 (1895)).

We also note that our conclusion that this case is not moot is

consistent with Z Channel Limited Partnership v. Home Box

Office, Inc., 931 F.2d 1338 (9th Cir. 1991). Federal Rule of Civil

Procedure 54(c) provides that a final judgment “should grant the

relief to which each party is entitled, even if the party has not

demanded that relief in its pleadings.” In Z Channel, “[t]he only

relief expressly requested [in the complaint] . . . was declaratory

and injunctive relief,” and such relief had become “clearly moot”

on appeal. 931 F.2d at 1340. Applying Rule 54(c), we held that the

unavailability of declaratory and injunctive relief did not moot

the case because, even though the plaintiff had not expressly

requested relief in the form of damages in its complaint, a court

could nonetheless award damages as a form of relief. Id. at 1340–

41; see also Walden v. Bodley, 39 U.S. (14 Pet.) 156, 164 (1840)

(“Under [a] general prayer for relief, the [c]ourt [in equity] will

often extend relief beyond the specific prayer, and not exactly in

accordance with it.”).

17a

the Supreme Court reversed because it would have

been impossible for the plaintiff there to seek nominal

damages against the state under 42 U.S.C. § 1983.

Id. at 69 (“[T]he claim for relief the Ninth Circuit

found sufficient to overcome mootness was nonexistent

[because] . . . § 1983 creates no remedy against a

State.” (emphasis added)). But here, reinstatement of

the individual Plaintiffs to their original positions is

not impossible. See Doe v. Lawrence Livermore Nat’l

Lab’y, 131 F.3d 836, 839–42 (9th Cir. 1997) (holding

that a request for reinstatement of employment is a

request for prospective injunctive relief that falls

within the Ex parte Young exception to Eleventh

Amendment immunity).10

Respectfully, we also disagree with Judge Owens’s dissent

because it is based on the incorrect premise that our holding rests

only on the SAC’s broad request for relief. Owens Dissent at 30–

31. We also see no violation of the party presentation rule. See

United States v. SinenengSmith, 590 U.S. 371, 375 (2020) (“In our

adversarial system of adjudication, we follow the principle of

party presentation.”). As previously explained, Plaintiffs

themselves fairly raised a request for reinstatement in the SAC.

“We have noted in cases involving questions of mootness that

ordinary discretionary principles of waiver and forfeiture can

affect whether certain relief is available.” United States v. Yepez,

108 F.4th 1093, 1099 n.1 (9th Cir. 2024); see Bain v. Cal. Tchrs.

Ass’n, 891 F.3d 1206, 1212 (9th Cir. 2018) (holding that the

plaintiffs’ “eleventh hour” request for damages was an attempt

“to transform their lawsuit from a request for prospective

equitable relief into a plea for money damages to remedy past

wrongs”); Seven Words LLC v. Network Sols., 260 F.3d 1089, 1095

(9th Cir. 2001) (holding that the plaintiff’s belated request for

damages had been “effectively disavowed . . . for tactical reasons”).

But Plaintiffs here have neither waived nor forfeited their

request for reinstatement to their prior positions. Throughout

this case (which was dismissed at the pleadings stage), the

gravamen of the relief sought by Plaintiffs has been prospective

injunctive relief to permit them to continue to work for the

18a

II.

The Due Process Clause of the Fourteenth Amendment

includes “a substantive component that protects

certain individual liberties from state interference.”

Mullins v. Oregon, 57 F.3d 789, 793 (9th Cir. 1995).

“Only those aspects of liberty that we as a society

traditionally have protected as fundamental are

included within the substantive protection of the Due

Process Clause.” Id. When no fundamental liberty

interest is implicated, a legislative act “must satisfy

only the deferential rational basis standard of review.”

Erotic Serv. Provider Legal Educ. & Rsch. Project v.

Gascon, 880 F.3d 450, 455 (9th Cir.), amended by 881

F.3d 792 (9th Cir. 2018). Under that standard, we

“merely look to see whether the government could

have had a legitimate reason for acting as it did.”

Dittman v. California, 191 F.3d 1020, 1031 (9th Cir.

1999) (quoting Halverson v. Skagit County, 42 F.3d

1257, 1262 (9th Cir. 1994), amended on denial of reh’g

(9th Cir. Feb. 9, 1995)). “Rational basis review is highly

deferential to the government, allowing any conceivable rational basis to suffice.” Erotic Serv. Provider,

880 F.3d at 457.

Like all our sister circuits that have considered

substantive due process challenges to COVID-19

vaccine mandates, we hold that Jacobson controls our

analysis. See We The Patriots USA, Inc. v. Hochul, 17

LAUSD without also having to comply with the Policy. For this

reason, we also believe that the out-of-circuit and rescindedCOVID-19-policy cases relied upon by Judge Owens are inapt. See

Owens Dissent at 31–32, 31 n.1. In none of those cases did the

courts find that they could still grant effective injunctive relief

consistent with the gravamen of the injunctive relief sought by

the respective plaintiffs all along.

19a

F.4th 266, 293–94 (2d Cir.) (per curiam) (applying

Jacobson to plaintiffs’ claim that a COVID-19 vaccine

mandate “violate[d] their fundamental rights to

privacy, medical freedom, and bodily autonomy under

the Fourteenth Amendment”), clarified, 17 F.4th 368

(2d Cir. 2021); Child.’s Health Def., Inc. v. Rutgers,

The State Univ. of N.J., 93 F.4th 66 (3d Cir.) (holding

that “Jacobson control[led],” id. at 80, plaintiffs’ claim

that a COVID-19 vaccine mandate “violated their

substantive due process rights under the Fourteenth

Amendment,” id. at 78), cert. denied, 144 S. Ct. 2688

(2024); Norris, 73 F.4th at 435 (applying Jacobson to

plaintiffs’ substantive due process challenge to a

COVID-19 vaccine mandate); Klaassen v. Trs. of Ind.

Univ., 7 F.4th 592, 593 (7th Cir. 2021) (holding that,

because the court “must apply the law established by

the Supreme Court,” Jacobson applied to plaintiffs’

substantive due process claim challenging a COVID19 vaccine mandate); see also Antunes v. Becerra, No.

22-2190, 2024 WL 511038, at *1 (4th Cir. Feb. 9, 2024)

(per curiam) (adopting the district court’s decision in

Antunes v. Rector & Visitors of Univ. of Va., 627 F. Supp.

3d 553 (W.D. Va. 2022), which applied Jacobson in

rejecting plaintiff ’s claim that a COVID-19 vaccine

mandate violated her due process right to refuse

unwanted medical treatment, id. at 564–65), cert.

denied, 145 S. Ct. 159 (2024); Brox v. Hole, 83 F.4th 87,

100–01 (1st Cir. 2023) (applying Jacobson’s rational

basis test to a due process challenge to a COVID-19

vaccination mandate (based on plaintiffs’ failure to

challenge the application of the rational basis test) and

holding that the mandate easily satisfied rational

basis review).

In Jacobson, the Supreme Court considered a

substantive due process challenge to a smallpox

vaccination requirement for all adult residents of

20a

Cambridge, Massachusetts, with criminal penalties.

197 U.S. at 12–14. The Massachusetts legislature

provided that certain municipalities could require

vaccinations, if the board of health of a municipality

determined that “in its opinion, it [wa]s necessary for

the public health or safety . . . [to] require and enforce

the vaccination and revaccination of all [its]

inhabitants.” Id. at 12. The Board of Health of the City

of Cambridge adopted the following regulation in the

face of a health emergency:

Whereas, smallpox has been prevalent to

some extent in the city of Cambridge, and still

continues to increase; and whereas, it is

necessary for the speedy extermination of

the disease that all persons not protected by

vaccination should be vaccinated; and whereas, in the opinion of the board, the public

health and safety require the vaccination

or revaccination of all the inhabitants of

Cambridge; be it ordered, that all the

inhabitants of the city who have not been

successfully vaccinated since March 1st,

1897, be vaccinated or revaccinated.

Id. at 12–13.

Jacobson, who had been convicted for refusing to get

vaccinated for smallpox in violation of the Cambridge

regulation, id. at 14, argued that the statute was

“hostile to the inherent right of every freeman to care

for his own body and health in such way as to him

seems best,” id. at 26. He claimed, among other things,

that the vaccine resulted in “injurious or dangerous

effects.” Id. at 23.

The Court first explained that state legislatures and

other policymakers have the authority to enforce

21a

“reasonable [laws] . . . as will protect the public health

and the public safety,” like vaccination requirements.

Id. at 25. But because such laws remain subject to the

Constitution of the United States, the Court next

considered whether the statute violated a right to

bodily integrity secured by the Constitution. Id. at 25–

26; see also Roman Cath. Diocese of Brooklyn v. Cuomo,

592 U.S. 14, 24 (2020) (per curiam) (Gorsuch, J.,

concurring) (“Mr. Jacobson claimed that he possessed

an implied ‘substantive due process’ right to ‘bodily

integrity’ that emanated from the Fourteenth

Amendment . . . .”). The Court determined that the

Constitution secured no fundamental right to be free

from vaccine requirements imposed to protect the

safety and health of the community. Jacobson, 197 U.S.

at 26–27. And the Court stressed that whether a

vaccine requirement would protect the safety and

health of the community is a matter for the legislature

or policymakers, not a question for a court or jury. Id.

at 30 (“It is no part of the function of a court or a jury

to determine which one of two modes was likely to be

the most effective for the protection of the public

against disease. That was for the legislative

department to determine in the light of all the

information it had or could obtain.”).

Having determined that Jacobson had no fundamental right to refuse the vaccination, the Court

essentially applied rational basis review to his due

process challenge. Id. at 31 (“[But] if a statute

purporting to have been enacted to protect the public

health, the public morals, or the public safety, has no

real or substantial relation to those objects, or is,

beyond all question, a plain, palpable invasion of

rights secured by the fundamental law, it is the duty of

the courts to so adjudge, and thereby give effect to the

Constitution.”); see also Roman Cath. Diocese, 592 U.S.

22a

at 23 (Gorsuch, J., concurring) (“Although Jacobson

pre-dated the modern tiers of scrutiny, this Court

essentially applied rational basis review to Henning

Jacobson’s challenge . . . .”). Because the state

legislature and the Cambridge Board of Health could

have reasonably concluded that requiring adults to get

the smallpox vaccine would protect the public’s health

and safety, the Court held that it survived rational

basis review. Jacobson, 197 U.S. at 30–31 (explaining

that the legislature could have found that the vaccine

requirement “was likely to be the most effective for the

protection of the public against disease,” id. at 30); id.

at 38 (“[The Court] do[es] not perceive that this

[regulation] has invaded any right secured by the

Federal Constitution.”).

Jacobson holds that the constitutionality of a

vaccine mandate, like the Policy here, turns on what

reasonable legislative and executive decisionmakers

could have rationally concluded about whether a

vaccine protects the public’s health and safety, not

whether a vaccine actually provides immunity to or

prevents transmission of a disease. Whether a vaccine

protects the public’s health and safety is committed to

policymakers, not a court or a jury. Further, alleged

scientific uncertainty over a vaccine’s efficacy is

irrelevant under Jacobson. Jacobson simply does not

allow debate in the courts over whether a mandated

vaccine prevents the spread of disease. Jacobson

makes clear that it is up to the political branches,

within the parameters of rational basis review, to

decide whether a vaccine effectively protects public

health and safety.

