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Petitions of the week

New York’s vaccine regime and sexual harassment questions

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether New York’s pre-pandemic removal of a religious exemption from its law requiring vaccines for school children violates the First Amendment, when a school is liable for student-on-student sexual harassment, and when a student facing disciplinary action possesses liberty or property interests.

Pre-pandemic challenge to New York’s vaccine regime

F.F., as parent of Y.F., v. New York presents a challenge to New York’s regime governing school vaccines in a case that began in 2019 before the COVID-19 pandemic. After a 2018 measles outbreak in New York, the state legislature removed a religious exemption from the state’s requirement that parents vaccinate children against multiple diseases as a condition of enrolling in public or private schools. A state trial court dismissed a lawsuit from parents arguing that the repeal violated their First Amendment rights, on the ground that the vaccine requirement is neutral and generally applicable to all New York children. A state appellate court affirmed, and the state’s highest court dismissed the appeal from that decision.

In their petition, the parents argue that the specific legislation repealing the religious exemption is not generally applicable because it did not remove a medical exemption and because others in schools, such as teachers or administrators, do not face the same vaccine requirements. The parents further argue that the repeal is not neutral because certain legislators expressed hostility to religion in public statements. For these reasons, the petition asks the Supreme Court to strike down the law by applying strict scrutiny. Finally, the parents emphasizes that unlike Doe v. Mills and Dr. A v. Hochul — recent cases involving state vaccine mandates on the court’s emergency docket — this case reaches the justices through a traditional petition for certiorari.

Two petitions involving sexual harassment in school contexts

In Fairfax County School Board v. Doe, a Virginia county school board faces liability for one student’s sexual harassment of another student on a school-sponsored trip. Although the school board maintains that it did not know of the incident until after it happened (and no further harassment occurred), the U.S. Court of Appeals for the 4th Circuit ruled that a school may be liable if its response to the incident was unreasonable and made the plaintiff more vulnerable to future harassment or deprived the plaintiff of access to educational opportunities. The 4th Circuit also ruled that a school board may have “actual knowledge” of harassment if the school receives a report of an incident that could be construed as alleging sexual harassment, even if school officials do not believe that the report describes harassment.

In Doe v. White, a graduate student asks the justices whether she has liberty and property interests in her schooling when facing suspension or expulsion. Sonoma State University suspended the student, known as Jane Doe, after other students complained that she simulated masturbation in a class exercise directing students “to move in ways that might be taboo.” (The university eventually exonerated Doe of any wrongdoing.) In federal court, Doe argued that Sonoma State violated her rights to due process in the school’s disciplinary proceedings. After the district court dismissed her complaint, the U.S. Court of Appeals for the 9th Circuit affirmed on the ground that Doe had not proven and did not have liberty or property interests as a matter of right that entitled her to the protections of the 14th Amendment.

These and other petitions of the week are below:

Doe v. White
Issues: (1) Whether students at public colleges and universities have, as a matter of right, liberty and property interests when facing suspension or expulsion, or whether they must make a particular showing to establish such interests; and (2) whether, given the Supreme Court’s decades’-old decision in Goss v. Lopez, which held that high school students had been unconstitutionally deprived of their 14th Amendment liberty and property interests when they were suspended without notice and an opportunity to be heard, the law was clearly established at the time of the events giving rise to this case such that Timothy White and other respondents are not protected by qualified immunity.

Little v. Randolph
Issue: Whether a criminal defendant can forfeit or waive his or her Sixth Amendment right to counsel of choice by not alerting the trial court of his or her intention to retain new counsel until shortly before trial begins after repeated defense continuances.

Fairfax County School Board v. Doe
Issues: (1) Whether a recipient of federal funding may be liable in damages in a private action under Davis v. Monroe County Board of Education in cases alleging student-on-student sexual harassment when the recipient’s response to such allegations did not itself cause any harassment actionable under Title IX; and (2) whether the requirement of “actual knowledge” in a private action under Davis is met when a funding recipient lacks a subjective belief that any harassment actionable under Title IX occurred.

F.F., as parent of Y.F., v. New York
Issue: Whether New York’s repeal of the religious exemption to its school vaccination requirement violates the First Amendment’s free exercise clause because (1) either (a) it allows for secular exemptions and, thus, is not generally applicable, or (b) its enactment was motivated by religious bias and, thus, it is not neutral; and (2) whether it is both under- and over-inclusive and, thus, not narrowly tailored to achieve a compelling governmental interest.

Recommended Citation: Andrew Hamm, New York’s vaccine regime and sexual harassment questions, SCOTUSblog (Jan. 28, 2022, 3:26 PM),