With coronavirus pandemic persisting due to many Americans’ bad decisions, many institutions of higher education are mandating vaccines and masks. The Chronicle of Higher Education lists 643 colleges requiring students or employees to get their coronavirus shots. None of those are in South Dakota, although as we noted Sunday, South Dakota State University nursing students must get their shots before going out into the field for clinicals. In our neighboring states, students headed to Nebraska Wesleyan, Creighton, Grinnell, Gustavus Adolphus, St. Olaf, and St. Thomas must get coronavirus vaccines.
Those vaccine requirements appear likely to withstand court challenge. Eight students fighting Indiana University’s coronavirus vaccine requirement have lost at the district level and now at the appeals level. On Sunday, the 7th Circuit Court of Appeals ruled that Indiana University violates no constitutional rights by requiring students to get their shots. The court notes that students must give up their property rights to attend college:
Each university may decide what is necessary to keep other students safe in a congregate setting. Health exams and vaccinations against other diseases… are common requirements of higher education. Vaccination protects not only the vaccinated persons but also those who come in contact with them, and at a university close contact is inevitable.
We assume with plaintiffs that they have a right in bodily integrity. They also have a right to hold property. Yet they or their parents must surrender property to attend Indian University. Undergraduates must part with at least $11,000 a year…, even though Indiana could not summarily confiscate that sum from all residents of college age [Judge Frank Easterbrook, writing for himself and Judges Scudder and Kirsch, ruling, Klaasen et al. v Trustees of Indiana University, 7th Circuit Court of Appeals, 2021.08.02].
The court finds another analogy in our surrender of First Amendment rights to required reading and homework:
Other conditions of enrollment are normal and proper. The First Amendment means that a state cannot tell anyone what to read or write, but a state university may demand that students read things they prefer not to read and write things they prefer not to write. A student must read what a professor assigns, even if the student deems the books heretical, and must write exams or essays as required…. A student told to analyze the role of nihilism in Dostoevsky’s The Possessed but who submits an essay about Iago’s motivations in Othello will flunk [Easterbrook/7th Circuit, 2021.08.02].
In noting Indiana University’s exceptions for students with religious or medical issues, the 7th Circuit also affirms requirements for masking and covid testing:
…Indiana University has exceptions for persons who declare vaccination incompatible with their religious beliefs and persona for whom vaccination is medically contrasindicated. The problems that may arise when a state refuses to make accommodations therefore are not present in this case. Indeed, six of the eight plaintiffs have claimed the religious exception, and a seventh is eligible for it. These plaintiffs just need to wear masks and be tested, requirements that are not constitutionally problematic [Easterbrook/7th Circuit, 2021.08.02].
It’s unlikely our gubernatorially appointed Regents will allow SDSU to expand its vaccine requirement much beyond students who are working in health care settings. But if anyone tries to challenge even that narrow vaccine requirement (or the less intrusive mask requirements that the science indicates we should bring back), the 7th Circuit’s ruling indicates such challenges will fail.