Jacobson is materially indistinguishable from this

case. Here, as in Jacobson, we are presented with a

bodily integrity substantive due process challenge to a

23a

vaccine mandate imposed to protect the public’s health

and safety in response to a health emergency. Thus,

under Jacobson, we must apply rational basis review.

The Policy easily survives such review because (even

assuming the truth of Plaintiffs’ allegations) it was

more than reasonable for the LAUSD to conclude that

COVID-19 vaccines would protect the health and

safety of its employees and students. The SAC

concedes that COVID-19 vaccines “lessen the severity

of symptoms for individuals who receive them.” From

this, the LAUSD could have reasonably determined

that the vaccines would protect the health of its

employees. And as discussed above, the LAUSD could

have reasonably concluded, based on information in

the documents incorporated by reference into the SAC,

that COVID-19 vaccines would protect the health and

safety of its students and employees. In fact, the CDC

reported that COVID-19 vaccines “are highly effective

at protecting vaccinated people against symptomatic

and severe COVID19,” and “[f]ully vaccinated people

are less likely to become infected” and “less likely to

get and spread SARS-CoV-2.” Interim Public Health

Recommendations for Fully Vaccinated People, CDC

(July 28, 2021), https://stacks.cdc.gov/view/cdc/108355

[https://perma.cc/AMW8-KH3Z]. The CDC also recommended that “everyone 5 years and older protect

themselves from COVID-19 by getting fully vaccinated.”

Omicron Variant: What You Need to Know, CDC

(Dec. 9, 2021), https://stacks.cdc.gov/view/cdc/112430

[https://perma.cc/B4EG-5QMR].

We reject Plaintiffs’ attempt to limit Jacobson to

only those vaccines that prevent the spread of a

disease and provide immunity. Jacobson required no

such findings. The Court dealt with arguments very

24a

similar to Plaintiffs’ about the nature of vaccines,

including through offers of proof made by Jacobson on

which he sought to introduce expert testimony:

Looking at the propositions embodied in

the defendant’s rejected offers of proof, it is

clear that they are more formidable by their

number than by their inherent value. Those

offers in the main seem to have had no

purpose except to state the general theory of

those of the medical profession who attach

little or no value to vaccination as a means of

preventing the spread of smallpox, or who

think that vaccination causes other diseases

of the body. What everybody knows the court

must know, and therefore the state court

judicially knew, as this court knows, that an

opposite theory accords with the common

belief, and is maintained by high medical

authority. We must assume that, when the

statute in question was passed, the legislature of Massachusetts was not unaware of

these opposing theories, and was compelled,

of necessity, to choose between them. It was

not compelled to commit a matter involving

the public health and safety to the final

decision of a court or jury. It is no part of the

function of a court or a jury to determine

which one of two modes was likely to be the

most effective for the protection of the public

against disease. That was for the legislative

department to determine in the light of all the

information it had or could obtain. It could not

properly abdicate its function to guard the

public health and safety. The state legislature

proceeded upon the theory which recognized

vaccination as at least an effective, if not the

25a

best-known, way in which to meet and

suppress the evils of a smallpox epidemic that

imperiled an entire population. Upon what

sound principles as to the relations existing

between the different departments of government can the court review this action of the

legislature? If there is any such power in the

judiciary to review legislative action in

respect of a matter affecting the general

welfare, it can only be when that which the

legislature has done comes within the rule

that, if a statute purporting to have been

enacted to protect the public health, the

public morals, or the public safety, has no real

or substantial relation to those objects, or is,

beyond all question, a plain, palpable

invasion of rights secured by the fundamental

law, it is the duty of the courts to so adjudge,

and thereby give effect to the Constitution.

Whatever may be thought of the expediency

of this statute, it cannot be affirmed to be,

beyond question, in palpable conflict with the

Constitution. Nor, in view of the methods

employed to stamp out the disease of smallpox,

can anyone confidently assert that the means

prescribed by the state to that end has no real

or substantial relation to the protection of the

public health and the public safety.

197 U.S. at 30–31 (citations omitted).

As this discussion demonstrates, the Court determined

that Jacobson’s claims about the smallpox vaccine—

very similar to Plaintiffs’ claims—were immaterial,

given the other evidence from which the legislature

could have reasonably concluded that the vaccine

would likely protect the health and safety of the

26a

public. Jacobson thus applies to vaccination requirements regardless of whether such vaccines actually

provide immunity and prevent the spread of disease or

whether they provide no immunity and merely render

COVID-19 less dangerous to those who contract it, so

long as policymakers could reasonably conclude that

the vaccines would protect the public’s health and safety.12

We also reject Plaintiffs’ argument that a heightened standard of review applies based on a more

recent line of cases that, according to Plaintiffs,

recognize a fundamental right to refuse unwanted

medical treatment. Plaintiffs primarily rely on Cruzan

ex rel. Cruzan v. Director, Missouri Department of

Health, 497 U.S. 261 (1990) (stating that “a competent

person has a constitutionally protected liberty interest

in refusing unwanted medical treatment,” id. at 278),

and Washington v. Glucksberg, 521 U.S. 702 (1997)

For this reason, we respectfully disagree with Judge Lee’s

attempt to limit Jacobson “to apply only if a vaccine prevents

transmission and contraction of a disease.” Lee Partial Dissent at

35. By rejecting Jacobson’s argument—supported by offers of

proof—that the smallpox vaccine did not prevent the spread of

the disease, the Court necessarily held that whether the vaccine

actually prevented the spread of smallpox did not matter, given

the contrary evidence from which policymakers could reasonably

conclude that the vaccine would protect the public’s health and

safety. See Jacobson, 197 U.S. at 30–31; see also Child.’s Health

Def., 93 F.4th at 79 (“Jacobson did not turn on the longevity of the

vaccine or consensus regarding its efficacy.”). Jacobson cannot be

cabined to circumstances that the Court found immaterial.

Even if the SAC plausibly alleged that COVID-19 vaccines

do not effectively provide immunity or prevent the spread of

COVID-19 and that they only reduce symptoms for the recipient,

that would be irrelevant. What matters is whether policymakers

could reasonably conclude that vaccination requirements are

necessary to protect public health and safety. Jacobson, 197 U.S.

at 30–31.

27a

(noting that the Court “ha[s] also assumed, and

strongly suggested, that the Due Process Clause

protects the traditional right to refuse unwanted

lifesaving medical treatment,” id. at 720 (citing

Cruzan, 497 U.S. at 278–79)).

Whatever the reach of these cases, they did not

overrule Jacobson.13 See We The Patriots USA, 17 F.4th

at 293 n.35 (“Jacobson remains binding precedent.”);

Norris, 73 F.4th at 436 (“[A]bsent any indication from

the [Supreme] Court that Jacobson is to be overruled

or limited, [the court is] bound to apply that decision

to reject plaintiffs’ arguments here.”). Indeed, even

Plaintiffs do not go so far as to claim that Jacobson is

no longer good law. As Jacobson remains binding and

squarely governs this case, we must apply it.

Moreover, these cases do not address the circumstances

addressed in Jacobson: a due process challenge to a vaccine policy

imposed to protect the public’s health and safety. So we do not

read these cases as undermining Jacobson. But even if we did, we

would still need to apply Jacobson. See In re Twelve Grand Jury

Subpoenas, 908 F.3d 525, 529 (9th Cir. 2018) (per curiam) (“Where

Supreme Court precedent ‘has direct application in a case,’ the

Supreme Court has instructed ‘the Court of Appeals [to] follow

the case which directly controls,’ even if it ‘appears to rest on

reasons rejected in some other line of decisions,’ and thereby to

‘leav[e] to th[e] Court the prerogative of overruling its own

decisions.’” (alterations in original) (quoting Agostini v. Felton,

521 U.S. 203, 237 (1997))). We thus agree with our sister circuits

that, despite Cruzan and its progeny, Jacobson continues to

control in cases challenging COVID-19 vaccination policies. See

We The Patriots USA, 17 F.4th at 293–94 (rejecting plaintiffs’

argument that Jacobson did not apply because Cruzan and its

progeny recognized a fundamental right to refuse medical

treatment); Child.’s Health Def., 93 F.4th at 79–80 (same); Norris,

73 F.4th at 437 (same).

28a

III.

Plaintiffs concede, and we agree, that their equal

protection claim is subject to rational basis review.

See Hooks v. Clark Cnty. Sch. Dist., 228 F.3d 1036, 1041

(9th Cir. 2000) (“To withstand [a due process or

equal protection challenge under the] Fourteenth

Amendment . . . , a regulation must bear only a rational

relation to a legitimate governmental purpose, unless

the regulation implicates a fundamental right or an

inherently suspect classification.”). Because we hold

above that the Policy is rationally related to the

LAUSD’s legitimate interest in protecting the health

and safety of its employees and students, Plaintiffs’

equal protection claim fails.

CONCLUSION

Although the LAUSD has rescinded the Policy, this

case is not moot. Given the SAC’s broad request for any

proper injunctive relief along with its allegations that

individual Plaintiffs were terminated under the Policy,

the SAC fairly encompasses a request for reinstatement

of the individual Plaintiffs who have not been restored

to their prior positions.

On the merits, Jacobson is binding and controls, and

thus rational basis review applies to Plaintiffs’ substantive due process claim. Even construing Plaintiffs’

allegations in their favor, the Policy survives such

review, as the LAUSD could have reasonably concluded

that COVID-19 vaccines would protect the health and

safety of its employees and students. For this same

reason, Plaintiffs’ equal protection claim fails under

rational basis review. We therefore affirm the district

court’s order granting the LAUSD’s motion for judgment on the pleadings.

AFFIRMED.

29a

OWENS, Circuit Judge, dissenting.

Plaintiffs brought this suit to obtain “injunctive

relief restraining Defendants from enforcing” their

vaccine policy. As Judge Hawkins correctly concluded

in his dissent from the panel decision, this case is

moot, as “there is no longer any policy for the court to

enjoin or declare unlawful.” Health Freedom Def. Fund,

Inc. v. Carvalho, 104 F.4th 715, 732 (9th Cir. 2024)

(Hawkins, J., dissenting), vacated and reh’g en banc

granted, 127 F.4th 750 (9th Cir. 2025). Nothing in the

record (or the world) even hints at the possibility that

the Los Angeles Unified School District would

resurrect its COVID-19 vaccine mandate, which has

been dead for nearly two years. The majority does not

dispute this reality. We lack Article III jurisdiction and

must dismiss this case. See Brach v. Newsom, 38 F.4th

6, 12 (9th Cir. 2022) (en banc) (dismissing a challenge

to a pandemic-related restriction as moot in line with

“the numerous other circuit courts across the country”

that have done the same).

The majority first attempts to skirt the mootness

problem by asserting that the complaint “fairly

encompasses a request for reinstatement,” leaning on

a boilerplate catchall request for “other and further

relief as the Court may deem just and proper.” Maj. Op.

at 14. Yet when unanimously reversing our court on

mootness grounds, the Supreme Court warned that

new forms of relief, “extracted late in the day from [a]

general prayer for relief and asserted solely to avoid

otherwise certain mootness, bore close inspection.”

Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 71

(1997) (rejecting this court’s theory that a live controversy existed where the “complaint did not expressly

request nominal damages” but “it did request ‘all other

relief that the Court deems just and proper’” (citation

30a

omitted)). Indeed, the Court has distinguished cases

where a plaintiff “has presented a claim” for the type

of relief that “ensure[s] a live controversy,” Mission

Prod. Holdings v. Tempnology, LLC, 587 U.S. 370, 377

(2019), from those where a plaintiff “ha[s] not prayed

for” such relief and thus “no longer ha[s] a legally

cognizable interest in the result of th[e] case,” Murphy

v. Hunt, 455 U.S. 478, 491 (1982); cf. United States v.

Sineneng-Smith, 590 U.S. 371, 380 (2020) (unanimously reversing this court and applying the party

presentation principle to require that cases be “shaped

by the parties,” not the court).

Not surprisingly, our sister circuits routinely reject

attempts to grow a magic Article III jurisdiction

beanstalk from boilerplate language. For example, the

First Circuit, in a nearly identical rescinded COVID19 mandate case, cited Arizonans for Official English

to hold that “the students’ request for ‘any other relief

[the] Court deems proper’ cannot operate to save their

otherwise moot action.” Harris v. Univ. of Mass., 43

F.4th 187, 193 (1st Cir. 2022).1 The majority attempts

See, e.g., Thomas R.W. v. Mass. Dep’t of Educ., 130 F.3d 477,

480 (1st Cir. 1997) (holding that a “general prayer for relief”

cannot preserve a request for damages to avoid mootness, citing

Arizonans for Official English); Fox v. Bd. of Trs. of State Univ. of

N.Y., 42 F.3d 135, 141 (2d Cir. 1994) (declining to “read a damages

claim into the Complaint’s boilerplate prayer” for relief when

there was “absolutely no specific mention in [the Complaint] of

nominal damages” (citation omitted)); Lillbask ex rel. Mauclaire

v. Conn. Dep’t of Educ., 397 F.3d 77, 90 (2d Cir. 2005) (applying

Arizonans for Official English to reject that a “general claim for

‘other such relief as the Court deems appropriate’ is sufficiently

expansive to include” the only relief that would render the case

not moot); WildEarth Guardians v. Pub. Serv. Co., 690 F.3d 1174,

1191 (10th Cir. 2012) (holding that “[a] broad request for ‘other’

relief cannot save [a] complaint” from mootness); Harris v. City of

Houston, 151 F.3d 186, 191 (5th Cir. 1998) (declining to “conjure

31a

to distinguish the many contrary precedents from

other circuits by asserting that, unlike in those cases,

relief consistent with the “gravamen” of Plaintiffs’

requested injunction—even if not expressly sought—

can still be granted. Maj. Op. at 18 n.10. But the

mootness inquiry hinges on the relief “specific[ally]

mention[ed]” by the parties, not on the court’s post hoc

characterization of the case’s supposed essence. Fox v.

Bd. of Trs. of State Univ. of N.Y., 42 F.3d 135, 141 (2d

Cir. 1994). Blindly embracing a never briefed or argued

theory that the Supreme Court and our sister circuits

have explicitly rejected is more Inspector Clouseau

than “close inspection.”

To side shuffle this constitutional black hole, the

majority departs from the many analogous challenges

to rescinded COVID-19 policies that have been

dismissed as moot, see Brach, 38 F.4th at 12 n.3

(collecting cases), and instead relies on Neighbors of

Cuddy Mountain v. Alexander, 303 F.3d 1059 (9th Cir.

2002), which concerned alleged violations of the

National Forest Management Act (NFMA) and the

National Environmental Policy Act (NEPA). Maj. Op.

at 15-16.2 In that case, plaintiffs sought to enjoin a

timber sale on national forest land or any other relief

that “may be necessary and appropriate to avoid

further irreparable harm” from the sale. Id. at 1066.

Even after logging of the timber concluded, we held

up relief” by “‘read[ing] into’ [the] complaint additional requests”

that would manufacture a live controversy).

The majority also cites Norris v. Stanley, 73 F.4th 431 (6th Cir.

2023), cert. denied, 144 S. Ct. 1353 (2024)—another pandemicrelated case that it claims involves “similar circumstances” and

was not moot. Maj. Op. at 15. Unlike here, however, the plaintiffs

in Norris specifically “sought nominal damages for the alleged

violations of their constitutional rights.” Id. at 433 n.1.

32a

over a dissent that the case was not moot because

further environmental harm from the sale “may yet be

remedied by any number of mitigation strategies,”

which were fairly encompassed in the requested relief.

Id.

The parties never cited Neighbors of Cuddy Mountain

nor its underlying theory in their many briefs

submitted to this court, nor did the original panel or

dissent. And despite the majority’s claim that Neighbors

of Cuddy Mountain derived from longstanding mootness

principles, Maj. Op. at 16 n.9, no published decision in

this circuit—or any other—has ever relied on Neighbors

of Cuddy Mountain’s mootness rationale outside the

narrow context of NFMA and NEPA violations. That

collective silence speaks for itself: There is simply no

basis to extend Neighbors of Cuddy Mountain’s mootness

holding beyond its specific environmental context to

the claims presented here. Compare Feldman v. Bomar,

518 F.3d 637, 642 (9th Cir. 2008) (citing Neighbors of

Cuddy Mountain and similar cases to illustrate this

court’s recognition of “‘live’ controversies in environmental

cases even after the contested government projects

were complete” (emphasis added)), with Brach, 38

F.4th at 11 (holding that, where plaintiffs sue to enjoin

a pandemic policy but the policy no longer remains, the

plaintiffs “have gotten everything they asked for” and

the “actual controversy has evaporated,” presenting a

“classic case” of mootness).3

The majority’s tepid reliance on Z Channel Limited

Partnership v. Home Box Office, Inc., 931 F.2d 1338 (9th Cir.

1991)—a nearly thirtyfive-year-old case that was also never cited

by the parties nor the original panel—is even less persuasive.

Maj. Op. at 16 n.9. No published decision from this circuit in

nearly three decades has relied on Z Channel to overcome a

mootness challenge based on hypothetical relief that no party

33a

Because neither of the majority’s last-minute mootness

rationales survive “close inspection,” Arizonans for Off.

Eng., 520 U.S. at 71, I respectfully dissent for the

reasons stated by Judge Hawkins.

specifically sought. And for good reason: Z Channel is a textbook

example of overreach, with the majority “[d]efying a clear rule of

procedure, creating an inter-circuit conflict and resurrecting a

legal theory long ago abandoned by the parties” to bring the case

“back from the dead.” 931 F.2d at 1346, 1349 (Kozinski, J.,

dissenting); see also Sineneng-Smith, 590 U.S. at 380 (cautioning

against appellate courts “interject[ing]” themselves into cases);

NAACP v. U.S. Sugar Corp., 84 F.3d 1432, 1438 (D.C. Cir. 1996)

(citing the Z Channel dissent); Seven Words LLC v. Network Sols.,

260 F.3d 1089, 1095–97 (9th Cir. 2001) (declining to apply Z

Channel to overcome a mootness challenge); Bain v. Cal. Tchrs.

Ass’n, 891 F.3d 1206, 1212 (9th Cir. 2018) (declining to

“transform” the requested relief “at the eleventh hour” to avoid

mootness, citing Seven Words and Arizonans for Official English).

34a

LEE, Circuit Judge, joined by COLLINS, Circuit

Judge, dissenting in part.

The majority’s opinion comes perilously close to

giving the government carte blanche to require a

vaccine or even medical treatment against people’s

will so long as it asserts—even if incorrectly—that it

would promote “public health and safety.” But the

many mistakes and missteps by our government and

the scientific establishment over the past five years

counsel caution: Their errors underscore the importance

of carefully evaluating the sort of sweeping claims of

public-health authority asserted by the Los Angeles

Unified School District (“LAUSD”) here. Faithful

adherence to Supreme Court precedent confirms that

we should not blindly accept the mere say-so of the

government. We thus should not affirm the dismissal

of this lawsuit challenging LAUSD’s COVID-19

vaccine mandate—without permitting the plaintiffs to

offer evidence to rebut the government officials’ farreaching claims.1

Contrary to the majority, I read the Supreme Court’s

decision in Jacobson v. Massachusetts—which upheld

a smallpox vaccine mandate—to apply only if a vaccine

prevents transmission and contraction of a disease.

197 U.S. 11 (1905). The plaintiffs here have plausibly

claimed—at least at the pleading stage where we must

accept the truth of the allegations—that the COVID19 vaccine mitigates serious symptoms but does not

“prevent transmission or contraction of COVID-19.”

And if that is true, then Jacobson’s rational basis

review does not apply, and we must examine the

vaccine mandate under a more stringent standard.

Ultimately, the plaintiffs may be wrong about the

I agree with the majority that this appeal is not moot.

35a

COVID-19 vaccine, but they should be given a chance

to challenge the government’s assertions about it.

I respectfully dissent in part.

*–* * *

When the mRNA-based COVID-19 vaccines were

first announced in late 2020, pharmaceutical companies

touted clinical trials that they claimed showed an

efficacy rate of over 90 percent.2 As scientists contended

then, these vaccines would “protect individuals from

infection and transmission.”3

Based in part on these trial results, federal, state

and local governments acted swiftly to impose vaccine

mandates. The United States government required

federal employees, government contractors, and millions

of private sector employees to be vaccinated.4 Over

8,000 men and women in uniform were discharged and

Pfizer and BioNTech Announce Vaccine Candidate Against

COVID-19 Achieved Success in First Interim Analysis from Phase

3 Study, Pfizer, https://www.pfizer.com/news/press-release/pressrelease-detail/pfizer-and-biontech-announce-vaccine-candidate-a

gainst (Nov. 9, 2020); Moderna’s COVID-19 Vaccine Candidate

Meets its Primary Efficacy Endpoint in the First Interim Analysis

of the Phase 3 COVE Study, Moderna, https://investors.moderna

tx.com/news/news-details/2020/Modernas-COVID-19-Vaccine-Ca

ndidate-Meets-its-Primary-Efficacy-Endpoint-in-the-First-Interi

m-Analysis-of-the-Phase-3-COVE-Study/default.aspx (Nov. 16, 2020).

Ali Pormohammad et al., Efficacy and Safety of COVID-19

Vaccines: A Systematic Review and Meta-Analysis of Randomized

Clinical Trials, 9 Vaccines 1, 15 (2021), https://pmc.ncbi.nlm.

nih.gov/articles/PMC8148145/.

See, e.g., Kathryn Watson et al., Biden announces COVID-19

vaccine mandates that will affect 100 million Americans, CBS

News (Sept. 10, 2021), https://www.cbsnews.com/live-updates/bid

en-covid-19-vaccine-mandates-announcement/.

