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We reported two weeks ago on the poorly conceived and ill-fated attempt by students to enjoin a public university from mandating COVID-19 vaccines.  There simply is no fundamental right under the Constitution to refuse vaccination, which has been firmly established for more than 100 years.  Now the Seventh Circuit has agreed.

Let’s be candid about what this lawsuit and others like it are:  They are overtly political attempts to use the courts to promote an anti-vax agenda, not good faith attempts to secure rights guaranteed by the Constitution.  We explained the cynicism behind the movement and its utter lack of legal support in some detail here.

That, however, has not stopped the lawsuits.  The Wall Street Journal reports that students have sued public universities in Indiana, Connecticut, California, and Massachusetts.  There may be more, but none has succeeded.  In the Indiana University case on which we reported two weeks ago, the plaintiffs appealed to the Seventh Circuit, which has already denied a motion for injunction pending appeal.  Klaassen v. Trustees of Indiana Univ., No. 21-2326, 2021 WL 3281209 (7th Cir. Aug. 2, 2021).  Moreover, the Seventh Circuit’s order denying the injunction, authored by Judge Easterbrook, does not hold back in condemning the plaintiff’s case on the merits:

Given Jacobson v. Massachusetts, 197 U.S. 11 (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 [aka COVID-19].

Id. at *1.  In so holding, the Seventh Circuit flatly rejected the idea that the plaintiffs have a fundamental right to refuse vaccination.  If anything, this case is “easier than Jacobson.”  First, the university’s mandatory vaccination policy has numerous exceptions, into which seven of the eight plaintiff fall.  Second, Indiana does not require every adult to be vaccinated.  “Vaccination is instead a condition of attending Indiana University.  People who do not want to be vaccinated may go elsewhere.”  Id.

The Seventh Circuit also embraced the public policy that resonated with the district court and, based on our emails, many others:  “Vaccination protects not only the vaccinated persons but also those who come into contact with them, and at a university close contact is inevitable.”  Id.  In other words, the students are not operating in a vacuum.  Far from it, and their recalcitrance inevitably impacts others, not only through the potential spread of disease, but also through imposition of remote learning and other measures that otherwise would not be necessary.

The Seventh Circuit could have stopped there, but Judge Easterbrook gave us this nugget, which is entertaining and persuasive in a very Easterbrookian way:

Other conditions of enrollment are normal and proper.  The First Amendment means that a state cannot tell anyone what to read or write, but a state university may demand that students read things they prefer not to read and write things they prefer not to write.  A student must read what a professor assigns, even if the student deems the books heretical, and must write exams or essays as required.  [Citations omitted]  A student told to analyze the role of nihilism in Dostoevsky’s The Possessed but who submits an essay about Iago’s motivation in Othello will flunk.

If conditions of higher education may include surrendering property [i.e., tuition] and following instructions about what to read and write, it is hard to see a greater problem with medical conditions that help all students remain safe when learning.

Id. at *2.  This discussion of course reflects that the right at issue is the right to a university education, which as any tuition payer (often known as “parents”) can attest, involves a substantial deprivation of property.  The Constitution does not prohibit conditioning a university education on surrendering property, nor does it prohibit conditioning an education on following mandates rationally related to protecting the public health.

Thus, the misguided fight goes on, but still without success.  The plaintiffs in Klaassen applied to the Supreme Court for an emergency injunction earlier this week, and Justice Barrett denied the injunction as we were writing this post.  (You can link to the Supreme Court’s docket and view the application here).  There is no written order; the docket say only “denied,” but we hope and expect that Justice Barrett saw the legal issue as non-controversial as the learned judges who ruled before her.  Notably, the only third-party to seek permission to file an amicus brief in support of the plaintiffs was an advocacy group opposed to mandatory vaccination of all kinds.  Politics.  Always politics.