Indiana students' challenge to university's vaccine mandate denied -- by Amy Coney Barrett

AP Photo/Susan Walsh, Pool

The correct ruling, but one that’ll be unpopular within her party.

Which isn’t the first time that’s happened to her during her short stay on the Court.


Barrett got to rule solo on this one because she’s the “circuit justice” for the Seventh Circuit, which encompasses Indiana, Illinois, and Wisconsin. (Each justice on the Court is assigned at least one circuit.) A circuit justice who receives an emergency appeal can either rule on it herself or refer it for consideration by the entire Court. What made this one an emergency is the looming start of the school year. Classes at Indiana University begin in 11 days so the student plaintiffs in the case needed to know quickly whether they had a right to attend classes in person despite being unvaccinated.

Nope. Petition denied, without an explanation.

Eight students had sued the university, saying the requirement violated their constitutional rights to “bodily integrity, autonomy and medical choice.” But they conceded that exemptions to the requirement — for religious, ethical and medical reasons — “virtually guaranteed” that anyone who sought an exemption would be granted one.

Justice Amy Coney Barrett, who oversees the federal appeals court in question, turned down the student’s request for emergency relief without comment. She acted on her own, without referring the application to the full court, which was an indication that the application was not on solid legal footing.

Of course it wasn’t on a solid footing. The Jacobson decision decided more than a century ago by the Supreme Court remains good law and stands for the proposition that a state can mandate vaccination to head off a threat to public health from infectious disease. Indiana U’s mandate was a softer mandate than the one at issue in that case because it allows for exemptions and even permits the presence of unvaccinated students on campus. They’re simply required to mask up and get tested regularly in lieu of being immunized.


That’s what the plaintiffs here were suing over, essentially. Not forcible vaccination. What they resented was having to endure any sort of basic alternative health precautions, like testing, as a consequence of their decision not to get their shots.

Not every unvaccinated person is unconcerned about putting others at risk but some sure are.

“Barrett surely acted alone only after informally verifying that no other Justice was interested in having the matter referred to the full Court,” commented Ed Whelan about the ruling. I’m sure that’s right. The question here isn’t legally controversial, just politically controversial in the insane world of America 2021 where requiring kids to get vaccinated for school is suddenly some grave affront to their autonomy.

A fun fact: Of the five federal judges who ruled on the students’ petition as it made its way towards resolution, four were Trump appointees. Barrett is the most famous, of course, but district court judge Damon Leichty was also put on the bench by 45. So were Michael Scudder and Thomas Kirsch of the Seventh Circuit, who joined in the unanimous opinion of that court upholding Indiana’s mandate. Leichty rejected the idea that there’s any true “mandate” at issue here in the first place since, after all, no student is actually being forced to get vaccinated: “The students have many options, the judge said, such as applying for an exemption, taking the semester off, viewing classes online, or attending another university,” per NBC.


The only judge not appointed by Trump to rule on the matter was Frank Easterbrook, who wrote the opinion for the Seventh Circuit. He was appointed by … Ronald Reagan.

As for the students’ claim that the mandate violates their right of bodily integrity, Easterbrook reminded them that students routinely give up certain rights for the privilege of attending school. They give up their property rights by paying tuition and they give up their First Amendment rights when they’re assigned reading which might seem heretical to them. Quote:

The opinion runs three and a half pages in its entirety. There are few judges anywhere, left or right, who consider this a tough issue.

I’d add one more option to the list proposed by Leichty for unvaccinated students who don’t want to face a vaccine mandate at school: They can move to a state where that sort of thing has been banned by the governor. Universities in red states like Texas and Florida are trying to figure out how to induce students to get vaccinated when they’re prohibited by state law from requiring them to do so. Some are using lotteries, some are mandating tests in hopes that students will opt to get their shots to avoid that hassle, others are organizing “fun” optional mass vaccination events. The best incentive, unfortunately, will be when the inevitable outbreaks rampage across campus and some holdouts decide to go ahead and get vaccinated out of anxiety. That what’s happening in hard-hit states like Louisiana and Alabama, that’s what’ll happen on red-state campuses.


Here’s Marjorie Taylor Greene making the case against mandates notwithstanding the crush of patients hospitals are coping with right now. Sure, ERs are crowded, she says, but some of the patients are there for reasons other than COVID. Uh, right. But see, if all of the COVID patients had gotten the free, widely available shot that’s been offered to them, hardly any of them would be there. Non-COVID patients wouldn’t need to worry about not being able to get care because the hospital wouldn’t be overwhelmed. Is she joking?

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David Strom 5:00 PM | May 23, 2024