Reply in Support of Motion for Preliminary Injunction — Klaassen v. Indiana University

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U.S. District Court for the Northern District of Indiana · No. 1:21-cv-00238-DRL-SLC · Doc. 22 · 2021-07-06 · Docket on CourtListener

Summary

Plaintiffs' reply in support of their motion for a preliminary injunction, filed July 6, 2021 as document 22 in Klaassen v. The Trustees of Indiana University, Civ. No. 1:21-cv-238-DRL-SLC, in the U.S. District Court for the Northern District of Indiana. It argues that the plaintiffs challenged the university's COVID-19 vaccine requirement in its entirety, including its reporting, exemption, testing and masking requirements. It argues the plaintiffs have standing, that the requirement should be reviewed under modern levels of scrutiny rather than the line of cases beginning with Jacobson, and that it violates Fourteenth Amendment due process rights. It also argues irreparable harm, the balance of equities and the public interest favor an injunction, citing Calvary Chapel, 140 S. Ct. 2603 (2020) and Indiana Executive Order 21-16 of June 30, 2021.

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United States District Court
Northern District of Indiana
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,
v.
The Trustees of Indiana University, 
Defendants.
Civ. No.    1:21-cv-238-DRL-SLC
 
Reply in Support of Plaintiffs’ Motion for Preliminary Injunction
Prelim. Inj. Reply
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Table of Contents
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
I. Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
II. Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -4-
A.
Students Have Challenged All Parts of IU’s Mandate.. . . . . . . . . . . . . . . . . . . . -4-
B.
Students Have Standing to Challenge IU’s Mandate.. . . . . . . . . . . . . . . . . . . . . -5-
C.
IU’s Mandate Should Be Preliminarily Enjoined. . . . . . . . . . . . . . . . . . . . . . . . -9-
1.
Students Will Likely Succeed on the Merits of 
Their Constitutional Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
a.
IU’s Mandate Violates the Rights of Students Under the Due Pro-
cess Clause of the 14th Amendment. . . . . . . . . . . . . . . . . . . . . -10-
i.
The U.S. Supreme Court Now Requires Normal 
Scrutiny Appropriate to the Context. . . . . . . . . . . . . . . -11-
ii.
The IU Mandate Is Unconstitutional Under Current 
Strict Scrutiny Requirements. . . . . . . . . . . . . . . . . . . . . -15-
iii.
IU’s Mandate Is Unconstitutional Under Jacobson’s 
Exception and Modern Rational Basis Review. . . . . . . -16-
2.
Students Have Irreparable Harm If IU’s Mandate 
Is Not Enjoined. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -18-
3.
The Balance of Equities Favors a Preliminary Injunction. . . . . . . . . . . -19-
4.
The Public Interest Favors a Preliminary Injunction. . . . . . . . . . . . . . . -19-
III. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20-
Prelim. Inj. Reply
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Introduction
IU claims enormous power over its students. This is manifest in numerous ways in its
Response, some spoken and others unspoken. First, IU never refers to or acknowledges that their
students are almost universally adults, not children, and are entitled to all constitutional and deci-
sion making rights of every American adult citizen.
Second, IU claims the enormous power to force vaccination of its students, a severe re-
quirement that no U.S. state or local government has imposed on anyone and no federal agency
has recommended. We are not at the height of the COVID pandemic. In fact, we are at the end of
it, and IU’s Mandate is imposed on the least vulnerable to a COVID infection, by hundreds of
times.
Third, IU believes that their policy is nearly unreviewable by the courts, even though they
are the government coercing students into injecting a vaccine, with known and unknown risks,
thereby violating their fundamental constitutional rights. They claim this power through a dis-
credited and supplanted line of cases beginning with Jacobson in 1904, ending in Buck v. Bell in
1927. However, modern constitutional jurisprudence has since recognized constitutional rights it
did not in and has established three levels of scrutiny unheard of then. The days of unreviewable
deference to “experts,” leading from forced vaccinations to forced sterilization is over.
Fourth, IU believes there are no rights involved when they virtually expel a student for
resisting their coercive attempt to force a student to give up their constitutional rights to bodily
integrity, to voluntarily consent to medical treatment, and to practice their religion, since the stu-
dent “could just go to school elsewhere.” In effect, IU claims authority to impose any unconstitu-
tional condition of attendance at IU that they choose. Where does this end?
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IU must think that these powers never end, since IU asserts that the COVID pandemic has
not ended and may never end, and, in any event, they have these powers regardless of any pan-
demic. But, under modern constitutional jurisprudence, government power waxes and wanes de-
pending on the urgency of the situation and the justification for its measures. 
As Justice Alito explained in Calvary Chapel, “[A]t the outset of an emergency, it may be
appropriate for courts to tolerate very blunt rules,” “[b]ut a public health emergency does not
give . . . public officials carte blanche to disregard the Constitution as long as the medical prob-
lem exists.” 140 S. Ct. 2603, 2605 (2020) (Mem. Op.). Rather, “[a]s more medical and scientific
evidence becomes available, and as States have time to craft policies in light of that evidence,
courts should expect policies that more carefully account for constitutional rights.” Id. This is
precisely what the Students are asking this Court to do here.
I. Facts
IU does little to rebut Students’ facts—which showed that IU’s Mandate is unnecessary in
light of current COVID circumstances; is contrary to FDA Emergency Use Authorization, mod-
ern medical ethics, and CDC recommendations, and actions taken by Indiana, relevant counties,
and other public university; is imposed on the least vulnerable population; and poses significant
risks to students and those who have previously had COVID. PI Mem., ECF 8-1, p. 8-18.
IU briefly discusses the history of COVID and the pandemic (PI Resp., ECF 21, p. 10-
11), but does not show why IU’s Mandate is necessary in light of current circumstances. Students
do not dispute that COVID is a serious virus that has caused significant infections and injuries or
that vaccinations are beneficial. Instead, Students have shown that, without any vaccination man-
dates, COVID is being controlled, the pandemic is virtually over, and the same concerns that may
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have existed at the beginning of the pandemic no longer exist. See Declaration of Peter A.
McCullough, (“McCullough Decl.), Ex 8, ¶¶ 13-20, 32-35; Compl., ECF 1, ¶¶ 111-148; PI
Mem., ECF 8-1, 14-15. IU also does not show why IU needs to impose more extreme COVID
requirements than imposed, or even recommended, by the CDC, FDA, Indiana, relevant counties,
and all other public universities in the State, upon the least vulnerable population. PI Mem., ECF
8-1, p. 12-13.
IU notes that Governor Holcomb extended Indiana’s public health emergency (PI Resp.,
ECF 21, 14), but fails to account for Governor Holcomb eliminating almost all restrictions and
regulations associated with COVID, and certainly did not impose, much less mandate compul-
sory COVID vaccinations on anyone. 2021 Ind. Exec. Order 21-16 (June 30, 2021),
https://www.in.gov/gov/files/Executive-Order-21-17-Continuation-of-Limited-Health-and-Welfa
re-Provsions.pdf. Indeed, as of July 1, 2021, Governor Holcomb has rescinded all prior executive
orders and the remaining provisions solely relate to licensing, registration of health care provid-
ers, insurance, who can administer COVID vaccinations, unemployment, and the like. Id. The
current executive order has no mask requirement, testing requirement, or vaccine mandate, as IU
has imposed on Students. Id.
In discussing the COVID vaccines (PI Resp., ECF 21, p. 12-13), IU fails to even mention
that such vaccines have only been approved for Emergency Use under restrictions by the FDA,
Compl., ECF 1, ¶¶ 44-55; PI Mem., ECF 8-1, p. 8-10, to acknowledge the significant risks of the
vaccine, particularly to those in Students’ age group, McCullough Decl, Ex. 8, ¶¶ 41-61 (detail-
ing the vaccine risks to students), or to fully acknowledge the increased risk of vaccination for
those who have already had COVID. Id. at 62-69 (detailing the vaccine risks for those recovered
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from COVID).
While IU describes the CDC’s and U.S. Department of Education’s guidance for institu-
tions of higher education (IHE), IU fails to mention that neither suggested mandating that stu-
dents receive the vaccine. PI Resp., ECF 21, p. 14-15. Accordingly, IU only needs to recommend
that students receive the vaccine to be in full compliance with this guidance. In sum, IU has not
shown why IU’s Mandate is necessary under current circumstances, as applied to college-aged
students, in light of the benefits to them and the known and unknown risks. 
II. Argument
A.
Students Have Challenged All Parts of IU’s Mandate.
IU argues that “Plaintiffs have not challenged IU’s masking or testing policies.” PI Resp.,
ECF 21, p. 20-21. This is an inaccurate statement about Students’ challenge, as Students chal-
lenged the entirety of IU’s Mandate, not bits and pieces of it. 
IU’s Mandate is multifaceted. It requires inter alia that all students, faculty, and staff (1)
receive one of the available COVID vaccines, (2) report their vaccination status, or (3) obtain an
exemption and (4) comply with the Extra Requirements if such exemption is granted, or (5) be
virtually expelled. These “Extra Requirements” include inter alia participating in twice a week
COVID testing and mandatory face masks in public spaces. IU’s Mandate also provides “strong
consequences” for those who refuse the vaccine and do not receive an exemption, including be-
ing virtually expelled. Id. These are part and parcel of IU’s Mandate.1
1Of course, IU lumps these various parts of IU’s Mandate under a general “COVID-19 vaccine requirement”
umbrella. On IU’s website on COVID-19 is a “frequently asked questions” page, which includes a section entitled
“COVID-19 vaccine requirement,” which provides that vaccinations are required (Indiana University, COVID-19
FAQ, Ex. 8. at 3-4), the deadlines for such vaccinations (id. at 4), that students “will need to report” their vaccination
status (id. at 4-5), that exemptions are available but extremely limited (id. at 5), the extra requirements that those
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As shown, Students collectively referred to the entirety of the Mandate and all of its vari-
ous requirements as “IU’s Mandate”—including all parts, facets, requirements, and conse-
quences. Students have challenged IU’s Mandate broadly and their requested relief seeks a decla-
ration and injunction of IU’s Mandate broadly, not one single aspect of it. Accordingly, IU’s ar-
gument fails.
B.
Students Have Standing to Challenge IU’s Mandate.
IU argues that multiple Students lack standing. PI Resp., ECF 21, p. 22-23. As shown
below, all Students have standing to challenge IU’s Mandate.
IU is correct that, to establish standing, Students must show (1) they have suffered an in-
jury in fact, (2) that is fairly traceable to the challenged action of IU; and (3) that it is likely that
the injury will be redressed by a favorable decision. Id. p. 21-22. However, IU fails to acknowl-
edge that, as long as one Plaintiff has standing, the Court need not consider whether other Plain-
tiffs do. Horne v. Flores, 557 U.S. 433, 446 (2009) (“Because the superintendent clearly has
standing . . . we need not consider whether the Legislators also have standing to do so.”);
Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 189, n. 7 (2008) (stating that one petitioner
had standing and “that there is no need to decide whether the other petitioners also have stand-
ing.”); Massachusetts v. E.P.A., 549 U.S. 497 (2007) (“Only one of the petitioners needs to have
standing to permit us to consider the petition for review.”). IU does not argue that Plaintiff
Sperazza does not have standing, conceding her standing to bring this suit. PI Resp., ECF 21, p.
21-23. Given Miss Sperazza’s standing, this Court need not consider whether the other Students
who receive an exemption will have to follow (id.), and the consequences for failing to get the vaccine (id. at 6). This
is IU’s “COVID-19 vaccine requirement,” which Students call “IU’s Mandate.”
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have standing. 
Nevertheless, all the other Students satisfy the required elements. First, Students have
suffered an injury in fact. All Students have alleged that IU’s Mandate unconstitutionally impairs
their Fourteenth Amendment rights. Specifically, Miss Roth is injured, Compl. ¶ 213, but IU ar-
gues that she does not have standing because she hasn’t sought a religious exemption. (PI Resp.,
ECF 21, p. 23). But Miss Roth is not required to apply for an exemption that does not offer her
the protection that she seeks. Indeed, her injuries will not be avoided by applying for the exemp-
tion, as she will still have to comply with the Extra Requirements—which she believes will put
her health at risk and subject her to harassment, bullying, and targeting. Compl., ECF 1, ¶¶ 209-
213; Margaret Roth Dep. 48:16 - 23. Miss Roth’s situation differs from those in Baer-Stefanov v.
White, 773 F. Supp. 2d 755 (N.D. Ill. 2011) and Pucket v. Hot Springs Sch. Dist. No. 23-2, 526
F.3d 1151 (8th Cir. 2008), as plaintiffs in those cases could have sought an exemption that would
have completely alleviated their injuries. Here, no such exemption exists. If it did, Miss Roth
would have applied for it. Miss Roth is injured by IU’s Mandate and the religious exemption
would do nothing to prevent that injury. 
Students Carini, D.J.B., and Roth are also injured by IU’s Mandate, because each has un-
derlying medical conditions that make the vaccination contra-indicated, but they do no qualify
for the extremely narrow medical exemption.2 Miss Carini has been instructed by her attending
physician that she should not get the COVID vaccine, because her current medications give her
2In Plaintiffs’ opening brief, they mistakenly stated that Miss Carini and Miss Roth have both been refused
medical exemptions. PI Mem., ECF 8-1, p. 34. In fact, neither have been able to apply for such exemptions. Miss
Carini tried but was told she was unable to apply for such exemption because she had been granted a religious ex-
emption. Carini Dep. 57:18 -22 (from ROUGH). Miss Roth has not applied for the exemption because, despite her
significant family history and personal medical issues, she does not qualify for the exemption. Roth Dep. 26:11 - 13.
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coverage from COVID, Carini Dep. 69:18 - 71:13. Plaintiff D.J.B. has natural antibodies and is
therefore at risk if he obtains the COVID vaccine, and Ms. Roth’s family history of cancer is a
key factor in her refusal to take the COVID vaccine.
Students Klaassen, D.J.B., Carini, Morris, Crowder, and Policka are injured by IU’s Man-
date, since the religious exemption, which they have received, still subjects them to the Extra
Requirements and is thus not a true religious exemption. See PI Mem., ECF 8-1, p. 32-33. In-
stead the so-called “religious exemption” labels students with a virtual Scarlet Letter; subjects
students to harassment, bullying, and targeting; subjects them to harmful bacteria that accompany
mask use, and takes substantial time away from their education in order to comply with the test-
ing requirements. Id.
Plaintiff Carini is pursuing a Doctorate in Organ Performance and Literature and a Ph.D.
in Musicology and, in order to complete her graduate program, she is required to perform at two
separate organ recitals. Carini Dep. 22:14 - 15. Based upon her personal experience and observa-
tion, she knows that performing those recitals while masked will have an impact on her perfor-
mance as organists use their whole bodies to perform. Just as athletes would have a difficult time
performing at their best while masked (and are not required to do so while competing for IU),
Ms. Carini will as well. This will negatively impact the education she has pursued her entire life.
See Carini Dep. 15:6 - 8.
Plaintiff Policka is pursuing a degree in theater, and her primary focus is acting and the
Extra Restrictions are “devastating” to her education. Policka Dep. 41:5 - 15. As an actor, wear-
ing a mask has a huge impact on how she can interact with other actors and will put her at a dis-
tinct disadvantage to other student actors who will not. Id. This will negatively impact her educa-
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tion and cause her harm.3 
Plaintiffs here differ from those who challenged the Affordable Care Act (see PI Resp.,
ECF 21, p. 22) because, even with the exemptions, Students face serious consequences if they do
not comply with the Extra Requirements. Those challenging the Affordable Care Act did not
have standing because they fit into a safe harbor provision and were not subject to any restric-
tions or penalties. Univ. of Notre Dame v. Sebelius, Case No. 3:12CV253RLM, 2012 WL
6756332, (N.D. Ind. Dec. 31, 2012); Zubik v. Sebelius, 911 F. Supp. 2d 314 (W.D. Pa. 2012).
Here, no such safe harbor exists, exempting Students from both the vaccination requirement and
the Extra Requirements. 
Second, this injury is caused by IU, which is the governing body and legal authority over
the Students; and which is imposing and enforcing IU’s Mandate. 
Third, Students’ requested relief—declaring IU’s Mandate unconstitutional and enjoining
its enforcement—will redress Students’ harm. Allowing Students to attend IU without having to
(1) obtain the COVID vaccine, (2) report their vaccination status, (3) comply with the Extra Re-
quirements, or (4) comply with any of the other parts of IU’s Mandate. 
For the reasons above, all Students have standing to challenge IU’s Mandate. 
3In addition, many of the Students have experienced psychological harm that they have endured over the past
year, including being “depressing,” “isolating,” and “like prison.” See, e.g. Sperazza Dep. 50:6 - 11. Psychological
harms such as these are no less impactful than physical harms and can lead to clinical depression and suicide.
HHS.gov, Does depression increase the risk for suicide?,
https://www.hhs.gov/answers/mental-health-and-substance-abuse/
does-depression-increase-risk-of-suicide/index.html#:~:text=Although%20the%20majority%20of%20people,the%20
severity%20of%20the%20depression. These Students have the reasonable belief that those psychological harms will
continue if IU’s Mandate is not enjoined and they have to comply with the Extra Requirements. Klaassen Dep. 46:22
- 47:10.
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C.
IU’s Mandate Should Be Preliminarily Enjoined.
A party seeking a preliminary injunction must demonstrate (1) some likelihood of suc-
ceeding on the merits, (2) that it has no adequate remedy at law and will suffer irreparable harm
if preliminary relief is denied, (3) the irreparable harm the non-moving party will suffer if prelim-
inary relief is granted, balancing that harm against the irreparable harm to the moving party if
relief is denied; and (4) the public interest, meaning the consequences of granting or denying the
injunction to non-parties. Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 11 - 12 (7th Cir.
1992) (internal citations omitted). The more likely the plaintiff is to win, the less heavily the bal-
ance of harms to the other parties and the public policy arguments for non-parties need to weigh
in the plaintiff’s favor; the less likely a plaintiff is to win, the more need those factors must weigh
in the plaintiff’s favor. See Valencia v. City of Springfield, 883 F.3d 959, 966 (7th Cir. 2018).
All four of these preliminary injunction factors favor Students. Therefore, Students’ Mo-
tion for Preliminary Injunction should be granted.
1.
Students Will Likely Succeed on the Merits of Their Constitutional Claim.4
Buck’s forced sterilizations of disabled people stood on the pillar of Jacobson’s forced
vaccinations. Jacobson’s pillar rested in the foundation of the Progressive Era mindset that held
the “experts” in government should control policies with little to no judicial constitutional re-
view. IU wants to shore up not only the pillar of Jacobson, but it wants to cement the founda-
tional mindset that once gave the government such inordinate control that the US Supreme Court
Justice reached the horrifying conclusion that “three generations of imbeciles is enough.” Buck v.
4Students agree Indiana’s Vaccine Passport Law contains no private right of action and so they withdraw this
claim. See Ind. Code § 16-39-11 et seq.
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Bell, 274 U.S. 200, 207 (1927). But constitutional questions of individual rights, bodily integrity,
and religious freedom in the face of such government regulation has shifted significantly since
the early Twentieth Century. This Court should apply modern constitutional jurisprudence, based
on recognition of constitutional rights since Jacobson, not Jacobson’s antiquated analysis and
disgraced progeny, which IU urges this Court to do.
a.
IU’s Mandate Violates the Rights of Students Under the Due Process
Clause of the 14th Amendment.
Students allege that IU’s Mandate violates Students’ fundamental rights of personal
choice, bodily autonomy, medical privacy, and religious convictions, by IU threatening a “loss of
an education,” if the student does not comply with its Mandate. PI Mem., ECF 8-1, p. 19. IU
claims, however, that “none of these rights, even if recognized as fundamental in some instances,
are implicated here,” since “IU is not forcing Plaintiffs to receive a Vaccine against their will,”
because the students “can freely choose to accept or refuse a COVID19 vaccine . . . if she refuses,
she will simply need to [go to school] somewhere else.” PI Resp., ECF 21, p. 29, 31.
However, it is well established that “the government may not deny a benefit to a person
because he exercises a constitutional right.” Regan v. Taxation With Representation, 461 U.S.
540, 545 (1983). And here IU will withhold a benefit, an IU education, if a student exercises her
constitutional rights. This principle “vindicates the Constitution’s enumerated rights by prevent-
ing the government from coercing people into giving them up.” Koontz v. St. Johns River Water
Mgmt. Dist., 570 U.S. 595, 604 (2013) (collecting cases). 
Here, IU is coercing students to give up their right to bodily autonomy and free exercise
of religion in exchange for the discretionary benefit of matriculating at IU. Even if “someone re-
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fuses to cede a constitutional right in the face of coercive pressure, the impermissible denial of a
governmental benefit is a constitutionally cognizable injury,” id. at 607, where the U.S. Supreme
Court has “often concluded that denials of government benefits were impermissible under the
unconstitutional conditions doctrine.” id. at 606, even where there is “no entitlement to that bene-
fit.” Id. at 608. This is the situation here.
Strict scrutiny, therefore, should apply to the review of IU’s Mandate because, under
modern constitutional jurisprudence, an infringement on now-recognized fundamental rights of
bodily integrity and religious freedom exist here by IU’s conditional denial of benefits, seeking to
coerce IU students into forfeiting their fundamental rights on the threat of virtual expulsion. Fur-
thermore, IU’s Mandate is also unconstitutional under the Fourteenth Amendment if this Court
uses Jacobson’s exception or modern rational basis review. That is because IU’s Mandate is un-
reasonable even in light of IU’s legitimate government interest in public health..
i.
The U.S. Supreme Court Now Requires Normal Scrutiny Ap-
propriate to the Context.
Students established that the U.S. Supreme Court now requires normal scrutiny appropri-
ate to the context, not the highly deferential, “no . . . function,” little-evidence-required, analysis
of Jacobson v. Massachusetts, 197 U.S. 11 (1905), and that even Jacobson was not carte blanche
for government restrictions in the name of public health. PI Mem., ECF 8-1, p. 21-29.
IU questions Students’ use of the word “exception” to describe Jacobson’s exception to
its general view that courts had “no . . . function” in reviewing legislative judgments, i.e., no
“power in the judiciary to review legislative action in respect of a matter affecting the general wel-
fare.” Id. at 30-31; PI Resp., ECF 21, p. 24. Students made clear that this was the “exception” at
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issue. PI Mem., ECF 8-1, p. 23. So no “authority” was required for that analytical label, as IU
suggests. And Jacobson did follow its “no . . . function” analysis by sustaining the trial court’s
refusal to hear evidence disputing the legislature’s choice, 197 U.S. at 30.
IU cites cases holding that requiring vaccinations to attend public schools is within the
police power. PI Resp., ECF 21, p. 24-25. But every case cited there is pre-2020, i.e., before Ro-
man Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (per curiam), which did not
apply Jacobson’s analysis. No cited authority is from a controlling jurisdiction, except Zucht v.
King, 260 U.S. 174 (1922), but that case was based on Jacobson’s holding, id. at 176, and is be-
fore Buck, 274 U.S. 200. It is part of the Progressive Era mindset, before the establishment of
substantial constitutional rights infringed by such laws, and is inconsistent with Roman Catholic
Diocese. IU later cites two, nonbinding, post-Roman Catholic Diocese cases that “cited Jacobson
in upholding mandatory school vaccination requirements.” PI Resp., ECF 21, p. 27. But others
have held that Roman Catholic Diocese requires normal scrutiny: 
Significant discussion has ensued regarding whether the 1905 Supreme Court deci-
sion, USA v. Jacobson, replaces the usual standards of scrutiny in the present case,
and all cases challenging COVID-19 restrictions. 197 U.S. 11, 38 (1905). However,
Justice Gorsuch’s concurrence in Roman Catholic Diocese of Brooklyn v. Cuomo,
informs the Court’s analysis and instructs the Court to apply its usual tiers of scru-
tiny. 141 S. Ct. at 70 (Gorsuch, J., concurring) (“Jacobson hardly supports cutting the
Constitution loose during a pandemic.”).
Plaza Motors of Brooklyn v. Cuomo, No. 20-cv-4851, 2021 WL 222121, *5 (E.D.N.Y. Jan. 22,
2021); see also Big Tyme Investments v. Edwards, 985 F.3d 456, 470-71 (5th Cir. 2021) (Willet,
J., concurring) (Jacobson displaced by Roman Catholic Diocese). And while the existence of po-
lice powers is undisputed, its exercise must be premised on a legitimate constitutional justifica-
tion, which now turns on evidence, and the evidence here shows the exercise of that power is un-
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justified.
IU says “Jacobson remains good law” because, in the Seventh Circuit, “[l]ower courts
may not ‘declare 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.’” PI Resp., ECF 21, p. 25 (citation omitted). But that favors Students, so
IU’s contrary arguments fail. IU says “Chief Justice Robert’s concurrence in South Bay United
Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020), and Justice Gorsuch’s concur-
rence in [Roman Catholic Diocese] both make clear that Jacobson remains good law.” PI Resp.,
ECF 21, p. 26. But as Students established, Justice Gorsuch noted that the unusual thing about
Roman Catholic Diocese was that it required normal scrutiny levels instead of defaulting to Ja-
cobson’s analysis, because Jacobson was not “a towering authority that overshadows the Consti-
tution during a pandemic.” PI Mem., ECF 8-1, p. 27 (citation omitted). And Justice Gorsuch
noted that in Roman Catholic Diocese the Chief Justice downplayed his earlier citation of Jacob-
son in South Bay. Id. (citation omitted). So it is “certain or almost certain” that were Jacobson
again brought before the U.S. Supreme Court in a case such as this, it would hold that Jacobson’s
analysis has been displaced by normal scrutiny levels of current law. 
IU attempts several distinctions of cases based on factual differences. PI Resp., ECF 21,
p. 26-27. But those cases are cited for analytical points that don’t turn on their unique facts, so
saying they involved different facts establishes nothing analytically. Saying Buck involved invol-
untary sterilization, Roman Catholic Diocese involved restricted attendance, and Calvary Chapel
also didn’t involve mandatory vaccinations is meaningless. The analysis in those cases bears on
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the present case.5
Regarding Buck, IU’s assertions that (i) the U.S. Supreme Court hasn’t expressly over-
ruled Buck, (ii) Buck shows the breadth of the police power, and (iii) Buck and Jacobson are both
viable manifestations of that police power is telling as to IU’s own erroneous view of their own
power. PI Resp., ECF 21, p. 26. So while the Supreme Court is applying modern evidence-based,
non-deferential jurisprudence and not applying Jacobson in Roman Catholic Diocese, a COVID-
restriction case, IU is clinging to their claimed extreme police power. 
IU’s assertion that “the Supreme Court has never explicitly repudiated Buck” is tell-
ing—IU seems to support the proposition that this lack of explicit repudiation somehow means
that Buck’s foundation in Jacobson should not be considered by this Court when deciding
whether to apply Jacobson. Some cases are so repugnant, they need not be explicitly overruled in
order to grasp the magnitude of the constitutional harm. As Chief Justice Roberts noted,
Korematsu—the case that declared the forced internment of Japanese-Americans during World
War II constitutional—was “gravely wrong the day it was decided, has been overruled in the
court of history, and—to be clear—‘has no place in law under the Constitution.’” Trump v. Ha-
waii, 138 S. Ct. 2392, 2423 (2018) (quoting Korematsu v. United States, 323 U.S. 214, 248
(1944) (Jackson, J., dissenting)).
IU, however, cites Jacobson and its progeny to say mandatory student vaccine is permit-
ted without the existence of pandemic. PI Resp., ECF 21, p. 28. Some cases do hold that schools
may require traditional, well-established, well-tested vaccines, to populations especially at risk,
5IU likewise factually distinguishes Cassell v. Snyders, 990 F.3d 539 (7th Cir. 2021), PI Resp., ECF 21, p. 27
n.6, though Students cited it for its recognition of the sea change wrought by Roman Catholic Diocese. PI Mem.,
ECF 8-1, p. 28.
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prophylactically, but that doesn’t apply where not supported by the circumstances or the science.
Blind deference to police power exercise is gone.
IU’s expansive view of their own power is clear from their assertion that only the “policy-
maker” gets to weigh whether the science supports their decision, citing Jacobson. PI Resp., ECF
21, p. 28. But that paternalistic power vanished with Roman Catholic Diocese and is wholly in-
consistent with modern constitutional jurisprudence, which must be applied. And Jacobson itself
said that the policy must actually advance public health, which mandates a weighing of the evi-
dence under its exemption. IU’s notion that they get to make the policy and courts can’t weigh
the circumstances and science against it is a relic of a long-gone era, akin to the now-rejected
physician paternalism model of medicine.
In sum, IU is out of step with the times, on the wrong side of history, and its claim of
unreviewable power based on Jacobson vanished with Roman Catholic Diocese.
ii.
The IU Mandate Is Unconstitutional Under Current Strict
Scrutiny Requirements.
Strict scrutiny requires the government to prove its restriction to be narrowly tailored to
the least restrictive means to further a compelling interest, and to do so by evidence. See Roe v.
Wade, 410 U.S. 113, 155 (1973). Individual “liberty” interests requiring strict scrutiny have been
repeatedly developed and affirmed by the Court’s substantive due process jurisprudence since
Jacobson—reaching a variety of cases that are founded in principles of personal choice and
bodily autonomy. See Griswold v. Connecticut, 381 U.S. 479 (1965) (contraception); see also
Roe, 410 U.S. 113 (abortion), same-sex marriage, Obergefell v. Hodges, 576 U.S. 644 (2015)
(same-sex marriage), and Cruzan v. Director, Missouri Department of Health, 497 U.S. 261
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(1990) (refusing medical treatment). These principles of bodily autonomy must apply first to hu-
mans at a fundamental level to control their own bodies before those rights could ever have been
expanded to control their sexual and reproductive rights. Furthermore, coercion or penalties on
the free exercise of religion, not just outright prohibitions, are subject to at least heightened scru-
tiny, if not strict scrutiny. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, n. 5 (1993).
 
IU states that its Mandate is “narrowly tailored to advance [the ends of preventing the
spread of COVID],” but supplies no evidence or even analysis of exactly how it has accom-
plished the requisite tailoring. PI Resp., ECF 21, p. 32. IU does not merely recommend that IU
students take the vaccine, it requires it for all non-exempted students. It does not allow IU stu-
dents to pursue their education after deciding the risks of taking a vaccine under EUA outweighs
the benefits they will receive, even if they agree to precautions such as social distancing and
masking. It does not account for IU students who have natural immunity to COVID because of
prior infection or who have medical conditions that mean that the COVID vaccination is contra-
indicated. It does not account for the fact that virtually everyone on IU’s campus, whether profes-
sors, staff, or students, and those in the Bloomington community, has the opportunity to take the
vaccine, and to wear masks and social distance to protect themselves, if they want to. IU allows
for one and only one option for IU students who do not qualify for its limited exemptions—take
the vaccine or be virtually expelled from IU. 
IU’s Mandate does not pass the strict scrutiny that applies under current judicial standards
and is unconstitutional under the Fourteenth Amendment. 
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iii.
IU’s Mandate Is Unconstitutional Under Jacobson’s Exception
and Modern Rational Basis Review.
Students do not disagree with science. None of them denied COVID exists and that it can
be a serious disease or stated that they don’t think anyone should take the vaccine if they choose
to. But all students have personal autonomy and bodily integrity and are rational adults who can
evaluate the risks the vaccines pose relative to the risk of a COVID infection. They understand
and have experienced the psychological, social, emotional, and educational difficulties masking
requirements posed and will continue to pose. After carefully balancing these risks and benefits,
they have chosen not to take the COVID vaccine. 
IU’s Mandate does not take into account the current state of the COVID pandemic, the
very low risks of COVID infection to college-age students, and the balancing of benefits and
risks associated with the COVID vaccines, all of which are detailed in Dr. McCullough’s report6
and it does not account for natural immunity for those who have had COVID and who still have
antibodies which protect them from getting and spreading COVID. In short, IU does not have
sufficient factual support for the relationship between its Mandate and the purpose it purportedly
serves. 
IU’s Mandate is also contrary to the FDA’s requirements of voluntary and informed con-
sent for EUA of the COVID vaccines, and to modern medical ethics, upon which the FDA’s re-
quirement of voluntary and informed consent is based. Finally, IU’s Mandate is also contrary to
the recommendations of the CDC, the State of Indiana, the relevant Indiana counties, and other
6Students’ expert witness, Dr. Peter McCullough, has provided a well-sourced and data-supported report for
this Court to consider. In contrast, IU has provided a declaration by Dr. Beeler that either makes broad statements
unsupported by scientific citations or that are supported only by opinions of the CDC and FDA which anyone can
read.
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public Indiana universities. 
 Finally, IU’s Mandate does not have sufficient factual support for the relationship be-
tween its Mandate and the purpose it purportedly serves, does not take into account students who
have religious exemptions for the Extra Requirements, and subjects students with religious ex-
emptions to the real risk of ostracism and shaming based upon their visible and obvious Extra
Requirements. IU’s Mandate does not account for students with natural COVID immunity due to
prior infection, but who still must be vaccinated.
Because of these reasons, and even under Jacobson’s exception and certainly under mod-
ern rational basis, IU’s Mandate is unreasonable and unconstitutional.
 
2.
Students Have Irreparable Harm If IU’s Mandate Is Not Enjoined.
IU’s Mandate, which conditions the benefit of attending IU on students surrendering their
constitutional rights, fails under either strict scrutiny, Jacobson’s exception or rational basis re-
view. Therefore, Plaintiffs’ constitutional rights under the Fourteenth Amendment have been vio-
lated. When such rights are violated, the harm is presumed irreparable. See Ewell v. City of Chi-
cago, 651 F.3d 684, 699 (7th Cir. 2011) (applying presumption to Second Amendment claim);
see also Planned Parenthood of Indiana & Kentucky, Inc. v. Comm’r, 194 F. Supp. 3d 818, 835
(S.D. Ind. 2016) (applying presumption to substantive due process rights).
While the overarching benefits Students seek—an IU education and the resulting benefits
obtained from that education—are discretionary and the Student here have refused to surrender
their constitutional right to IU’s threats and coercion, it does not make the loss of their constitu-
tional rights any less irreparable. See Koontz, 570 U.S. at 605. Because IU has already violated
Plaintiffs’ constitutional rights, these students have no adequate remedy at law. Therefore, they
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will suffered irreparable harm by IU’s Mandate. 
3.
The Balance of Equities Favors a Preliminary Injunction.
Students’ interests are personal and fundamental. They each have an interest in maintain-
ing their ability to choose what to have injected into their own bodies, after carefully considering
the risks and benefits, and protecting their free exercise of religion. IU’s “choice” of taking the
vaccine or being virtually expelled is coercion attached to a benefit and, as noted, is an unconsti-
tutional condition. Students have an interest in avoiding the isolation, depression, anxiety, harass-
ment, and social stigma connected with wearing a mask. Students have an interest in being able
to effectively communicate with professors and other students as part of their education.
Of course, IU has an interest in taking reasonable measures to keep its students, faculty,
and staff safe and healthy. PI Resp., ECF 21, p. 33. Given the current state of the pandemic, how-
ever, IU’s interests can be protected without its Mandate, as absolutely everyone in the State of
Indiana and throughout the United States is, save a few colleges and employers, employees, stu-
dents, and staff have the option to get the vaccine, wear a mask, and practice social distanc-
ing—thereby protecting themselves from the virus. If such preventive measures work, as IU be-
lieves and Students agree, then there is no need to require students to get the vaccine to protect
others, and it is against a fundamental tenant of medical ethics to force someone to do so.  
Students personal interests in their bodily autonomy, religious liberty, medical treatment
decision making, mental health, social well-being, and educational pursuits outweigh IU’s inter-
ests in the collective at this stage of the pandemic.
4.
The Public Interest Favors a Preliminary Injunction.
IU argues that the public interest favors upholding IU’s Mandate and that the Court
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should consider the “safety and health of others.” (PI Resp., ECF 21, p. 43), but this fails to ac-
count for the current state of the pandemic and that anyone can choose to protect themselves.
The current state of the pandemic does not justify IU’s Mandate. Students have shown
that COVID is being controlled, the pandemic is virtually over, and the same concerns that may
have existed at the beginning of the pandemic no longer exist. McCullough Decl., Ex 8, ¶¶ 13-
20, 32-35; Compl., ECF 1, ¶¶ 111-148; PI Mem., ECF 8-1, p. 14-15. In fact, the CDC reported
the lowest number of cases since March 2020. McCullough Decl., Ex. 8, p. 6. The recent Indiana
infection rate was just 3.1% and continues to decline daily. Id. at 6-7. No other state or county
government or public university has a vaccine mandate and nearly all have rescinded their mask
policies, including Indiana. Taking all of this together, it is clear that there is no need for IU’s
Mandate and the public is not served by such Mandate. 
But even if this were not the case, IU’s Mandate is not necessary to protect the health and
safety of others. Anyone who is concerned about COVID can get the vaccine, free of charge, and
protect their own health and safety. IU can decrease “the risk of transmission” by simply encour-
aging individuals to get the vaccine, like nearly all government bodies in Indiana. And if the vac-
cine works, as IU says it does, then unvaccinated persons pose no risk to the vaccinated. On the
other hand, the loss of liberty caused by IU’s Mandate is real and the public interest favors pres-
ervation of liberty, which will be lost if this Court does not enjoin IU’s mandate. 
The public interest weighs in favor of granting this injunction. 
III. Conclusion
For the foregoing reasons, Students respectfully ask this Court to grant a preliminary in-
junction against IU’s Mandate. 
Prelim. Inj. Reply
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Dated: July 6, 2021
Respectfully Submitted, 
/s/ James Bopp, Jr. 
James Bopp, Jr., Ind. Bar No. 2838-84
Richard E. Coleson, Ind. Bar No. 11527-70
Courtney Milbank, Ind. Bar No. 32178-29
Melena S. Siebert, Ind. Bar No. 35061-15
THE BOPP LAW FIRM
1 South 6th Street
Terre Haute, Indiana 47807
Telephone: (812) 232-2434
Facsimile: (812) 235-3685
jboppjr@aol.com
rcoleson@bopplaw.com
cmilbank@bopplaw.com
msiebert@bopplaw.com
Counsel for Plaintiffs
 
Prelim. Inj. Reply
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Certificate of Service
I hereby certify that a copy of the foregoing document was served on all counsel of record
in this matter on July 6, 2021, via the Court’s electronic filing system.
 
/s/ James Bopp, Jr.               
 
Prelim. Inj. Reply
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