36a

severed from service for their refusal to be vaccinated.5

States also imposed their own mandates. Even 18

months into the pandemic, California Governor Gavin

Newsom announced that he planned to require

schoolchildren to be vaccinated, despite scientific

evidence that showed young children face extremely

low health risks from COVID-19.6 That proposed

mandate would have banned unvaccinated children

from the classroom and relegated them to online

learning. And relevant here, LAUSD issued a memorandum requiring all employees to get vaccinated—or

lose their jobs.

But it turned out that the government—and the

scientific establishment—were wrong about a lot of

things. The COVID-19 vaccines did not end up having

an efficacy rate of over 90 percent in real-life. People

repeatedly caught COVID-19, despite being vaccinated and “boosted.” Indeed, repeat infections among

the vaccinated became so common that the phrase

“breakthrough infection” entered common parlance.

Given this reality, the government shifted its emphasis

on why people should get vaccinated: It was less about

preventing transmission and contraction of COVID-19

Fact Sheet: President Donald J. Trump Reinstates Service

Members Discharged for Refusing the COVID Vaccine, The White

House, https://www.whitehouse.gov/fact-sheets/2025/01/fact-sheet-pr

esident-donald-j-trump-reinstates-service-members-dischargedfor-refusing-the-covid-vaccine/ (Jan. 27, 2025).

California Becomes First State in Nation to Announce

COVID-19 Vaccine Requirements for Schools, Governor Gavin

Newsom, https://www.gov.ca.gov/2021/10/01/california-becomes-first-s

tate-in-nation-to-announce-covid-19-vaccine-requirements-for-sc

hools/ (last visited May 28, 2025). California ultimately walked

away from this announced policy.

37a

and more about mitigating serious symptoms.7 Even

LAUSD in its brief before the three-judge panel

focused largely on the vaccine’s effect in lessening

symptoms, stating that “[t]he overwhelming consensus

amongst the nation’s leading health experts is that

COVID-19 vaccines are safe and effective in preventing serious illness and death from this highly

contagious virus.”

The plaintiffs here go further and contend that the

COVID-19 vaccine is not even a “traditional” vaccine

that prevents transmission or provides immunity. Rather,

the COVID-19 vaccines merely mitigate symptoms in

a manner more akin to a medical treatment than a

vaccine. Thus, according to the plaintiffs, the Supreme

Court’s Jacobson v. Massachusetts decision does not

apply here. The district court, for its part, held that

the plaintiffs’ “distinction” between “lessen[ing] the

severity of the disease” and “prevent[ing] contraction

or transmission” was “misplaced” and that Jacobson

applies even if requiring the COVID-19 vaccines

constitutes forced medical treatment. Health Freedom

Def. Fund v. Reilly, 2022 WL 5442479, at *5 (C.D. Cal.

Sept. 2, 2022).

The majority reads Jacobson broadly to empower

the government to impose any vaccine mandate so

long as it believes the mandate would “protect public

health and safety.” Maj. Op. 23. Under the majority’s

reading, “alleged scientific uncertainty over a vaccine’s

See Benefits of Getting Vaccinated, CDC, https://www.cdc.

gov/covid/vaccines/benefits.html#:~:text=Vaccination%20is%20m

ore%20reliable%20way,associated%20with%20COVID%2D19%2

0infection., (Jan 13, 2025) (emphasizing that “Getting vaccinated

against COVID-19 has many benefits that are supported by

scientific studies. The COVID-19 vaccine helps protect you from

severe illness, hospitalization, and death.”).

38a

efficacy is irrelevant under Jacobson.” Id. In other

words, if the government believes a vaccine will

protect “public health and safety,” that is the end of the

story. The majority adopts a sweeping definition of

“public health and safety” such that the government

can mandate a vaccine—and potentially any medical

treatment—if the required measure just “lessen[s] the

severity of symptoms,” whether or not it prevents

transmission and contraction of the disease. Id.

I disagree with the majority’s overly broad reading

of Jacobson. The Supreme Court upheld Massachusetts’

vaccine requirement against smallpox precisely because

the vaccine prevented the transmission and contraction

of smallpox. It emphasized this point repeatedly:

• The “principle of vaccination as a means to

prevent the spread of smallpox has been

enforced in many [S]tates.” 197 U.S. at 31–32

(emphasis added).

• “[V]accination strongly tends to prevent the

transmission or spread of this disease.” Id. at 34

(quoting Viemeister v. White, 179 N.Y. 235, 72

N.E. 97, 98–99 (1904) (emphasis added)).

• It is “common belief ” that a vaccine has a

“decided tendency to prevent the spread of this

fearful disease.” Id. at 34 (emphasis added).

• Quarantine requirements were justified because of “the danger of the spread of the

disease.” Id. at 29 (emphasis added).

To be sure, the Court in Jacobson noted that the

defendant had challenged the effectiveness of the

smallpox vaccine in limiting the spread of the disease.

Id. at 23–24. The majority opinion latches onto that

language to argue that it does not matter whether a

39a

vaccine limits transmission and contraction of a

disease; we must just defer to a state’s belief that a

vaccine will protect “public health and safety.” Maj. Op.

23. But the Court did not hold that vaccines can be

required even if they do not prevent the transmission

and contraction of the disease.

Admittedly, it is somewhat difficult to parse this

120-year-old case because it predates our tiers-ofscrutiny analysis. But I read the Court’s opinion much

more narrowly than the majority does: If “everybody

knows . . . and therefore the [trial] court judicially

knew, as th[e] [C]ourt knows, that an opposite theory

[about the public-health efficacy of the smallpox

vaccine] accords with the common belief, and is

maintained by high medical authority,” Jacobson’s

argument that this overwhelming consensus was not

unanimous does not amount to a viable constitutional

claim. Jacobson, 197 U.S. at 30. While it acknowledged

that some people shared Jacobson’s distinctly

unorthodox belief, the Court noted that it is “common

belief ” that is “accepted by the mass of the people, as

well as by most members of the medical profession”

that the smallpox vaccine has the “decided tendency to

prevent the spread” of disease. Id. at 34 (quoting

Viemeister’s upholding of a smallpox vaccine mandate

in New York); see also id. at 35 (“vaccination, as a

means of protecting a community against smallpox,

finds strong support in the experience of this and other

countries”); id. at 37 (suggesting that there is “deep

and universal” belief in the “community” and “medical

advisers” about the vaccine’s efficacy). Jacobson then

recited the number of states—and countries ranging

from Britain to Denmark to Germany to Sweden—that

have adopted compulsory smallpox vaccination,

underscoring the common and almost universal belief

40a

that smallpox vaccines prevent the spread of that

disease. Id. at 31 n.1.

Our case is factually different from Jacobson. At the

pleading stage, we must accept as true the plaintiffs’

well-pleaded allegation that the newly developed

mRNA COVID-19 vaccines do not effectively prevent

the transmission and contraction of COVID-19 and

thus more resemble medical treatments than the sort

of robustly validated smallpox vaccine at issue in

Jacobson. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

That allegation may ultimately not bear out once the

parties offer evidence, but the plaintiffs’ theory

appears plausible at this stage, especially given the

federal government’s focus on mitigation of symptoms

over prevention of transmission and LAUSD’s failure

in its brief to try to factually rebut that claim. This

means that Jacobson does not bar this suit—at least

for now.

The majority opinion suggests that Jacobson’s

reference to “public health and public safety” is so

capacious that merely “lessen[ing] the severity of

symptoms” is enough to justify a vaccine mandate.

Maj. Op. 23. But nothing in Jacobson hints that just

mitigating symptoms alone can count as “public health

and public safety.” The entire thrust of Jacobson is that

“public health and public safety” means protecting the

mass public from the spread of smallpox. Aside from

the repeated references to “preventing the spread” of

smallpox, the opinion makes many allusions to the

dangers of widespread transmission of the disease

among the public. See, e.g., 197 U.S. at 26 (mentioning

the “injury that may be done to others” if a person has

the liberty to refuse vaccines); id. at 27 (“a community

has the right to protect itself against an epidemic of

disease which threatens the safety of its members”);

41a

id. at 28 (noting smallpox was “prevalent and

increasing at Cambridge”); id. at 30–31 (vaccination is

the “best known[] way in which to meet and suppress

the evils of a smallpox epidemic that imperiled an

entire population”); id. at 31 (discussing the need to

“stamp out the disease of smallpox” for the “protection

of the public health and the public safety”).

If we accept the majority’s holding that a state can

impose a vaccine mandate just to “lessen the severity

of symptoms” of sick persons—without considering

whether it lessens transmission and contraction of this

disease—then we are opening the door for compulsory

medical treatment against people’s wishes. Vaccines,

by definition, build immunity and prevent transmission

and contraction of an infectious disease, but we risk

blurring the line between vaccines and medical

treatment if vaccines are defined as anything that

lessens symptoms.

None of this is to deny that the COVID-19 vaccines

may well have saved millions of lives of the elderly,

people with comorbidities, and others with weakened

immune systems. But we have held that the government cannot compel people to involuntarily receive

even life-saving medical treatment. If lessening the

severity of symptoms alone justifies vaccine mandates,

then it may well implicate the fundamental right to

“refus[e] unwanted medical treatment,” as explained

by Judge Collins in his panel concurrence. Health

Freedom Def. Fund v. Carvalho, 104 F.4th 715, 728 (9th

Cir. 2024) (Collins, J., concurring), vacated, 127 F.4th

750 (9th Cir. 2025); see also Cruzan ex rel. Cruzan v.

Director, Mo. Dep’t of Health, 497 U.S. 261, 278–79

(1990); Washington v. Glucksberg, 521 U.S. 702, 724–

25 (1997) (holding that the “right of a competent

individual to refuse medical treatment” is “entirely

42a

consistent with this Nation’s history and constitutional traditions” (citation omitted)). Indeed, under the

majority’s reasoning, we are only a step or two from

allowing the government to require COVID-19

patients to take, say, Ivermectin if the government in

its judgment believes that it would “lessen the severity

of symptoms.”

As a practical matter, I fear we are giving the

government a blank check to foist health treatment

mandates on the people—despite its checkered track

record—when we should be imposing a check against

the government’s incursion into our liberties.

I respectfully dissent in part.

43a

APPENDIX B

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

————

No. 22-55908

D.C. No. 2:21-cv-08688-DSF-PVC

————

HEALTH FREEDOM DEFENSE FUND, INC., a Wyoming

Not-for-Profit Corporation; JEFFREY FUENTES;

SANDRA GARCIA; HOVHANNES SAPONGHIAN;

NORMA BRAMBILA; CALIFORNIA EDUCATORS FOR

MEDICAL FREEDOM,

Plaintiffs-Appellants,

ALBERTO CARVALHO, in his official capacity as

Superintendent of the Los Angeles United School

District; ILEANA DAVALOS, in her official capacity as

Chief Human Resources Officer for the Los Angeles

School District; GEORGE MCKENNA; MONICA GARCIA;

SCOTT SCHMERELSON; NICK MELVOIN; JACKIE

GOLDBERG; KELLY GONEZ; TANYA ORTIZ FRANKLIN, in

their official capacities as members of the Los

Angeles Unified School District governing board,

Defendants-Appellees.

————

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

————

44a

Argued and Submitted September 14, 2023

Seattle, Washington

Filed June 7, 2024

Before: Michael Daly Hawkins, Ryan D. Nelson,

and Daniel P. Collins, Circuit Judges.

