CLIENT ALERT: Head Start Vaccine and Mask Mandates Blocked in Certain States

Two recent court decisions provide temporary relief to Head Start programs facing a January 31, 2022 deadline from the Biden administration that mandated vaccines for all workers and masks for all students aged 2 years old or older. In both instances, the courts granted preliminary injunctions to state defendants seeking to block the mandate – in holding that the administration unlawfully bypassed Congress and ignored the separation of powers in issuing the mandate.

That means that the federal government cannot implement the Interim Final Rule imposing the mask and vaccine requirements on Head Start programs in the 25 states involved in the litigations until further orders by courts. For other states and territories that did not join as plaintiffs, the Interim Final Rule still applies as of now, although expected guidance from the U.S. Supreme Court or appellate courts could change that in coming weeks.

By way of background, in November, the U.S. Department of Health and Human Services issued new Head Start Program Performance Standards reflecting staff vaccination requirements for grant recipient staff and near-universal masking requirements. Lawsuits soon followed, with various states calling the mandate an overreach of federal power. Head Start providers also questioned the Interim Final Rule as imposing new conditions on their grant awards and disapproved of the quick 2-month timetable, as the Interim Final Rule is slated to take effect on January 31.

In Texas v. Becerra, Judge James Hendrix of the U.S. District Court for the Northern District of Texas determined that HHS could not impose such requirements via an executive agency rule, unless Congress first decides to grant the agency such power. In that case, both the Lubbock Independent School District and the State of Texas sued the Biden administration and sought a preliminary injunction to halt the Head Start mandates from taking effect nationwide. The plaintiffs contended that the vaccine and mask mandates would lead to negative consequences for Head Start programs, including staff shortages and parents removing their preschoolers from the schools.

In his December 31 decision, Judge Hendrix reasoned that the evidence demonstrated the potential for harm to Head Start programs in Texas, but that the circumstances did not justify a nationwide injunction. Although Judge Hendrix’s order was restricted to Head Start programs in Texas, a similar lawsuit in the U.S. District Court for the Western District of Louisiana was joined by 24 states. The January 1 decision by U.S. District Judge Terry Doughty thus grants temporary relief to programs in Louisiana, Alabama, Alaska, Arkansas, Arizona, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Wyoming, and West Virginia.

Judge Doughty wrote in Louisiana v. Becerra that the Biden administration unlawfully circumvented Congress when ordering the vaccine requirement for workers and the masking policy for students. As Judge Doughty explained: “This two-year pandemic has fatigued the entire country. However, this is not an excuse to forego the separation of powers. If the walls of separation fall, the system of checks and balances created by the founders of this country will be destroyed.” The decision enjoins HHS, the Administration for Children and Families, and the Office of Head Start from implementing the mandate as to all staff, volunteers, contractors, students and others in the 24 states that joined as defendants, although the mandate remains in effect for the states (and territories) not listed above.

Judge Doughty also recognized: “This issue will certainly be decided by a higher court than this one.” Indeed, the Texas and Louisiana decisions came just days before the U.S. Supreme Court is scheduled to hear oral arguments on the Biden administration’s vaccine mandate for private businesses on Friday, January 7. Although the Supreme Court scheduled the out-of-session hearing in response to an emergency request to address conflicting lower court rulings on federal vaccine requirements that impact healthcare workers and private employers – and the oral argument does not serve as a direct appeal of the Head Start decisions – the Supreme Court’s overall view on these COVID-19 mandates will serve as a telling indicator for how Head Start programs should proceed.

Head Start organizations should closely follow the trajectory of these lawsuits. If you have further questions, please contact Edward “Ted” Waters, Nicole Bacon, Phillip Escoriaza or Mindy Pava.