When we first wrote on public universities requiring COVID-19 vaccines, we wondered why there was any controversy. The government has been requiring vaccines in public schools for decades, and the constitutionality of government vaccine requirements has been settled for more than 100 years. Courts have agreed—including the Seventh Circuit, as we reported here.
But these are different times, and misguided students keep filing lawsuits—all so far to unsuccessful results. The most recent orders are from Connecticut and Massachusetts, where two separate federal courts have rejected challenges to public university mandatory vaccine policies. The first is Wade v. University of Connecticut Board of Trustees, No. 3:21-cv-924, 2021 WL 3616035 (D. Conn. Aug. 16, 2021), where three students challenged the University of Connecticut’s requirement that student receive a COVID-19 vaccine before attending school on campus, or else apply for an exemption. Id. at *1. Two of the three plaintiffs applied for and received exemptions. The third declined to seek an exemption because “there was a lack of any specific clarity as to the policy.” Id. at *5.
The district court ruled that all three lacked standing. Because the policy did not apply at all to the two who received exemptions, they had “no continuing real or expected imminent injury from UConn’s vaccination requirement.” Id. at *7. Nor did the chance that the university might revoke their exemptions create an injury because a “speculative possibility of future revocation of an exemption is not enough to defeat mootness.” Id. at *8. The third plaintiff needed either to apply for an exemption and be denied or demonstrate that applying for an exemption would have been futile. She accomplished neither. “There is good reason to believe that if [the plaintiff] were to seek an exemption based on similar concerns that she would receive one.” Id. at *9.
We highlight this ruling because it shows that the university policies at play are mandatory in name, but sometimes forgiving in the details. It also demonstrates that this lawsuit was more about policy than the threat of any genuine injury.
The second order reached the constitutional merits and concluded that the University of Massachusetts’ vaccine policy passed constitutional muster. In Harris v. University of Massachusetts, No. 21-cv-11244, 2021 WL 3848012 (D. Mass. Aug. 27, 2021), the district court judged a policy similar to others—students on campus had to be vaccinated prior to the fall semester or seek an exemption. Id. at *2, *4-*5. Unlike the plaintiffs in the UConn case, one of the plaintiffs in the UMass case applied for an exemption and was denied. Id. at *4.
The District of Massachusetts found violations of neither procedural due process nor substantive due process. On procedural due process, the court found no deprivation of life, liberty, or property. Students who declined to be vaccinated could still enroll in classes; they just could not attend in person. Id. at *5. Moreover, even if there were a deprivation, the vaccine policy was generally applicable to all students and was prospective in nature (i.e., it was a legislative rule and not an adjudication). The students therefore were not entitled to process “above and beyond the notice provided by the enactment and publication” of the vaccine policy itself. Id.
On substantive due process, the court fell in line with other courts and ruled that the plaintiffs had not identified a fundamental right that would trigger heightened scrutiny. Id. at *6. Citing Jacobson v. Massachusetts, 197 U.S. 11 (1905), and the Seventh Circuit case (Klaassen v. Trustees) that we wrote about last time, the district court applied rational basis review. “Curbing the spread of COVID-19 is ‘unquestionably a compelling interest,’” and the university determined that “several steps were necessary to achieve these goals such as offering testing, requiring face-coverings, and now, vaccination.” Id. Moreover, repeating a theme that has resonated with us and some (but not all) of our readers, the university’s vaccine policy “protects not only the vaccinated persons but also those who come in contact with them.” Id. (citing Klaassen). This easily establishes that the university’s vaccine policy was rationally related to a legitimate governmental purpose.
Finally the university’s denial of a religious exemption did not violate the plaintiff’s First Amendment right to free exercise: The university is under no constitutional obligation to offer a religious exemption in the first place; and the plaintiff did not allege in any event that the university administered its policy in a way “that burdens some religions but not others.” Id. at *7.
In some ways, we hope this is the last time we write on the constitutionality of public university vaccine policies. Our first impression appears to be correct—the constitutional issues that these policies raise are not controversial and have been settled for a very long time. If students and the lawyers who are encouraging them keep suing (which is likely) and courts keep rejecting their challenges (also likely), we will not find that particularly newsworthy. If, however, they find a sympathetic judge . . . . Well, we will let you know.