2L v. COVID Protocols
74 U.Va 16 (2022)
Brown, J. delivered the opinion of the Court.
On March 17th 2020, the NCAA made the unprecedented decision to cancel that year’s March Madness Tournament due to concerns about the novel coronavirus that was beginning to rapidly spread around the world. For many Americans, it was this moment that signaled the start of the pandemic that has quickly come to define so many parts of daily life. Of the many changes the virus brought, one of the most relevant to this Court is a seemingly endless stream of policy changes from institutions of higher education all over the country.
This case focuses on a specific aspect of the Law School administration's response to the pandemic. Since the policies have become more controversial, the administration has consistently framed its COVID protocols as being mandated by the University at large and out of their control.
Petitioner alleges that this is a misrepresentation of the power the Law School administration has in the implementation and content of these policies. Petitioner also alleges that these policies are not being adopted for the reasons the administration says they are. We will take both of these allegations up for review.
Out of Our Hands
While the rules regarding social distancing practices, masks, vaccination status, and asymptomatic cases have evolved greatly over the last two years, communications regarding these rules have always come either from the Main Grounds Administration or attached with the disclaimer that these policies have been put together for the entire University.
While in most respects this is true—very few UVA Law policies have ever not overlapped perfectly with those on Main Grounds—it is incorrect to claim that the administration has not taken any matters into their own hands. In particular, the ban on eating and drinking in classrooms is a law-school-only protocol.[1]
This isn’t to say that there shouldn’t be a higher level of caution taken within the Law School than in the general community. But to have one of the most unpopular masking policies be a Law School choice, not a Main Grounds choice, and to frame it as something out of the administration's control, is not something that should go unnoticed.
Policies Adopted for Facially Hidden Reasons
Throughout the pandemic, but especially during the period of the most extreme COVID precautions, each update has included statements about needing to stop transmissions and to protect the Charlottesville community. And yet, no Zoom option has been offered, despite this being the single best way to keep students who feel uncomfortable safe—and the Charlottesville community has always had a far lower level of restrictions on it for gatherings than the University.
Once again, this is not to challenge any of the policies that have been implemented. This is a Court of law, not epidemiology or politics, but the content of the communications deserves review so that it is a one-time error.
Pazhwak, J., concurring
Justice Brown is correct in finding that greater scrutiny of the administration’s representation of its role in the design and application of COVID-19 mitigation policies, as well as its apparent reasons for adopting them, is needed. However, the inquiry he recommends on remand does not go far enough. According to publicly available information, approximately 97% of UVA’s student community is fully vaccinated,[2] and the booster requirement for students to return after winter break allows for an inference of a similar level of uptake of the third shot.[3] When boosted, an individual’s risk of severe illness or death from the virus appears to be lower than common respiratory illnesses or even driving a motor vehicle.[4] While such data and estimates are preliminary, and numbers should continue to be scrutinized and considered alongside the exigencies of the current Omicron wave, this information would indicate that the UVA community, by virtue of its high boosted rate, should be reaching a point where it need not be overly concerned with the virus, and COVID policies can finally be put to rest. While, as Justice Brown notes, it is not the role of this Court to decide on issues of epidemiology or politics, or judge previous precautions taken at different points in the pandemic, it is its duty to ensure a showing of a rational basis for policies affecting Law School students.[5] Communications to the appellant parties ought to include content sufficient to justify the paternalism they remain subject to on a daily basis, and should avoid passing responsibility or giving rhetorically attractive but substantively meaningless statements. This may help mitigate seemingly arbitrary policy choices, such as the continued presence of plexiglass screens[6] or requiring masking for those using cardio machines at the gym that are already distanced six feet apart.
Morse, J., concurring.
I concur with Justice Brown in the judgment that the administration should take greater responsibility for what is apparently a greater amount of autonomy in COVID-19 rule-making than they are willing to admit. However, I write separately to encourage the Law School administration to EMBRACE and EXPAND its power, at all costs. There is no basis for the Law School to be treated as the nerdy, bookish serf to the cool, preppy landed gentry of the TYRANNICAL MAIN GROUNDS.
For too long have we denizens of the North Grounds[7] strained under the yoke of Main Grounds. Enough, say I! Now is the time for us to rise up and throw down those polo-wearing, Sperry’s-sporting Main Grounds OVERLORDS! But why stop at independence? If we are to enjoy the fruits of the good and efficient administration of government, would it not be a crime to deprive others of those same fruits?
Today shall mark the beginning of a new era, one defined by the JUST and BENEVOLENT rule of the Law School. Tomorrow we take Darden[8], next the world!!
---
jwb4bb@virginia.edu
mwp8kk@virginia.edu
cpg9jy@virginia.edu
[1] Chief Justice T here. This claim hasn’t been substantiated. Yet, “we do what we want.”
[2] Caroline Newman, High Vaccination Rates Pave the Way as Students Move In, UVAToday (Aug. 18, 2021), https://news.virginia.edu/content/high-vaccination-rates-pave-way-students-move.
[3] See News Staff, UVA student reacts to COVID-19 vaccine booster requirement for spring semester, CBS19 News (Dec. 21, 2021), https://www.cbs19news.com/story/45508548/uva-requiring-covid19-vaccine-booster-dose-for-spring-semester (providing a copy of the booster mandate notice that went out).
[4] David Leonhardt, The Power of Boosters, N.Y. Times (Jan. 31, 2022), https://www.nytimes.com/2022/01/31/briefing/boosters-cdc-covid-effectiveness.html
[5] See Law Students United v. Meatless Mondays 521 COPA (2017).
[6] See Tara Parker-Pope, Those Anti-Covid Plastic Barriers Probably Don’t Help and May Make Things Worse, N.Y. Times (Aug. 19, 2021), https://www.nytimes.com/2021/08/19/well/live/coronavirus-restaurants-classrooms-salons.html.
[7] Just to be entirely clear, Darden is NOT invited to the revolution.
[8] Darden will however have the honor of being our first conquest, which if I understand property so far (sorry, Professor Nicoletti) means their facilities will legally be our possession via the doctrine of acquisition by conquest.