Opinion by Judge R. Nelson;

Concurrence by Judge R. Nelson;

Concurrence by Judge Collins;

Dissent by Judge Hawkins

————

OPINION

————

SUMMARY*

————

COVID-19/Mootness

The panel vacated the district court’s order dismissing

plaintiffs’ action alleging that the COVID-19 vaccination policy of the Los Angeles Unified School District

(“LAUSD”)—which, until twelve days after oral argument, required employees to get the COVID-19

vaccination or lose their jobs—interfered with their

fundamental right to refuse medical treatment.

The panel held that the voluntary cessation exception

to mootness applied. LAUSD’s pattern of withdrawing

and then reinstating its vaccination policies was

enough to keep this case alive. The record supported

a strong inference that LAUSD waited to see how

the oral argument in this court proceeded before

determining whether to maintain the Policy or to go

This summary constitutes no part of the opinion of the court.

It has been prepared by court staff for the convenience of the

reader.

45a

forward with a pre-prepared repeal option. LAUSD

expressly reserved the option to again consider

imposing a vaccine mandate. Accordingly, LAUSD has

not carried its heavy burden to show that there is no

reasonable possibility that it will again revert to

imposing a similar policy.

Addressing the merits, the panel held that the

district court misapplied the Supreme Court’s decision

in Jacobson v. Massachusetts, 197 U.S. 11 (1905), in

concluding that the Policy survived rational basis

review. Jacobson held that mandatory vaccinations

were rationally related to preventing the spread of

smallpox. Here, however, plaintiffs allege that the

vaccine does not effectively prevent spread but only

mitigates symptoms for the recipient and therefore

is akin to a medical treatment, not a “traditional”

vaccine. Taking plaintiffs’ allegations as true at this

stage of litigation, plaintiffs plausibly alleged that the

COVID-19 vaccine does not effectively “prevent the

spread” of COVID-19. Thus, Jacobson does not apply.

Concurring, Judge R. Nelson wrote separately to

point out that this Circuit’s intervening case Kohn v.

State Bar of California, 87 F.4th 1021 (9th Cir. 2023)

(en banc), raises the question of whether the district

court’s holding that the Los Angeles Unified School

District is entitled to sovereign immunity should be

revisited on remand.

Concurring, Judge Collins wrote separately to

address a crucial point that the district court overlooked. Pursuant to more recent Supreme Court

authority, compulsory treatment for the health benefit

of the person treated—as opposed to compulsory

treatment for the health benefit of others— implicates

the fundamental right to refuse medical treatment.

Plaintiffs’ allegations here are sufficient to invoke that

46a

fundamental right. Defendants note that the vaccination

mandate was imposed merely as a “condition of

employment,” but that does not suffice to justify the

district court’s application of rational-basis scrutiny.

Dissenting, Judge Hawkins wrote that because

there is no longer any policy for this court to enjoin, he

would, as this court has done consistently in actions

challenging rescinded early pandemic policies, hold

that this action is moot, vacate the district court’s

decision, and remand with instructions to dismiss the

action without prejudice.

COUNSEL

John W. Howard (argued) and Scott J. Street, JW

Howard Attorneys LTD., San Diego, California; George

R. Wentz, Jr., The Davillier Law Group LLC, New

Orleans, Louisiana; for Plaintiffs-Appellants.

Connie L. Michaels (argued), Littler Mendelson PC,

Los Angeles, California; Carrie A. Stringham, Littler

Mendelson PC, San Diego, California; for DefendantsAppellees.

OPINION

R. NELSON, Circuit Judge:

For over two years—until twelve days after argument—

Los Angeles Unified School District (LAUSD) required

employees to get the COVID-19 vaccination or lose

their jobs. LAUSD has not carried its “formidable

burden” to show that it did not abandon this policy

because of litigation, and thus that “no reasonable

expectation remains that it will return to its old ways.”

Cf. FBI v. Fikre, 601 U.S. 234, 241 (2024) (cleaned up).

So this case is not moot. See id. On the merits,

the district court misapplied the Supreme Court’s

decision in Jacobson v. Massachusetts, 197 U.S. 11

47a

(1905), stretching it beyond its public health rationale.

We vacate the district court’s order dismissing this

claim and remand for further proceedings under the

correct legal standard.

This case is about LAUSD’s COVID-19 vaccination

policy. LAUSD has reversed course several times.

Because of its importance to the mootness issue, we

recount that history in detail.1

LAUSD issued its first policy on March 4, 2021. That

policy was challenged two weeks later in a lawsuit

filed by Plaintiff California Educators for Medical

Freedom (CEMF) and several individual plaintiffs.

According to CEMF’s complaint, LAUSD’s policy

required employees to get the COVID-19 vaccine, no

exceptions. The March 4 memorandum announcing

this policy was attached to the complaint. This memorandum stated that employees would “be notified

to make an appointment through the District’s

vaccination program when it is their turn to get

vaccinated.” See CEMF v. LAUSD, No. 21-cv-02388,

2021 WL 1034618, Dkt. 1, Ex. F at 1 (C.D. Cal. Mar. 17,

2021). It added that “District employees may either

participate in the District’s COVID-19 vaccination

program or provide vaccination documentation in the

form of an official Vaccination Record certified by a

medical professional.” Id. For those who chose the

latter option, the memorandum provided instructions

We may properly take judicial notice that various statements

were made in filings in related litigation. See United States ex rel.

Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244,

248 (9th Cir. 1992). But we do not take those statements themselves as true. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d

988, 999 (9th Cir. 2018).

48a

on how to “submit proof of vaccination from an

external medical provider through the LAUSD Daily

Pass” website. Id. It specified that “[c]urrent District

employees will submit documentation of COVID-19

vaccination through the Daily Pass web portal

at http://DailyPass.lausd.net as indicated in their

vaccination notification.” Id. at 2. The memorandum

said nothing about an option to submit to COVID

testing rather than submitting vaccine verification.

The very next day after CEMF filed suit, LAUSD

reversed course and issued a “clarifying memorandum”

that gave employees an option to test for COVID-19 if

they did not want to get the vaccine. Relying on this

clarifying memorandum, which LAUSD claimed did

not impose “mandatory vaccinations,” LAUSD moved

to dismiss CEMF’s suit because, among other things,

it was “moot and/or premature.” LAUSD disputed

whether CEMF had adequately pleaded that exemptions

would not be allowed.

But LAUSD did not dispute CEMF’s contention that

the March 4 memorandum was properly construed

“as requiring District employees to be vaccinated.”

Instead, LAUSD argued that, considering the

March 18 “clarifying memorandum” allowing a testing

alternative—issued after the lawsuit was filed—the

case was moot or unripe. CEMF argued that the

complaint properly alleged that a mandatory policy

was in place when the suit was filed, and that the postfiling clarifying memorandum could not establish

mootness under the voluntary cessation doctrine.

CEMF’s position was bolstered by its citation in the

complaint to a letter from the LAUSD employees’

union, which stated that “[a]ll District employees will

be required to be vaccinated,” and “[n]o exceptions

have been made.” See CEMF, No. 21-cv-2388, 2021 WL

49a

1034618, Dkt. 1, Ex. G at 2. In its reply brief LAUSD

shifted its position and explicitly denied that the

March 4 memorandum “reflects a mandatory vaccination

policy.” LAUSD argued that the March 18 memorandum

was “merely a clarification” of the “original March 4,

2021 memorandum.”

On July 27, 2021, the district court dismissed the

complaint, holding that CEMF’s claims were not ripe.

Noting that CEMF’s amended complaint had cited the

March 18 memorandum, the district court held that,

considering the then-existing testing option, “there is

no threat of future injury because LAUSD explicitly

stated it is not requiring vaccines.” The court held that

it was “completely speculative” whether “LAUSD will

begin to require vaccination of all employees at some

point in the future and will not offer exemptions”

for the plaintiffs. The court acknowledged CEMF’s

allegations about the March 4 policy memorandum.

Still, the court held that, because that policy was

changed before it was ever enforced, the dispute

remained unripe. “That Defendants were contemplating requiring the vaccine, and then later reversed

course and explicitly said they would not be, does not

create a ripe case or controversy.”

Having obtained dismissal of CEMF’s suit on these

grounds, LAUSD reversed course again two weeks

later. Its new policy (the Policy), adopted on August 13,

2021, expressly eliminated the testing option on which

the district court’s July 27 dismissal had been based.

The Policy required that all LAUSD employees be fully

vaccinated against COVID-19 by October 15, 2021.

Like the earlier March 4 memorandum, the Policy

required those who are vaccinated outside of LAUSD’s

own program to submit proof of vaccination through

the “Daily Pass” web portal. The Policy ostensibly

50a

provided for religious and medical exemptions. But

each of the individual plaintiffs here were allegedly

denied accommodations, thus rendering any exemptions

“illusory.”

CEMF sued again, this time joined by Health

Freedom Defense Fund, Inc. and new individual plaintiffs (collectively, Plaintiffs). They named as defendants LAUSD employees and Board members in their

official capacities. Plaintiffs challenged the Policy as

violating the Fourteenth Amendment, among other

claims. Only the substantive due process and equal

protection claims brought under 42 U.S.C. § 1983 are

on appeal. Plaintiffs ask for future relief, including

declaring the Policy unconstitutional and enjoining

LAUSD from requiring it.

Plaintiffs claim that the Policy interferes with their

fundamental right to refuse medical treatment. Their

complaint’s crux is that the COVID-19 “vaccine” is not

a vaccine. “Traditional” vaccines, Plaintiffs claim,

should prevent transmission or provide immunity

to those who get them. But the COVID-19 vaccine

does neither. At best, Plaintiffs suggest, it mitigates

symptoms for someone who has gotten it and then gets

COVID-19. But this makes it a medical treatment, not

a vaccine.

Plaintiffs’ complaint supports these assertions with

data and statements from the Centers for Disease

Control and Prevention (CDC). For example, Plaintiffs

claim that the CDC changed the definition of “vaccine”

in September 2021, striking the word “immunity.”

Thus, they argue, the CDC conceded that the COVID19 vaccine is not a “traditional vaccine.” They also cite

CDC statements that say the vaccine does not prevent

transmission, and that natural immunity is superior

to the vaccine.

51a

LAUSD moved for judgment on the pleadings,

requesting judicial notice of the attached CDC

information. This included information about the

COVID-19 death count and number of cases, as well as

the vaccine’s safety and effectiveness. For example, the

CDC says that “COVID-19 vaccines are safe and

effective.”

The district court granted LAUSD’s motion. Health

Freedom Def. Fund v. Reilly, No. CV-21-8688, 2022 WL

5442479, at *7 (C.D. Cal. 2022). The district court took

judicial notice of LAUSD’s attached documents. Id. at

*2–3. Then, applying a rational basis review, the

district court held that the Policy does not implicate

any fundamental right, id. at *5, and that LAUSD had

a legitimate government purpose in requiring the

COVID-19 vaccination, id. at *6. The district court

held that the COVID-19 vaccine’s reduction in

symptoms and prevention of severe disease and death

in recipients survived rational basis review, even if it

did not prevent transmission or contraction. Id.

The district court largely relied on Jacobson v.

