IU's Opposition to Motion for Preliminary Injunction — Klaassen v. Indiana University (N.D. Ind.)

Record facts

U.S. District Court for the Northern District of Indiana · No. 1:21-cv-00238-DRL-SLC · Doc. 21 · 2021-07-02 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF INDIANA 
FORT WAYNE DIVISION 
 
 
RYAN KLAASSEN, JAIME CARINI,           ) 
D.J.B., by and though his next friend and 
) 
 father, DANIEL G. BAUMGARTNER,  
) 
ASHLEE MORRIS, SETH CROWDER,  
) 
 MACEY POLICKA, MARGARET ROTH,  ) 
 and NATALIE SPERAZZA, 
) 
 
) 
 
Plaintiffs, 
) 
Case No. 1:21-cv-00238 
 
 
) 
vs. 
 
) 
 
 
) 
TRUSTEES OF INDIANA 
) 
UNIVERSITY, 
 
) 
 
 
) 
 
Defendant. 
) 
 
 
 
INDIANA UNIVERSITY’S RESPONSE IN OPPOSITION  
TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION 
 
 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 1 of 44

 
 
 
ii 
 
Table of Contents 
I. 
Introduction ............................................................................................................................. 1 
II. Relevant Facts.......................................................................................................................... 1 
A. COVID-19 Pandemic ........................................................................................................... 1 
1. COVID-19 ........................................................................................................................ 1 
2. Brief History of the Pandemic .......................................................................................... 2 
3. COVID-19 Vaccinations .................................................................................................. 3 
4. COVID-19 Risks for Unvaccinated Individuals .............................................................. 4 
5. The pandemic is ongoing. ................................................................................................ 5 
6. Guidance for Institutions of Higher Education ................................................................ 5 
B. IU ......................................................................................................................................... 7 
C. IU’s COVID-19 Policies ...................................................................................................... 7 
D. Plaintiffs ............................................................................................................................. 10 
III. Legal Standard ...................................................................................................................... 11 
IV. Argument ............................................................................................................................ 111 
A. Plaintiffs have not challenged IU’s masking or testing policies. ..................................... 111 
B. Plaintiffs lack standing to challenge “IU’s Mandate.” ..................................................... 122 
1. Plaintiffs who have received an exemption lack standing. ............................................ 13 
2. Plaintiff Roth lacks standing because she failed to seek an exemption. ...................... 133 
C. “IU’s Mandate” should not be preliminarily enjoined. ...................................................... 14 
1. Plaintiffs are unlikely to succeed on the merits. ........................................................... 144 
a. “IU’s Mandate” does not offend Due Process. .......................................................... 144 
i. The Policy is constitutional under Jacobson. ......................................................... 15 
1. Jacobson remains good law. ................................................................................ 16 
2. The pandemic is ongoing, and Jacobson controls. .............................................. 19 
3. Plaintiffs’ disagreements with science do not undermine Jacobson’s 
application. ........................................................................................................... 19 
ii. “IU’s Mandate” is constitutional even absent Jacobson. ........................................ 20 
1. “IU’s Mandate” is subject to—at most—rational-basis scrutiny. ........................ 20 
a. Plaintiffs have no fundamental right to education. .......................................... 21 
b. “IU’s Mandate” does not infringe Plaintiffs’ religious rights. ......................... 21 
c. “IU’s Mandate” does not invade Plaintiffs’ privacy rights. ........................... 211 
d. The Policy does not invade Plaintiffs’ rights to bodily integrity or to refuse 
medical treatment. ............................................................................................ 22 
2. 
Under any level of scrutiny, “IU’s Mandate” is constitutional. .................................... 23 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 2 of 44

 
iii 
 
a. IU’s Masking and Testing Policies are constitutionally sound. ................................. 244 
b. “IU’s Mandate” does not violate the “Vaccine Passport” Law. ................................. 265 
i. 
Plaintiffs have no private right of action under the Vaccine Passport Law. ......... 26 
ii. 
The Vaccine Passport law is inapplicable to IU. .................................................. 27 
iii. Even if applicable, IU is not violating the statute. ............................................ 2929 
3. 
Plaintiffs have not shown they will suffer irreparable harm. ...................................... 300 
4. 
The remaining considerations also support “IU’s Mandate.” ....................................... 33 
a. The harm to IU if the “Mandate” is enjoined outweighs any harm Plaintiffs might 
suffer. ........................................................................................................................... 33 
b. The public interest supports “IU’s Mandate.”.............................................................. 34 
V. Conclusion ............................................................................................................................ 35 
 
 
 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 3 of 44

 
iv 
 
Table of Authorities 
 
Page(s) 
FEDERAL CASES 
Abbott Labs. v. Mead Johnson & Co., 
971 F.2d 6 (7th Cir. 1992) .......................................................................................................11 
Altman v. Cty. of Santa Clara, 
464 F. Supp. 3d 1106 (N.D. Cal. 2020) ...................................................................................34 
Am. Hosp. Supply Corp. v. Hosp. Prods. Ltd., 
780 F.2d 589 (7th Cir. 1986) ...................................................................................................11 
Aviles v. Blasio, 
No. 20 CIV. 9829 (PGG), 2021 WL 796033 (S.D.N.Y. Mar. 2, 2021) ...................................25 
Baer-Stefanov v. White, 
773 F. Supp. 2d 755 (N.D. Ill. 2011) .......................................................................................14 
Bridges v. Houston Methodist Hosp., 
No. CV H-21-1774, 2021 WL 2399994 (S.D. Tex. June 12, 2021) ......................22, 24, 25, 29 
Buck v. Bell, 
274 U.S. 200 (1927) ...........................................................................................................17, 18 
Calvary Chapel Dayton Valley v. Sisolak, 
140 S. Ct. 2603 (2020) .................................................................................................17, 18, 19 
Cassell v. Snyders, 
458 F. Supp. 3d 981 (N.D. Ill. 2020), aff’d, 990 F.3d 539 (7th Cir. 2021) .............................23 
Cassell v. Snyders, 
990 F.3d 539 (7th Cir. 2021) .................................................................................11, 18, 33, 34 
Caviezel v. Great Neck Pub. Sch., 
500 F. App’x 16 (2d Cir. 2012) .........................................................................................18, 19 
Charleston v. Bd. of Trustees of Univ. of Ill. at Chi., 
741 F.3d 769 (7th Cir. 2013) ...................................................................................................21 
Combs v. Kleopfer, 
No. 2:16-CV-327-WTL-MJD, 2016 WL 4506878 (S.D. Ind. Aug. 29, 2016) ........................12 
Cruzan v. Director, Missouri Department of Health, 
497 U.S. 261 (1990) .................................................................................................................22 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 4 of 44

 
v 
 
Doe v. Zucker, 
No. 1:20-CV-840, 2021 WL 619465 (N.D.N.Y. Feb. 17, 2021) .................................18, 21, 22 
Duthie v. Matria Healthcare, Inc., 
543 F. Supp. 2d 958 (N.D. Ill. 2008) .......................................................................................32 
E. St. Louis Laborers’ Loc. 100 v. Bellon Wrecking & Salvage Co.,  
 
414 F.3d 700, 703 (7th Cir. 2005) .........................................................................................31 
Forbes v. Cty. of San Diego, 
No. 20-cv-00998-BAS-JLB, 2021 WL 843175 (S.D. Cal. Mar. 4, 2021) ...............................25 
George v. Kankakee Cmty. Coll., 
No. 14-cv-2160, 2014 WL 6434152 (C.D. Ill. Nov. 17, 2014) .............................16, 20, 21, 22 
GlaxoSmithKline LLC v. Glenmark Pharms. Inc., USA, 
No. CV 14-877-LPS-CJB, 2017 WL 8944996 (D. Del. May 11, 2017) .................................20 
Hodges v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll., 
No. CV 20-1456, 2020 WL 5017665 (E.D. La. Aug. 25, 2020) .......................................30, 31 
Jacobson v. Commonwealth of Mass., 
197 U.S. 11 (1905) ........................................................................................................... passim 
Kashani v. Purdue Univ., 
813 F.2d 843 (7th Cir. 1987) ...................................................................................................28 
Lewis v. Silverman,  
No. 2:05-CV-352 PS, 2005 WL 8170424, at *2 (N.D. Ind. Sept. 16, 2005) ......................32 
Little Rock Fam. Plan. Servs. v. Rutledge, 
458 F. Supp. 3d 1065 (E.D. Ark. 2020) ...................................................................................25 
Lujan v. Defenders of Wildlife, 
504 U.S. 555 (1992) .................................................................................................................14 
Matter of LaSalle Rolling Mills, Inc., 
832 F.2d 390 (7th Cir. 1987) ...................................................................................................12 
Middleton v. Pan, 
No. CV 16-5224-SVW (AGR), 2016 WL 11518596 (C.D. Cal. Dec. 15, 2016) ..............16, 19 
Nowlin v. Pritzker, 
No. 1:20-CV-1229, 2020 WL 5850844 (C.D. Ill. Oct. 1, 2020)........................................13, 21 
Oakes v. Collier Cty., 
No.: 2:20-cv-568-FtM-38NPM, 2021 WL 268387 (M.D. Fla. Jan. 27, 2021) ........................25 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 5 of 44

 
vi 
 
Olson v. Paine, Webber, Jackson & Curtis, Inc., 
806 F.2d 731 (7th Cir. 1986) .............................................................................................16, 17 
Orr v. Shicker, 
953 F.3d 490 (7th Cir. 2020) ...................................................................................................11 
Pennhurst State Sch. & Hosp. v. Halderman, 
465 U.S. 89 (1984) ...................................................................................................................34 
Phillips v. City of New York, 
775 F.3d 538 (2nd Cir. 2015).......................................................................................16, 19, 21 
Pucket v. Hot Springs Sch. Dist. No. 23-2, 
526 F.3d 1151 (8th Cir. 2008) .................................................................................................14 
Roland Machinery Co. v. Dresser Industries, Inc., 
749 F.2d 380 (7th Cir. 1984) ...................................................................................................34 
Roman Cath. Diocese of Brooklyn v. Cuomo, 
141 S. Ct. 63 (2020) .....................................................................................................17, 18, 23 
Snodgrass v. Berklee Coll. of Music, 
559 F. App’x 541 (7th Cir. 2014) ............................................................................................19 
South Bay United Pentecostal Church v. Newsom, 
140 S. Ct. 1613 (2020) .............................................................................................................17 
Stewart v. Justice, 
No. 3:20-0611, 2021 WL 472937 (S.D. W. Va. Feb. 9. 2021) ................................................25 
Students v. United States Dep’t of Educ., 
No. 16-CV-4945, 2016 WL 6134121 (N.D. Ill. Oct. 18, 2016) ........................................32, 33 
Taylor v. McCament, 
875 F.3d 849 (7th Cir. 2017) .............................................................................................12, 13 
Thornley v. Clearview AI, Inc., 
984 F.3d 1241 (7th Cir. 2021) .................................................................................................12 
United States v. Newton, 
996 F.3d 485 (7th Cir. 2021) .....................................................................................................8 
Univ. of Notre Dame v. Sebelius, 
No. 3:12-CV-253-RLM, 2012 WL 6756332 (N.D. Ind. Dec. 31, 2012) .................................13 
Vill. of Orland Park v. Pritzker, 
475 F. Supp. 3d 866 (N.D. Ill. 2020) .......................................................................................23 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 6 of 44

 
vii 
 
Wade v. Indiana Univ. Sch. of Med., 
No. 1:16-CV-02256-TWP-MJD, 2019 WL 3067519 (S.D. Ind. July 12, 2019) .....................28 
Whitfield v. Cuyahoga Cty. Pub. Libr. Found., 
No. 1:21 CV 0031, 2021 WL 1964360 (N.D. Ohio May 17, 2021) ........................................25 
Whitlow v. California 
203 F.Supp.3d 1079, 1089 (S.D. Cal. 2016) ............................................................................16 
Williams v. Santiago, 
No. 1:16-CV-01065-MJS (PC), 2016 WL 6494268 (E.D. Cal. Nov. 1, 2016) .......................22 
Winter v. Nat. Res. Def. Council, Inc., 
555 U.S. 7 (2008) .....................................................................................................................11 
Wolfe v. Schaefer, 
619 F.3d 782 (7th Cir. 2010) ...................................................................................................22 
Workman v. Mingo Cty. Sch., 
667 F. Supp. 2d 679 (S.D. W. Va. 2009), aff’d Workman v. Mingo Cty. Bd. of Educ., 
419 F. App’x 348 (4th Cir. 2011) ................................................................................16, 19, 20 
Zubik v. Sebelius, 
911 F. Supp. 2d 314 (W.D. Pa. 2012) ......................................................................................13 
Zucht v. King, 
260 U.S. 174 (1922) .....................................................................................................15, 16, 19 
STATE CASES 
Doe #1 v. Ind. Dep’t of Child Servs., 
81 N.E.3d 199 (Ind. 2017) ...........................................................................................26, 27, 28 
Green v. Alachua Cty., 
No. 1D20-1661, 2021 WL2387983 (Fla. Dist. Ct. App. June 11, 2021) .................................22 
Howard Reg’l Health Sys. v. Gordon, 
952 N.E.2d 182 (Ind. 2011) .....................................................................................................26 
Kiel, J.D. v. The Regents of the Univ. of Cal., 
No. HG20-072843, 2020 WL 9396579 (Cal. Super. Dec. 04, 2020) ................................18, 31 
Shirey v. Flenar, 
89 N.E.3d 1102 (Ind. Ct. App. 2017).................................................................................26, 27 
Viemeister v. White, 
72 N.E. 97 (N.Y. 1904) ............................................................................................................16 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 7 of 44

 
viii 
 
FEDERAL STATUTES 
21 U.S.C. § 360bbb-3 ..............................................................................................................24, 25 
42 U.S.C. § 1983 ............................................................................................................................28 
STATE STATUTES 
Ind. Code ch. 16-39-11 ......................................................................................................26, 27, 28 
Ind. Code ch. 34-12-5 ....................................................................................................................29 
Ind. Code § 16-19-3-18 ..................................................................................................................27 
Ind. Code § 16-34.5-1-2 .................................................................................................................28 
Ind. Code § 16-39-7.1-6 .................................................................................................................27 
Ind. Code § 16-39-11-3 ..................................................................................................................26 
Ind. Code § 16-39-11-5 ......................................................................................................26, 28, 30 
Ind. Code § 16-41-2-7 ....................................................................................................................27 
Ind. Code § 21-20-2-2 ......................................................................................................................7 
Ind. Code § 21-34-4-1 ....................................................................................................................28 
Ind. Code § 21-39-2-2 ....................................................................................................................30 
Ind. Code § 21-40-3-1 ..............................................................................................................28, 30 
RULES 
Rule 12(b)(1) ..................................................................................................................................13 
REGULATIONS 
Exec. Order No. 21-16, avail. at: https://www.in.gov/gov/files/Executive-Order-21-16-
Sixtenth-Renewal-of-Emergency-Declaration.pdf ..............................................................5, 19 
Exec. Order No. 21-17, avail. at: https://www.in.gov/gov/files/Executive-Order-21-17-
Continuation-of-Limited-Health-and-Welfare-Provsions.pdf ................................................ 24 
CONSTITUTIONAL PROVISIONS 
First Amendment .....................................................................................................................18, 21 
Fourteenth Amendment ......................................................................................................... passim 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 8 of 44

 
ix 
 
OTHER AUTHORITIES 
HEA 1002, Section 13. .................................................................................................................29 
Reg. Sess. S.B. 1 at 3:31-33, available at: http://iga.in.gov/static-
documents/b/c/b/d/bcbd92c6/SB0001.04.COMH.AMH002.pdf .......................................27, 28 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 9 of 44

 
 
 
1 
 
I. 
Introduction 
After months of diligent and considered deliberation, Indiana University released its 
Restart Committee Recommendations for the fall 2021 semester on May 26, 2021. ECF 1-5. IU’s 
goal is to return as much normalcy to the campus experience as it can safely accomplish 
consistent with comprehensive guidelines issued by the Centers for Disease Control and the 
United States Department of Education to keep its students and communities safe. 
 
In summary, IU’s resulting policies require students who are not eligible for a religious or 
medical exemption or deferral to be vaccinated against COVID-19. ECF 1-5 at 13-14. Exempt 
students will have “regular, non-random testing” and be required to mask on campus. Id. at 9-10. 
All IU students (whether vaccinated or not) will be subject to random surveillance testing unless 
an exemption is granted. Id. at 16.  
Eight IU student plaintiffs (most with no Article III standing) seek to enjoin IU’s COVID-
19 safety measures, claiming that they violate Plaintiffs’ rights under the Constitution and 
Indiana law. But long-standing, controlling Supreme Court precedent confirms that IU’s 
approach is constitutionally sound. IU’s policies are well-founded in current public health 
guidance and are unquestionably reasonably related to IU’s interest in ensuring the safety of its 
campus communities. Plaintiffs have no private right of action under Indiana’s “immunization 
passport” law, which does not apply to IU, and which IU is not violating in any event. Nor will 
the Plaintiffs suffer irreparable harm if IU is permitted to enforce its policies. Plaintiffs’ Motion 
for Preliminary Injunction should be denied. 
II. 
Relevant Facts 
A. COVID-19 Pandemic 
1. COVID-19 
“COVID-19 is an infectious disease caused by the novel coronavirus (SARS-CoV-2).” 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 10 of 44

 
2 
 
ECF 1-5 at 7. COVID-19 spreads “primarily through respiratory droplets and through aerosol 
transmission.” ECF 1-5 at 7. People of all ages can contract and transmit COVID-19. Declaration 
of Cole Beeler, M.D. (“Beeler Decl.”), ¶ 7, attached hereto as Exhibit A.  
People who catch COVID-19 may suffer from immediate severe illness, have “ongoing 
health problems, extending several weeks or months” (even if they were initially asymptomatic), 
or die. Id., ¶ 8. It presents an “increased risk of suffering severe illness . . . for individuals with 
certain underlying medical conditions.” Id., ¶ 9. While COVID-19 often affects children less 
severely than adults, some children develop severe illness, particularly if they have underlying 
medical conditions. Id., ¶ 10. All individuals who contract COVID-19 risk giving it to others 
“who may suffer severe illness or death.” Id., ¶ 11. 
2. Brief History of the Pandemic 
The Indiana State Department of Health (“ISDH”) confirmed Indiana’s first case of 
COVID-19 on March 6, 2020 and first COVID-19 related death on March 16, 2020. Id. ¶ 13. 
During June through August 2020, COVID-19 incidence was highest in persons aged 20-29 
years old, who accounted for greater than 20% of all confirmed cases. Id., ¶ 16. According to the 
New York Times, “over 700,000 cases of COVID-19 have been linked to colleges and 
universities in the U.S. since the pandemic began and more than 260,000 COVID-19 cases have 
been linked to colleges and universities just since January 1, 2021” Id., ¶ 17.  
Since March 6, 2020, Indiana has had over 750,000 confirmed COVID-19 cases and over 
13,000 deaths. Id., ¶ 14. Since July 2020, IU has had almost 12,000 students test positive for 
COVID-19. Id., ¶ 18. According to the CDC, an estimated 25.8% of Indiana’s population has 
been infected with COVID-19. Id., ¶ 14. 18.4% of Indiana’s positive COVID-19 cases have been 
reported by individuals between the ages of 20 and 29—more than any other age demographic. 
Id. A small number of those individuals have died from the virus. See id. 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 11 of 44

 
3 
 
3. COVID-19 Vaccinations 
“COVID-19 vaccination is an important tool to help stop the pandemic” because 
widespread vaccination will help achieve “herd immunity,” which is when enough people in a 
community are sufficiently protected from COVID-19 to stem its spread. Id., ¶¶ 19-20; CDC, 
COVID-19 Vaccines Are Free to the Public (last visited June 27, 2021), avail. at: 
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/no-cost.html; CDC, Key Things to Know 
about COVID-19 Vaccines (last visited June 27, 2021) (“CDC Key Things”), avail. at: 
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html.  
The CDC does not yet know “[t]he percentage of people who need to have protection to 
achieve herd immunity” from COVID-19. CDC Key Things; Beeler Decl., ¶¶ 21, 43-44. In fact, 
experts still debate whether herd immunity is achievable for COVID-19. See, e.g., Beeler Decl., 
¶ 21. Accordingly, currently, vaccination is the leading prevention strategy to protect individuals 
from COVID-19 disease and end the COVID-19 pandemic. Id., ¶ 22.  
There are three COVID-19 vaccinations available in Indiana at no cost: Pfizer, Moderna, 
and Johnson & Johnson vaccine (collectively, “Vaccine”). Id., ¶ 23. According to the CDC, the 
Vaccines are “proven safe and effective.” Id., ¶ 24. They “were developed using science that has 
been around for decades,” “are not experimental,” “went through all the required stages of 
clinical trials,” including “[e]xtensive testing and monitoring,” and “have received and continue 
to undergo the most intensive safety monitoring in U.S. history.” Benefits of Getting a COVID-
19 Vaccine (last visited June 27, 2021), avail. at: https://www.cdc.gov/ coronavirus/2019-
ncov/vaccines/vaccine-benefits.html; see also ISDH COVID-19 Vaccine Fact Sheet (pub. Jan. 
2021), avail. at: https://www.coronavirus.in.gov/files/Fact%20Sheet.pdf (They “build[] on work 
already done over the last decade . . . . [and] must pass several tests to make sure it is safe and 
effective before it is released.”); Beeler Decl., ¶ 24. The Vaccines are extremely unlikely to 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 12 of 44

