Livingston Educ. Serv. Agency v. Becerra

Docket NumberCase No. 22-cv-10127
Decision Date04 March 2022
Citation589 F.Supp.3d 697
Parties LIVINGSTON EDUCATIONAL SERVICE AGENCY; Saginaw Intermediate School District; Walled Lake Consolidated School District; and Wayne-Westland Community Schools, Plaintiffs, v. Xavier BECERRA, Secretary of Department of Health and Human Services; Department of Health and Human Services; Jooyeun Chang, Assistant Secretary of Administration for Children and Families; Administration for Children and Families; and Bernadine Futrell, Director of the Office of Head Start, Defendants.
CourtU.S. District Court — Eastern District of Michigan

Breanne Gilliam, Brett Swearingen, Rebecca L. Strauss, Amy Elizabeth Murphy, Miller Johnson, Grand Rapids, MI, Robert T. Schindler, Lusk Albertson, Detroit, MI, for Plaintiffs Livingston Educational Service Agency, Wayne-Westland Community Schools.

Christopher D. Edelman, Madeline McMahon, Michael Patrick Clendenen, DOJ-Civ, Civil Division, Federal Programs Branch Washington, DC, for Defendants.

ORDER DENYING PLAINTIFFSMOTION FOR PRELIMINARY INJUNCTION [5]

Nancy G. Edmunds, United States District Judge

Head Start is a federal discretionary grant program that promotes school readiness in low-income children through age five. See 42 U.S.C. § 9831. The Secretary of Health and Human Services administers the Head Start program and is tasked with issuing regulations prescribing standards for Head Start grantees. Id. § 9836a(a). In November 2021, the Secretary announced that, in order to receive Head Start funding, participating facilities must ensure that their staff, contractors, and volunteers—unless exempt for medical or religious reasons—are vaccinated against COVID-19. 86 Fed. Reg. 68052 (2021) (the "Rule"). The Rule took effect on January 31, 2022. See 45 C.F.R. §§ 1302.93, 1302.94.

Days before the January 31 deadline, four Michigan school districts brought the present case in which they ask the Court to declare the Rule unlawful and enjoin its enforcement in their districts. (ECF No. 1.) Upon Plaintiffs’ motion, and to preserve the status quo, the Court entered a temporary restraining order enjoining Defendants from enforcing the Rule against the unvaccinated employees Plaintiffs identified. (ECF Nos. 12, 20.) Now before the Court is PlaintiffsMotion for Preliminary Injunction. (ECF No. 5.) The Government responded in opposition to the Motion and Plaintiffs filed a reply. (ECF Nos. 35, 39.) The Michigan Legislature filed an amicus brief supporting Plaintiffs and asking the Court to enjoin the rule throughout the State of Michigan. (ECF No. 30.) The Court held a hearing to allow the parties to offer evidence and argument. For the reasons that follow, the Court denies PlaintiffsMotion for Preliminary Injunction. (ECF No. 5.)

I. Background
A. Head Start and Head Start Performance Standards

Head Start seeks to break the cycle of poverty through the provision of comprehensive health, education, parental involvement, nutritional, social, and other services to low income preschool children and their families. See, e.g. , 42 U.S.C. § 9831. The program is funded through a direct federal-to-local grant that does not pass through the state. See id. §§ 9834, 9835. Because Head Start involves discretionary grants, the federal government maintains the authority to choose which entities receive grants. No one is entitled to a Head Start grant or to attend a Head Start program. See Dep't of Health and Hum. Servs. ("HHS"), Grant Policy Statement, at I-1, I-3 to I-4 (Jan. 1, 2007), https://perma.cc/PME5-9724; see also 42 U.S.C. § 9833 (providing that the Secretary "may ... provide financial assistance" to an eligible agency upon the agency's application for the same). Any entity that chooses to apply for and receives a Head Start grant agrees that it will meet all of the performance standards HHS imposes, even if those entities are school districts or educational institutions. See Grant Policy Statement, supra. ; 42 U.S.C. §§ 9836(d)(2)(F), 9836a(a)(1). And if a Head Start entity determines that it can no longer maintain the standards set for Head Start, it is free to relinquish its grant and provide services through its own non-Head Start pre-K program instead.1

Congress authorized the Secretary of HHS (the "Secretary") to impose and "modify, as necessary" the performance standards imposed upon recipients of Head Start grants. 42 U.S.C. § 9836a(a)(1). Included among the modifiable standards are those related to "administrative and financial management," id. § 9836a(a)(1)(C), "the condition and location of facilities (including indoor air quality assessment standards, where appropriate)," id. § 9836a(a)(1)(D), and "such other standards as the Secretary finds to be appropriate," id. § 9836a(1)(E).

