Last month, we reported on a federal court’s decision upholding a Houston hospital’s mandatory COVID-19 vaccination policy. This was consistent with the May 28 EEOC guidance on the subject, as well as a Department of Justice opinion from July that clarified that current vaccines’ emergency use authorization (“EUA”) status “does not prohibit public or private entities from imposing vaccination requirements.”
Meanwhile, students challenging Indiana University’s vaccination mandate have come up short at every level of federal court. In mid-July, the trial court denied the students’ motion for a preliminary injunction, which would have prevented IU from implementing its mandate for the fall semester. On August 2, the Seventh Circuit Court of Appeals (which also has jurisdiction over Illinois) rejected the students’ motion for an injunction while they appealed the trial court’s ruling. And on August 12, Supreme Court Justice Barrett denied the students’ motion for an injunction.
IU’s policy requires all students, staff, and faculty to be fully vaccinated before returning to classes for in-person instruction. Vaccination is not required for students in remote or off-campus programs. The University recognizes both religious and medical exemptions from vaccination but requires that any individual with an approved exemption submit to additional mitigation measures, including masking, testing, and social distancing.
In a lengthy opinion, the trial court soundly rejected all arguments put forth by the students, spending a great deal of time reviewing the current scientific data behind COVID-19 transmission, risks associated with COVID-19 vaccines, and the impact of mitigation measures. The court acknowledged IU’s authority under state law to set forth health mandates and concluded that IU’s mandatory-vaccination policy does not violate the Constitution, as the right to receive a collegiate education is neither a fundamental nor a constitutional right, but a liberty interest. Therefore, so long as the University’s policy mandating vaccines bears a rational relationship to a legitimate public interest (here, public health), the mandate is constitutional. The court also noted that the University was not forcing students to take the vaccine—students could choose to take the vaccine and attend class, could opt to apply for an exemption, or could transfer to another university. The court held that the University’s mandate is reasonably designed to promote the safety of its students, as well as the entire community, to allow a return to normal school functioning, and embodies the leading prevention strategy recommended by the CDC and other experts. Therefore, the mandate was deemed rationale and constitutional.
The students also challenged the additional mitigation measures required of individuals with religious and medical exemptions, complaining that these measures violated their freedom of religion under the First Amendment. The court rejected this argument as well, holding that the requirements applied to all exempted individuals, not just those with religious exemptions, thus treating all exempt individuals equally. As such, the mitigation measures did not place an additional burden on the students because of their religious beliefs but allowed them the benefit to refuse the vaccine and practice their religion as they saw fit. Further, the court noted that there is no fundamental constitutional protection against wearing a mask or participating in a non-invasive saliva test for COVID-19.
The appellate court opinion was much shorter but reached the same conclusion, and Justice Barrett denied the motion before the Supreme Court without issuing a substantive opinion. As a result, the case may proceed on appeal, but the University’s vaccination mandate and mitigation measures for exempted individuals will remain in place for the start of the 2021-2022 school year.
While this case provides support for public schools at the university level choosing to implement vaccine mandates and other required mitigation measures, at this time, K-12 schools considering such an approach should consult with legal counsel first. While the U.S. Constitution does not guarantee the right to a college-level education and students who disagree with the vaccine mandate have the option to attend elsewhere, elementary and secondary students do not have that same level of choice. Additionally, a mandatory-vaccination policy for staff would have bargaining implications with employee unions (though the NEA and AFT have recently expressed an openness to such policies).
We will continue to monitor developments in the area of vaccination mandates. For questions about this case or its impact on K-12 schools, contact Tony Loizzi, Ebony Smith, Jessica Nguyen, or Aimee LeBlanc.