Challenge to IU vaccine mandate moves forward in 7th Circuit

The 7th Circuit Court of Appeals has denied Indiana University’s motion for dismissal, allowing the challenge to the school’s COVID-19 vaccine mandate to continue.

IU had filed a motion to dismiss Aug. 27, about two weeks after the U.S. Supreme Court denied the students’ appeal for an emergency writ of injunction which sought to prevent the university from enforcing its mandate.

However, without explanation, Circuit Judges Frank Easterbrook, Michael Scudder and Thomas Kirsch, II, denied motion in a single-page ruling issued Sept. 10.

The lawsuit was filed by eight students enrolled to take classes in the fall 2021 semester, including a 1L at Indiana University Robert H. McKinney School of Law. They argued the requirement that all students and faculty be vaccinated against the coronavirus violated their constitutional rights.

James Bopp, who is representing the students, hailed the 7th Circuit’s decision as allowing the plaintiffs to have their constitutional claims decided on the merits.

“…IU students are not convicted and incarcerated prisoners, but are adults entitled to make their own medical treatment decisions,” Bopp said in a statement. “Thus, IU’s Mandate is unconstitutional and we look forward to proving that in court.”

Indiana University declined to comment.

In its motion to dismiss, the school argued the eight students no longer have standing to bring the lawsuit. Seven of the plaintiffs have been granted a religious exemption and six are currently taking classes. The other two, Natalie Sperazza and Ashlee Morris, are not enrolled.

“As a result, none of the eight Plaintiffs who have alleged that IU’s vaccine requirement violates their substantive due process rights will be required to receive a COVID-19 vaccination as a condition of attending IU…,” the university argued in its motion for dismissal.

The plaintiff, in their brief in opposition to dismissal, countered they do have standing because they are continuing to be injured by the mandate. In particular, the six who are enrolled, asserted the mandate is punishing their exercise of their constitutional rights by forcing them to comply with extra requirements. They have to be tested for COVID-19 twice weekly, quarantine after exposure or relocate if there is a serious outbreak.

Also, the plaintiffs maintain that Sperazza and Morris have standing because they just deferred their start dates.

Morris was planning to start her 1L year at IU McKinney, but the court filings offer conflicting reasons as to why she is not in class this semester. In her declaration attached to the plaintiffs’ opposition brief, she claimed she was admitted for the fall 2021 semester but obtained a deferral to the fall 2022 because of her resistance to the vaccine mandate. She stated she will not be required to complete a new application for admission.

However, in a declaration attached to IU’s motion, Jeff Johnston, university registrar, stated Morris was administratively unenrolled because she did not meet the prerequisites for one or more of her classes.

The plaintiffs use their brief to raise their concerns about the effectiveness of the mRNA vaccines developed by Moderna and Pfizer. They argued IU’s rationale for its mandate was to prevent the spread of COVID is no longer viable since the vaccines do not stop transmission.

“The only remaining rationale for mandating vaccination is the prevention of serious injury or death but as Students have argued all along, the death rate for college-aged students is virtually zero so they don’t need any help form (sic) a vaccination to prevent any adverse effects of a COVID infection,” the plaintiffs’ brief states.

To support their arguments, the brief includes a declaration by Christine Parks. According to her resume attached to her statement, Parks holds a Ph.D. in cellular and molecular biology from the University of Michigan and is currently a science educator for two homeschooling cooperatives in Michigan. She argued the mRNA vaccines may, in fact, cause the inoculated to become “superspreaders” when they contract new variants of COVID-19. To support her concern, cites to a study are available on Preprints with The Lancet.

The article looks at transmission of the coronavirus delta variant among vaccinated healthcare workers in Vietnam. A message above the article states the preprints are “early stage research papers that have not been peer-reviewed. The findings should not be used for clinical or public health decision making….”

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