Massachusetts, 197 U.S. 11 (1905), in concluding that

the Policy survived rational basis review. Reilly, 2022

WL 5442479, at *5–6. Plaintiffs argued that the

COVID-19 vaccine is a “medical treatment” and not a

traditional vaccine. Id. at *5. The district court

disagreed, holding that “Jacobson does not require

that a vaccine have the specific purpose of preventing

disease.” Id. (emphasis in original).

Plaintiffs appealed the district court’s order. In April

2023, LAUSD filed its answering brief. It vigorously

defended its vaccine mandate and did not raise any

suggestion that it might be revoked. We held oral

argument on the morning of September 14, 2023. The

case was calendared together with two similar appeals

52a

involving the rejection of challenges to vaccine

mandates that had been imposed on state employees

by Oregon and Washington. But Oregon and Washington

revoked their mandates before the answering briefs

were filed in those cases. They therefore sought

dismissal of the claims for prospective relief in those

cases as moot.

LAUSD’s counsel was asked at oral argument about

the contrast with those cases and whether LAUSD

could maintain the Policy indefinitely. LAUSD’s

counsel responded that the Policy was properly still in

place because “there are Covid spikes right now.”

Counsel stated that LAUSD was “very concerned

about maintaining the health of [its] staff ” and

believed that COVID vaccines should continue to be

required “until it is absolutely established that the

vaccines have no effect.” When again pressed about the

contrast with the two other argued cases about vaccine

mandates, counsel stated that “with respect to what

the district is going to do now, what they’re considering

doing now, there is only so much I can tell you, because

it’s not in the record.” Counsel then reaffirmed

LAUSD’s view that “with respect to the vaccination

requirement, they have felt that until it is established

that the vaccine is not of use in any way that it is

important to go ahead and maintain it.” LAUSD’s

counsel also repeatedly defended the constitutionality

of its vaccine mandate.

According to a declaration submitted by Plaintiffs’

counsel, LAUSD’s attorney turned to him as they were

leaving the courtroom and said, “What are you going

to do when we rescind the mandate?” That same

day, LAUSD’s Superintendent (the Superintendent)

submitted to the LAUSD Board (the Board) of

53a

Education a proposal to repeal the mandate.2 Twelve

days later, (the Board) voted to rescind the Policy by a

six to one vote, with one abstention. This lawsuit was

mentioned by members of the public at the meeting of

the Board. Indeed, one commenter played excerpts

from the publicly available audio recording of the oral

argument in this court.3 The Superintendent submitted

materials in support of repeal that stated that,

because the virus was no longer “spreading at a rapid

enough pace to overwhelm hospital systems,” LAUSD

“no longer need[ed] a COVID-19 vaccine requirement

to keep schools open for in-person learning.” They

explained that “[t]he science [on vaccines] has not

changed” and they are still “safe and effective.” And

they also cautioned that LAUSD would continue to

monitor COVID-19, and if “health conditions necessitate a revisiting of the COVID-19 vaccine requirement,” LAUSD would reconsider the Policy.

Comments made by LAUSD officials and Board

members at the meeting generally followed these

statements. The one Board member who voted against

the repeal, Dr. McKenna, said he was “not afraid of

litigation” or the “zealousness that will come out with

Plaintiffs’ Motion for Judicial Notice is GRANTED in part

and DENIED in part. We take judicial notice that LAUSD voted

to withdraw the Policy on September 26, 2023, and that various

documents were submitted, and statements made, in connection

with that repeal. See Lee v. City of Los Angeles, 250 F.3d 668, 689–

90 (9th Cir. 2001). But we do not take judicial notice of the truth

of the claims made in such written or oral statements. Id.; see also

Owino v. Holder, 771 F.3d 527, 534 n.4 (9th Cir. 2014) (denying

request for judicial notice of article where “[t]he government does

not concede that the facts [included] are beyond dispute.”).

LAUSD, September 26th, 2023 – 1pm Regular Board Meeting,

YOUTUBE (Sept. 26, 2023), https://www.youtube.com/watch?v=

qQf_y77unZw (25:37–28:00) (Meeting).

54a

lawsuits” brought by employees who lost their jobs.

Meeting (59:20 – 1:00:48). Likewise, Board President

Goldberg said that she had a “foot in [the] camp

with Dr. McKenna.” Id. (1:13:12 – 1:15:12). While she

acknowledged that the virus was now “endemic,” she

also said she did not regret imposing the mandate for

“one moment, not 30 seconds, not one tiny bit.” Id.

(1:13:15–22). When the vote on the repeal was called,

she voted, “Reluctantly, yes.” Id. (1:18:23–26).

LAUSD then asked us to dismiss the appeal,

claiming that the case is now moot. Plaintiffs objected,

arguing that LAUSD withdrew the Policy because they

feared an adverse ruling.

“Judgments on the pleadings are reviewed de novo.”

George v. Pac.-CSC Work Furlough, 91 F.3d 1227, 1229

(9th Cir. 1996). We review under the same standards

as a motion to dismiss. Gregg v. Haw., Dep’t of Pub.

Safety, 870 F.3d 883, 887 (9th Cir. 2017). So we must

accept the plaintiffs’ alleged facts as true, whether

“actual proof ” of them is “improbable.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556 (2007). If the parties

provide competing but plausible explanations, the

plaintiffs’ complaint survives. Starr v. Baca, 652 F.3d

1202, 1216 (9th Cir. 2011). Thus, we can affirm for the

moving party only if there are no material and

unresolved facts, and the plaintiffs’ claims fail as a

matter of law. George, 91 F.3d at 1229.

III

We begin by analyzing whether this appeal is now

moot because of LAUSD’s recent policy reversal.

Because LAUSD acted after this litigation was filed,

we must decide whether the voluntary cessation

exception to mootness applies. See, e.g., Trinity

55a

Lutheran Church of Columbia, Inc. v. Comer, 582 U.S.

449, 457 n.1 (2017).

“[A] case is moot when the issues presented are

no longer ‘live’ or the parties lack a legally cognizable

interest in the outcome.” Los Angeles County v.

Davis, 440 U.S. 625, 631 (1979) (quoting Powell v.

McCormack, 395 U.S. 486, 496 (1969)). But generally,

a party’s decision to stop the challenged conduct does

not take away our “power to hear and determine the

case.” Id. (quoting United States v. W.T. Grant Co., 345

U.S. 629, 632 (1953)).

Sometimes, however, voluntary cessation can moot a

case. First, it must be reasonably clear that the

challenged practice will not happen again. Friends of

the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528

U.S. 167, 189 (2000). Second, any effects of the alleged

violation must be permanently reversed. Davis, 440

U.S. at 631. This is a “formidable burden” and “holds

for governmental defendants no less than for private

ones.” Fikre, 601 U.S. at 241.

LAUSD’s pattern of withdrawing and then reinstating

its vaccination policies is enough to keep this case

alive. See Fikre v. FBI, 904 F.3d 1033, 1039 (9th Cir.

2018) (“[A] claim is not moot if the government

remains practically and legally free to return to [its]

old ways despite abandoning them in the ongoing

litigation.” (citing W.T. Grant, 345 U.S. at 632) (internal

quotation marks omitted)). Twice LAUSD has

withdrawn its policy only after facing some litigation

risk. LAUSD immediately rescinded its prior policy

after some plaintiffs first sued, and LAUSD then asked

the district court to dismiss for mootness or ripeness.

But then just two weeks after securing a dismissal on

those grounds, LAUSD implemented the Policy, which

has remained in effect for over two years.

56a

We held oral argument on the morning of September

14, 2023, where LAUSD’s counsel was vigorously

questioned. That same day LAUSD submitted a report

recommending rescission of the Policy. Twelve days

later, LAUSD withdrew the Policy.

Litigants who have already demonstrated their

willingness to tactically manipulate the federal courts

in this way should not be given any benefit of

the doubt. LAUSD’s about-face occurred only after

vigorous questioning at argument in this court, which

suggests that it was motivated, at least in part, by

litigation tactics. See R.W. v. Columbia Basin Coll.,

77 F.4th 1214, 1226 (9th Cir. 2023). For example,

in Columbia Basin College, we upheld a finding that

the voluntary-cessation-mootness burden had not

been met. Id. We were persuaded by the district

court, which noted the defendants’ strategic timing of

sending a letter purporting to moot the case more than

three years after litigation but only one month before

moving on mootness. Id. Here too, LAUSD’s timing is

suspect.

Rather than hold LAUSD to its “formidable burden,”

see Fikre, 601 U.S. at 241, the dissent consistently

draws highly debatable inferences for LAUSD in

evaluating LAUSD’s actions in the two vaccine-related

lawsuits filed against it. But federal judges “are ‘not

required to exhibit a naiveté from which ordinary

citizens are free.’” Dep’t of Com. v. New York, 588 U.S.

752, 139 S. Ct. 2551, 2575 (2019) (citation omitted).

Given the detailed procedural history summarized

earlier, the record at least supports a strong inference

that LAUSD waited to see how the oral argument in

this court proceeded before determining whether to

maintain the Policy or to go forward with a preprepared repeal option. LAUSD appears to have twice

57a

sought to manipulate the federal courts to avoid an

adverse ruling on this issue. Moreover, the Board

expressly reserved the option to again consider

imposing a vaccine mandate. This confirms that

LAUSD has not carried its heavy burden to show that

there is no reasonable possibility that it will again

revert to imposing a similar policy.

We must view any strategic moves designed to keep

us from reviewing challenged conduct with a “critical

eye.” See Knox v. Serv. Emps. Int’l Union, Loc. 1000,

567 U.S. 298, 307 (2012). Comments made by Board

members confirm that its policy rescission aimed to

avoid litigation. For example, Dr. McKenna—the sole

Board member to vote against withdrawal of the

Policy—justified his vote because he was “not afraid of

litigation” or the “zealousness that will come out with

lawsuits” brought by employees who lost their jobs.

Likewise, Board President Goldberg said that she had

a “foot in [the] camp” with Dr. McKenna, and so

“reluctantly” voted to rescind. These comments show

that the Board was aware of, and responding to, the

pending litigation. LAUSD therefore is no longer

entitled to any presumption of regularity.

The dissent disagrees, citing distinguishable cases

involving challenges to COVID-19 policies. We found

in each case that the government entity did not

intentionally abandon its policy because of litigation

risk but for other intervening reasons. See, e.g., Brach

v. Newsom, 38 F.4th 6, 12 (9th Cir. 2022) (“The State

did not rescind its school closure orders in response

to the litigation—the orders ‘expired by their own

terms’ . . .”); McDonald v. Lawson, 94 F.4th 864, 869

(9th Cir. 2024) (“[N]othing in the record . . . indicates

that [the State’s assertion that it would not enforce the

challenged rule] was made in bad faith.” (citation

58a

omitted)); Seaplane Adventures, LLC v. County of

Marin, 71 F.4th 724, 732 (9th Cir. 2023) (given that

California’s state of emergency ended, “there is no

indication that the County can or will reimpose

restrictions similar to those in effect at the very

beginning of the pandemic.”); Donovan v. Vance, 70

F.4th 1167, 1172 (9th Cir. 2023) (explaining that

because the vaccine mandate exemption was based on

executive orders that no longer exist, no relief is

available). Indeed, this panel unanimously reached

the same conclusion about the withdrawal of the

vaccine mandates imposed by Oregon and Washington.

