Coronavirus Litigation: Students Sue University's Mandatory Vaccination Policy

"The eight students filed a lawsuit Monday in US District Court in Indiana asking a judge to prevent the school from enforcing [the mandate that requires students, faculty and staff to be vaccinated or get an exemption for religious or medical reasons before starting the fall term], saying it is in violation of the 14th Amendment and state law," reported Rebekah Riess and Steve Almasy for CNN on June 23 (source article).

"Along with the 55-page complaint, Ryan Klaassen, et al. v. The Trustees of Indiana University [pdf], 1:12-cv-238, filed in the Northern Indiana District Court Monday, the plaintiffs also filed a motion for preliminary injunction accompanied by a 40-page memorandum [pdf]," reported Marilyn Odendahl for The Indiana Lawyer on June 22.

According to a May 26 press release  from Attorney General Todd Rokita, "House Enrolled Act (HEA) 1405 expressly prohibits state or local units from issuing or requiring proof of immunization status."

Indiana law and numerous cases have held public universities to be “arms of the state”, and therefore required to abide by the mandates set out in this new law.

Indiana University [IU] unquestionably violates HEA 1405 by requiring its students, faculty, and staff to show proof of immunization as a condition of continued attendance or employment.

The bill mainly deals with medical insurance, but this single line was added:

Prohibits the state or a local unit from issuing or requiring a COVID-19 "immunization passport" (a document concerning an individual's immunization status).

However, the university appears to have been able to comply with state law by changing the vaccination verification procedure, add Riess and Almasy.

But Rokita noted that while state law prohibits public universities from requiring proof of the Covid-19 vaccine, it does not prohibit them from requiring the vaccination itself.

After Rokita's announcement the school changed the policy from requiring students to upload documentation of their vaccine status to having to fill out an online form.

[See "How to report your COVID-19 vaccine" on the university's vaccine webpage.]

Other than making that procedural change, the university is standing firm on the mandate.

"The requirement for all Indiana University students, faculty and staff to be fully vaccinated before the return to school in August remains in place," Indiana University spokesperson Chuck Carney said Tuesday. "As part of IU's response to the ongoing pandemic, the vaccine mandate is helping to support a return to safe and more normal operations this fall. The university is confident it will prevail in this case."

The plaintiffs

Six of the eight students will not need to be vaccinated even if they lose in court because they have received exemptions based on religious beliefs. However, as the memorandum [pdf] notes, they will be subjected to public health measures that include masking and Covid testing requirements, which the plaintiffs appear to object to as well.

“IU has essentially given IU students a ‘non-choice’—decide to comply with the Mandate by August 15th or be virtually expelled from school,” states James Bopp, Jr., lead counsel for the plaintiffs who has practiced before the U.S. Supreme Court, in a press release.

"They're suing because they're being stripped of their constitutional rights to make medical treatment decisions for themselves and to protect their own bodily integrity,"  Bopp told CNN.

The lawsuit is reminiscent of what is heard in the health freedom movement described in a recent post about legislation introduced in neighboring Ohio.

Listen to a rather combative interview (via Twitter) with Bopp by CNN's Ana Cabrera who noted that Indiana's vaccination rate, with 44% of Hoosiers having received at least one shot of a Covid-19 vaccine, was below the national average of 54%, according to Covid Act Now on June 26. It ranks tenth lowest in the nation, tied with three other states, with Mississippi first at 36%.

In his response, Bopp references the "historically low level of infection" in the state, which is true. Daily new cases are averaging 209 as of June 26, according to The New York Times coronavirus database, the lowest since March 29 of last year.  Cases have dropped by 43% within the last two weeks. Daily case incidence is 3 per 100,000 people, just below the national average of 4 per 100k.

Pandemic is 'virtually over'?

However, the lawsuit goes further than simply stating low coronavirus infections levels, claiming that “the pandemic is virtually over, herd immunity has been achieved and there is extremely minimal risk of COVID to IU students," as Marilyn Odendahl wrote in the first paragraph of her article in The Indiana Lawyer.

On June 22, Anthony Fauci, the nation's top infection disease expert, warned that the Delta variant, responsible for an upsurge in Missouri, "is currently the greatest threat in the U.S. to our attempt to eliminate COVID-19."

Important demographic

The lawsuit is important because, as Cabrera points out, the virus is being spread by younger people who haven't been vaccinated. According to the Kaiser Family Foundation's COVID-19 Vaccine Monitor on June 11, the 18-29 age cohort is the second largest unvaccinated group,  accounting for 29% of the unvaccinated population in the U.S., behind the 30-49 age cohort which accounts for 41%.

Precedent for vaccine mandate

The Bopp Law firm notes that the three Covid-19 vaccines have been authorized by the U.S. Food and Drug Administration for emergency use,  as opposed to being approved like other vaccines, e.g. Measle, Mumps Rubella, that are already mandated by many schools, a point noted in related posts here and here as a reason to avoid mandating its use.

The lack of formal approval was not enough did not appear to influence a federal judge in a recent ruling in a related lawsuit in Texas filed by hospital employees against Houston Methodist Hospital who opposed a Covid-19 vaccine mandate as a condition of employment, as the source article indicated.

US District Court Judge Lynn Hughes ruled against Jennifer Bridges and 116 of her hospital coworkers [on June 12].

"Methodist is trying to do their business of saving lives without giving them ... COVID-19," Hughes wrote in the dismissal of the lawsuit.

Interestingly, Cabrera made the same point in her dialog with Bopp in regards to the eight IU students – they can always opt to go to a university that doesn't mandate the COVID-19 vaccination.

Related:

• Coronavirus Legislation: Vaccine Choice or Anti-Vax? June 15, 2021
• Coronavirus Litigation: Can Employers Require Employee Vaccinations? June 10, 2021
• Returning to the Office: Will Vaccinations Be Required? May 27, 2021 
• Widespread Coronavirus Testing Critical for College Reopenings, But... September 21, 2020
• Coronavirus College Clusters Stress Town and Gown Relationship, Sept. 14, 2020
• Coronavirus Wastewater Testing Yields Positive Results at Universities, September 1, 2020
• College Campuses Offer Opportunity to Demonstrate COVID Containment Strategies, Aug. 28, 2020 
• COVID's New Demographic, June 29, 2020

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