Children's Health Def., Inc. v. Rutgers

93 F.4th 66

CHILDREN'S HEALTH DEFENSE, INC.; Peter Cordi; Raelynne Miller; Kayla Mateo;Adriana Pinto; Jake Bothe; Anthony Lamancusa; Jessica Moore; Ryan Sandor;Gianna Corallo; Ryan Farrell; Sebastian Blasi; Maggie Horn; Lindsay Mancini, Appellants v. RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY; Board of Governors;Rutgers School of Biomedical and Health Sciences; Chancellor Brian L. Strom;President Jonathan Holloway, in their official capacities

No. 22-2970

United States Court of Appeals, Third Circuit

Argued June 27, 2023

Filed: February 15, 2024

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 3-21-cv-15333), District Judge: Honorable Zahid N. Quraishi

Ray L. Flores, Law Offices of Ray L. Flores, 11622 El Camino Real, San Diego, CA 92130, Julio C. Gomez [ARGUED], Gomez LLC, 1451 Cooper Road, Scotch Plains, NJ 07023, Mary S. Holland, Children's Health Defense, 852 Franklin Avenue, Franklin Lakes, NJ 07417, Robert F. Kennedy, Jr., Kennedy & Madonna, 48 Dewitt Mills Road, Hurley, NY 12443, Counsel for Appellants

Jeffrey S. Jacobson [ARGUED], Faegre Drinker Biddle & Reath, 1177 Avenue of the Americas, 41st Floor, New York, NY 10036, Andrew B. Joseph, Faegre Drinker Biddle & Reath, One Logan Square, Suite 2000, Philadelphia, PA 19103, William J. Latimore, Faegre Drinker Biddle & Reath, 600 Campus Drive, Florham Park, NJ 07932, Counsel for Appellees

Before: JORDAN, KRAUSE, and MONTGOMERY-REEVES, Circuit Judges.

OPINION OF THE COURT

KRAUSE, Circuit Judge.

The core educational mission of a university presupposes a safe and healthy student body to educate. For that reason, a university's responsibilities necessarily extend beyond the curriculum to the significant challenge, even in normal times, of safeguarding its population. Of course, the past few years have been anything but normal. The challenges posed by the COVID-19 pandemic were unprecedented, and universities around the country, indeed, around the world, had to wrestle with hard choices like whether to mask, to require vaccination, to "go remote," or to "go hybrid." They also faced hard choices in the sequencing of such safety measures across different components of the university as they attempted, in novel and fast-changing circumstances, to resume in-person classes and target the spread of the virus among those most at risk for "super spreader" transmission.

In preparing for a safe return to campus in the fall of 2021, Appellee, Rutgers University, took a phased approach that, in the first instance, prioritized the health of the student body. That spring, as the prior school year came to a close, Rutgers announced that student vaccination would be a condition of attending fall classes in person or having physical access to campus resources. At the same time, it provided students the options to decline vaccination for medical or religious reasons, to become a fully remote student, or to disenroll and attend a different university. Within a few months, it extended that in-person vaccination requirement to its health care and public safety personnel, and a few months after that, to all in-person faculty and staff.

Appellants include thirteen Rutgers University students who took issue with the student policy. Along with Appellant Children's Health Defense, Inc.,¹ these students filed suit against Rutgers, raising various constitutional and statutory claims. Although vaccination was one among the other options for matriculating and was required only for in-person attendance, Appellants' complaint pejoratively labelled the policy a "vaccine mandate" and sought general damages as well as declaratory and injunctive relief. The District Court dismissed all claims as either moot or failing to state a claim.

We will affirm the District Court's judgment because, even accepting the complaint's factual allegations as true, as we must at this stage, see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Students have not stated any plausible claim for relief. We reach this conclusion based on the application of well-settled law and in line with every other federal court to have considered similar challenges.²

I. Factual and Procedural Background

The essential contours of the COVID-19 pandemic are well-known. The first wave of cases came to the United States in early March 2020, and by mid-to-late March, several states had in place emergency orders closing non-essential businesses and limiting large gatherings.³ New Jersey was one of them: On March 21, 2020, Governor Murphy issued Executive Order No. 107, which directed "[a]ll New Jersey residents [to] remain at home" except for certain exigencies. JA 284. The order closed most businesses, cancelled social gatherings, and required "[a]ll institutions of higher education," including Rutgers, to "cease in-person instruction." Id. But New Jersey, like most of the country, began a slow return to normalcy in spring 2021, when two, then three, COVID-19 vaccines received emergency use authorization and were made available to the public.⁴