See Johnson v. Kotek, 2024 WL 747022, at *1 (9th Cir.

2024) (dismissing the claims for prospective relief as

moot); Pilz v. Inslee, 2023 WL 8866565, at *1 (9th Cir.

2023) (same). As explained above, LAUSD’s actions do

not suggest the same intent as existed in these other

cases. Here, unlike in Lawson, the evidence shows that

LAUSD acted at least partially in bad faith to avoid

litigation risk in again changing the Policy. And unlike

in Seaplane Adventures, LAUSD has shown that they

“can or will reimpose” similar restrictions.

Thus, the voluntary cessation exception to mootness

applies. See id.; see also Pub. Utils. Comm’n of State of

Cal. v. FERC, 100 F.3d 1451, 1460 (9th Cir. 1996) (“in

order for [the voluntary cessation] exception to apply,

the defendant’s [changed action] must have arisen

because of the litigation.” (emphasis in original)). This

case is not moot.4

We now turn to the merits. The district court held,

applying rational basis review under Jacobson, that

the Policy satisfied a legitimate government purpose.

For these reasons, LAUSD’s Motion to Dismiss is DENIED.

59a

But the district court’s analysis diverges from

Jacobson. We thus vacate the district court’s opinion

and remand.

The district court relied on Jacobson to hold that the

Policy was rooted in a legitimate government interest.

Reilly, 2022 WL 5442479, at *5−6. But Jacobson does

not directly control based on Plaintiffs’ allegations. In

Jacobson, the Supreme Court balanced an individual’s

liberty interest in declining an unwanted smallpox

vaccine against the State’s interest in preventing

disease. 197 U.S. at 38. The Court explained that the

“principle of vaccination” is “to prevent the spread of

smallpox.” Id. at 31–32. Because of this, the Court

concluded that the State’s interest superseded Jacobson’s

liberty interest, and the vaccine requirement was

constitutional. Id.

Plaintiffs argue that a “traditional vaccine” must

provide immunity and prevent transmission, meaning

that it must “prevent the spread” of COVID-19.

Plaintiffs allege that the vaccine does not effectively

prevent spread, but only mitigates symptoms for the

recipient. And Plaintiffs claim that something that

only does the latter, but not the former, is like a

medical treatment, not a “traditional” vaccine. This

interpretation distinguishes Jacobson, thus presenting a

different government interest.

Putting that aside, the district court held that, even

if it is true that the vaccine does not “prevent the

spread,” Jacobson still dictates that the vaccine

mandate challenged here is subject to, and survives,

the rational basis test. The district court reasoned that

“Jacobson does not require that a vaccine have the

specific purpose of preventing disease.” Reilly, 2022 WL

5442479, at *5 (emphasis in original). It acknowledged

Plaintiffs’ allegations that the vaccine did not “prevent

60a

transmission or contraction of COVID-19.” Id. at *6.

But it declared that “these features of the vaccine

further the purpose of protecting LAUSD students and

employees from COVID-19,” and thus “the Policy

survives rational basis review.” Id.

This misapplies Jacobson. Jacobson held that

mandatory vaccinations were rationally related to

“preventing the spread” of smallpox. 197 U.S. at 30; see

also Roman Cath. Diocese of Brooklyn v. Cuomo, 592

U.S. 14, 23 (2020) (Gorsuch, J., concurring) (“Although

Jacobson pre-dated the modern tiers of scrutiny, this

Court essentially applied rational basis review to

Henning Jacobson’s challenge . . .”). Jacobson, however,

did not involve a claim in which the compelled vaccine

was “designed to reduce symptoms in the infected

vaccine recipient rather than to prevent transmission

and infection.” Reilly, 2022 WL 5442479, at *5. The

district court thus erred in holding that Jacobson

extends beyond its public health rationale—government’s

power to mandate prophylactic measures aimed at

preventing the recipient from spreading disease to

others—to also govern “forced medical treatment” for

the recipient’s benefit. Id. at *5.

At this stage, we must accept Plaintiffs’ allegations

that the vaccine does not prevent the spread of

COVID-19 as true. Twombly, 550 U.S. at 556. And,

because of this, Jacobson does not apply. LAUSD

cannot get around this standard by stating that

Plaintiffs’ allegations are wrong. Nor can LAUSD do

so by providing facts that do not contradict Plaintiffs’

allegations. It is true that we “need not [] accept as true

allegations that contradict matters properly subject to

judicial notice.” Sprewell v. Golden State Warriors, 266

F.3d 979, 988 (9th Cir. 2001). But even if the materials

offered by LAUSD are subject to judicial notice, they

61a

do not support rejecting Plaintiffs’ allegations. LAUSD

only provides a CDC publication that says “COVID-19

vaccines are safe and effective.” But “safe and

effective” for what? LAUSD implies that it is for

preventing transmission of COVID-19 but does not

adduce judicially noticeable facts that prove this.

We note the preliminary nature of our holding. We

do not prejudge whether, on a more developed factual

record, Plaintiffs’ allegations will prove true. But

“[w]hether an action ‘can be dismissed on the

pleadings depends on what the pleadings say.’”

Marshall Naify Revocable Tr. v. United States, 672 F.3d

620, 625 (9th Cir. 2012) (quoting Weisbuch v. County of

Los Angeles, 119 F.3d 778, 783 n.1 (9th Cir. 1997)).

Because we thus must accept them as true, Plaintiffs

have plausibly alleged that the COVID-19 vaccine

does not effectively “prevent the spread” of COVID-19.

Thus, Jacobson does not apply, and so we vacate the

district court’s order of dismissal and remand.

This case is not moot. And the district court wrongly

applied Jacobson to the substantive due process claim.

Thus, we vacate the district court’s order and remand.

VACATED AND REMANDED.

62a

R. NELSON, J., concurring:

I write separately to address another issue not at

issue in this appeal, but perhaps relevant as this case

progresses on remand. Our intervening case, Kohn v.

State Bar of California, 87 F.4th 1021 (9th Cir. 2023)

(en banc), raises the question whether the district

court’s holding below that the Los Angeles Unified

School District (LAUSD) is entitled to sovereign

immunity should be revisited.

“[A] federal court generally may not hear a suit

brought by any person against a nonconsenting State.”

Munoz v. Super. Ct. of L.A. Cnty., 91 F.4th 977, 980 (9th

Cir. 2024) (internal quotation marks omitted). “This

prohibition applies when the state or the arm of a state

is a defendant.” Id. (cleaned up). We recently clarified

when a government agency is an “arm of the state.” See

Kohn, 87 F.4th at 1026–32. We examined the current

test—the Mitchell factors—against Supreme Court

precedent and overruled it. Id. at 1027–30 (reassessing

Mitchell v. L.A. Cmty. Coll. Dist., 861 F.2d 198, 201–02

(9th Cir. 1988)). We instead adopted a new, entitybased test. Id. at 1030. Kohn’s reasoning may impact

claims that can be brought against LAUSD.

The Supreme Court has never established a

standard test for determining whether an entity is an

“arm of the state.” See id. at 1026–27. We developed

the Mitchell factors out of a “grab bag” of Supreme

Court and Ninth Circuit precedent. Id. at 1027. One of

the cases the Mitchell factors relied on was the

Supreme Court’s decision in Edelman v. Jordan, 415

U.S. 651 (1974). Id. Edelman suggested that if the

judgment would be paid by the State, the suit is

barred. See id. at 1027 (citing Edelman, 415 U.S. at 663

(“Thus the rule has evolved that a suit by private

parties seeking to impose a liability which must be

63a

paid from public funds in the state treasury is barred

by the Eleventh Amendment.”)). Since Edelman,

however, the Court has held that solvency and state

dignity are equally important, and what matters is

how the state and defendant relate to one another. See

id. at 1027–28; see also id. (“But, since Edelman and

Mitchell, the Supreme Court has clarified that ‘[t]he

Eleventh Amendment does not exist solely in order to

preven[t] federal-court judgments that must be paid

out of a [s]tate’s treasury.’” (quotations omitted) (itself

quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44,

58 (1996)).

The Mitchell test was applied inconsistently, and

thus was not predictable. The factors were weighted

differently, and while this balancing afforded judicial

discretion, “it allows lower courts in our Circuit to

‘twist’ the arms of the state doctrine depending on the

defendant.” Id. at 1029. For example, “[u]nder Mitchell,

we [] placed the greatest weight on” who was financially responsible in assessing sovereign immunity. Id.

at 1027 (citing Durning v. Citibank, N.A., 950 F.2d

1419, 1424 (9th Cir. 1991)). This made little sense. See

id. at 1027–30.

The second Mitchell factor—“whether the entity

performs central government functions”—was also

applied inconsistently. Id. at 1029. At times, we have

evaluated this at the entity-level, and other times at

the activity-level. Id. But if the Mitchell test were

entity-based, an entity either should be immune or

not—it should not depend on what the entity is doing.

Id.

Recognizing this tension, Kohn overruled Mitchell.

Id. at 1028 (“The Mitchell factors are . . . inconsistent

with Supreme Court arm of the state doctrine.”). In its

place, we adopted an “entity-based” test. Id. at 1030.

64a

This three-factor test evaluates “(1) the state’s intent

as to the status, including the functions performed by

the entity; (2) the state’s control over the entity; and

(3) the entity’s overall effects on the state treasury.” Id.

(citing P.R. Ports Auth. v. Fed. Mar. Comm’n, 531 F.3d

868, 873 (D.C. Cir. 2008) (cleaned up)). Under it, “an

entity either is or is not an arm of the [s]tate”—it is

not context specific. Id. at 1031 (citing P.R. Ports Auth.,

531 F.3d at 873).

We have held that California school districts have

sovereign immunity, relying on Mitchell. See, e.g.,

Belanger v. Madera Unified Sch. Dist., 963 F.2d 248,

254 (9th Cir. 1992); Sato v. Orange Cnty. Dep’t of Educ.,

861 F.3d 923, 934 (9th Cir. 2017). That said, we have

held that school districts in other states are not.1 The

reasons for this differing result are now suspect under

Kohn. Given this, it must be reassessed whether

California school districts are an “arm of the state.”

We first held that California school districts were an

“arm of the state” in Belanger. We noted that some

factors cut against this but reasoned that “Belanger

[could not] prevail on the first and most important

factor because a judgment against the school district

would be satisfied out of state funds.” Belanger, 963

F.2d at 251. We also stated that “under California law,

the school district is a state agency that performs

central government functions.” Id. This analysis thus

hinged on the first and second, now defunct, Mitchell

factors. See id. Belanger’s analysis of the second factor

also examined the activity that California school

See, e.g., Holz v. Nenana City Pub. Sch. Dist., 347 F.3d 1176,

1184 (9th Cir. 2003) (Alaska); Savage v. Glendale Union High

Sch., Dist. No. 205, 343 F.3d 1036, 1044 (9th Cir. 2003) (Arizona);

Eason v. Clark Cnty. Sch. Dist., 303 F.3d 1137, 1143 (9th Cir. 2002)

(Nevada).

