IU opposing 7th Circuit injunction against vaccine mandate

Indiana University is continuing to defend its COVID-19 vaccine mandate as a group of students challenge that mandate in a federal appeals court.

The university on Tuesday filed a response opposing the students’ request that the 7th Circuit Court of Appeals stay enforcement of the vaccine mandate while their case proceeds on appeal. The Bloomington-based school is requiring students, faculty and staff to get a COVID-19 vaccine before returning to campus next month, with exemptions for religious, medical and “ethical” reasons.

A group of eight IU students challenged the mandate, arguing it is unconstitutional under the 14th Amendment, but the Indiana Northern District Court declined to enter an injunction.  The plaintiffs are now asking the 7th Circuit for an emergency injunction, which the school opposes.

“If granted an exemption — as seven of the eight plaintiffs are or could be — each plaintiff may attend school this fall, in person, at an Indiana University campus, without having received the COVID-19 vaccine,” the university, represented by lawyers with Faegre Drinker Biddle & Reath, wrote Tuesday. “They need only wear a mask and undergo regular, non-invasive saliva testing. This is nothing new.”

The plaintiffs — represented by Terre Haute lawyer James Bopp Jr. of The Bopp Law Firm — are arguing that Indiana Northern District Judge Damon Leichty erred in reviewing the vaccine mandate under rational basis scrutiny, rather than the heightened strict scrutiny standard. They say the school should have to prove the mandate passes constitutional muster.

Leichty relied on Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), to support the use of rational basis review, which the plaintiffs argue was error. They asked the judge to stay his ruling pending appeal, but he declined.

In response to the plaintiffs’ request for an emergency injunction from the 7th Circuit, IU argued that Jacobson was controlling precedent. That case upheld a mandate for the smallpox vaccine against a substantive due process argument.

“The debate over the necessity and safety of the vaccine requirement there is no different in kind than the debate over the vaccine requirement here,” the school wrote Tuesday. “But the Supreme Court concluded that it was not its job to determine ‘which one of two modes was likely to be the most effective for the protection of the public against disease.’ … So long as the law bears a ‘real or substantial relation’ to protecting public health and is not ‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law,’ the law must be upheld.

“For the State has the right to impose requirements ‘which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases.’ … ‘The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone,’” the school continued.

IU said the 7th Circuit itself has relied on Jacobson in a COVID-19 case, pointing to the 2020 decision in Republican Party v. Pritzker, 973 F.3d 760, 763. The university asserted that “no court has held that mandatory vaccination requirements implicate fundamental rights that trigger strict scrutiny.”

Even if strict scrutiny applied, IU continued, the school’s vaccine policy would still be upheld: “The Court need look no further than the district court’s thorough factual findings and analysis to conclude that IU’s policy is unquestionably reasonably related to a compelling government interest — stemming the spread of COVID-19. … IU offers exemptions from the policy to ensure that IU is appropriately accounting for material nuances unique to its students’ individual circumstances. … IU’s policy is thus narrowly tailored to held steam the tide of COVID-19.”

The 7th Circuit has given the plaintiffs until noon Friday to file a reply. The plaintiffs have requested that relief be granted by Saturday.

The case is Klaassen, et al. v. The Trustees of Indiana University, 21-2326.

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