One year into the pandemic, Rutgers announced that it would resume in-person learning for the fall 2021 semester, and on April 13, 2021, it issued the first iteration of its COVID-19 vaccination policy (the "Policy").⁵ Consistent with Rutgers' decision to prioritize student health, the initial goal of the Policy was "[t]o minimize outbreaks of COVID-19 among students,"⁶ and by the fall, Rutgers had expanded that goal "[t]o minimize outbreaks of COVID-19 in the Rutgers University community" at large. JA 350. Thus, the April 2021 Policy required students, as a condition of in-person campus access, to be vaccinated before the start of the new school year. Two months later, in June 2021, Rutgers extended the Policy to "health care personnel and all Rutgers University public safety personnel at all locations,"⁷ and by October 2021, tracking President Biden's Executive Order,⁸ it had expanded the in-person vaccine requirement to the remainder of its population, i.e., all staff and faculty.⁹

The student policy included three exemptions: (1) students enrolled in fully online degree-granting programs;¹⁰ (2) students with a documented medical contraindication to the COVID-19 vaccination; and (3) students with a conflicting bona fide religious belief or practice.¹¹ Exempt students, however, were subject to certain restrictions, including that they were excluded from university housing, required to test weekly, and in addition to the indoor mask requirement, required to mask in congregate settings.¹² As the Policy was informally announced in March 2021, students had approximately six months to seek exemptions on health or religious grounds, take classes at a different university, change their status at Rutgers to fully remote,¹³ or, for students who required a particular in-person-only course to graduate, to take that class over the summer before the Policy came into effect.

Appellants objected to the Policy and filed a complaint against Rutgers in the District of New Jersey in August 2021.¹⁴ Twelve of the thirteen Students had applied for and received medical or religious exemptions. JA 165. The remaining student, Adriana Pinto, also "struggled with her health" but opted not to seek a medical exemption. JA 138. While one of the remaining classes that Pinto needed to graduate allegedly was an in-person-only course, she opted not to take it over the summer before the vaccine requirement became effective and instead became a plaintiff in this action.¹⁵ See JA 139-40.

The Students' Complaint broadly alleged that "[a]ll available vaccines in the United States are emergency-authorized COVID-19 vaccines made by Pfizer, Moderna and Johnson & Johnson. They are not FDA approved, and are not proven safe and effective." JA 194. It also alleged: "Rutgers has been involved in the clinical trials for all three COVID vaccines—those of Pfizer, Moderna, and Johnson & Johnson," and, although it does not explain how, it asserts Rutgers "will gain financially from universal mandates for the vaccines it has helped to develop." JA 157. The upshot, according to the Complaint, was that:

As a result of its financial ties to COVID-19 vaccine manufacturers, its involvement in clinical trials for all of the currently available COVID-19 vaccines, and its stake in the approval and widespread dissemination and use of COVID-19 vaccines, [Rutgers is] conflicted from making any objective decision or imposing any mandate concerning the administration of COVID-19 vaccines upon its students.

JA 206. Based on these allegations, the Complaint asserted seven claims, three of which have been abandoned on appeal.¹⁶ The four remaining claims, for which the Students sought damages as well as injunctive relief,¹⁷ are: (1) preemption under the federal Emergency Use Authorization ("EUA") statute, 21 U.S.C. § 360bbb-3; (2) lack of authorization under New Jersey law; (3) violation of substantive due process under the Fourteenth Amendment; and (4) violation of equal protection under the Fourteenth Amendment for the unequal treatment of (a) staff and students, as only the latter were initially required to vaccinate; and (b) vaccinated and unvaccinated students (including unvaccinated students with "natural immunity" from having had COVID-19).

The District Court granted Rutgers' motion to dismiss, brought under Federal Rule of Civil Procedure 12(b)(6), concluding that none of the claims pleaded stated a viable cause of action. At the outset, the District Court found that all Students, other than Pinto and CHD, lacked standing and that their claims were moot, because they were exempt from Rutgers' vaccine requirement. It then considered the Students' constitutional claims, first recognizing that the Supreme Court's seminal decision in Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905) permitted a state to require its residents to be vaccinated, even without exemptions,...