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Indiana University’s Covid Vaccine Mandate Survives Appeal

Aug. 2, 2021, 6:10 PM

Indiana University’s requirement that students get vaccinated against Covid-19 before returning to classes in the fall is very likely constitutional and will remain in place for now, the Seventh Circuit said Monday.

Beginning next semester all students at the school must be vaccinated against Covid-19. Students can invoke religious or medical exemptions, but if they do they must wear masks and be tested for the disease twice a week.

Eight students sued, arguing these rules violate their right to due process. A district court denied the plaintiffs’ request for a preliminary injunction blocking the requirements while their lawsuit proceeds, in part because it concluded the students were unlikely to ultimately win on their constitutional claim.

The U.S. Court of Appeals for the Seventh Circuit agreed. It denied the plaintiffs an injunction pending their appeal.

In light of a 1905 U.S. Supreme Court decision holding that a state could require all members of the public to be vaccinated against smallpox, “there can’t be a constitutional problem with vaccination against SARS-CoV-2,” the court said.

Refusal to be vaccinated isn’t “a fundamental right ingrained in the American legal tradition,” the court said. “To the contrary, vaccination requirements, like other public-health measures, have been common in this nation.” It noted that health exams and vaccination requirements for other diseases are common requirements in higher education.

This case is even easier than the 1905 decision, the court said, because Indiana University provides exemptions for people who declare vaccination to be incompatable with their religious beliefs or can show that it would be medically inadvisable. And the rules don’t apply to the general population; students who don’t qualify for an exemption can simply choose to attend another school without such requirements, the court added.

“A university will have trouble operating when each student fears that everyone else may be spreading disease,” the court said. “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 and frequent testing of the unvaccinated) will make in-person operations safe enough.”

The opinion was written by Judge Frank H. Easterbrook and joined by Judges Michael Y. Scudder Jr. and Thomas L. Kirsch II.

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

The case is Klaassen v. Trs. of Ind. Univ., 7th Cir., No. 21-02326, 8/2/21.

To contact the reporter on this story: Brian Flood in Washington at bflood@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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