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Student alleges ADA violations by Frostburg over vaccine requirement

A former Frostburg State University student who claims he cannot receive the measles vaccine because he is immunocompromised has sued the school, and the state of Maryland, for blocking him from registering for classes after his first year, which he said caused him to transfer.

Shane Mallon filed an Americans with Disabilities Act lawsuit in U.S. District Court in Baltimore last month. Frostburg responded Thursday with a motion to dismiss or, alternatively, a motion for summary judgment.

The university argues that its vaccination policy is reasonable and that Mallon left the school of his own accord without accepting proposed accommodations.

The defendants are represented by the Maryland Office of the Attorney General. A spokeswoman for the office declined to comment on the pending litigation and a spokeswoman for Frostburg declined to comment, deferring to the university’s counsel.

Mallon, 35, claims his rheumatoid arthritis, which is treated with immunosuppressive medications, means he cannot receive vaccinations. Though he enrolled at Frostburg in 2017 and took classes in the fall and spring semesters, Mallon alleges the college health center placed holds on his student account that effectively prevented him from registering for classes in the subsequent academic year.

Mallon obtained a disability waiver from his doctor at the school’s instruction but was nevertheless unable to register for summer and fall classes in 2018. He filed a complaint with the Maryland Higher Education Commission last summer and transferred to the Community College of Baltimore County and then to the University of Baltimore.

Mallon’s attorney, John J. Leppler, said that his client provided all the documentation Frostburg requested but that it appeared the university lacked a clear policy for dealing with students with Mallon’s health concerns.

Leppler, of Bowers Law in Baltimore, said Monday that Mallon had followed Frostburg’s directions “to a T.”

However, in their response, Frostburg and the state of Maryland called Mallon’s lawsuit “frivolous” and argued that recent headlines about measles outbreaks underscore the reasonableness of requiring proof of immunity or vaccination.

The Maryland Department of Health and Mental Hygiene has confirmed four cases of measles this year after only one case in 2018.

“In the face of this serious public health issue, Plaintiff has manufactured this baseless lawsuit to try (to) extract taxpayer funds from the State of Maryland based on his own refusal to accept the reasonable accommodations Frostburg State offered him when he failed to submit evidence of vaccinations or immunities to certain diseases,” the defendants’ motion states. Mallon also failed to provide proof of a tetanus and diphtheria vaccination, another requirement, according to the university.

Frostburg’s health center website currently says students must have a completed immunization record on file and must have had the MMR — measles, mumps, rubella (German measles) — and the tetanus-diphtheria vaccines. Leppler said he has not been provided with a copy of a policy that was in place when Mallon was a student.

The university said that it offered Mallon accommodations — he could obtain his childhood vaccination records, take a blood test to determine if his childhood vaccines continued to provide immunity or sign a waiver in which he would agree to stay off campus in the event of an outbreak — but that he “stubbornly (and strategically) refused each of these options,” according to the motion.

Leppler said that Mallon was born outside of the United States and that it would be difficult to obtain his childhood records. Leppler also said that testing has caused Mallon complications in the past. Leppler also denied that the waiver described by the university was the one his client was asked to sign. He said he plans to file a response to the defense motion in the coming days.

“It’s blatant, blatant, blatant disability discrimination,” Leppler said.

Frostburg also argues Mallon was not “otherwise qualified” to take classes because of a financial hold placed on his account — which Leppler said was the university’s error — and a failure to provide proof of other required vaccinations, including those not dangerous to someone with an autoimmune disorder.

The case is Shane Mallon v. Frostburg State University et al., 1:19-cv-00795.

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