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Indiana University’s Vaccine Mandate Likely Lawful (Correct)

July 19, 2021, 5:24 PM; Updated: Aug. 2, 2021, 7:00 PM

Indiana University’s requirements that students get vaccinated against Covid-19 before returning to classes in the fall are likely lawful, so they won’t be halted while a lawsuit challenging the policies goes forward, a federal court in that state held.

The eight students who filed the suit haven’t shown they are likely to prevail on their due process claim, or that the balance of harms or the public’s interest warrants a preliminary injunction, the U.S. District Court for the Northern District of Indiana said Sunday.

The due process clause of the 14th Amendment allows the school to require vaccinations “in the legitimate interest of public health for its students, faculty, and staff,” the court said.

The ruling gives a boost to public colleges that have imposed vaccination requirements for the fall semester, though its key legal findings don’t directly apply to the private sector. No court has ruled on a school’s authority to require Covid-19 vaccination.

Indiana University appreciated the “quick and thorough ruling” and it looks “forward to welcoming everyone to our campuses for the fall semester,” school spokesman Chuck Carney said in a statement.

But litigation is far from over. The students will appeal the order denying the preliminary injunction to the U.S. Court of Appeals for the Seventh Circuit, their attorney, James Bopp of Bopp Law Firm PC, said.

The case comes down to the nature of the students’ right to refuse the Covid-19 vaccination, he said.

Modern Tiers of Scrutiny

U.S. District Judge Damon R. Leichty said the students’ right to refuse wasn’t a “fundamental” right that merits the highest constitutional scrutiny. Only narrowly tailored actions that further compelling governmental interests can survive that test.

The U.S. Supreme Court applied such strict scrutiny when it struck down a pandemic-related capacity restriction on religious institutions in New York last year in Roman Catholic Diocese of Brooklyn v. Cuomo, which involved the fundamental right of religious liberty.

Leichty, who was appointed to the bench by former President Donald Trump, said that the students’ rights to refuse vaccination fell short of that category of civil liberty. That means the university could impose the vaccine mandate so long as it had a rational basis to do so.

The judge relied on the Supreme Court’s 1905 decision in Jacobson v. Massachusetts, which upheld a government mandate to get vaccinated against smallpox.

“Considering the modern tiers of constitutional scrutiny, the court reads Jacobson and Cuomo harmoniously, appreciating their respective spheres,” Leichty said. “Though Jacobson was decided before tiers of scrutiny, it effectively endorsed—as a considered precursor—rational basis review of a government’s mandate during a health crisis.”

Rational Basis

The university showed that it had a rational basis to conclude that the Covid-19 vaccine is safe and efficacious for its students, the court said. It noted that the vaccine “has been used on about 157 million Americans; and data now about eight months later, though it will grow more robust in years to come, is considerable and shows major side effects are rare.”

And the students failed to provide “strong evidence that would call into legitimate question the reasonableness of the university’s actions,” or that it “was irrational in pursuing its goal of campus health,” the court said.

The school also provided the students with “multiple choices, not just forced vaccination,” including medical and religious exemptions, the court said.

“The university is presenting the students with a difficult choice—get the vaccine or else apply for an exemption or deferral, transfer to a different school, or forego school for the semester or altogether. But this hard choice doesn’t amount to coercion,” the court said.

The court also denied the plaintiffs’ request to bar the implementation of mask, testing and social distancing requirements, saying such a ruling would “expand substantive due process rights.”

Six of the eight plaintiffs have already been granted exemptions from the vaccine mandate. One would qualify if she applied. The last student appears not to qualify for an exemption.

Bopp Law Firm represents the plaintiffs. Faegre Drinker Biddle & Reath LLP represents the trustees.

The case is Klaassen v. Trs. of Ind. Univ., 2021 BL 269510, N.D. Ind., No. 21-CV-238, 7/18/21.

—With assistance from Jacquie Lee.

(Corrects name of court in second paragraph of July 19 story.)

To contact the reporters on this story: Peter Hayes in Washington at PHayes@bloomberglaw.com; Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com; Alexis Kramer at akramer@bloomberglaw.com

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