Case updates this week:

July 24, 2024: The Superior Court of New Jersey Appellate Division affirmed the trial court’s decision to deny reinstating the Plaintiff’s mercantile license and dismissing their complaint with prejudice in Smith and Trumbetti v. The Borough of Bellmawr. Ian Smith and Frank Trumbetti, co-owners of the Atilis Gym in Bellmawr, New Jersey, refused to follow the Governor’s Executive Orders stating that gyms were “nonessential businesses” that would have to close during the pandemic to protect the public’s health. Due to Atilis Gym’s failure to follow the closure order, The Borough, after an administrative proceeding, rescinded Atilis Gym’s license to operate. The Lower Division trial court affirmed The Borough’s actions. Smith and Trumbetti subsequently brought this appeal to reinstate Atilis Gym’s mercantile license.

Smith and Trumbetti, on appeal, contended that Bellmawr revoked their gym’s mercantile license in retaliation for exercising their First Amendment rights in opposing the closure orders. The Appellate Court found that “the record contains no evidence that defendant revoked their license as retaliation for the exercise of their First Amendment rights” and that Smith and Trumbetti were afforded procedural due process during the administrative proceeding.

July 29, 2024: The United States Court of Appeals for the Third Circuit vacated and remanded the District Court’s ruling which granted Defendants, City of Philadelphia and District Attorney Lawrence Krasner’s, summary judgment motions against Plaintiff, Rachel Spivack, in Spivack v. City of Philadelphia. In August of 2021, the Philadelphia District Attorney’s Office (“DAO”) released an initial version of its COVID-19 vaccine mandate policy. The August 2021 policy established that all employees at the DAO were required to provide proof of vaccination or apply for an exemption by September 1, 2021. Spivack received notice of the August 2021 policy before she started working at the DAO. In September, during the week she started working at the DAO, she submitted a religious exemption request with the support of her rabbi which stated that Spivack’s “religious grounds for declining this vaccination are valid and reflect deep personal commitment to her religious practice.”

In December 2021, Spivack received an email request to submit proof of vaccination and, if she had a religious exemption request, to submit a form that asked for her vaccination history and history of receiving religious exemptions. Spivack completed the form and submitted it to the DAO.

In January 2022, the DAO issued a new policy that categorically denied religious exemptions, instead of providing individualized assessment. District Attorney, Krasner, imposed this new policy because of the emergence of the Omicron variant which caused a surge in new cases. He had also determined that the law did not require religious exemptions, and he had been uncomfortable deciding whether his employee’s religious exemptions were believable or not. Under the new policy, Krasner denied Spivack’s religious exemption request. Spivack remained unvaccinated and was terminated on April 8, 2022.

In April 2022, Spivack brought suit against Krasner and the City of Philadelphia. She claimed that the DAO’s vaccine mandate violated the First Amendment’s Free Exercise Clause and the Pennsylvania Religious Freedom Protection Act. The District Court held that the vaccine mandate was constitutional because it was “rationally related” to the DAO’s interest in preventing the spread of COVID-19 which would minimize staff shortages and reduce the risk of death and illness among the staff, which satisfied strict scrutiny. Under the Free Exercise Clause, the District Court held that Rachel Spivack did not provide evidence that Krasner showed hostility toward her religion in denying the exemption from vaccination.

The Appellate Division found two disputes of material fact that precluded summary judgment for the Defendants. The first was whether the comments made by Krasner during his deposition showed hostility toward Spivack’s religion. The second was whether Krasner evaluated Spivack’s exemption request under the August 2021 policy or the January 2022 policy. Accordingly, the Appellate reversed and remanded the case back to the District Court.

Students For Fair Admission and its Impact on Health Equity

Since 1978, the Supreme Court has recognized that diversity in education is a compelling value that institutions of higher education could work to achieve within the constraints of the Equal Protection Clause of the 14th Amendment.  According to Supreme Court rulings prior to its decision in SFFA, institutions of higher education did not violate the Equal Protection clause when they considered an applicant’s race in admissions decisions, so long as doing so was part of a “holistic” evaluation of the candidate and not simply an effort to fill pre-specified quotas. Courts applied strict scrutiny to ensure that the admissions programs were narrowly tailored to achieve a diverse student population and that there were no workable race-neutral alternatives. For almost 50 years, the Supreme Court has found that the practice of considering a student’s race as a positive attribute - in the same way athleticism, or musical ability, or speaking five languages might be – did not offend the Equal Protection requirements of the 14th Amendment. 

However, in Students For Fair Admission v. Harvard, the Supreme Court implicitly overturned these 50 years of precedent, claiming it was time for a color-blind conception of Equal Protection. Exactly how the Court managed to arrive there without explicitly overturning 50 years of precedent is beyond the scope of this newsletter. The key takeaway is that the Supreme Court’s resurrected color-blind concept of Equal Protection, which fails to acknowledge that in our society “opportunity is dispensed along racial lines . . . [and] racial equality cannot be achieved without making room for underrepresented groups that for far too long [were denied opportunity by force of law]” (SFFA, Sotomayer dissenting), will have implications beyond college admissions. Any program that tries to remediate inequities that disproportionately affect people from underserved communities is going to meet 14th Amendment Equal Protection challenges. That includes programs that are meant to address health inequities.  

Tracking these Equal Protection challenges will require new research protocols to locate them. For example, we do not know yet what search terms will reliably return the kinds of cases we are looking for. It will also require new ways of capturing case data before we fully understand how courts will handle these cases. We are developing the methods we will need and have already begun to collect complaints and other case materials that contain legal arguments that will help us understand what doctrinal shifts are in play. We will discuss what we are tracking in future Newsletters.