 
4 
 
cause serious side effects that could result in long-term health problems. Beeler Decl., ¶ 25.  
The Vaccines prevent the spread of COVID-19 and are effective against the variants that 
have been detected in Indiana. Id., ¶ 26. An individual who has received a Vaccine is considered 
fully vaccinated two weeks after the second dose of a two-dose vaccine or two weeks after a one-
dose vaccine. Id., ¶ 27. Fully vaccinated individuals are less likely to catch COVID-19 and less 
likely to spread it to others. Id., ¶ 28. The Vaccines thus help protect not only those who receive 
them but also those around them, including people who may not be able to receive the vaccine 
for medical reasons. Id., ¶¶ 46-47. The Vaccines also help stop mutation of COVID-19, so 
variants will not emerge or spread. Id., ¶ 29.  
Because vaccination provides a strong boost in protection in people who have recovered 
from COVID-19 and because the odds of catching COVID-19 again increase with time as natural 
immunity decreases and new variants emerge, the CDC and ISDH recommend that even 
individuals who have had COVID-19 receive the Vaccine. Id., ¶ 31. The CDC also recommends 
that children twelve and older receive the Vaccine as soon as possible because vaccinating 
minors helps to protect the minor, their families, and others with whom they interact. Id., ¶ 32. 
While the CDC has received increased reports of myocarditis and pericarditis in adolescents and 
young adults after vaccination, it continues to recommend the Vaccine for anyone 12 years of 
age and older because these reports are rare, and the known and potential benefits of the Vaccine 
outweigh the known and potential risks, including the possible risk of myocarditis or pericarditis. 
Id., ¶ 33. People with underlying medical conditions can be vaccinated as long as they have not 
had an immediate or severe allergic reaction to the Vaccine or to any of its ingredients. Id., ¶ 34.  
4. COVID-19 Risks for Unvaccinated Individuals 
“COVID-19 is still a threat to people who are unvaccinated.” Benefits of Getting a 
COVID-19 Vaccine (last visited June 27, 2021), avail. at: https://www.cdc.gov/coronavirus/ 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 13 of 44

 
5 
 
2019-ncov/vaccines/vaccine-benefits.html; Beeler Decl., ¶ 38. Unvaccinated Hoosiers make up 
99.3% of COVID-19 cases in Indiana. Beeler Decl, ¶ 39.  
5. The pandemic is ongoing. 
As of this filing, the CDC advises that community transmission of COVID-19 in Indiana 
is “moderate.” Id. ¶ 35. Indiana has not reached “herd immunity,” as evidenced by the hundreds 
of new COVID-19 cases reported each day. Id., ¶¶ 43-44. On June 30, 2021, Governor Holcomb 
extended Indiana’s COVID-related public health emergency through at least July 31, 2021. Exec. 
Order No. 21-16 (“EO 21-16”), avail. at: https://www.in.gov/gov/files/Executive-Order-21-16-
Sixtenth-Renewal-of-Emergency-Declaration.pdf. 
Moreover, variants of COVID-19 continue to develop and spread in the United States. 
Id., ¶ 36; see also, e.g., ECF 1-5 at 8 (“A number of potentially more contagious genetic variants 
of [COVID-19] emerged in the second half of 2020 and are rapidly spreading within the United 
States.”). Indiana, specifically, has seen an increase in variants. “Variants are concerning because 
they can be spread much more easily tha[n] other strains and can cause more severe infection.” 
ISDH, Variant Details (last visited June 27, 2021), avail. at: https://www.coronavirus.in.gov 
/map/VariantDetails.pdf; Beeler Decl., ¶ 37. Over 60% of the samples tested in Indiana are 
positive for a variant, and the most recent variant—the Delta variant—is confirmed to be present 
in Indiana. See Indiana COVID-19 Data Report (last visited June 27, 2021), avail. at: 
https://www.coronavirus.in.gov/.  
6. Guidance for Institutions of Higher Education  
The CDC and U.S. Department of Education (“ED”) have provided specific guidance for 
institutions of higher education (“IHEs”) to operate during the COVID-19 pandemic. Declaration 
of Aaron Carroll, M.D., M.S., (“Carroll Decl.”), ¶ 7, attached hereto as Exhibit B. The CDC 
advises that IHEs should determine how to implement this guidance while considering: “the 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 14 of 44

 
6 
 
needs and circumstances of the IHE within the context of [its] local community”; “health equity 
considerations”; and state and local public health officials and applicable law. Id., ¶¶ 8-9.  
The CDC, ED, and ISDH are all clear that that IHEs are “critical” to helping promote 
vaccination, which will help “slow the spread of COVID-19” and is “the leading prevention 
strategy IHEs can use to return to normal operations.” Id., ¶ 10. The CDC advises IHEs to 
“consider maintaining documentation of individuals’ vaccination status to inform testing, contact 
tracing efforts, and quarantine/isolation practices.” Id., ¶ 11.  
If all of an IHE’s constituents are fully vaccinated before the fall 2021 semester, the CDC 
advises that the IHE “can return to full capacity in-person learning, without requiring or 
recommending masking or physical distancing for people who are fully vaccinated.” Id., ¶ 12. 
Conversely, if some of an IHE’s constituents are unable to be vaccinated, IHEs will need to 
determine prevention strategies, accommodations, and policies for any [unvaccinated 
constituents].” CDC Guidance for IHEs, available at: https://www.cdc.gov/coronavirus/2019-
ncov/community/colleges-universities/considerations.html, Section 2. IHEs are advised to make 
policy decisions “to protect the people who are not fully vaccinated.” Carroll Decl., ¶ 13.  
The CDC and ED also offer IHEs specific sets of guidance on, among other things, 
COVID-19 masking and testing policies. Carroll Decl., ¶ 14. 
IHE Masking Guidance. ED explains that at least “[o]ne analysis found that statewide 
mask mandates were associated with a 5.6% decline in COVID-19 related hospitalizations for 
individuals between the ages of 18 and 64 years.” Id., ¶ 16. Accordingly, both ED and the CDC 
recommend that IHEs continue some measure of masking. Id., ¶ 15. The CDC recognizes that 
IHEs may continue universal masking policies. Id., ¶ 17. For IHEs that do not, it recommends 
that unvaccinated individuals continue to wear masks indoors and in crowds or “sustained close 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 15 of 44

 
7 
 
contact with other [unvaccinated] people.” Id. Generally, fully vaccinated individuals “do not 
need to wear masks,” though the CDC recognizes that there may be circumstances under which 
even fully vaccinated individuals must wear a mask or physically distance—for example, when 
an IHE holds “gatherings or events that include individuals who are not fully vaccinated such as 
campus visitors or others from outside of the IHE.” Id., ¶ 18. Neither the CDC nor ED 
recommends providing religious exemptions to masking policies. Id., ¶ 19.  
IHE Testing Guidance. The CDC and ED continue to recommend that IHEs conduct 
testing programs. Id., ¶ 20. Under both agencies’ guidance, IHEs do not need to routinely test 
fully vaccinated individuals unless they experience COVID-19 symptoms; indeed, the CDC 
recommends that IHEs exclude non-symptomatic, fully vaccinated individuals from “routine 
screening testing programs.” Id.  
B. IU 
IU is a state educational institution and a body politic under Indiana law. See Ind. Code 
§ 21-20-2-2. IU has seven campuses, two regional centers, and three medical education centers, 
and offers a variety of online education programs, which serve more than 90,000 undergraduate 
and graduate students. Carroll Decl., ¶ 4. IU has over 40,000 employees. Id. 
C. IU’s COVID-19 Policies 
Since the pandemic began, IU has implemented a number of protective measures to stem 
the spread of COVID-19, including masking, physical distancing, and testing. Id., ¶ 21. These 
measures helped IU avoid a COVID-19 positivity rate above 8% on its campuses before the 
Vaccines were available. Id. 
IU’s President established the IU Restart Committee (“Committee”) to recommend and 
advise IU “on when and under what conditions the university can restart, . . . in whole or part, 
normal face-to-face operations.” ECF 1-5 at 5; Carroll Decl., ¶ 22. The Committee was led by 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 16 of 44

 
8 
 
IU’s Executive Vice President for University Clinical Affairs and School of Medicine Dean and 
made up of 15 members, including two deans of public health and other experts in “public 
health, epidemiology, virology, and other relevant areas of the health sciences, including health 
equity,” as well as legal advisors. ECF 1-5 at 5; Carroll Decl., ¶ 23. It met regularly to analyze 
and evaluate “relevant research, modeling and clinical data,” including “various reports, articles, 
data and other inputs from major and respected sources.” ECF 1-5 at 5; Carroll Decl., ¶ 24.  
The Committee aimed to develop COVID-19 safety policies that protect IU’s constituents 
and the communities in which it operates. See ECF 1-5 at 7. In developing recommendations for 
Fall 2021, the Committee considered “a wide range of resources,” including (a) guidelines from 
the CDC, IU Health, the ISDH, the Indiana Governor’s Office, and the Central Indiana Corporate 
Partnership, among others; (b) scientific literature and data, and (c) input from other in- and out-
of-state IHEs. Id.; Carroll Decl., ¶ 24. As the Seventh Circuit has noted, CDC guidance is a 
“reliable source of our country’s best understanding about COVID-19.” United States v. Newton, 
996 F.3d 485, 489 (7th Cir. 2021). 
The Committee also considered IU’s own experience with COVID-19. For example, in 
fall 2020, 33 of the 42 housed student organizations were placed in quarantine at least once. 
Carroll Decl., ¶ 25. IU also analyzed the number of individuals within its population and 
determined that due to age or medical conditions, over 8,500 employees are at increased risk for 
developing complications if they contract COVID-19. Id., ¶ 26.   
Based on the Committee’s recommendations, “to stop the spread of the virus and keep[] 
the IU community safe,” IU has implemented a number of COVID-19-related safety precautions 
for the fall 2021 semester, including vaccination, masking, and testing policies. ECF 1-5 at 9-10, 
18; Carroll Decl., ¶ 29.  
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 17 of 44

 
9 
 
IU’s vaccination policy requires all students, faculty, and staff to be fully vaccinated 
before returning to campus for the fall 2021 semester—specifically, by the earlier of August 15, 
2021 or when the individual returns to campus after August 1. See ECF 1-2 at 2;1 Carroll Decl., 
¶ 31.   ISDH’s COVID-19 Vaccine Patient Intake Form requires a vaccinating health care 
professional to obtain the patient’s consent before administering the COVID-19 Vaccine. Carroll 
Decl., ¶ 33. IU asks all returning students, faculty, and staff to attest that they are fully 
vaccinated and provide IU with the dates on which they received their vaccinations. See id., ¶ 34; 
ECF 1-3 at 3. IU does not require individuals to upload any documentation regarding their 
vaccination status; it is instead offering an incentive program for individuals who elect to do so. 
See Carroll Decl., ¶ 34.  
“IU’s Mandate” also outlines specific exemptions from the vaccination requirement, 
including: religious exemptions; medical exemptions; medical deferrals for individuals who are 
nursing or pregnant, certain immunocompromised patients, those who have received COVID-
specific monoclonal antibodies in the past 90 days; and individuals enrolled in online-only 
programs with no on-campus component who attest that they will not be coming to campus. See 
ECF 1-5 at 13-14; see also, e.g., ECF 1-3 at 2; Carroll Decl., ¶ 35. IU does not require students 
to disclose the specific basis for their religious exemptions; it simply asks them to certify that 
their representation that they qualify for the requested exemption is true to the best of their 
knowledge and to agree that misrepresenting their eligibility for the exemption can result in 
disciplinary action. See ECF 1-4 at 2; Carroll Decl., ¶ 36. To date, IU has not denied any 
student’s request for a religious exemption. Id., ¶ 37. 
IU’s masking policy permits all students to mask and requires masking for students who 
 
1 Plaintiffs refer to this requirement as “IU’s Mandate.”  
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 18 of 44

