January 13, 2021
Chancellor Ronnie Green
Office of the Chancellor
University of Nebraska-Lincoln
1400 R Street
Lincoln, NE 68588
Re: Enhanced COVID Safety Measures for Spring 2021
Dear Chancellor Green:
I am writing on behalf of American Constitutional Rights Union (ACRU) in conjunction with Students for Liberty, which has an organized student chapter on your campus and on campuses around the world. ACRU is an organization committed to defending the constitutional rights of every American, including students. As you are aware, as a public institution, the University of Nebraska-Lincoln is obligated to act within the confines of the Constitution and protect the rights of every one of the students it serves.
We were recently contacted by students enrolled at your University who are concerned about the “Enhanced COVID Safety Measures for Spring 2021” disseminated by you in an e-mail dated December 9, 2020. They believe – and rightly so – that the mandatory testing and proposed application required to be utilized by students to display the results of those tests as a precursor to entry into any campus building violates their rights.
While we understand and appreciate the University’s desire to protect the health and safety of all students and faculty, this cannot come at the cost of those same individuals’ constitutionally protected and other legal rights. ACRU trusts that once you understand the legal impediments to the University’s proposed measures, you will change your mind about implementation so that your students’ rights are protected and the need for litigation is avoided.
First, we examine the University’s proposed protocols in the context of the Fourth Amendment. “The Fourth Amendment requires government to respect ‘the right of the people to be secure in their persons . . . against unreasonable searches and seizures.’” Chandler v Miller, 520 U.S. 305, 308 (1997). It is irrefutable that such an analysis is proper since capturing bodily fluid from a person has been deemed by the United States Supreme Court to fall within this scope of review (see, e.g., Skinner v. Ry. Labor Executives’ Assn., 489 U.S. 602 ), and, in fact, such widespread testing of a student body has been struck down by the Eighth Circuit in Kittle-Aikeley v Strong, 844 F.3d 727 (8th Cir. 2016).
Likewise, the tracking of movement, which you intend to do of students by mandating your “passport” app, constitutes a search that falls under the Fourth Amendment. See, e.g., United States v Jones, 565 U.S. 400 (2012). “To be reasonable…a search ordinarily must be based on individualized suspicion of wrongdoing.” Chandler v Miller, 520 U.S. 305, 313 (1997). These students have done nothing wrong and mandating bodily fluids from them, disclosure of their private medical information, and retaining and tracking this medical information as well as their movements via unspecified technology as a precondition to them attending classes they have already registered and paid for is not only unconstitutional but also unconscionable.
Your attempt to undermine or circumvent these students’ Fourth Amendment rights by coercing their consent in the form of a checkbox that must be marked in order to access your MyRed platform is equally unconscionable. The University’s mandate that students download a mobile application that tracks their movements and denies or grants access to University facilities and benefits based upon factors determined by the University is reminiscent of checkpoints used by totalitarian regimes. Your students have been accepted by and enrolled in the University and, therefore, have a right to unfettered access to all of its benefits without restriction.
As required by law, your University has an antidiscrimination policy that promises, “The University of Nebraska does not discriminate based on race, color, ethnicity, national origin, sex, pregnancy, sexual orientation, gender identity, religion, disability, age, genetic information, veteran status, marital status, and/or political affiliation in its programs, activities, or employment.” But, indeed, the University does intend to discriminate based upon private medical information and require its disclosure in order to implement its new policy of discrimination.
The creation of separate classes or categories of students based upon their willingness to submit to medical testing, their health status as determined by the notoriously inaccurate tests, and their willingness to publicly disclose their results violates not only the University’s own stated policy and state and federal anti-discrimination laws, but arguably also the Equal Protection clause of the Fourteenth Amendment. This is unacceptable. The University’s new protocols will also likely have the effect – whether intended or not – of discriminating against persons who do not want to submit to testing based upon their religious or political convictions, which is also in direct contravention of the University’s stated policy.
Ensuring the privacy and security of student’s medical information is of the utmost importance, and the University’s “enhanced COVID safety measures,” while perhaps well-intentioned, irrefutably sacrifices student privacy and violates the University’s own policy.
Please confirm by contacting ACRU within seven (7) days of the date of this letter that the University will rescind its enhanced measures described in your communication of December 9, 2020 to obviate the need for litigation. If you wish to discuss this matter further, please do not hesitate to contact ACRU at 877.730.ACRU.
CC: Board of Regents: