Indiana University is one of a number of American institutions of higher education that now require students, faculty, and staff to be vaccinated against COVID-19. Last night, Justice Amy Coney Barrett rejected a request from eight Indiana undergraduates who want the federal courts to block that requirement. As SCOTUSblog reporter Amy Howe notes, “Barrett, who is responsible for emergency appeals from Indiana, denied the students’ request without comment, without seeking a response from the state, and without referring the request to the full court for a vote—suggesting that she and the other justices did not regard it as a particularly close case.”
This outcome should not come as a great surprise. Not only have the students repeatedly lost in the lower courts, but they have lost at the hands of a respected Republican-appointed judge whose words have been known to carry weight at SCOTUS.
The case is Klaassen v. Trustees of Indiana University. Last month, the U.S. District Court for the Northern District of Indiana, Fort Wayne Division, declined to block the university’s vaccine mandate. Earlier this month, Judge Frank Easterbrook of the U.S. Court of Appeals for the 7th Circuit did the same. Easterbrook, who was appointed to that court in 1985 by President Ronald Reagan, then dismissed the students’ arguments in no uncertain terms. It was Easterbrook’s judgment that the students wanted the Supreme Court to wipe away.
Easterbrook began by pointing to Jacobson v. Massachusetts, a 1905 Supreme Court decision “which holds that a state may require all members of the public to be vaccinated against smallpox.” That decision “sustained a criminal conviction for refusing to be vaccinated, show[ing] that plaintiffs lack such a right.”
The Massachusetts law at issue in Jacobson allowed local governments to require smallpox vaccinations when the local health authorities deemed them necessary. Cambridge resident Henning Jacobson balked at his city’s vaccination requirement and was fined $5. He contested that $5 penalty and took his case all the way up to the Supreme Court, where he lost 7–2.
Easterbrook argued that Indiana University’s COVID-19 vaccination requirement easily passed the Jacobson test. “Jacobson sustained a vaccination requirement that lacked exceptions for adults,” Easterbrook wrote. By contrast, “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.”
Easterbrook further argued that while Jacobson affirmed a state law, this mandate only required vaccination as “a condition of attending Indiana University,” making it less coercive. Easterbrook continued: “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.”
Barrett did not offer any explanation for why she rejected the students’ request that the mandate be blocked by the Supreme Court. But it is probably safe to assume that Barrett basically agrees with Easterbrook.
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