 
10 
 
are not fully vaccinated. ECF 1-3 at 3; ECF 1-5 at 10; Carroll Decl., ¶ 38. IU also will require 
masks for all attendees of large indoor events with non-IU attendees, unvaccinated official 
campus visitors, and all unofficial campus visitors. ECF 1-5 at 10, 13; Carroll Decl., ¶ 39.   
IU’s testing policy contemplates two types of COVID-19 testing: surveillance testing and 
mitigation testing.2 See ECF 1-5 at 9, 16; Carroll Decl., ¶ 41. IU will ask a random selection of 
students, faculty, and staff, who are vaccinated for COVID-19 to participate in surveillance 
testing each week to help IU monitor for rates of breakthrough infections. Carroll Decl., ¶ 44; 
ECF 1-3 at 3; ECF 1-5 at 17. Those who are not fully vaccinated also must participate in 
mitigation testing. Carroll Decl., ¶ 43; ECF 1-3 at 3; ECF 1-5 at 9, 11. This distinction is based 
upon unvaccinated individuals’ increased likelihood of contracting COVID-19. See, e.g., ECF 1-
5 at 13 (“Individuals who [are] exempt from vaccination are at higher risk for becoming infected 
with COVID-19. They should continue to wear a mask and need to monitor symptoms 
regularly.”). IU’s mitigation testing has always focused on those who are most at risk for 
infection. Carroll Decl., ¶ 42. In the 2020-2021 academic year, for instance, IU’s highest risk 
populations were those in congregate living environments. Id. IU therefore required all those 
who lived in dorms or Greek Houses to be tested twice a week in the Spring of 2021. Id. 
All IU testing is conducted using saliva samples and is non-invasive. Id., ¶ 40. 
D. Plaintiffs 
Plaintiffs are eight current or prospective IU students. Six plaintiffs—Ryan Klaassen, 
Jaime Carini, D.J.B., Ashlee Morris, Seth Crowder, and Macey Policka—have already obtained 
exemptions to “IU’s Mandate” based on their sincerely held religious objections to the Vaccine 
 
2  
IU also will continue to offer testing for individuals experiencing COVID-19 symptoms and 
voluntary testing for those who are vaccinated but want to be tested more often. See, e.g., ECF 1-5 at 
15; Carroll Decl., ¶ 41. 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 19 of 44

 
11 
 
(“Exempt Plaintiffs”). ECF 1, ¶¶ 180, 182, 196, 201, 205, 207. Plaintiff Roth has sincerely held 
religious objections to the Vaccine that qualify her for an exemption, but she has so far chosen 
not to file for it. ECF 1, ¶ 213; Dep. of Margaret Roth at 43:21-44:10 (attached as Exhibit C). 
Plaintiff Sperazza objects to “IU’s Mandate” but believes she does not qualify for a religious or 
medical exemption. See ECF 1, ¶¶ 214-16, 248; Dep. of Natalie Sperazza at 47:12-23 (attached 
as Exhibit D). 
III. 
Legal Standard 
Preliminary injunctions are “extraordinary remed[ies]” that courts should avoid entering 
except in the clearest of cases. Orr v. Shicker, 953 F.3d 490, 501 (7th Cir. 2020) (quoting Winter 
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)). As the party seeking the injunction, 
Plaintiffs must first show “(1) some likelihood of succeeding on the merits, and (2) that [they 
have] no adequate remedy at law and will suffer irreparable harm if preliminary relief is denied.” 
Cassell v. Snyders, 990 F.3d 539, 544-45 (7th Cir. 2021) (quoting Abbott Labs. v. Mead Johnson 
& Co., 971 F.2d 6, 11 (7th Cir. 1992) (quotations omitted)). Only if they make this showing 
should the Court then also consider “(3) the irreparable harm [IU] will suffer if preliminary relief 
is granted, balancing . . . against the irreparable harm to [Plaintiffs] if relief is denied; and (4) the 
public interest, meaning the consequences of granting or denying the injunction to non-parties.” 
Id. at 545 (quoting Abbott Labs., 971 F.2d at 11-12). The latter balancing analysis invokes a 
“sliding scale” approach, aimed at minimizing the consequences of being mistaken. Id. (quoting 
Am. Hosp. Supply Corp. v. Hosp. Prods. Ltd., 780 F.2d 589, 593 (7th Cir. 1986)). 
IV. 
Argument 
A. Plaintiffs have not challenged IU’s masking or testing policies. 
As an initial matter, according to Plaintiffs, their Complaint “concerns the 
constitutionality of Indiana University’s Vaccine Mandate (‘IU’s Mandate’), which requires that 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 20 of 44

 
12 
 
all students receive one of the available COVID vaccines.” ECF 1 ¶¶ 2, 17; ECF 1-2; see also 
ECF 8-1 at 6 (similarly defining mandate). Plaintiffs, as masters of their Complaint, have limited 
their challenge in this case to the requirement that students either be vaccinated or receive an 
exemption in order to attend in-person classes. See, e.g., Thornley v. Clearview AI, Inc., 984 F.3d 
1241, 1246 (7th Cir. 2021) (confirming that “a plaintiff is the master of her own complaint” and 
courts should not read unalleged assertions into a complaint). Plaintiffs separately define IU’s 
masking and testing policies as so-called “Extra Requirements,” but seek no relief from these 
requirements. Compare ECF 1, ¶¶ 28-31 (describing “Extra Requirements”), with id., ¶¶ 250-252 
(requesting Court enjoin only “IU’s Mandate”), ECF 7 (failing to reference “Extra 
Requirements), & ECF 8-1 at 6 (identifying issue on injunction as whether “mandate violates the 
Fourteenth Amendment”) & 38 (seeking injunction against mandate only).  
Defining the scope of Plaintiffs’ challenge affects not only Plaintiffs’ standing, but their 
alleged basis for claimed irreparable harm. Because Plaintiffs’ claims and the relief they seek 
concern only “IU’s Mandate,” the Court should not construe Plaintiffs’ claims to somehow 
encompass IU’s COVID-19 masking and testing policies. See, e.g., Combs v. Kleopfer, No. 2:16-
CV-327-WTL-MJD, 2016 WL 4506878, at *1 (S.D. Ind. Aug. 29, 2016) (“[T]he Court may not 
rewrite a complaint to include claims that were not presented.”); Matter of LaSalle Rolling Mills, 
Inc., 832 F.2d 390, 392 n.6 (7th Cir. 1987) (addressing procedural question disposing of case 
first to “avoid[] deciding a constitutional question” unnecessarily).  
B. Plaintiffs lack standing to challenge “IU’s Mandate.” 
Plaintiffs bear the burden of establishing standing. See, e.g., Taylor v. McCament, 875 
F.3d 849, 853 (7th Cir. 2017). To establish standing, Plaintiffs must show that they (1) have 
suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of IU, (3) that a 
favorable decision is likely to redress. Id. “If the plaintiff lacks standing, the federal court lacks 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 21 of 44

 
13 
 
subject matter jurisdiction and the suit must be dismissed under Rule 12(b)(1).” Id. 
1. Plaintiffs who have received an exemption lack standing. 
Exempt Plaintiffs lack standing to pursue their claims because they have not identified 
any injury in fact that they stand to suffer under “IU’s Mandate.” IU has already granted each 
permission to return for the fall 2021 semester without having received any Vaccine.  
Exempt Plaintiffs are akin to those plaintiffs who challenged the Affordable Care Act’s 
preventative services requirement, even though they fit within an exemption. Those plaintiffs 
lacked standing because they “face[d] no penalty or restriction based on the existing regulatory 
requirement” and therefore could not satisfy Article III’s injury in fact requirement. Univ. of 
Notre Dame v. Sebelius, No. 3:12-CV-253-RLM, 2012 WL 6756332, at *3 (N.D. Ind. Dec. 31, 
2012); see also, e.g., Zubik v. Sebelius, 911 F. Supp. 2d 314, 328 (W.D. Pa. 2012) (no standing 
where  “there [was] no authentic threat of imminent enforcement”). Exempt Plaintiffs likewise 
face no penalty or restriction under “IU’s Mandate.”3  
Exempt Plaintiffs’ alleged objections to the Extra Requirements do not confer standing to 
challenge “IU’s Mandate” because enjoining “IU’s Mandate”—Plaintiffs’ only requested 
relief—would not redress their objections to the “Extra Requirements.” See Univ. of Notre 
Dame, 2012 WL 6756332 at *3 (confirming “challenged regulatory requirement” must cause the 
injuries of which the plaintiffs are complaining to confer standing); contra ECF 8-1 at 32.4  
2. Plaintiff Roth lacks standing because she failed to seek an exemption. 
Plaintiff Roth lacks standing to challenge “IU’s Mandate” because her alleged injury is 
 
3  Having received exemptions from “IU’s Mandate,” Exempt Plaintiffs’ claims are also moot because 
Exempt Plaintiffs no longer face any threat of enforcement. See, e.g., Nowlin v. Pritzker, No. 1:20-
CV-1229, 2020 WL 5850844, at *3 (C.D. Ill. Oct. 1, 2020) (finding request to enjoin executive orders 
based on alleged violation of constitutional rights was mooted by religious exemption). 
4  
Plaintiffs’ lack of harm arising from the Extra Requirements is discussed further, infra, at 31-33.  
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 22 of 44

 
14 
 
not fairly traceable to IU. Rather, she could avoid any injury she alleges she will suffer by 
applying for the religious exemption for which she qualifies. See ECF 1, ¶ 213; Ex. C at 43:21-
44:10. Roth’s choice not to seek an exemption for which she admits she is eligible does not 
confer standing. See, e.g., Baer-Stefanov v. White, 773 F. Supp. 2d 755, 759 (N.D. Ill. 2011) 
(“[W]here the acts necessary to make the injury happen are at least partly within the plaintiff’s 
own control, the injury-in-fact requirement calls for a high degree of immediacy, so as to reduce 
the possibility of deciding a case in which no injury would have occurred at all.” (quoting Lujan 
v. Defenders of Wildlife, 504 U.S. 555, 564 n. 2 (1992) (internal quotations omitted)); see also, 
e.g., Pucket v. Hot Springs Sch. Dist. No. 23-2, 526 F.3d 1151, 1163 (8th Cir. 2008) (confirming 
plaintiffs may not “deliberately fail[] to request [the relief they seek] in an attempt to create a 
case or controversy for the overriding purpose of challenging the constitutionality of [a policy]”).  
Nor can Roth credibly argue futility. Six Plaintiffs have already received a religious 
exemption based on the same facts she has alleged, and IU has granted a religious exemption to 
every applicant who has requested one. See ECF 1, ¶¶ 180, 182, 196, 201, 205, 207; Carroll 
Decl., ¶ 37; see also Baer-Stefanov, 773 F. Supp. 2d at 759 (rejecting futility argument).  
C. “IU’s Mandate” should not be preliminarily enjoined. 
Even if the Court deems Plaintiffs to have standing to challenge “IU’s Mandate,” they are 
not entitled to a preliminary injunction. Plaintiffs are highly unlikely to succeed on the merits 
and do not stand to suffer irreparable harm. Moreover, the harm that IU and its constituents will 
suffer and the public interest greatly outweigh any harm that Plaintiffs can legitimately allege. 
Accordingly, their preliminary injunction request should be denied. 
1. Plaintiffs are unlikely to succeed on the merits.  
a. “IU’s Mandate” does not offend Due Process. 
A century’s worth of law confirms that “IU’s Mandate” is constitutionally sound and 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 23 of 44

