7th Circuit Makes Short Work of Anti-Vax Challenge to IU vaccination requirements

The 7th Circuit, in an opinion written by Judge Easterbrook, made short work of a challenge by anti-vaccination students challenging IU’s requirement that students get vaccinated. Specifically, the policy requires students to be vaccinated as a condition of attending the university unless they qualify for a religious or medical exemption. Six of the eight plaintiffs claimed to have some sort of religious reason for not getting vaccinated. The seventh qualified for the religious exemption but wasn’t claiming it. And the eighth wasn’t eligible for any of the exemptions. Those who claim exemptions have to wear masks and get tested twice a week.  The students were asking for injunctive relief (meaning that they wanted the courts to prohibit the university from enforcing the policy.) At the district court level, the judge issued a long (101 page) opinion denying their motion. On appeal, the 7th Circuit was more efficient (4 pages). (Seriously – go read the opinion, it’s one of the better crafted opinions I’ve seen.)

The legal bedrock for these kind of cases is the 1905 Supreme Court opinion in Jacobson v. Massachusetts. In that case, the Supreme Court affirmed the criminal conviction against a man who refused to get a compulsory smallpox vaccination. Citing Jacobson, the 7th Circuit in this case says there can’t be a Constitutional problem with requiring a COVID vaccination. There is no substantive due process right being violated because vaccination requirements, like other public-health measures, have been common in this nation for a long time. In fact, the 7th Circuit says, this case is easier than Jacobson.

First, Jacobson had no exception for adults. IU allows exemptions. Those who claim exemptions have to get tested twice a week and wear masks which, the 7th Circuit observes, are not Constitutionally problematic requirements. Second, where the Jacobson case involved everyone in the community, IU isn’t the only place to get an education. Students can go elsewhere if vaccines and testing are simply intolerable to them. The Court recognized that a University has the right to determine what’s necessary to keep students safe in a congregate setting. Vaccinations protect not just vaccinated persons but also those who come in contact with them. The Court also makes analogy to other rights which are not violated by a University imposing conditions of attendance. A student has a right to property, but it’s not a violation of that right for the University to require the student fork over $11,000 worth of that property as a condition of enrollment. A student has First Amendment rights to expression, but that right is not violated where a University requires students to read something they prefer not to read or write something they prefer not to read “even if the student deems the books heretical.” And, at this point, Judge Easterbrook just seems to be having fun. “A student told to analyze the role of nihilism in Dostoyevsky’s The Possessed but who submits an essay about Iago’s motivations in Othello will flunk.”

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 help all students remain safe when learning. A university will have trouble operating when each student fears that everyone else may be spreading disease.