Klaassen v. Trs. of Ind. Univ.

7 F.4th 592

Ryan KLAASSEN, et al., Plaintiffs-Appellants,

v.TRUSTEES OF INDIANA UNIVERSITY, Defendant-Appellee.

No. 21-2326

United States Court of Appeals, Seventh Circuit.

Decided August 2, 2021

James Bopp, Jr., Esq., Richard Eugene Coleson, Courtney Turner Milbank, Melena Siebert, Attorneys, BOPP LAW FIRM, PC, Terre Haute, IN, for Plaintiffs-Appellants.

Anne K. Ricchiuto, Stephanie L. Gutwein, Brian James Paul, Attorneys, FAEGRE DRINKER BIDDLE & REATH LLP, Indianapolis, IN, for Defendant-Appellee.

Before Easterbrook, Scudder, and Kirsch, Circuit Judges.

Easterbrook, Circuit Judge.

Starting next semester, all students at Indiana University must be vaccinated against COVID-19 unless they are exempt for religious or medical reasons. Exempt students must wear masks and be tested for the disease twice a week. Eight students contend in this suit that these conditions of attendance violate the Due Process Clause of the Constitution's Fourteenth Amendment. The district court denied plaintiffs' request for a preliminary injunction, ––– F.Supp.3d ––––, 2021 WL 3073926, 2021 U.S. Dist. LEXIS 133300 (N.D. Ind. July 18, 2021), and they ask us to issue an injunction pending appeal.

Given Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905), which holds that a state may require all members of the public to be vaccinated against smallpox, there can't be a constitutional problem with vaccination against SARS-CoV-2. Plaintiffs assert that the rational-basis standard used in Jacobson does not offer enough protection for their interests and that courts should not be as deferential to the decisions of public bodies as Jacobson was, but a court of appeals must apply the law established by the Supreme Court.

Plaintiffs invoke substantive due process. Under Washington v. Glucksberg, 521 U.S. 702, 720-22, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), and other decisions, such an argument depends on the existence of a fundamental right ingrained in the American legal tradition. Yet Jacobson , which sustained a criminal conviction for refusing to be vaccinated, shows that plaintiffs lack such a right. To the contrary, vaccination requirements, like other public-health measures, have been common in this nation.

And this case is easier than Jacobson for the University, for two reasons.

First, Jacobson sustained a vaccination requirement that lacked exceptions for adults. See 197 U.S. at 30, 25 S.Ct. 358. But Indiana University has exceptions for persons who declare vaccination incompatible with their religious beliefs and persons for whom vaccination is medically contraindicated. The problems that may arise when a state refuses to make accommodations therefore are not present in this case. Indeed, six of the eight plaintiffs have claimed the religious exception, and a seventh is eligible for it. These plaintiffs just need to wear masks and be tested, requirements that are not constitutionally problematic. (The eighth plaintiff does not qualify for an exemption, which is why we have a justiciable controversy.)

Second, Indiana does not require every adult member of the public to be vaccinated, as Massachusetts did in Jacobson . Vaccination is instead a condition of attending Indiana University. People who do not want to be vaccinated may go elsewhere. Many universities require vaccination against SARS-CoV-2, but many others do not. Plaintiffs have ample educational opportunities.

Each university may decide what is necessary to keep other students safe in a congregate setting. Health exams and vaccinations against other diseases (measles, mumps, rubella, diphtheria, tetanus, pertussis, varicella, meningitis, influenza, and more) are common requirements of higher education. Vaccination protects not only the vaccinated persons but also those who come in contact with them, and at a university close contact is inevitable.

We...