 
15 
 
IU’s Extra Requirements are likewise constitutional.  
i. The Policy is constitutional under Jacobson. 
Over 100 years ago, the Supreme Court held that a state enactment mandating 
vaccination, and subjecting objectors to fines or imprisonment, was a constitutional exercise of 
the state’s police powers to establish reasonable health laws to “protect the public health and the 
public safety.” Jacobson v. Commonwealth of Mass., 197 U.S. 11, 25-26 (1905). The Court 
rejected the plaintiff’s argument—like that of the Plaintiffs’ here—that the compulsory 
vaccination requirement was “unreasonable, arbitrary and oppressive” and therefore invaded his 
constitutionally protected liberty interest, and the Court reiterated the “fundamental principle” 
that individual liberty is not boundless and must yield “to secure the general comfort, health, and 
prosperity” of the greater citizenry. Id., 197 U.S. at 26. Because the challenged law had a “real or 
substantial relation to the protection of the public health and the public safety,” it was reasonable 
and, therefore, constitutional. Id., 197 U.S. at 31.  
Plaintiffs’ suggestion that Jacobson has an established “exception”—which requires 
courts to “adjudge the constitutionality” of a challenged law “if it [1] has no real or substantial 
relation to [its] objects, or [2] is, beyond all question, a plain, palpable invasion of rights secured 
by the fundamental law”—is nothing more than a restatement of Jacobson’s standard. ECF 8-1 
at 23. Plaintiffs cite no authority—Jacobson or otherwise—referring to this “exception,” see 
generally id. at 23, 29-30, which is unsurprising because the Jacobson Court applied that very 
standard in evaluating the mandatory vaccination requirement challenged there and concluded it 
passed both prongs. See Jacobson, 197 U.S. at 31.  
And in the nearly 120 years since, courts nationwide, including at least one district court 
in this Circuit, have repeatedly confirmed that mandatory vaccination requirements for attending 
public school are constitutional as a valid exercise of the state’s police power. See, e.g., Zucht v. 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 24 of 44

 
16 
 
King, 260 U.S. 174, 175-177 (1922) (upholding dismissal of constitutional challenge to public 
school mandatory vaccination requirement); George v. Kankakee Cmty. Coll., No. 14-cv-2160, 
2014 WL 6434152 (C.D. Ill. Nov. 17, 2014) (dismissing under Jacobson substantive due process 
challenge to mandatory student-vaccination requirement); Phillips v. City of New York, 775 F.3d 
538, 542 (2nd Cir. 2015) (upholding dismissal of substantive due process challenge to public 
school mandatory vaccination requirement); Workman v. Mingo Cty. Sch., 667 F. Supp. 2d 679, 
690-91 (S.D. W. Va. 2009), aff’d Workman v. Mingo Cty. Bd. of Educ., 419 F. App’x 348, 353-
354 (4th Cir. 2011) (rejecting facial substantive due process challenge to mandatory student-
immunization requirement because the Supreme Court “long ago settled that it is within the 
police power of a State to provide for compulsory vaccination” (quotations omitted)).5  
1. Jacobson remains good law. 
The Supreme Court has not overruled Jacobson. Plaintiffs ask the Court to cross a series 
of tenuously constructed bridges that they say will lead the Court to conclude otherwise. See 
ECF 8-1 at 23-25. But the Court need not, and should not, take that step. And, even if the Court 
were so inclined to inspect Plaintiffs’ bridges, it would find them unsound.  
Lower courts may not “declar[e] a decision or doctrine of a higher court defunct” unless 
the court is “certain or almost certain” that the decision “would be rejected by the higher court if 
a case presenting the issue came before it.” Olson v. Paine, Webber, Jackson & Curtis, Inc., 806 
F.2d 731, 741 (7th Cir. 1986). Plaintiffs acknowledge Jacobson’s status as binding precedent for 
 
5  
See also, e.g., Middleton v. Pan, No. CV 16-5224-SVW (AGR), 2016 WL 11518596, at *7 (C.D. Cal. 
Dec. 15, 2016) (dismissing substantive due process challenge to mandatory student vaccination 
requirement); Whitlow v. California; 203 F.Supp.3d 1079, 1089 (S.D. Cal. 2016) (declining to enjoin 
elimination of exemption to mandatory student vaccination requirement because “[u]nquestionably, 
imposing a mandatory vaccine requirement . . . as a condition of enrollment does not violate 
substantive due process,” and “the State is well within its powers to condition school enrollment on 
vaccination”); Viemeister v. White, 72 N.E. 97, 98 (N.Y. 1904) (upholding mandatory public school 
vaccination requirement). 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 25 of 44

 
17 
 
over 100 years (during which the Supreme Court has cited it in scores of opinions), and that the 
Court has never explicitly overruled it. See, e.g., ECF 8-1 at 25 (asserting only “implicit 
repudiation”). In fact, Chief Justice Roberts’s concurrence in South Bay United Pentecostal 
Church v. Newsom, 140 S. Ct. 1613, 1613 (2020), and Justice Gorsuch’s concurrence in Roman 
Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 70 (2020), both make clear that Jacobson 
remains good law. Under these circumstances, “the very high degree of confidence necessary to 
justify disregarding decisions of a higher court” is not present. Olson, 806 F.2d at 742.  
Moreover, Plaintiffs’ reliance on Buck v. Bell, 274 U.S. 200 (1927), Roman Catholic, and 
Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603 (2020), to support their asserted 
rejection of Jacobson is misplaced. Contra ECF 8-1 at 24-29. None of these cases is directly 
applicable, and none implicitly overruled Jacobson.  
Buck. As Plaintiffs’ note, Buck concerns the propriety of an involuntary sterilization law, 
not mandatory vaccination requirements. 274 U.S. at 205; ECF 8-1 at 24. At most, Buck extends 
the principle underlying Jacobson—the breadth of the state’s constitutional exercise of its police 
power to protect the public health—to a different context. See Buck, 274 U.S. at 207. Moreover, 
as Plaintiffs acknowledge, the Supreme Court has never explicitly repudiated Buck, either. See 
ECF 8-1 at 25. Thus, Plaintiffs’ argument that the Court should decline to apply Jacobson here 
based on a later, implicit overruling of Buck is a bridge too far.  
Roman Catholic. Plaintiffs next argument—that, without even mentioning Jacobson, the 
Supreme Court “implicitly narrowed [its] breadth” in Roman Catholic—is equally unavailing. 
ECF 8-1 at 26. Roman Catholic also did not involve mandatory vaccination requirements or the 
Fourteenth Amendment; it concerned a First Amendment challenge to an executive order that 
restricted attendance at religious services in areas that were COVID-19 hot spots. See Roman 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 26 of 44

 
18 
 
Cath., 141 at 65-66. As Justice Gorsuch observed in his concurrence—on which Plaintiffs 
heavily rely—Jacobson “involved an entirely different mode of analysis, an entirely different 
right, and an entirely different kind of restriction.” Id., 141 S. Ct. at 70 (Gorsuch, J., concurring); 
ECF 8-1 at 27.6 Thus, Plaintiffs’ argument that the majority’s analysis in Roman Catholic 
somehow modified Jacobson is no basis for the Court to ignore Jacobson here. 
In fact, since Roman Catholic, at least two courts have cited Jacobson in upholding 
mandatory school vaccination requirements. See, e.g., Kiel, J.D. v. The Regents of the Univ. of 
Cal., No. HG20-072843, 2020 WL 9396579, at *5 (Cal. Super. Dec. 04, 2020); Doe v. Zucker, 
No. 1:20-CV-840, 2021 WL 619465, at *22 (N.D.N.Y. Feb. 17, 2021) (“It is well-settled that it 
is within a state’s police power to establish regulations implementing mandatory vaccine laws 
and vest local officials with enforcement authority.”). The Court should follow their lead.  
Calvary Chapel. Finally, the Court can quickly dispense with Plaintiffs’ reference to 
Calvary Chapel. See ECF at 27-28. Plaintiffs do not rely on a majority opinion in Calvary 
Chapel because there is not one—the Court denied a requested injunction without opinion; so, 
instead, Plaintiffs cite a dissent. Id. And, like Roman Catholic, the case involves a First 
Amendment challenge to a COVID-19 executive order unrelated to mandatory student 
vaccination requirements. See, e.g., Calvary Chapel, 140 S. Ct. at 2604-05 (Alito, J., dissenting).  
At bottom, Plaintiffs are really asking the Court to disregard binding Supreme Court 
precedent. See, e.g., ECF 8-1 at 23 (arguing Jacobson “is not today’s jurisprudence” without 
citing any cases overturning Jacobson). The Court should decline Plaintiffs’ bold invitation. See, 
e.g., Caviezel v. Great Neck Pub. Sch., 500 F. App’x 16, 19 (2d Cir. 2012) (rejecting similar 
 
6  
For these same reasons, Plaintiffs’ reliance on the Seventh Circuit’s discussion of Roman Catholic in 
Cassell, 990 F.3d at 543, which likewise involved a First Amendment Free Exercise Clause 
challenge, is similarly misplaced. ECF 8-1 at 28-29. 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 27 of 44

 
19 
 
argument); Snodgrass v. Berklee Coll. of Music, 559 F. App’x 541, 543 (7th Cir. 2014) (“[W]e 
are bound by Supreme Court precedent.”).  
2. The pandemic is ongoing,7 and Jacobson controls. 
Jacobson’s progeny make clear that its application does not depend on the existence of a 
pandemic. Contrary to Plaintiffs’ attempted limitation of Jacobson, courts have consistently 
applied it to uphold mandatory student vaccination requirements in a non-pandemic context. 
Compare ECF 8-1 at 14; with, e.g., Zucht, 260 U.S. at 175-177 (confirming constitutionality of 
public school vaccination requirement without pandemic); Phillips, 775 F.3d at 542 (same); 
Workman, 667 F. Supp. 2d at 690-691 (same); Middleton, 2016 WL 11518596 at *7 (same). 
3. Plaintiffs’ disagreements with science do not undermine Jacobson’s 
application. 
Plaintiffs’ assertion that “IU’s Mandate” is unreasonable even under Jacobson because 
“the latest scientific data” allegedly shows the Vaccine to be “unnecessary” is doubly inaccurate. 
ECF 8-1 at 18-19. Besides being factually incorrect, see supra at 3-5, courts have repeatedly 
rejected similar arguments. See, e.g., Phillips, 775 F.3d at 542 (“Plaintiffs argue that a growing 
body of scientific evidence demonstrates that vaccines cause more harm to society than good, but 
as Jacobson made clear, that is a determination for the [policy-maker], not the individual 
objectors.”); Workman, 667 F. Supp. 2d at 681, 690-691 (rejecting substantive due process 
challenge to mandatory student-immunization requirement because, among other things, “little 
evidence support[ed] the claim that [the challenged vaccinations were] unsafe”). 
Moreover, as Dr. Beeler explains, Plaintiffs’ “scientific data” is controverted roundly by 
many sources, including the CDC. Compare, e.g. McCullough Decl. (attached hereto as Exhibit 
E) at 16 (Table 5) (discussing unproven COVID-19 treatments), with Beeler Decl., ¶¶ 56-59; 
 
7  
See, e.g., Beeler Decl., ¶ 35; EO 21-16.  
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 28 of 44

 
20 
 
McCullough Decl., ¶¶ 37-38 (misstating risk of myocarditis), with Beeler Decl., ¶¶ 33, 66-69; 
McCullough Decl., ¶¶ 68-72 (exaggerating “natural” immunity protection), with Beeler Decl., 
¶¶ 70-78. There is no basis for the Court to even credit Plaintiffs’ expert’s opinions,8 which 
contradict the entire body of current United States federal public health policy, let alone rely on 
those opinions as a basis to disregard well-established Supreme Court precedent. 
ii. “IU’s Mandate” is constitutional even absent Jacobson. 
1. “IU’s Mandate” is subject to—at most—rational-basis scrutiny. 
Even if the Court declines to apply Jacobson, the Court need find only that “IU’s 
Mandate” is rationally related to a legitimate end. “IU’s Mandate” easily passes that test. Absent 
Jacobson, courts analyze Fourteenth Amendment substantive due process challenges under one 
of two frameworks: where the claim implicates a fundamental right, courts apply strict scrutiny; 
but where no fundamental right is at issue, rational basis scrutiny applies. See, e.g., George, 2014 
WL 6434152 at *3 (“Substantive Due Process requires only that a government practice or 
regulation be rationally related to a legitimate government interest, unless it encroaches on a 
fundamental right.” (quotations omitted)).  
Plaintiffs’ challenge to “IU’s Mandate” does not implicate any fundamental right. 
Without a single legal citation, Plaintiffs purport to identify a host of “fundamental” rights that 
they contend are at issue: “rights of personal choice, bodily autonomy, medical privacy, and 
religious convictions,” and “loss of an education.” ECF 8-1 at 18-19, 21. None of these rights, 
even if recognized as fundamental in some instances, are implicated here.  
 