65a

districts performed—public schooling—and reasoned

that because that was a “central governmental

function,” they were “arms of the state.” Id. The

Belanger court was unconcerned that California school

districts “enjoy wide discretion and considerable

autonomy” under this second factor. See id. This

analysis is thus suspect under Kohn.

We then doubled down on this holding in Sato.

Between Belanger and Sato, California enacted AB 97,

which “reformed education funding and governance in

California.” Sato, 861 F.3d at 929. As a result, public

education in California became more locally funded

and educational achievement more locally controlled—

thus reducing the State’s involvement in both. See id.

That said, we still held that because state and local

education funds were “still ‘hopelessly intertwined,’”

the first, now disfavored, Mitchell factor still favored

immunity. Id. at 932. For the second Mitchell factor,

while we recognized that “AB 97 granted districts []

some measure of autonomy and discretion in goalsetting,” “it did not delegate primary responsibility for

providing public education.” Id. at 933. This determination thus looked at the activity—providing public

education—rather than the entity. That reasoning and

this conclusion is now suspect under Kohn.

Our new entity-based test in Kohn seems to conflict

with (and likely overrule) our reasoning in Belanger

and Sato. Because of this, the district court’s holding

that LAUSD is an “arm of the state” (as well as our

prior holdings in Belanger and Sato) may need to be

revisited. Cf. Reilly, 2022 WL 5442479, at *3 (relying

66a

on Mitchell to determine that LAUSD has Eleventh

Amendment immunity).2

If LAUSD does not have sovereign immunity, Plaintiffs may

be able to amend to raise a monetary claim, which would be

another reason this case is not moot. Cf. Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 100 (1984); see also Jacobs v.

Clark Cnty. Sch. Dist., 526 F.3d 419, 425–26 (9th Cir. 2008) (“[A]

‘live claim for [even] nominal damages will prevent dismissal for

mootness.’” (quoting Bernhardt v. County of Los Angeles, 279 F.3d

862, 872 (9th Cir. 2002))).

67a

COLLINS, Circuit Judge, concurring:

I agree that this case is not moot and that Jacobson

v. Massachusetts, 197 U.S. 11 (1905), is not controlling

under the well-pleaded allegations of Plaintiffs’

complaint. I therefore concur in the majority opinion.

I write separately to emphasize a crucial point the

district court overlooked.

The district court in this case explicitly held that

Jacobson governs Plaintiffs’ substantive due process

claim even if one assumes the truthfulness of the

complaint’s allegations that the Covid vaccines are not

very effective at preventing infection and transmission

and that their value is primarily in reducing disease

severity for those recipients of the vaccine who

thereafter contract Covid. As the majority explains,

Jacobson did not involve a comparable claim and is not

controlling authority with respect to it.

In my view, the district court further erred by failing

to realize that these allegations directly implicate

a distinct and more recent line of Supreme Court

authority, in which the Court has stated that “[t]he

principle that a competent person has a constitutionally protected liberty interest in refusing unwanted

medical treatment may be inferred from [the Court’s]

prior decisions.” Cruzan ex rel. Cruzan v. Director, Mo.

Dep’t of Health, 497 U.S. 261, 278–79 (1990) (citing, not

only Jacobson, but a series of later “cases support[ing]

the recognition of a general liberty interest in refusing

medical treatment”). In Washington v. Glucksberg, 521

U.S. 702 (1997), the Court explained that Cruzan’s

posited “‘right of a competent individual to refuse

medical treatment’” was “entirely consistent with this

Nation’s history and constitutional traditions,” in light

of “the common-law rule that forced medication was a

battery, and the long legal tradition protecting the

68a

decision to refuse unwanted medical treatment.” Id. at

724–25 (citation omitted). Given these statements in

Glucksberg, the right described there satisfies the

history-based standards that the Court applies for

recognizing “fundamental rights that are not mentioned

anywhere in the Constitution.” Dobbs v. Jackson

Women’s Health Org., 597 U.S. 215, 237–38 (2022). The

Supreme Court’s caselaw thus clarifies that compulsory

treatment for the health benefit of the person treated—

as opposed to compulsory treatment for the health

benefit of others—implicates the fundamental right to

refuse medical treatment.

Plaintiffs’ allegations here are sufficient to invoke

that fundamental right. Defendants note that the

vaccination mandate was imposed merely as a

“condition of employment,” but that does not suffice to

justify the district court’s application of rational-basis

scrutiny. See Lane v. Franks, 573 U.S. 228, 236 (2014)

(“[The] Court has cautioned time and again that public

employers may not condition employment on the

relinquishment of constitutional rights.”).

With these additional observations, I concur in the

majority opinion.

69a

HAWKINS, Circuit Judge, dissenting.

This case is over. We cannot grant the sole relief

sought by the Plaintiffs, an injunction against

enforcement of the school district’s now rescinded

COVID-19 vaccination policy (the “Policy”). Despite

the absence of any ongoing policy, my friends in the

Majority would hold that this action remains

justiciable under the voluntary cessation exception to

mootness. See FBI v. Fikre, 601 U.S. 234, 241 (2024).

In doing so, they ignore the practical realities

surrounding LAUSD’s adoption and rescission of the

Policy, which demonstrate that there is no reasonable

expectation LAUSD will reimpose the Policy in the

future. Because there is no longer any policy for

our court to enjoin, I would, as our court has done

consistently in actions challenging rescinded early

pandemic policies, hold that this action is moot,

vacate the district court’s decision, and remand with

instructions to dismiss the action without prejudice.

See, e.g., Brach v. Newsom, 38 F.4th 6 (9th Cir. 2022)

(en banc).

I begin with a brief overview of the pertinent events

to illustrate the context in which LAUSD adopted and

then rescinded the Policy. In early March 2020, the

World Health Organization declared a global pandemic

in response to COVID-19, leading to the issuance of

local, state, and federal emergency declarations and

orders. “Governor Gavin Newsom declared a state of

emergency within California, and issued Executive

Order N-33-20, requiring Californians to ‘heed the

current State public health directives’ including the

requirement ‘to stay home or at their place of

residence.’” Id. at 9. Around March 16, 2020, LAUSD

closed its facilities for in-person operations and

implemented a distance learning and remote work

70a

program that lasted through most of the 2020–2021

school year.

In advance of the reopening of schools for in-person

instruction, California Educators for Medical Freedom—

one of the Plaintiffs in this action—and several other

individuals filed a complaint on March 17, 2021,

seeking to enjoin LAUSD from implementing a policy

that required employees, without exception, to be

vaccinated against COVID-19. Cal. Educators for Med.

Freedom v. Los Angeles Unified Sch. Dist., No. 21-cv02388, 2021 WL 1034618, Dkt. 1 (C.D. Cal. Mar. 17,

2021) (CEMF).1 The CEMF complaint alleged, on

information and belief, that LAUSD had adopted such

a policy, id. ¶ 1, and attached several documents in

support, including a March 4, 2021 memorandum to

employees. See id. Ex. F. The memorandum informed

LAUSD employees that they were eligible to receive

COVID-19 vaccinations and provided information

about registering for vaccinations through the District’s vaccination program or submitting documentation of their vaccination if received through an outside

program. Id. The memorandum did not state explicitly

that employees were required to receive vaccinations

or that employment consequences would follow if

employees were not vaccinated.2 Id. The day after the

We may take judicial notice of filings and decisions in related

court actions. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442

F.3d 741, 746 n.6 (9th Cir. 2006).

CEMF also supported its complaint with a letter from the

LAUSD employees’ union. CEMF, No. 21-cv-02388, 2021 WL

1034618, Dkt. 1, Ex. G. The letter indicated that the District’s

plans to implement a mandatory vaccination policy were in

progress; the information regarding those plans “may very well

change;” discussions with the District were “nowhere near done;”

and no deadlines had been set given a variety of unknown

variables, including the availability of vaccinations. Id.

71a

CEMF plaintiffs filed their complaint, LAUSD sent an

updated interoffice memorandum that clarified

“vaccinations are not mandatory at this time.” The

CEMF plaintiffs acknowledged in an amended complaint that LAUSD was giving staff the option to test

or be vaccinated.

LAUSD moved to dismiss the case on ripeness

grounds because it had not yet implemented a

vaccination policy, and the district court granted the

motion. The district court found that the case did not

raise any voluntary cessation concerns because,

“according to Plaintiffs’ allegations, Defendants never

began the objectionable conduct in the first place.” The

district court dismissed the action without prejudice

on July 27, 2021.

The 2021–2022 LAUSD school year was set to begin

just a few weeks later on August 16, 2021.3 The 2021–

2022 school year also marked the unrestricted

reopening of LAUSD schools for in-person instruction.4

On August 13, 2021—the first “pupil free day” of the

school year5 and three days before students would be

returning to the classrooms—LAUSD circulated a

memorandum to staff announcing the Policy and

explaining that all non-exempt employees must be

vaccinated against COVID-19. The LAUSD Board of

LAUSD, Single-Track Instructional School Calendar 2021‒

2022, https://achieve.lausd.net/cms/lib/CA01000043/Centricity/D

omain/4/REV1.4.2022BoardAppvd_2021-2022InstructionalCal.pdf

[“LAUSD 2021–2022 Calendar”].

The emergency legislation allowing the California public

school system to move online expired on June 30, 2021, and on

July 12, 2021, the State of California lifted “all restrictions on

school reopening.” Brach, 38 F.4th at 11, 13.

See LAUSD 2021–2022 Calendar.

72a

Education (the “Board”) approved the policy at a

subsequent meeting in November 2021.

Plaintiffs filed the underlying complaint and sought

an injunction barring enforcement of the Policy.

LAUSD eventually moved for judgment on the

pleadings. The district court granted the motion and

entered judgment in favor of the Defendants. Plaintiffs

then appealed.

We held oral argument on September 14, 2023,

approximately four weeks after the start of LAUSD’s

2023–2024 school year.6 At oral argument, counsel for

Plaintiffs informed the court that, although the Policy

remained in effect as of that date, there were rumors

LAUSD would be rescinding the Policy. Consistent

with those rumors, a detailed report proposing

rescission of the Policy was submitted to the Board on

the same day as oral argument. The proposal

identified the many changes that had occurred since

LAUSD adopted the Policy in the fall of 2021 and

expressed the view that vaccines were no longer

needed to keep schools open for in-person learning. At

its next meeting, held on September 26, 2023, the

Board heard comments from interested parties and

voted to rescind the Policy.

The Majority characterizes LAUSD’s conduct as an

intentional manipulation of federal courts. But we

generally afford the government a presumption of

good faith, Brach, 38 F.4th at 13, and when viewed in

context, there are obvious, non-litigation-related

LAUSD, Instructional School Calendar 2023‒2024,

https://www.lausd.org/site/default.aspx?PageType=3&ModuleIns

tanceID=67213&ViewID=C9E0416E-F0E7-4626-AA7BC14D59

F72F85&RenderLoc=0&FlexDataID=112212&PageID=17824&

Comments=true.

73a

explanations for LAUSD’s actions surrounding the

adoption and rescission of the Policy. Far from

the “about-face” described by the Majority, the CEMF

pleadings and attached documen

This text is long and has been trimmed here. Open the source document for the complete record.

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