U.S. Supreme Court Justice Amy Coney Barrett’s denial of an emergency application to bar Indiana University from requiring faculty, staff and students be vaccinated from COVID-19 is an important legal development for college athletic departments. The denial, issued last Thursday in Klaassen v. Trustees of Indiana University, suggests that athletes and other students who challenge vaccine requirements would likely fail.
Barrett reviewed the application, filed by eight students, as the circuit justice for cases from the Seventh Federal Circuit (covering Indiana and other Midwestern states). Emergency applications are handled “on paper,” meaning without a hearing.
Barrett’s denial is not tantamount to a decision on the merits, and it lacks the precedential impact of a Supreme Court ruling. A group of students or athletes from a college located in a different federal circuit could mount a similar challenge that is reviewed by a different justice who might, unlike Barrett, refer it to the full Court for consideration. Yet assuming Barrett’s views reflect a majority of the justices, COVID vaccine directives for the 2021-22 academic year will be seen as lawful conditions.
Barrett’s order omitted analysis and reasoning. However, under Court procedure, she would have granted an injunction only upon identifying a fair prospect that most of the justices would find a lower court’s ruling erroneous and that irreparable harm would otherwise occur.
The eight students insist the vaccine requirement violates their 14th Amendment due process rights and infringes on their ability to make medical decisions. They cite numerous cases, including Roe v. Wade, for the proposition that the government—and, by extension, public universities—must meet a heightened standard of review when it “interferes” with a right to bodily integrity and autonomy.
Earlier this month, a three-judge panel on the 7th Circuit rejected the students’ arguments. Judge Frank Easterbrook cited as precedent the U.S. Supreme Court’s 1905 ruling in Jacobson v. Massachusetts. It holds that states can require members of the public be vaccinated against smallpox.
Easterbrook stressed that Indiana University’s policy contains accommodations, including for religious beliefs, online-only learning and a documented allergy to the vaccine. He also underscored the school’s policy only applies to those who enroll—not the general public—and that students “who do not want to be vaccinated” can pursue enrollment at a college that doesn’t require the vaccine. Easterbrook further highlighted that universities have an established tradition of requiring vaccinations “to keep other students safe in a congregate setting,” with “common” vaccine requirements for measles, mumps, rubella, diphtheria, tetanus, pertussis, varicella and meningitis.
Attorneys for the students found these conclusions unpersuasive. They maintain the three COVID vaccines available in the U.S. (Pfizer, Moderna and Johnson & Johnson) are, unlike vaccines for other diseases, not fully approved by the Food and Drug Administration. They received emergency use authorization, which follows a speedier but less comprehensive review. The attorneys, who practice at the Bopp Law Firm in Indiana, also insist that a COVID vaccine is unnecessary for college students. To that end, they assert, “the risk of serious morbidity and mortality from COVID for those under 30 is virtually zero.” The attorneys add arguments that some people suffer vaccine side effects and that studies suggest the vaccines are less effective for the Delta variant, which has become the most prevalent strain in the U.S.
As students and athletes return to campuses this month, universities’ 2021-22 policies for vaccines, masks and related issues vary widely. In some states, such as Texas and New Hampshire, state laws prohibit public universities from mandating the vaccine. But public universities in other states and many private colleges necessitate the vaccine as a condition of enrollment.
The NCAA doesn’t require member schools follow a particular scheme for the pandemic. Earlier this month, it issued a series of recommendations for testing, quarantine and isolation, with recommended differences for players who are vaccinated and unvaccinated. Conferences have adopted rules indicating that a team unable to play due to an outbreak will forfeit. Some football programs tout high vaccination rates, with Ole Miss coach Lane Kiffin recently praising his team for its 100% rate.
The Southern Intercollegiate Athletic Conference, a Division II conference, has implemented a mandatory vaccine policy for athletes. Central Washington University, which also competes in Division II, commands that athletes be vaccinated or have begun the process of being vaccinated. Meanwhile, Division I University of Hawaii is making vaccination a condition for playing sports. Across the border, a number of Canadian colleges, including the University of Toronto and the University of Ottawa, require their athletes be vaccinated for eligibility to play.
While athletes’ vaccine requirements contrast by school and conference, they have little ability to influence governing policies. Unlike professional athletes, whose unions bargain COVID and other health policies with leagues and owners, college athletes lack a collective voice. Further limiting the players’ influence is that there is no “right” to play a college sport. Eligibility hinges on satisfying numerous school, conference and NCAA rules. Courts have generally deferred to those rules, too. Justice Barrett’s denial will not alter that framework.