Court filing
Rutgers Sur-Reply on TRO Motion — Children's Health Defense v. Rutgers
Filed September 22, 2021 in Childrens Health Defense v. Rutgers; one of 33 filings from this case.
Record facts
| Filed | 2021-09-22 |
|---|
No. 3:21-cv-15333-ZNQ-TJB · Doc. 25-1 · 2021-09-22 · Docket on CourtListener
Full text
FAEGRE DRINKER BIDDLE & REATH, LLP
Jeffrey S. Jacobson
Andrew B. Joseph
Kristen N. Roshto
600 Campus Drive
Florham Park, New Jersey 07932
(973) 549-7000
(973) 360-9831 (fax)
Jeffrey.Jacobson@faegredrinker.com
Andrew.Joseph@faegredrinker.com
Kristen.Roshto@faegredrinker.com
Attorneys for Rutgers, The State University of New Jersey, et al.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CHILDREN’S HEALTH DEFENSE, INC.,
PETER CORDI, RAELYNNE MILLER,
KAYLA MATEO, ADRIANA PINTO,
JAKE BOTHE, AND DOES 1-13,
Plaintiffs,
v.
RUTGERS, THE STATE UNIVERSITY
OF NEW JERSEY, BOARD OF
GOVERNORS, RUTGERS SCHOOL OF
BIOMEDICAL AND HEALTH
SCIENCES, CHANCELLOR BRIAN L.
STROM, PRESIDENT JONATHAN
HOLLOWAY, in their official capacities,
Defendants.
Civil Action No. 3:21-cv-15333-ZNQ-TJB
Civil Action
(Document Filed Electronically)
SURREPLY MEMORANDUM OF RUTGERS, THE STATE UNIVERSITY
OF NEW JERSEY, IN OPPOSITION TO PLAINTIFF
ADRIANA PINTO’S MOTION FOR INJUNCTIVE RELIEF
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TABLE OF CONTENTS
Page
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CONCLUSION ..........................................................................................................................6
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TABLE OF AUTHORITIES
Cases
Page(s)
Mattern v. City of Sea Isle,
131 F. Supp. 3d 305 (D.N.J. 2015) ........................................................................................ 1
STATUTES, RULES & REGULATIONS
Local Civil Rule 7.1(d)(6) ........................................................................................................... 1
N.J.A.C. § 8:57-6.1, et seq. ......................................................................................................... 1
N.J.A.C. § 8:57-6.4(c) ......................................................................................................... 2, 3, 5
N.J.A.C. §§ 8:57-6.5 through 6.9 ................................................................................................. 3
N.J.S.A. § 18A:61D-1 ................................................................................................................. 1
N.J.S.A. § 18A:62-15.1 ........................................................................................................... 3, 4
N.J.S.A. § 18A:62-15.1(a) ........................................................................................................... 4
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1
Rutgers, the State University of New Jersey (“Rutgers”) seeks leave, pursuant
to Local Civil Rule 7.1(d)(6), to present this surreply memorandum of law because
Plaintiff Adriana Pinto presented new legal arguments in her Reply Memorandum
(“Reply,” Dkt. No. 24). See generally Mattern v. City of Sea Isle, 131 F. Supp. 3d
305, 312 (D.N.J. 2015). The Rutgers policy document at the heart of Ms. Pinto’s
motion—the policy requiring all students enrolling for Fall 2021 classes to submit
proof of having received a COVID-19 immunization, or else to obtain a lawful
exemption from doing so—explicitly cited N.J.S.A. § 18A:61D-1 and N.J.A.C.
§ 8:57-6.1, et seq., as providing the legal authority for this step. Ms. Pinto submitted
that document to the Court as part of her request for injunctive relief. See Ex. A to
Declaration of Julio Gomez (Dkt. No. 10-3). Yet, she waited until her Reply (at 9-
12) to discuss those clearly relevant laws and regulations. Rutgers requests this brief
opportunity to address Ms. Pinto’s new contentions about them.
As a starting point, the parties seem to agree that the State of New Jersey may
lawfully require students at its public and private institutions of higher education to
take immunizations as a condition of enrollment. See Reply at 6 (“Plaintiffs are not
arguing that . . . state legislatures cannot mandate compulsory vaccination . . . .”);
id. at 9 (“[T]he Department of Health can mandate vaccines . . . .”). The parties
further agree that our Legislature has exercised that authority by explicitly requiring
colleges and universities to mandate certain vaccines. See id. at 12 (enumerating
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2
those requirements). Importantly, too, Ms. Pinto also does not dispute that she has
complied with those mandates throughout her time as a Rutgers undergraduate.
N.J.A.C. § 8:57-6.4(c) then speaks for itself in stating that “[n]othing in this
subchapter shall be construed as limiting the authority of a New Jersey institution of
higher education to establish additional requirements for student immunizations and
documentation that such institution shall determine appropriate and which is
recommended by the [federal Advisory Committee on Immunization Practices,]
ACIP.” Ms. Pinto’s Reply admits that “ACIP has recommended COVID-19
vaccines generally,” see Reply at 13, and one can hardly dispute the vigor with which
government at all levels is recommending widespread COVID-19 immunization.
Nevertheless, Ms. Pinto disputes that the regulation explicitly recognizing Rutgers’
“authority . . . to establish additional requirements for student immunizations”
actually conferred upon Rutgers the authority to mandate COVID-19
immunizations, notwithstanding that they all are ACIP-recommended. See id. at 14.
