Black, Indigenous, and Green Mountains of Color:Vermont’s Vaccination Policy is Unconstitutional
As of March 30, 2021, the state of Vermont expanded COVID-19 vaccine access to all those members of the “Vermont BIPOC community 16 years of age and older” but not similarly aged white Vermonters [1]. The obvious legal question is whether the state’s preferential treatment of BIPOC — which the state defines as “Black, Indigenous, People of Color” — violates the equal protection clause of the 14th amendment. I argue that the classification is unconstitutional. I also raise the question of whether federal vaccination guidelines in the early part of the vaccination program were similarly unconstitutional.
The equal-protection clause asserts that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” While this clause’s meaning may seem self-evident, laws treat different people differently all the time – for example, blind people are often barred from obtaining driver’s licenses. In a footnote to the Court’s decision in United States v. Carolene Products Co. (1938), the Court tried to solve this problem by asserting that laws that discriminated against “discrete and insular minorities” would be subjected to a higher form of scrutiny – now called strict scrutiny – than laws that did not [2]. State actions that explicitly distinguish between people on the basis of race, such as the case in Vermont’s vaccine prioritization scheme, are immediately given strict scrutiny. Once strict scrutiny is applied, the law may still be constitutional if it satisfies two criteria: first, the law must address a compelling governmental interest; and second, the law must be narrowly tailored in furthering that interest. The constitutionality of Vermont’s policy thus hinges on two critical facts: whether vaccinating BIPOC Vermonters before white Vermonters furthers a compelling governmental interest and whether the vaccination policy is narrowly tailored in pursuing that interest.
There are two apparent interests of the policy: first, the program could be attempting to redress past societal discrimination; and second, the policy could be attempting to more save more lives with a limited vaccine allotment. With respect to the first interest, the state may want to “level the playing field a bit” in the face of historically discriminatory healthcare policies, as Dr. Harald Schmidt told the New York Times earlier this year in a piece quoting a number of doctors and officials about the ethics of the national vaccine rollout [3]. Despite this plausible justification, in Regents of the University of California v. Bakke (1977), Justice Powell held that remedying general societal discrimination was not a compelling interest, writing that it was an “[…] amorphous concept of injury that may be ageless in its reach into the past” [4]. In Wygant v. Jackson Board of Education (1986), the Court elaborated on this point and ruled that a law remedying past discrimination could be compelling but only if it addressed real specific instances of discrimination within a particular institution and provided that the costs to innocent parties were small and diffuse [5]. With respect to statistical evidence – such as one might present in a case regarding COVID-19 case numbers – the Court ruled in City of Richmond v. J.A. Croson Co. (1989) that statistical evidence that discrimination had somehow occurred was not sufficient to demonstrate a compelling interest in remedying that supposed discrimination [6]. Because the Vermont plan is not in response to specific instances of discrimination in any particular institution – much less the Department of Health – the state does not have a compelling interest in remedying general societal discrimination, even if it can cite general statistical evidence suggesting that BIPOC Vermonters have been somehow discriminated against by the healthcare system during the pandemic.
The second possible interest — saving the most lives with a limited allotment of vaccines — seems more likely to be compelling. However, a law that merely attempts to save lives through racial classifications cannot be narrowly tailored without a complex justification. The Vermont Department of Health justifies its policy based on the premise that a variety of factors leave racial minorities at higher risk for contracting and dying from COVID-19. Among those factors are the disproportionate representation of minorities in high-risk jobs, high-risk housing arrangements, their limited access to personal protective equipment, and their higher rates of underlying health conditions [7]. Unfortunately for the state’s legal situation, however, the Department of Health has made its opposition’s case: if all those many factors — and those factors most of all — contributed to a higher risk among minority groups of contracting and dying from the disease, the state could simply adjudicate vaccine prioritization based on those factors. In other words, by listing a series of alternative classifications that more directly assess COVID-19 risk, the Department of Health has shown that their racial classification is not sufficiently narrowly tailored. In the above-mentioned Richmond v. J.A. Croson Co. (1989), the Court ruled that a discriminatory law cannot be narrowly tailored if non-racial classifications can achieve the state’s goals [8].
Because Vermont’s racial preference in COVID-19 vaccination is not narrowly tailored toward furthering a compelling governmental interest, the program is unconstitutional. In practical terms, this fact will not make any difference, however. White Vermonters will gain similar privileges shortly, but we ought to carefully consider the legality of all pandemic programs to provide guidance for the future. In fact, the Centers for Disease Control and Prevention was criticized early in the vaccination rollout much along the same grounds by conservative outlets. Rather than opting for explicit race-based classifications, some public health officials stated publicly that they favored essential workers for vaccine prioritization above other higher-risk groups due to those jobs’ disproportionate minority representation [9]. Had the policy simply set out to save the most lives, the guidance eventually promulgated by the CDC would not have favored essential workers above the elderly, according to the CDC’s own models [10]. While the absence of explicit discrimination appears to save the rule from strict scrutiny, the Supreme Court held in Washington v. Davis (1976) that laws with a racially disparate impact could be held to strict scrutiny if and only if the discrimination were intentional [11]. If it were shown that the guidelines were intentionally designed to privilege racial minorities to ameliorate societal discrimination — not to save lives — the rule would be subjected to the above analysis and could fail under similar logic. In sum, explicit racial classifications for vaccine prioritization are almost surely unconstitutional. Implicit racial discrimination through proxy classifications like “essential workers” — which might be quite common — might be unconstitutional as well if Washington v. Davis (1976) is applied.
References
[1] “COVID-19 Vaccine,” City of Burlington, Vermont, Accessed April 21, 2021, https://www.burlingtonvt.gov/covid-19/vaccine.
[2] 304 U.S. 144 (1938)
[3] Goodnough and Hoffman, “The Elderly vs. Essential Workers,” The New York Times online, Last updated March 21, 2021, https://www.nytimes.com/2020/12/05/health/covid-vaccine-first.html.
[4] 438 US 265 (1978)
[5] 476 U.S. 267 (1986)
[6] 488 U.S. 468 (1989)
[7] “COVID-19 among BIPOC,” Vermont Department of Health, Accessed April 21, 2021, https://www.healthvermont.gov/sites/default/files/documents/pdf/COVID-19-among-BIPOC-Data-Brief.pdf.
[8] 488 U.S. 468 (1989)
[9] Goodnough and Hoffman, “The Elderly vs. Essential Workers,” The New York Times online, Last updated March 21, 2021, https://www.nytimes.com/2020/12/05/health/covid-vaccine-first.html.
[10] Slayton, “Modelling Allocation Strategies for the Initial SARS-CoV 2 Vaccine Supply”
[11] 426 U.S. 229 (1976)