(The Center Square) – In their brief filed with the 7th Circuit Court of Appeals in Chicago at the end of September, the eight IU students suing the university over its vaccine mandate say the mandate wouldn’t survive “heightened scrutiny” because COVID-19 isn’t a serious danger to people of college age and the university cannot prove the vaccine will stop the spread of the virus.
In the brief, attorney Jim Bopp argued the U.S. District Court for the Northern District of Indiana erred by not applying the judicial standard referred to as “heightened scrutiny” – which would have required IU prove the vaccine mandate was absolutely necessary to protect students.
“IU is a government actor and cannot infringe upon the students’ fundamental rights without a compelling justification, which does not exist now for college-aged students,” Bopp said in a statement sent to the media Monday.
He accused the university of taking the “extreme” view of the 1905 Supreme Court case Jacobson v. Commonwealth of Massachusetts, which gave Massachusetts the Ok to require residents of Cambridge to get a smallpox vaccination or pay a $5 fine, saying it’s this same extreme view of the case that led to the Buck v. Bell decision, in which the Supreme Court upheld the forced sterilization of people who are mentally retarded – a decision now almost universally regarded as horrific.
Indiana University is the only university in the state that has imposed a vaccine mandate on all students and staff. It was announced May 21 that all students, faculty and staff must be fully vaccinated by the start of the fall semester, and students who did not comply would have their classes canceled and university email accounts and dining cards cut off, and employees who did not comply would be fired.
Initially, the university said that exemptions would be “strictly limited” to documented medical and religious exemptions and denied initial requests for religious exemptions. But after an outcry from students and policymakers, the administration began approving requests for religious exemptions.
The university also altered its requirement that student upload proof of vaccination after Attorney General Todd Rokita issued an advisory opinion finding that this requirement was in violation of the Indiana’s new vaccine passport law. Instead, it asked students to “attest” they’d gotten the vaccine, and to provide dates.
Later in the summer, the university also added a “conscience” exemption.
As of this week, 88% of all IU students on all campuses in the state were vaccinated, with 93% of IU-Bloomington students vaccinated – the highest of any community in the state.
The university’s spokesperson, Chuck Carney, did not immediately return a call seeking comment.
The eight IU students filed suit against the university in July and asked for a preliminary injunction to stop IU from enforcing the mandate. This was denied. On a separate track, the students sought an emergency injunction in order to stop the mandate from being enforced before classes began in August. This was denied by the 7th Circuit Court of Appeals and then by Associate Supreme Court Justice Amy Coney Barret, acting on behalf of the court.
On Aug. 27, IU moved to dismiss the appeal of the original denial of the injunction, arguing that because classes had already started, the students no longer had standing as they had either received an exemption or had withdrawn from the university. The court denied their request, and the case is now proceeding through the federal courts system. It is expected to reach the Supreme Court next year.