Throughout the years, this authorization led to standards that responded to the most pressing health and medical threats of the times. For example, in the 1990s, guidance as an appendix to the performance standards included the appropriate treatment of children with HIV. 45 C.F.R. § 1308 App'x (2015). In 1996, HHS added health examinations and tuberculosis

screening for staff and regular volunteers to the Head Start Program Performance Standards. 61 Fed. Reg. 57186, 57210, 57223 (1996). And in response to suggestions in public comments that it no longer made sense to single out tuberculosis, HHS revised the staff health standard in 2016 to include more general language about staff health and communicable diseases. Head Start Performance Standards, 81 Fed. Reg. 61294, 61357, 61433 (2016).

Other standards addressed similar health goals. In 1975, just one year after Congress made Head Start a permanent program, Head Start grantees were required to assist program participants with the provision and completion of "all recommended immunizations

," including diphtheria, pertussis, tetanus, polio, and measles. 45 C.F.R. § 1304.3 - 4(2) (1975) (ECF No. 39-3, PageID.830.) Head Start facilities were also required to space infant cribs at least three feet apart and exclude children with contagious illnesses from the program so as not to "pose[ ] a significant risk to the health or safety of the child or anyone in contact with the child." 45 C.F.R. §§ 1304.22(b), 1304.22(e)(7) (2011).

B. The COVID-19 Pandemic and Head Start Interim Final Rule

The COVID-19 pandemic first hit the United States in 2020. Caused by the SARS-CoV-2 virus, COVID-19 is considered to be mainly transmissible through exposure to respiratory droplets when a person is in close contact with someone who has COVID-19. 86 Fed. Reg. 68052. In an effort to stop the spread of COVID-19, more than 90 percent of Head Start programs closed all in-person operations for varying lengths of time in the spring of 2020. Id. 68058. By December 2020, over 13,500 Head Start facilities still had not resumed full in-person operations, but in May 2021, HHS communicated its expectation that Head Start programs resume fully in-person services beginning the following January. Id. 68058, 68062.

On September 9, 2021, President Biden announced his administration's plan to combat the COVID-19 pandemic. (ECF No. 5, PageID.134.) Consistent with this plan, on November 30, 2021, the Secretary of HHS issued an interim final rule with comment amending the existing conditions of participation in Head Start to add a new requirement—that facilities ensure that those interacting with Head Start students be vaccinated for COVID-19.2 See Dep't of HHS, Interim Final Rule, Vaccine and Mask Requirements to Mitigate the Spread of COVID-19 in Head Start Programs, 86 Fed. Reg. 68052 (2021) (codified at 45 C.F.R. pt. 1302) (the "Rule," or "Head Start mandate"). The Rule requires facilities to offer medical and religious exemptions, and track and securely document the vaccination

or exemption status of each staff member. 86 Fed. Reg. 68061.

Relying on data that indicates "[v]accination is the most important measure for reducing risk for SARS-CoV-2 transmission," id. 68052, the Secretary issued the Rule after finding it "necessary and appropriate to set health and safety standards for the condition of Head Start facilities that ensure the reduction in transmission of the SARS-CoV-2 [virus] and to avoid severe illness, hospitalization, and death among program participants," id. 68054. He found the efficacy of COVID-19 vaccinations

had been demonstrated, that vaccines continued to be effective against the then-dominant Delta variant, and that emerging evidence suggested that infected vaccinated people had the potential to be less infectious than infected unvaccinated people, thus decreasing transmission risk. Id. 68052.

In developing the Rule, the Secretary consulted with experts in child health and considered the disproportionate effect of COVID-19 on the low-income and minority communities Head Start serves, stating there was potential for "devastating consequences" for children and families due to program closures and service interruptions caused by COVID-19 infections. Id. 68054, 68056. The Secretary also found that, because "children under age 5 are too young to be vaccinated at this time, requiring masking and vaccination

among everyone who is eligible are the best defenses against COVID-19 ...." Id. 68055.

The Secretary issued the Rule as an interim final rule, rather than through the typical notice-and-comment procedures, after finding "good cause" that the vaccine provision of the Rule should be made effective by January 31, 2022. Id. 68059. That good cause related to emerging indications of potential increases in COVID-19 cases associated with the SARS-CoV-2 Delta variant as well as the anticipated full return to in-person Head Start services in January 2022. Id. 68058-59, 68062. The Secretary thus found that a delay in imposing the vaccine mandate would be "impracticable and contrary to the public interest." Id. 68059. Public comments were accepted and considered, however, from the time the Rule was announced on November 30 until at...

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