Ms. Pinto argues, as a matter of ipse dixit, that N.J.A.C. § 8:57-6.4(c) is
“cryptic” and does not actually allow colleges and universities to require “additional
immunizations for students,” as its text states. Reply at 10. Yet Ms. Pinto nowhere
attempts to explain what this regulation means, if, as she claims, it means something
else. Ms. Pinto’s Reply set up a straw man, contending that the regulation does not
“g[i]ve Rutgers carte blanche authority to unilaterally impose any new vaccine on
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3
its student body it deemed appropriate.” Id. Of course, Rutgers has never “claim[ed]
it can mandate any vaccine, at any time,” or anything similar. Id. at 9. All that is at
issue here is the ability of Rutgers (or any other New Jersey college or university) to
mandate an ACIP-approved immunization in response to a pandemic that, among its
broad global public health and economic impacts, upended the last three academic
semesters. If the “authority” to which N.J.A.C. § 8:57-6.4(c) refers does not extend
to this immunization in this situation, it is no authority at all.
Ms. Pinto’s Reply also seems to assume as a premise that this is the first time
a New Jersey college or university has mandated a vaccine other than those that state
regulations require of all New Jersey students. See Reply at 10. It is not.
Regulations and statutes currently mandate only that institutions of higher education
require measles, mumps, rubella, and hepatitis B immunizations, and (as of January
2020) a certain meningococcal immunization. See generally N.J.A.C. §§ 8:57-6.5
through 6.9; N.J.S.A. § 18A:62-15.1. Ms. Pinto’s Reply (at 10) disclaims the
existence of evidence that colleges and universities have long had and exercised
their discretion to require other ACIP-approved vaccines, but such evidence
abounds. For example, although Rutgers only recommends a tetanus immunization
for students, other New Jersey colleges and universities tell students they require it.1
1 According to their student health websites, the schools that mandate tetanus
immunization include Princeton University, see Required and Recommended
Immunizations, Princeton U. Health Servs., https://uhs.princeton.edu/medical-
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From time to time, as Ms. Pinto’s Reply (at 11-12) recognizes, colleges and
universities have urged our Legislature to amend vaccination requirements for all
students. As one example, prior to January 2020, New Jersey law only required
meningococcal vaccination for students residing in dormitories. Ms. Pinto’s Reply
refers to the participation of Rutgers officials in efforts, after several instances of
students contracting meningitis-B in 2016 and 2019, to convince the Legislature to
amend the law to require all students to receive meningococcal vaccines. See Reply
at 11-12. Ms. Pinto attempts to characterize the bill then under debate, which the
Legislature passed and incorporated into N.J.S.A. § 18A:62-15.1 (see Act of Jan. 13,
2020, L. 2019, c. 332, § 1), as merely “permit[ting] colleges and universities to
require meningococcal vaccines.” Reply at 11 (emphasis added). Yet, that is not
remotely what the statute says or does. The law requires that any “new student
enrolling in a public or private institution of higher education in this State shall have
received immunization for meningococcal disease as recommended by the [ACIP].”
N.J.S.A. § 18A:62-15.1(a). Rutgers’ testimony to the Legislature that it was good
services/immunizations-allergy-shots/required-recommended-immunizations (last
visited Sept. 22, 2021); Fairleigh Dickinson, see Immunization Requirements for
Students, Fairleigh Dickinson U., (June 1, 2019), https://www.fdu.edu/wp-
content/uploads/2020/05/200509-immunization.pdf, and TCNJ, see Pre-Entrance
Health
Requirements
for
Undergraduate
Students,
C.
of
N.J.,
https://health.tcnj.edu/new-students/pre-entrance-health-requirements-undergrads/
(last visited Sept. 22, 2021). Fairleigh Dickinson and TCNJ also both require
varicella immunization, while Rutgers recommends it.
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public policy for all students at all schools to be immunized against this virus does
not undermine the authority that N.J.A.C. § 8:57-6.4(c) confers upon each college
and university to require any ACIP-approved vaccine for its own students.
Ms. Pinto devoted the rest of her Reply to her arguments that, even if Rutgers
can require other students to receive a COVID-19 immunization, Rutgers cannot
require this of her specifically because she has elected to take a class that the
professor currently is teaching remotely. She asks that the Court allow her to procure
for herself an exemption from the mandate based on her self-attestation that she will
not come to the Rutgers campus. Rutgers addressed these issues at length in its
opposition brief (see Dkt. No. 20 at 3-5, 12-21), and therefore disputes Ms. Pinto’s
new claim that Rutgers “d[id] not contest” her contention that it has “chilled” her
“right to informed consent and to refuse unwanted medical treatment under the Due
Process Clause.” See Reply at 5. Ms. Pinto has not satisfied her burden of
demonstrating a likelihood of success on the merits that Rutgers’ policy interfered
with her constitutional rights, and Rutgers has not “waived” its arguments in this
regard, as Ms. Pinto claims. Id.
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6
CONCLUSION
For the reasons stated above, and in Rutgers’ opposition brief, the Court
should deny Ms. Pinto’s motion for injunctive relief.
Dated: September 22, 2021
Respectfully submitted,
/s/ Jeffrey S. Jacobson
Jeffrey S. Jacobson
Andrew B. Joseph
Kristen N. Roshto
FAEGRE DRINKER BIDDLE & REATH, LLP
600 Campus Drive
Florham Park, New Jersey 07932
(973) 549-7000
(973) 360-9831 (fax)
Jeffrey.Jacobson@faegredrinker.com
Andrew.Joseph@faegredrinker.com
Kristen.Roshto@faegredrinker.com
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