Rutgers' Letter Opposing Supplemental Briefing — Children's Health Defense v. Rutgers (D.N.J.)

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No. 3:21-cv-15333-ZNQ-TJB · Doc. 52 · 2022-08-18 · Docket on CourtListener

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Faegre Drinker Biddle & Reath LLP 
1177 Avenue of the Americas, 41st Floor 
New York, New York  10036 
+1 212 248 3140 main 
+1 212 248 3141 fax 
Jeffrey S. Jacobson 
Partner 
jeffrey.jacobson@faegredrinker.com 
212-248-3191 direct 
August 18, 2022 
BY ECF 
Hon. Zahid N. Quraishi, U.S.D.J. 
United States District Court 
for the District of New Jersey 
Clarkson S. Fisher Building & U.S. Courthouse 
402 East State Street 
Trenton, New Jersey 08608 
Re: Children’s Health Defense, Inc. v. Rutgers, No. 3:21-cv-15333 (D.N.J.) 
Dear Judge Quraishi: 
This responds to Plaintiffs’ counsel’s letter dated August 16, 2022, in which Plaintiffs requested 
leave to file supplemental briefing to address (1) revised COVID-19 guidance issued on August 
11, 2022, by the Centers for Disease Control and Prevention (“CDC”), which reiterated that 
“COVID-19 vaccines are highly protective against severe illness and death” and altered guidance 
with respect to masking and testing for persons exposed to COVID-19; and (2) Executive Order 
(“EO”) 302, issued by Governor Philip D. Murphy on August 15, 2022, which as of September 1 
will rescind three prior EOs.  Those earlier, soon-to-be-rescinded EOs collectively require “school 
districts,” “child care settings,” and “covered contractors” to maintain policies requiring their 
employees to be fully vaccinated or submit to weekly COVID-19 testing.  Beyond an unexplained 
statement that Defendant Rutgers, the State University of New Jersey (“Rutgers”) “continue[s] to 
discriminate against unvaccinated students,” and an unsupported assertion that Rutgers “does 
not have a rational basis” to continue its vaccine mandate and other unspecified policies, Plaintiffs’ 
letter does not explain what purpose further briefing would serve.  For the reasons explained 
below, Rutgers respectfully opposes supplemental briefing. 
Plaintiffs’ First Amended Complaint (“FAC”), filed in August 2021, challenges Rutgers’ policy, 
announced in March 2021, that “all students [must] vaccinate for COVID-19.”  FAC ¶ 1.  
Secondarily, Plaintiffs’ FAC contends that “Rutgers does not have the legal authority to mandate 
testing [for COVID-19] or mask wearing.”  Id. ¶ 5.  Rutgers’ vaccine mandate remains in place for 
the about-to-commence Fall 2022 semester.  Rutgers also continues to require everyone, 
regardless of vaccination status, to wear masks inside many university buildings (not including 
dormitories).  The August 11 CDC guidance and EO 302 do not change the legal fallacies of 
Plaintiffs’ constitutional and statutory arguments against these prudent measures.  The new CDC 
guidance acknowledges that vaccinated persons may not be immune from contracting the most 
prevalent variants of COVID-19 but reiterates that vaccination greatly protects those infected 
against serious illness and potential death.  The CDC also continues to recommend indoor 
masking in areas of high transmission and masking of persons potentially exposed to COVID-19. 
Case 3:21-cv-15333-ZNQ-TJB   Document 52   Filed 08/18/22   Page 1 of 2 PageID: 838

Hon. Zahid N. Quraishi, 
U.S.D.J. 
-2- 
August 18, 2022
 
EO 302 recognized the new CDC guidance that “local public health officials and jurisdictions are 
equipped with a host of COVID-19 prevention strategies and localized data to decide which 
mitigation protocols to use and when, based on COVID-19 Community Levels and setting-specific 
factors,” and that “school districts and child care settings utilize COVID-19 mitigation protocols on 
a flexible basis.”  EO 302 thus removed certain statewide mandates, but made clear that “[n]othing 
in this Order shall prevent a school district or child care setting from maintaining a vaccination or 
testing policy implemented pursuant to” prior EOs.  Neither the soon-to-be rescinded EOs nor EO 
302 addressed higher education institutions explicitly, but certainly nothing in EO 302 limits 
Rutgers—a community larger than many New Jersey towns—from deciding “which mitigation 
protocols to use and when,” based on its own “setting-specific factors.”    
As Rutgers’ dismissal briefing made clear, every court to have considered the issue, including the 
United States Supreme Court, has held vaccine mandates to be subject to rational basis review.  
Rutgers continues to have a legitimate interest in protecting members of its broad community 
from serious illness by mandating COVID-19 vaccines.  See generally Rutgers’ Motion to Dismiss 
(Dkt. No. 39-1) at 11-22; Rutgers Reply Br. (Dkt. No. 43) at 2-9.  N.J.S.A. § 18A:61D-1 obligates 
Rutgers to require every student to provide proof of certain vaccinations, and N.J.A.C. § 8:57-6.4 
allows Rutgers to require other immunizations so long as they are “recommended by the [federal 
Advisory Committee on Immunization Practices, or] ACIP,” as COVID-19 vaccines undisputedly 
are.  These laws have not changed since the parties briefed Rutgers’ motion.  As for indoor mask 
mandates, courts have deemed them to be “not constitutionally problematic.”  Klaassen v. 
Trustees of Indiana Univ., 7 F.4th 592, 593 (7th Cir. 2021); see Rutgers Reply Br. at 3 & n.2.        
If Plaintiffs truly believed that last week’s CDC guidance and EO 302 breathe life into their 
universally rejected contention that university vaccine mandates or related pandemic mitigation 
policies fail rational basis review, one would have expected them to devote at least a sentence of 
their letter to why this allegedly is so.  They did not.  Indeed, Plaintiffs’ letter does not even state 
which of the Plaintiffs in this case (if any) have enrolled in Rutgers classes for the Fall 2022 
semester or explain how any of them potentially face “discrimination” based on their vaccination 
or exemption status.  (Plaintiffs also have not yet complied with Magistrate Judge Bongiovanni’s 
Letter Order—Dkt. No. 48—requiring them to amend their FAC to identify the “Doe” plaintiffs by 
name.)  As a result, Plaintiffs have not identified any purportedly “new” issue affecting them that 
is ripe for the Court’s consideration. 
Rutgers respectfully requests that the Court grant its pending Motion to Dismiss.  No further 
briefing on that motion is necessary.  The Court addressed most of the relevant issues in its 
Opinion dated Sept. 27, 2021 (Dkt. No. 27), when it denied Plaintiffs’ motion for injunctive relief.  
As noted, the legal basis for Rutgers to require COVID-19 vaccination remains unchanged.      
 
Respectfully submitted, 
 
Jeffrey S. Jacobson 
cc:  All counsel (via ECF) 
 
 
 
 
Case 3:21-cv-15333-ZNQ-TJB   Document 52   Filed 08/18/22   Page 2 of 2 PageID: 839

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