8  
Dr. McCullough is a cardiologist, not an infectious disease expert, and it is far from clear that he 
would satisfy the Daubert standard for the opinions he offers. See, e.g. GlaxoSmithKline LLC v. 
Glenmark Pharms. Inc., USA, No. CV 14-877-LPS-CJB, 2017 WL 8944996, at *4 (D. Del. May 11, 
2017) (referencing Dr. McCullough as plaintiffs’ “infringement expert” in pharmaceutical patent 
case). 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 29 of 44

 
21 
 
a. Plaintiffs have no fundamental right to education. 
Working backwards, Plaintiffs have no fundamental right to continued graduate study. 
See, e.g., George, 2014 WL 6434152 at *3 (“As the Seventh Circuit has recently reiterated, there 
is no “fundamental right to a graduate education.”) (quoting Charleston v. Bd. of Trustees of 
Univ. of Ill. at Chi., 741 F.3d 769, 774 (7th Cir. 2013)); see also, e.g., Zucker, 2021 WL 619465 
at *20 (confirming no fundamental right to public school education in context of challenge to 
mandatory school vaccination requirement).  
b. “IU’s Mandate” does not infringe Plaintiffs’ religious rights. 
Plaintiffs cannot backdoor an unpled First Amendment Free Exercise challenge through a 
Fourteenth Amendment Substantive Due Process Claim. See, e.g., Nowlin, 2021 WL 669333 at 
*6 (“Plaintiffs’ rights to freedom of assembly and speech are already protected by a specific 
constitutional provision—the First Amendment. A substantive due process claim cannot succeed 
. . . when a specific constitutional provision protects the right allegedly infringed upon.” 
(quotations omitted)). Moreover, Plaintiffs have not alleged that “IU’s Mandate” “is religiously 
motivated,” “applies only to those who hold certain religious beliefs,” or is anything other than 
“a generally applicable, neutral policy,” so any First Amendment challenge would fail on the 
merits. George, 2014 WL 6434152 at *4; see also Phillips, 775 F.3d at 543 (rejecting Free 
Exercise challenge to neutral mandatory student-vaccination requirement). 
c. “IU’s Mandate” does not invade Plaintiffs’ privacy rights. 
“IU’s Mandate” does not invade Plaintiffs’ fundamental right to medical privacy. Contra, 
e.g., ECF 8-1 at 18. First, Plaintiffs do little to articulate how exactly they contend IU’s Policy 
interferes with their privacy rights. In any event, a sister court rejected just this type of argument 
in evaluating a mandatory school vaccination requirement because “except when dealing with 
searches and seizures, the Supreme Court . . . has confined the label ‘privacy’ mainly to sexual 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 30 of 44

 
22 
 
and reproductive rights, such as the right to use contraceptives or have an abortion or engage in 
homosexual acts.” George, 2014 WL 6434152 at *4 (citing Wolfe v. Schaefer, 619 F.3d 782, 784 
(7th Cir. 2010)). As there, Plaintiffs here do not, and could not credibly, assert that “IU’s 
Mandate” concerns their sexual or reproductive rights.  
Neither Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990), nor 
Green v. Alachua Cty., No. 1D20-1661, 2021 WL2387983, *1 (Fla. Dist. Ct. App. June 11, 
2021), necessitates a different conclusion. See ECF 8-1 at 26. Cruzan concerns a liberty interest 
in the right to refuse medical treatment, rather than an invasion of privacy, and, as explained 
below, “IU’s Mandate” does not invade that right either. See infra. And Green assessed whether 
Florida’s express constitutional right to privacy, which is “broader,” “embraces more privacy 
interests, and extends more [individual] protection” than the U.S. Constitution, precluded a state 
mask mandate. 2021 WL2387983 at *3-4. Green is inapplicable. 
d. The Policy does not invade Plaintiffs’ rights to bodily integrity or 
to refuse medical treatment. 
Finally, “IU’s Mandate” does not invade Plaintiffs’ fundamental rights to bodily integrity 
or to refuse medical treatment. IU is not forcing Plaintiffs to receive a Vaccine against their will. 
See, e.g., Carroll Decl., ¶ 32. In similar contexts, courts have rejected arguments that vaccine 
requirements are “coerci[ve]” or intrude on bodily integrity. Compare ECF 8-1 at 34, with, e.g., 
Zucker, 2021 WL 619465 at *21 (explaining mandatory vaccination requirement does “not force 
. . . consent to vaccination”); Bridges v. Houston Methodist Hosp., No. CV H-21-1774, 2021 WL 
2399994, at *2 (S.D. Tex. June 12, 2021) (holding that policy requiring employee to receive 
COVID-19 vaccination was not coercive because employee “can freely choose to accept or 
refuse a COVID-19 vaccine . . . if she refuses, she will simply need to work somewhere else”); 
Williams v. Santiago, No. 1:16-CV-01065-MJS (PC), 2016 WL 6494268, at *4 (E.D. Cal. Nov. 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 31 of 44

 
23 
 
1, 2016) (dismissing Due Process Clause challenge premised on “unjustified intrusions into the 
body” because plaintiff alleged only that he was prescribed medical treatment that he did not 
want and was able to refuse). Like the policies in these cases, “IU’s Mandate” permits Plaintiffs 
to choose whether to receive the COVID-19 Vaccine. See, e.g., ECF 1, ¶ 33 (“If a person 
chooses to receive the vaccination . . .” (emphasis added)).   
2. Under any level of scrutiny, “IU’s Mandate” is constitutional.  
IU’s interest in “[s]temming the spread of COVID-19 is unquestionably a compelling 
interest” and, therefore, satisfies rational basis scrutiny, or even strict scrutiny, should the Court 
choose to apply it. Roman Cath., 141 S. Ct. at 67; see also, e.g., Vill. of Orland Park v. Pritzker, 
475 F. Supp. 3d 866, 885 (N.D. Ill. 2020) (confirming that “preventing the spread of a dangerous 
infectious disease” like COVID-19 is a compelling state interest). Since the pandemic began, 
more than a quarter the state’s population has been infected with COVID-19; it has killed over 
13,000 Hoosiers and over 600,000 people nationwide. Beeler Decl., ¶¶ 14-15. And the risk of 
hospitalization from COVID-19 for an unvaccinated Hoosier remains 97 times higher than it is 
for a vaccinated Hoosier. Id., ¶ 39. Other courts have previously rejected Plaintiffs’ argument 
that the pandemic is “virtually over” so policies aimed at stemming the spread of COVID-19 are 
no longer justified is not grounded in fact. Compare id., ¶¶ 41, 43 (noting that Indiana has not 
reached herd immunity and other reasons COVID-19 rates may be temporarily declining), with 
ECF 8-1; Cassell v. Snyders, 458 F. Supp. 3d 981, 1000 (N.D. Ill. 2020), aff’d, 990 F.3d 539 (7th 
Cir. 2021) (“[T]he virus continues to proliferate, Illinoisans continue to die, and restrictions 
remain vital to ensuring that hospitals are not overwhelmed. In these exceptional circumstances, 
controlling the spread of COVID-19 counts as a compelling interest.”). 
“IU’s Mandate” is also narrowly tailored to advance those ends—again, unquestionably 
satisfying rational basis scrutiny or even strict scrutiny. College-aged individuals (ages 20 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 32 of 44

 
24 
 
through 29) in Indiana have reported more positive COVID-19 cases than any other 
demographic. See Beeler Decl., ¶ 14. And these individuals not only can suffer severe 
consequences if they contract the virus, but they also can spread it to others who face an even 
higher risk of bad outcomes. Id., ¶¶ 7-11. The Vaccines “are some of the most effective vaccines 
that have ever been developed,” and “vaccinating individuals against COVID-19 currently is the 
leading prevention strategy to protect individuals from the virus and end the pandemic.” Id., ¶¶ 
22, 62; see also, e.g., Holcomb Executive Order 21-17 (“the data has shown us that the spread of 
COVID-19 in the Hoosier state and in other areas can be significantly reduced where there are 
robust vaccinations and adherence to mitigation efforts”), available at: https://www.in.gov/gov/ 
files/Executive-Order-21-17-Continuation-of-Limited-Health-and-Welfare-Provsions.pdf.  
Moreover, “IU’s Mandate” is not contrary to the Emergency Use Authorization 
provisions in 21 U.S.C. § 360bbb-3, as Plaintiffs’ contend. Contra ECF 8-1 at 31. That statute 
addresses powers and responsibilities of the Secretary of the Department of Health and Human 
Services, not an educational institution like IU. See, e.g., 21 U.S.C. § 360bbb-3(e) (“the 
Secretary . . . shall . . .”); Bridges, 2021 WL 2399994 at *2. Even if it were applicable, IU’s 
vaccination policy does not preclude individuals from “accept[ing] or refus[ing] administration 
of” the COVID-19 vaccine. Id., § 360bbb-3(e)(1)(ii)(III). See supra at 22-23. The statute does 
not preclude IU from implementing policies that address non-exempt individuals who decline to 
be vaccinated. Id. Rather, “IU’s Mandate” closely tracks the CDC’s guidance for IHEs, as well 
as guidance from the ISDH. Compare, e.g., Carroll Decl., ¶¶ 7-20 (guidance), with id., ¶¶ 21-44 
(IU’s policies). IU’s close adherence to state and federal guidance demonstrates narrow tailoring.   
a. IU’s Masking and Testing Policies are constitutionally sound. 
Even if the Court construes Plaintiffs’ claims to encompass IU’s COVID-19 masking and 
testing policies, they fare no better. Courts have consistently rejected substantive due process 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 33 of 44

