7th Circuit declines to impose injection injunction on IU vaccine mandate; students to seek SCOTUS review

Editor’s note: This story has been updated.

The 7th Circuit Court of Appeals has denied a request to enjoin Indiana University’s COVID-19 vaccine mandate, letting the Bloomington-based school system proceed with its requirement that students, faculty and staff be inoculated against the virus before returning to campus this month. A lawyer for the students challenging the mandate says they plan to seek Supreme Court review.

Judge Frank Easterbrook wrote for the unanimous appellate panel that also included Judges Michael Scudder and Thomas Kirsch. The panel on Monday handed down the order denying the injunction sought by a group of IU students in Ryan Klaassen, et al. v. Trustees of Indiana University, 21-2326.

The eight plaintiffs had argued the mandate violated their 14th Amendment rights to bodily autonomy and integrity and to medical treatment choice.

The school allows exemptions for medical, religious and ethical reasons, and at the time of the initial 7th Circuit filings, seven of the eight plaintiffs had either been granted an exemption or were eligible. Those granted an exemption must wear a mask, practice social distancing and participate in regular COVID testing.

“Once again, the court has affirmed our legitimate public health interest in assuring the safety of our students, faculty and staff and we are excited to welcome our community back for the fall semester,” the university said in a statement Monday.

The Indiana Northern District Court denied the students’ request to enjoin the mandate, then declined to stay its ruling pending appeal. The plaintiffs likewise asked the 7th Circuit to stay enforcement of the mandate pending appeal, seeking relief by July 31.

The appellate court waited until Monday to hand down its denial.

“Given Jacobson v. Massachusetts, 197 U.S. 11 (1905), which holds that a state may require all members of the public to be vaccinated against smallpox, there can’t be a constitutional problem with vaccination against SARS-CoV-2,” Easterbrook wrote Monday. “Plaintiffs assert that the rational-basis standard used in Jacobson does not offer enough protection for their interests and that courts should not be as deferential to the decisions of public bodies as Jacobson was, but a court of appeals must apply the law established by the Supreme Court.”

Jacobson defeats the plaintiffs’ argument that IU’s vaccine mandate violated their fundamental rights, thus implicating substantive due process, Easterbrook wrote. And, he added, “this case is easier than Jacobson for the University, for two reasons.”

First, Jacobson upheld a vaccine mandate that did not allow for exceptions for adults, while IU’s mandate does have exceptions. And second, unlike in Jacobson, “Indiana does not require every adult member of the public to be vaccinated … ,” the 7th Circuit held.

“Each university may decide what is necessary to keep other students safe in a congregate setting. Health exams and vaccinations against other diseases (measles, mumps, rubella, diphtheria, tetanus, pertussis, varicella, meningitis, influenza, and more) are common requirements of higher education. Vaccination protects not only the vaccinated person but also those who come in contact with them, and at a university close contact is inevitable,” Easterbrook wrote for the panel.

“We assume with plaintiffs that they have a right in bodily integrity. They also have a right to hold property,” he continued. “Yet they or their parents must surrender property to attend Indiana University. Undergraduates must part with at least $11,000 a year (in-state tuition), even though Indiana could not summarily confiscate that sum from all residents of college age.

“… If conditions of higher education may include surrendering property and following instructions about what to read and write, it is hard to see a greater problem with medical conditions that will help all students remain safe when learning,” the panel concluded. “A university will have trouble operating when each student fears that everyone else may be spread disease. Few people want to return to remote education — and we do not think that the Constitution forces the distance-learning approach on a university that believes vaccination (or masks or frequent testing of the unvaccinated) will make in-person operations safe enough.”

James Bopp Jr., a lawyer for the plaintiffs with The Bopp Law Firm in Terre Haute, said he would ask the U.S. Supreme Court to review the rulings, which legal experts say are the first from federal courts regarding college immunization mandates. Similar lawsuits against student vaccine requirements at the University of Connecticut and the California State University system are awaiting action.

The Associated Press contributed to this report.

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