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Masked to protect against the coronavirus disease (COVID-19), senior Lauren Pyjar takes advantage of the warm sunshine to study outdoors at Georgetown University in Washington, U.S., March 9, 2021. REUTERS/Kevin Lamarque
(Reuters) - My 19-year-old daughter’s first year of college was a bust. Every class was online, and she spent most of the year watching lectures on her computer in her childhood bedroom.
As for my 22-year-old son, he hated online college classes so much that he took a leave of absence midway through his senior year to work at a Lake Tahoe ski resort as a chairlift operator.
They’re both desperate to go to school this fall in person. But as the highly contagious COVID-19 Delta variant takes off in the U.S., the only way that seems likely to happen safely is if virtually all on-campus students and staff are vaccinated.
Which is why if I could, I’d send a fruit basket and a thank-you note to U.S. District Judge Damon Leichty. The South Bend, Indiana, jurist on Sunday ruled that Indiana University did not run afoul of the Fourteenth Amendment by requiring all students and staff to be vaccinated, with a few narrow exceptions.
According to my Reuters colleague Tom Hals, it’s the first judicial decision to address the constitutionality of a university’s COVID vaccination policy.
It's also an indication that other challenges, including one pending in Sacramento federal court against the California State University system, will face long odds – especially since Leichty was appointed by former President Donald Trump and COVID vaccine opposition has become a right-wing rallying cry.
Leichty seemed to recognize this, writing that “One might well hale (sic) a certain Emersonian self-reliance and self-determination as preference -- an unfettered right of the individual to choose the vaccine or not.”
But he also remembered that he had a job to do. Pointing to the preliminary record in the case, he wrote that “the court must exercise judicial restraint in superimposing any personal view in the guise of constitutional interpretation.”
Maybe Chief Justice John Roberts Jr. was right in 2019 when he said, “We do not have Obama judges or Trump judges.”
Leichty at least is credit to that standard.
A products liability partner at Barnes & Thornburg prior to his ascension to the bench in 2019, Leichty penned the 101-page opinion in a matter of days. The initial complaint by eight Indiana University students was filed on June 21, and he heard three hours of oral argument on July 13.
It’s an impressively clear and thorough piece of writing that takes pains to make nuanced legal analysis understandable to a broader audience.
He starts with a Fourteenth Amendment explainer to frame the central question: During a public health crisis of this magnitude, “how should the law respond to state action that infringes on the people’s liberties”?
Represented by conservative activist attorney James Bopp Jr., the students argued that by requiring the COVID vaccination, the university was infringing on their fundamental rights. Therefore, they argued, the court should apply strict scrutiny, shifting the burden to the university to prove that the infringement was narrowly tailored to serve a compelling state interest.
That’s a tall order and would likely doom the university’s case.
The university trustees, represented by Faegre Drinker Biddle & Reath’s Anne Ricchiuto and Stephanie Gutwein, countered that the less-stringent rational basis review standard should apply. That is, the court should assume the requirement is valid and uphold it so long as it is “rationally related to a legitimate state interest.”
“To answer the question today,” Leichty wrote, “the court travels back in time to 1905: a time before the modern tiers of constitutional analysis (strict scrutiny and rational basis) and one rampaged by the smallpox epidemic. In that year, the United States Supreme Court issued a leading decision in answer to this question.”
After Massachusetts mandated the smallpox vaccine in 1902, a man named Henning Jacobson refused the jab, claiming it violated his Fourteenth Amendment rights. The Supreme Court rejected his challenge, ruling that a state’s police power included the authority “to enact quarantine laws and health laws of every description.”
In the years since, Leichty noted, “the high court has leaned on Jacobson to uphold government measures intended for the public welfare under effectively rational basis review.”
Applying the rational basis standard, the judge ruled that “public health remains a legitimate interest of the state to pursue. Indiana University too has a legitimate interest in promoting the health of its campus communities—students, and not least the faculty and staff who come daily in contact with them.”
The students on Tuesday filed an appeal to the 7th U.S. Circuit Court of Appeals.
Bopp in an interview said the fight was "far from over," arguing that Leichty erred by applying the rational basis rather than strict scrutiny standard. "That is the centerpiece of our appeal," he said.
In court papers, he wrote that the students “are likely to succeed on the merits if the correct standard is employed.”
But the judge didn’t see it that way, writing that “all roads effectively lead to rational basis review.”
Neither did he buy the students’ assertion that vaccines are unnecessary because the pandemic is basically over.
“Vastly improved, yes; out of the woods we aren’t, not on this preliminary record,” he wrote.
Fueled by the Delta variant, new COVID cases in the U.S. have risen about 200% over the last 14 days.
Leichty also pointed out that the “university policy isn’t forced vaccination. The students have options -- taking the vaccine, applying for a religious exemption, applying for a medical exemption, applying for a medical deferral, taking a semester off, or attending another university.”
Maybe none of those options is ideal, but here’s what’s also not ideal: Cramming 9,300 students at my daughter’s school into teensy dorm rooms with shared bathrooms and common eating halls without the protection afforded by mandatory vaccinations.
Otherwise, it’s a Delta-variant outbreak waiting to happen. The likely result would be a shuttered campus and a devastating return to online classes.
I’m grateful that both my daughter and son as University of California students are required to be vaccinated in order to return to campus this fall. I pray that it means they’ll be able to have an in-person, real-life college experience.
As for the students who refuse to get vaccinated, they'll get no sympathy from me. But I do have it on good authority that chairlift operator jobs pay $15 an hour.
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Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.
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