 
25 
 
claims to masking requirements under the standards set forth above—finding they clearly survive 
Jacobson and rational basis scrutiny and do not implicate any fundamental rights to trigger strict 
scrutiny. See, e.g., Whitfield v. Cuyahoga Cty. Pub. Libr. Found., No. 1:21 CV 0031, 2021 WL 
1964360, at *3 (N.D. Ohio May 17, 2021) (finding “there is no general constitutional right to 
wear, or to refuse to wear a face mask in public places” and advising that “Plaintiff’s assertion 
under the Fourteenth Amendment that the government can never regulate personal attire, 
including face covering, is without merit”); Stewart v. Justice, No. 3:20-0611, 2021 WL 472937 
(S.D. W. Va. Feb. 9. 2021) (rejecting substantive due process challenge to mask mandate); 
Forbes v. Cty. of San Diego, No. 20-cv-00998-BAS-JLB, 2021 WL 843175 (S.D. Cal. Mar. 4, 
2021) (same); see also, e.g., Oakes v. Collier Cty., No.: 2:20-cv-568-FtM-38NPM, 2021 WL 
268387 (M.D. Fla. Jan. 27, 2021) (evaluating Equal Protection claim and concluding that, “[a]s a 
general matter, a mask mandate is rationally related to the County’s legitimate governmental 
interest. . . . It would be difficult to contend with a straight face that a mask requirement does not 
bear a rational relation to protecting people’s health and preventing the spread of COVID-19. 
[Plaintiffs] do not point to a single court holding otherwise.”).  
And at least one court has also rejected a request to preliminarily enjoin a mandatory 
COVID-19 student testing regime on the basis of a substantive due process challenge, finding the 
students had no fundamental right to education and the testing program was reasonably related to 
the state’s compelling interest in stemming the spread of COVID-19. Aviles v. Blasio, No. 20 
CIV. 9829 (PGG), 2021 WL 796033, at *18 (S.D.N.Y. Mar. 2, 2021); see also, e.g., Little Rock 
Fam. Plan. Servs. v. Rutledge, 458 F. Supp. 3d 1065, 1074 (E.D. Ark. 2020) (applying Jacobson 
to uphold requirement that women obtain negative COVID-19 test before medical procedure). 
Plaintiffs are not entitled to a preliminary injunction of IU’s masking and testing policies. 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 34 of 44

 
26 
 
b. “IU’s Mandate” does not violate the “Vaccine Passport” Law. 
Plaintiffs’ second challenge concerns a new Indiana statute that prohibits “immunization 
passports.” ECF 8 at 35-36; Ind. Code § 16-39-11-5(a) (“the state or a local unit may not issue or 
require an immunization passport”); Ind. Code § 16-39-11-3 (defining “immunization passport” 
as “written, electronic, or printed information regarding an individual’s immunization status”). 
There are several reasons why Plaintiffs are unlikely to succeed on this claim. 
i. Plaintiffs have no private right of action under the Vaccine Passport Law. 
On its face, the Vaccine Passport law grants no private right of action, and no such right 
may be properly implied. Whether Indiana courts would imply a private right of action under the 
Vaccine Passport law is a question of law that “begins with an examination of legislative intent.” 
Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 187 (Ind. 2011) (internal citation 
omitted). Implied private rights of action are disfavored in Indiana. Doe #1 v. Ind. Dep’t of Child 
Servs., 81 N.E.3d 199, 202 (Ind. 2017) (“We have long been reluctant to infer . . . unwritten 
intent, since the legislature often creates rights of action using clear language” (internal quotation 
omitted)). Indeed, omission of “clear language” creating a right of action is “evidence that [the 
legislature] did not intend to create a private remedy.” Shirey v. Flenar, 89 N.E.3d 1102, 1105 
(Ind. Ct. App. 2017). Courts’ “reluctance to invade the legislature’s purview has developed into a 
two-part rule: [courts] usually will not infer a private right of action when the statute 1) primarily 
protects the public at large and (2) contains an independent enforcement mechanism.” Doe #1, 
81 N.E.3d at 202; see also, e.g., Shirey, 89 N.E.3d at 1105.  
The Vaccine Passport law is just such a statute. Its apparent intent is to protect Indiana 
citizens from being required by the state or a local government unit to maintain written, 
electronic, or printed information regarding one’s own immunization status. See Ind. Code ch. 
16-39-11. The legislature housed it in Title 16 of the Indiana Code, which contains an 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 35 of 44

 
27 
 
enforcement provision applicable to the entire title. Ind. Code § 16-19-3-18(b) (“Section 18(b)”) 
(“Except as otherwise provided, the state department [of health] may bring an action to enforce 
this title, except as otherwise stated”); Shirey, 89 N.E.3d at 1106 (Section 18(b) is Title 16’s 
“enforcement mechanism”).  
Section 18(b) twice states that it governs unless the legislature provides otherwise. 
Ind. Code § 16-19-3-18(b). This is a clear signal that the legislature did not intend for individuals 
to enforce Title 16. Indeed, where the legislature has carved out exceptions to Section 18(b), it 
has done so in clear and unambiguous language. See, e.g., Ind. Code § 16-41-2-7 (creating civil 
cause of action), id. § 16-39-7.1-6 (creating criminal penalty). That type of language is 
noticeably absent here. For example, proposed versions of a separate vaccine passport law 
included an explicit civil cause of action. Ind. House Am., 2021 Reg. Sess. S.B. 1 at 3:31-33 
available at: http://iga.in.gov/static-documents/b/c/b/d/bcbd92c6/ SB0001.04.COMH.AMH002. 
pdf (proposing to add “Sec. 4. (a) An individual who is subject to a violation of this chapter may 
bring a civil action against the employer in the county of employment”). Ind. Code ch. 16-39-11 
contains no such provision; implying one would be inconsistent with Section 18(b).  
“According to [the Indiana] Supreme Court, ‘When a statute expressly provides one 
enforcement mechanism, courts may not engraft another.’” Shirey, 89 N.E.3d at 1106 (quoting 
Doe #1, 81 N.E.3d 199, 204 (Ind. 2017)). This is true even where a statute was arguably 
designed to “benefit particular individuals” rather than the public in general. Id. at 1107 (finding 
no implied private right of action arising from statute requiring medical providers to provide 
records to patients upon request). This analysis controls here; the Vaccine Passport law already 
has an enforcement provision and the Court “may not engraft another” for Plaintiffs.  
ii. The Vaccine Passport law is inapplicable to IU. 
Even were the Court to imply a private right of action allowing Plaintiffs to enforce the 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 36 of 44

 
28 
 
Vaccine Passport law, their challenge fails because that statute does not apply to IU. The plain 
language of the statute limits its application to “the state or a local unit.” Ind. Code § 16-39-11-
5.9 Neither Chapter 11 nor Title 16 defines “state” for purposes of Chapter 11. While IU may be 
deemed “the state” for some legal purposes, such as sovereign immunity (ECF 1-6 at 3-4 (citing 
Kashani v. Purdue Univ., 813 F.2d 843 (7th Cir. 1987))) or 42 U.S.C. § 1983 claims by 
employees (Wade v. Indiana Univ. Sch. of Med., No. 1:16-CV-02256-TWP-MJD, 2019 WL 
3067519, at *7 (S.D. Ind. July 12, 2019)), it is unquestionably not “the state” for all purposes.  
For example, the legislature has several terms that it uses when it wants to separately 
distinguish distinct entities like IU from “the state” itself. Statutes throughout the Indiana Code 
refer to state educational institutions as separate and distinct from “the state.” The terms “state 
educational institution,” “political subdivision,” and “political subdivision of the state” are all 
used to refer to state entities that are distinct from the state. See, e.g., Ind. Code § 21-40-3-1 
(referencing setting “conditions and standards of admission . . . in the best interests of the state 
and the state educational institution”); id., § 21-34-4-1 (outlining “the policy of the state” 
regarding “joint use of building facilities” to benefit the “state educational institutions” and “the 
state”); id., § 16-34.5-1-2 (precluding “[t]he state, a state educational institution, or a political 
subdivision of the state” from using public funds for certain purposes). Indeed, just this 
legislative session, the legislature used “political subdivision,” defined to include “state 
educational institution,” to extend certain COVID-related immunity to public universities. HEA 
 
9  
Even Attorney General Rokita, while opining that the statute does apply to IU, stopped short of 
declaring IU “the state” itself. ECF 1-6 at 2-3 (referring to IU as “arm of the state”). Rokita also 
acknowledged a media statement by one of the bill’s authors that the law was not intended to apply to 
public universities. Id. at 3; see Sullivan, Kayla, What Does Indiana’s New Vaccine Passport Law 
Do?, Fox59 News, https://fox59.com/indianapolitics/what-does-indianas-new-vaccine-passport-law-
do/amp/. This view is consistent with discussion on the House floor that Chapter 11 would not apply 
to publicly funded hospitals. See http://iga.in.gov/information/archives/2021/video/house/ (House 
Chamber Apr. 22, 2021 video at 9:55). 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 37 of 44

 
29 
 
1002, Section 13 (creating Ind. Code ch. 34-12-5). In sum, when the legislature refers to “the 
state” it does not always mean IU. 
In this context, this is a distinction with an important difference. The Vaccine Passport 
law evidences an intent by the legislature to forbid the government itself from requiring all 
citizens within its jurisdiction to maintain records of their vaccination status. From a policy 
perspective, IU is different. It does not “regulate” its students as would the state or a local unit 
regulate their citizens; rather, students may voluntarily choose to attend the university or not. Just 
like private employers are free to require vaccination for those who choose to be in their employ, 
Bridges, 2021 WL 2399994, at *2, so may IU require vaccination for those who choose to attend 
their courses in person. Allowing IU to require vaccination leaves undisturbed the Vaccine 
Passport law’s apparent desire to prohibit a general government vaccine mandate that would 
apply to, for example, all citizens statewide. IU, because it is not the state, has no such power. 
“IU’s Mandate” simply does not implicate the generally applicable government regulation that 
the Vaccine Passport law is designed to prohibit. 
iii. Even if applicable, IU is not violating the statute. 
Finally, for these same reasons, even if IU were deemed “the state” for this purpose, it 
cannot be deemed to be requiring an “immunization passport.” IU is not “requiring” that anyone 
have or create such a record any more than it is “forcing” students to get vaccinated. See supra at 
22-23. Indeed, IU requires no documentation of having received a vaccine (e.g., a CDC card). 
Carroll Decl., ¶ 34. Rather, IU requests that non-exempt students who wish to attend IU courses 
in person attest that they have been vaccinated. Id. For those who submit an attestation, IU 
requests their vaccination dates to confirm that they are fully vaccinated by the date they return 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 38 of 44

 
30 
 
to campus.10 Id. And the statute is clear that IU (if it is deemed the state in this context) may 
maintain, create, or store records of individuals’ immunization statuses, including for the purpose 
of public health administration. Ind. Code § 16-39-11-5(b)(1), (4). Query how else IU could 
accomplish that permissible goal other than by requesting the record and then maintaining it 
(something the CDC also advises IHEs to consider doing).  
IU’s reading of the statute is consistent with the Board of Trustees’ statutory authority to 
govern admissions and conduct at its campuses. For example, the Board may: “govern, by 
regulation and other means, the conduct of students, faculty, employees, and others while upon 
the property owned, used, or occupied by the state educational institution” (Ind. Code § 21-39-2-
2); and “set the conditions and standards of admission of students upon criteria that are in the 
best interests of [it and] the state.” Ind. Code § 21-40-3-1. IU’s thoroughly considered policies 
regarding COVID-19 are well within its authority and do not require any student to have a 
“vaccine passport.” 
3. Plaintiffs have not shown they will suffer irreparable harm. 
The Exempt Plaintiffs stand to suffer no injury from “IU’s Mandate.” As a threshold 
matter, courts nationwide have been clear that delays in graduate education, including due to 
suspensions and expulsions for failing to follow university requirements, do not constitute 
irreparable harm. See, e.g., Hodges v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. 
Coll., No. CV 20-1456, 2020 WL 5017665, at *3 (E.D. La. Aug. 25, 2020) (collecting cases). 
Thus, even if the Court gives Plaintiffs the benefit of their argument that IU’s application of its 
“Mandate” will result in Plaintiffs’ “virtual expulsion,” that consequence is not irreparable and is 
 
