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The ruling is the first evaluating the constitutionality of a COVID-19 vaccine mandate.
In denying the students’ motion for a preliminary injunction, U.S. District Court Judge Damon R. Leichty ruled that the students failed to show a likelihood they will succeed on their claim that IU lacks a rational basis for its vaccine requirement. The students had claimed that the vaccine requirement violated their due process rights under the 14th Amendment.
“Recognizing the significant liberty interest the students retain to refuse unwanted medical treatment, the Fourteenth Amendment permits Indiana University to pursue a reasonable and due process of vaccination in the legitimate interest of public health for its students, faculty, and staff,” Leichty wrote. “Today, on this preliminary record, the university has done so for its campus communities.”
Leichty noted that the university arrived at its vaccine requirement following extensive deliberations involving a committee of 15 members, including seven medical doctors, “with expertise in public health, epidemiology, virology, data modeling and monitoring, risk mitigation, health equity, health sciences, and law.”
“This was a deliberative decision based on a wealth of scientific, medical, empirical, and industry-wide data,” Leichty wrote.
The university’s COVID-19 vaccine requirement allows for exemptions on medical or religious grounds. Six of the eight students who filed the lawsuit had received exemptions, and a seventh appeared to be eligible for an exemption.
But several of the students also cited deeply held religious objections to the additional testing and masking requirements they would be subject to as a consequence of their unvaccinated status. Leichty’s opinion notes that students who receive an exemption from the vaccine requirement “must participate in more frequent mitigation testing, quarantine if exposed to someone who has tested positive for COVID-19, wear a mask in public spaces, and return to their permanent address or quarantine if there is a serious outbreak of COVID-19.”
Leichty cited various reasons students gave for their objections. One of the student plaintiffs, an incoming sophomore who complied with masking requirements his freshman year, “is concerned that the vaccine is too new to be safe” and “objects to the masking and testing requirements because of their unreasonableness and the potential for discrimination,” Judge Leichty wrote.
Another student plaintiff who applied for and received a religious exemption “objects to the mask policy because it makes it difficult for her to breathe, she gets bad acne from the mask, and she struggles deadlifting with a mask … She also doesn’t like surrendering her biological information for testing,” Leichty wrote.
Leichty wrote that yet another student plaintiff, who expressed concerns about wearing a mask while completing a theater degree, “objects generally to the extra requirements of masks and tests because of the minimal risk to those in her age group, also stating that vegans and pescatarians are less likely to experience serious illness.”
Another student, according to the opinion, "objects to the mask and testing requirements because she thinks masks are silly and she claims nasal swabs cause cancer."
“These students argue that they have rights to refrain from wearing a mask and to refuse nasal testing,” Leichty wrote. “But there is no fundamental constitutional right to not wear a mask … Nor is there a fundamental constitutional right to not be tested for a virus before entering a place of public accommodation.”
Leichty also did not accept the students’ argument that wearing masks would make them vulnerable to bullying on the basis of their religion. “On this record, the court finds no merit in the students’ contention that wearing masks essentially labels them with a ‘scarlet letter’ that targets them for religious bullying,” Leichty wrote. “Indiana University has both medical and religious exemptions, and the same requirements are imposed on both groups. There is no evidence that any exempted person must reveal publicly which exemption they obtained. Wearing masks thus doesn’t signify to others that the individual religiously objects to the vaccination; they could fall within either exempted category, or they could be a vaccinated individual who chooses to take the extra (and unrequired) precaution to wear a mask.
“To be sure, there are some unique circumstances when wearing a mask could negatively impact the student’s educational experience,” Leichty wrote, noting that two of the plaintiffs are studying for performance-related degrees, in music and theater, respectively, and believe the mask requirement will impede their ability to perform. “Though the court sympathizes with these concerns, these are matters for the university reasonably to address, not matters of constitutional import.”
James Bopp Jr., director of litigation for America’s Frontline Doctors, a group that advocates against vaccine mandates, and lead lawyer for the students, pledged to immediately appeal the judge’s decision.
“We think where the court erred was in failing to recognize that there were constitutionally protected rights that were being infringed by the policy,” said Bopp. “We alleged that these students -- who are adults, not children -- are entitled to make their own decisions and have full constitutional rights. The mandate violated their rights to bodily integrity and autonomy because they’re entitled to make medical treatment decisions for themselves.”
Chuck Carney, a spokesman for IU, said the ruling “has affirmed Indiana University’s COVID-19 vaccination plan designed for the health and well-being of our students, faculty and staff. We appreciate the quick and thorough ruling, which allows us to focus on a full and safe return.”
Dorit Rubinstein Reiss, a professor at the University of California Hastings College of the Law who studies vaccine-related laws, said the judge’s analysis of what the constitutional standard is for a vaccine mandate and whether the mandate was reasonable will be relevant to other universities.
“It will give some reassurance to universities that courts are likely to understand why they put in the mandate,” Reiss said. “But it doesn’t directly speak to the question of, can you actually mandate the vaccine under an EUA,” or emergency use authorization by the Food and Drug Administration. All three COVID vaccines publicly available in the U.S. have been approved through the EUA process.
Still, the clear implication of Leichty’s ruling is that a vaccine being approved under an EUA -- as opposed to full approval -- is not necessarily a barrier to imposing a vaccine requirement.
“Not all EUAs are created equally,” Leichty wrote. “Because of the widespread use of a COVID-19 vaccine, the FDA informed manufacturers that it expected the same level of endpoint efficacy data as required for full approval, enough safety data to justify by clear and compelling evidence the vaccine’s safety, and confirmation of the technical procedures and verification steps necessary to support full approval.”
The decision also does not delve into whether the university’s policy conflicts with an Indiana law banning state entities from requiring proof of vaccination in the form of an "immunization passport." Bopp, the lawyer for the students, said they dropped a claim to this effect because the state law does not allow for a private cause of action.
IU revised its requirement after passage of the state law to require students to attest they have been vaccinated, rather than requiring they submit proof. Leichty wrote in his opinion that “the Indiana General Assembly has prohibited a vaccine passport in this state, but not a vaccine requirement.”