University vaccine mandate constitutionality: A review of the US Seventh Circuit’s IU decision
In a succinct decision issued earlier this week, the United States Court of Appeals for the Seventh Circuit (including states Illinois, Indiana and Wisconsin) refused to issue an injunction pending the outcome of a constitutional challenge to Indiana University’s (IU) vaccine mandate. IU’s mandate recognizes exemptions for religious and medical reasons but requires that exempt students wear masks and get tested for COVID-19 twice a week. The four-page decision, by Judge Frank Easterbrook, relied on the 1905 United States Supreme Court ruling in Jacobson v. Massachusetts1 in concluding that under the facts presented, “there can’t be a constitutional problem with vaccination against SARS-CoV-2.”2 In Jacobson, the Supreme Court upheld a statewide vaccine mandate that required every adult to be vaccinated against smallpox, without exception.
The plaintiffs in the IU case include eight students, seven of whom qualify for religious exemption and one who does not. In arguing that IU’s vaccine mandate is unconstitutional, the plaintiffs asserted that they have a substantive due process right to be free from a vaccination they don’t want to receive. However, the court explained that substantive due process depends on “the existence of a fundamental right ingrained in the American legal tradition,” and found that “vaccination requirements, like other public-health measures, have been common in this nation.” The court went on to compare IU’s vaccine mandate to the mandate upheld in the Jacobson case, and held that the exemptions and narrower scope of the university’s mandate reinforces its constitutionality. The Jacobson mandate, which was found to be constitutional, did not include any exceptions for adults and applied to every adult in the state, whereas IU’s mandate includes two exemptions and only applies to students who want to attend IU.
Easterbrook compared the vaccine mandate to other conditions of enrollment at public institutions that are considered constitutional, including the confiscation of property (in the form of money) to pay for tuition and requirements that students read and write on topics they may not prefer. As to the latter, Easterbrook explained:
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 or 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. A student told to analyze the role of nihilism in Dostoevsky’s The Possessed but who submits an essay about Iago’s motivations in Othello will flunk.
If conditions of higher education may include surrendering property 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…
In reviewing this decision, it is important to understand that the court has not yet ruled on the merits of the plaintiffs’ constitutional claims. Instead, the decision issued this week considered whether the vaccine mandate should be prohibited until the court issues a ruling on constitutionality. However, courts consider the likelihood of success on the merits of a case when deciding whether to issue injunctions. Therefore, this decision is a signal to public colleges and universities within the Seventh Circuit as to how the court might analyze similar constitutional challenges to college and university vaccine mandates.