10  Attorney General Rokita agrees that such a “request” is acceptable but only “provided no 
negative consequences arise” from not producing it. ECF 1-6 at 5. This caveat, relied upon 
by Plaintiffs, is not reflected in the statute’s plain language. See ECF 1 ¶ 247. 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 39 of 44

 
31 
 
insufficient to warrant an injunction. ECF 8-1 at 34. The Court can deny Plaintiffs’ preliminary 
injunction on this basis alone because they have not shown irreparable harm. See, e.g., E. St. 
Louis Laborers’ Loc. 100 v. Bellon Wrecking & Salvage Co., 414 F.3d 700, 703 (7th Cir. 2005) 
(confirming that if a party moving for preliminary injunction cannot show irreparable harm, “a 
court’s inquiry is over and the injunction must be denied” (internal citation omitted)).   
Moreover, six Plaintiffs already have an exemption from “IU’s Mandate” and Plaintiff 
Roth has verified that she satisfies the criteria for one. See supra at 10-13; Ex. C at 43:21-44:10. 
These seven plaintiffs thus have no irreparable harm. See, e.g., Kiel, J.D., 2020 WL 9396579 at 
*5 (denying plaintiffs’ request to enjoin university’s flu vaccine mandate where they could apply 
for a religious exemption). This leaves Sperazza. Plaintiffs have done nothing to articulate the 
irreparable harm they contend she will suffer specifically, beyond their “forced injection” and 
“virtual expulsion” arguments (ECF 8-1 at 36-27), both disposed of above. At her deposition, 
Sperazza testified that if “IU’s Mandate” is not enjoined, she will not attend IU in August, but 
instead will “continue working full time and possibly find a different college to attend.” Ex. D 
(Sperazza) at 40:12-41:12; see also, e.g., Hodges, 2020 WL 5017665 at *3 (rejecting argument 
that plaintiff’s choice to attend another institution while expelled showed irreparable harm). 
Moreover, Sperazza admits that the other harm she is concerned about—her belief that the 
vaccine poses more risk to her than contracting COVID-19—is not something she has discussed 
with or been told by any medical professional. Ex. D at 19:11-20:16. Thus, there is no basis for 
concluding that Sperazza, individually, stands to suffer irreparable harm, either. 
Even if the Court construes Plaintiffs’ claim to include the “Extra Requirements,” no 
Plaintiff has established irreparable harm as a result. All Plaintiffs testified that they wore masks 
on many occasions during the pandemic. Ex. C (Roth) at 29:13-33:18; Ex. D (Sperazza) at 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 40 of 44

 
32 
 
11:25-12:21, 28:12-31:2, 32:8-10; Dep. of Ryan Klaassen at 25:8-18 (attached hereto as Exhibit 
F); Dep. of Jaime Carini at 41:2-20 (attached hereto as Exhibit G); Dep. of D.J.B. at 16:20-20:4 
(attached hereto as Exhibit H); Dep. of Ashlee Morris at 34:6-35:21; 55:8-55:19 (attached hereto 
as Exhibit I); Dep. of Seth Crowder at 20:10-21:23 (attached hereto as Exhibit J); Dep. of 
Macey Policka (attached hereto as Exhibit K) at 15:23-17:13; 17:19-18:5. While some cited 
concerns about hypothetical “segregation” or “discrimination,” against those wearing masks on 
campus this fall, those concerns are merely speculative and do not constitute irreparable harm. 
Duthie v. Matria Healthcare, Inc., 543 F. Supp. 2d 958, 960 (N.D. Ill. 2008) (“Alleged harm that 
is remote or speculative will not be considered irreparable; rather, the movant must demonstrate 
that the threatened harm is imminent.”). Ex. C (Roth) at 25:20-29:8; 51:1-25 Ex. D (Sperazza) at 
32:18-35:2; Ex. F (Klaassen)  at 33:23-39:15; Ex. G (Carini) at 47:12-50:22; Ex. H (D.J.B) at 
32:15-33:15; Ex. I (Morris) at 45:8-45:24; 54:6-13; 57:8-59:9; Ex. J (Crowder) at 30:10-31:8, 
35:18-37:16; Ex. K (Policka) at 21:8-17; 24:22-25:3.      
Several Plaintiffs also have been tested for COVID multiple times with no resulting 
irreparable harm. Ex. D (Sperazza) at 23:3-26:19; Ex. K (Policka) at 13:23-15:11; Ex. I   
(Morris) at 33:2-34:5; Ex. F (Klaassen) at 25:19-27:5; 29:21-31:8. And a few Plaintiffs cited 
concerns about the safety of nasal testing swabs, but IU’s testing uses saliva. Ex. C (Roth) at 
33:19-35:17; Ex. H (D.J.B) at 36:9-38:25; Ex. J (Crowder) at 37:22-39:7, 40:5-16; Ex. B ¶ 40.  
Finally, some Plaintiffs simply cited their view that the Extra Requirements were 
unnecessary or inconvenient, neither of which rises to the level of establishing irreparable harm. 
Lewis v. Silverman, No. 2:05-CV-352 PS, 2005 WL 8170424, at *2 (N.D. Ind. Sept. 16, 2005) 
(finding asserted “inconvenience” was not “immediate and irreparable harm”); Students v. 
United States Dep’t of Educ., No. 16-CV-4945, 2016 WL 6134121, at *38 (N.D. Ill. Oct. 18, 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 41 of 44

 
33 
 
2016) (“[M]ere inconvenience . . . does not constitute irreparable harm.”); Ex. D (Sperazza) at 
37:7-39:8;  Ex. F (Klaassen) at 30:19-31:8; Ex. I (Morris) at 67:9-68:24; 71:17-72:24; Ex. J 
(Crowder) at 40:5-16. 
4. The remaining considerations also support “IU’s Mandate.”  
a. The harm to IU if the “Mandate” is enjoined outweighs any harm Plaintiffs 
might suffer. 
IU’s interest and obligation in keeping its students, faculty, and staff safe, alive, and 
healthy far outweighs the potential harm to one individual in either receiving a vaccination, 
wearing a mask, or being subject to non-invasive testing. See, e.g., Cassell, 990 F.3d at 550 
(recognizing that—because of COVID-19’s “insidious risk of non-symptomatic contagion”—
enjoining restrictions on in-person worship would “increase the risk of disease” “far beyond the 
congregation” to “many others who did not consent to that trade-off”). The Vaccines are 
currently the most effective tool IU has to help stem the spread of the pandemic in the 
communities in which its campuses sit and in which its students, faculty, and staff reside. See, 
e.g., Beeler Decl., ¶¶ 59, 62. Beyond that, IU’s masking and testing policies for unvaccinated 
individuals will help IU ensure that it mitigates spread among the unvaccinated community and 
quickly identifies any outbreaks. Id., ¶¶ 40, 55.  
Beyond keeping its campuses safe from COVID-19 infections, the policy also serves IU’s 
goal of providing students with a more normal campus experience. Carroll Decl., ¶ 30. And the 
IU community supports the policy. As of late June, over 42,000 students had already been fully 
vaccinated. Id., ¶ 46.  IU faculty, staff, and Graduate and Professional Student Government 
overwhelmingly support “IU’s Mandate” and other COVID-19 vaccination policies because they 
are the best way to ensure that all of IU’s constituents can return to as close to a normal fall 
semester as possible without risking their health or their lives. Id., ¶¶ 47-50.  
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 42 of 44

 
34 
 
b. The public interest supports “IU’s Mandate.” 
The public interest supports upholding “IU’s Mandate.” The Court must consider the 
effects of enjoining “IU’s Mandate” on the safety and health of others. See, e.g., Cassell, 990 
F.3d at 550 (“Where appropriate, this balancing process should also encompass any effects that 
granting or denying the preliminary injunction would have on nonparties (something courts have 
termed the ‘public interest’” (quoting Roland Machinery Co. v. Dresser Industries, Inc., 749 
F.2d 380, 386-87 (7th Cir. 1984))). Enjoining “IU’s Mandate” would not only increase the risk 
of infection for Plaintiffs, it would also increase the risk of transmission of COVID-19 among all 
other IU students, faculty, and staff. See, e.g., Beeler Decl., ¶¶ 22, 40, 55; Cassell, 990 F.3d at 
544 (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 117, 123 n.34 (1984)).  
Plaintiffs’ opinion that “IU’s Mandate” requires those least affected by COVID to be 
vaccinated oversimplifies the risk to the IU community should “IU’s Mandate” be enjoined. See 
ECF 8-1 at 38. While the risk of transmission mitigated by “IU’s Mandate” is difficult to 
quantify, this scientific uncertainty further supports upholding it. Cassell, 990 F.3d at 549 
(“[T]he scientific uncertainty surrounding the pandemic further cautions against enjoining state 
coronavirus responses unless absolutely necessary.”).  
The public interest in reducing the risk of transmission among IU students, faculty, and 
staff outweighs any interest asserted by the Plaintiffs, especially because Plaintiffs have failed to 
establish a likelihood of success on the merits. Altman v. Cty. of Santa Clara, 464 F. Supp. 3d 
1106, 1134 (N.D. Cal. 2020) (“[T]he public’s interest in controlling the spread of COVID-19 
outweighs its interest in preventing the constitutional violations alleged here, especially given 
that Plaintiffs have failed to establish a likelihood of success on the merits.”) Therefore, the 
public interest supports upholding “IU’s Mandate” and Extra Requirements.   
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 43 of 44

 
35 
 
V. 
Conclusion 
IU respectfully requests that Plaintiffs’ Motion for Preliminary Injunction be denied. 
 
 
Date:   July 2, 2021 
 
 
 
FAEGRE DRINKER BIDDLE & REATH LLP 
 
/s/ Anne K. Ricchiuto 
 
Anne K. Ricchiuto (#25760-49) 
Stephanie L. Gutwein (#31234-49) 
300 North Meridian Street, Suite 2500 
Indianapolis, IN 46204 
Telephone: 317-237-0300 
Fax: 317-237-1000 
anne.ricchiuto@faegredrinker.com 
stephanie.gutwein@faegredrinker.com 
 
Attorney for defendant Trustees of Indiana 
University 
 
 
 
CERTIFICATE OF SERVICE 
 
I hereby certify that on July 2, 2021, a copy of the foregoing was filed electronically. 
Service of this filing will be made on all ECF-registered counsel of record by operation of the 
Court’s electronic filing system. Parties may access this filing through the Court’s system.   
James Bopp, Jr.  
Richard E. Coleson 
Courtney Milbank  
Melena S. Siebert 
THE BOPP LAW FIRM 
1 South 6th Street 
Terre Haute, Indiana 47807 
 
 
/s/ Anne K. Ricchiuto                          
 
USDC IN/ND case 1:21-cv-00238-DRL-SLC   document 21   filed 07/02/21   page 44 of 44

File and source

File

gov.uscourts.innd.107499.21.0.pdf

Size

382,482 bytes

SHA-256

82d8debedd8ff0e1bfbdb166cdf7418d73f3e59f5103ecb423f8530293c1993d

Our copy

gov.uscourts.innd.107499.21.0.pdf

Original

archive.org