Challenge to Rutgers vaccine rules fails on appeal

A federal appeals court rejected a challenge to a Rutgers University requirement that called for most students to be vaccinated to attend on-campus courses, finding the 13 students and an anti-vaccine group that challenged the policy failed to state a viable claim against it.

The ruling reaffirms a September 2021 decision issued by a district court judge who found the students and Children’s Health Defense, the anti-vaccine group, had failed to meet all four of the legal bars they needed for injunctive relief.

Though Rutgers required students — and eventually faculty and staff — to be vaccinated to attend on-campus classes in person, it allowed exemptions for virtual students, those whose medical issues prevented a vaccination, and individuals with a bona fide religious reason for not getting vaccinated.

The students sued the university in July 2021, alleging the university illegally coerced individuals to use experimental medical products, exceeded its statutory authority, violated their due process rights, and trampled on constitutional equal protection guarantees, among other claims the plaintiffs did not revive on appeal.

But the appeals court rejected their claims. On the first claim, the panel noted that the law did not apply to state universities, adding students were not deprived of their rights since 12 of the 13 that sued remained unvaccinated.

That the university had given their students other options — to seek an exemption or pursue an education through remote courses or at a different university — further undercut that claim, the court said.

“That choice may have been difficult. But there is no unqualified right to decide whether to ‘accept or refuse’ an [emergency use authorization] product without consequence,” the judges wrote.

The panel found Rutgers had not exceeded its statutory authority, noting universities can and have long required students to be immunized against certain diseases to live in on-campus university housing.

State law also explicitly authorized the university to temporarily exclude students with vaccine exemptions from courses during an outbreak, the judges said.

The court rejected the plaintiffs’ due process claim because there is no fundamental right “to be free from a vaccine requirement at a public university.”

The U.S. Supreme Court in 1905 in Jacobson v. Massachusetts found governments could require their residents be vaccinated, rejecting Henning Jacobson’s claim that a state law requiring smallpox vaccinations was unconstitutional. Jacobson was subject to criminal charges for his refusal.

When plaintiffs pointed to other precedent that found competent individuals could refuse medical treatment, the court said those were irrelevant.

“These cases, however, are categorically distinct,” the judges wrote. “In stark contrast to Jacobson and its progeny, they involved health decisions with consequences for only the individual involved, rather than broad-based matters of ‘public health and safety.’”

The appellate panel dismissed the equal protection claim as moot because the university expanded its vaccination requirement to include Rutgers employees, adding it wasn’t clear the university could legally mandate vaccinations for faculty and staff in the summer of 2021.

That authority only became clear with an executive order President Joe Biden issued in September 2021.

Julio C. Gomez, lead counsel for the plaintiffs, in a statement charged the court improperly rejected plaintiffs assertions that COVID-19 vaccines were not effective, adding they would petition the U.S. Supreme Court for an appeal.

“By law, Appellants’ facts must be accepted as true at this stage in the litigation, and had the Third Circuit done so, it would have to conclude that Rutgers has no legal authority to mandate these vaccines and that students have every right to say ‘no’ without any coercion,” he said.