Barrett, who has jurisdiction over the appeals court involved in the case, acted alone without referring the matter to the full court.
Barrett’s action marks the first time the justices have been asked to weigh in on the legality of a mandate that private and public entities increasingly believe will combat the spread of Covid-19.
The Pentagon moved recently to mandate the vaccine for active-duty military members, and California Gov. Gavin Newsom announced on Wednesday that teachers and other school employees must either be vaccinated against Covid-19 or submit to regular testing.
Indiana University requires students to be vaccinated by the start of the fall session on August 23. If students can’t get both doses done by then, they will be tested weekly until they can get the vaccine. If they qualify for an exemption, they are also tested weekly.
Bopp said the students’ refusal is “based on legitimate concerns” including underlying medical conditions, having natural antibodies, and the risks associated with the vaccine.
Lower courts have ruled against the students, citing a Supreme Court decision from 1905, which said that a state may require vaccines against smallpox.
A panel of judges on the 7th US Circuit Court of Appeals — all Republican appointees — said that vaccination requirements “have been common in this nation” and stressed that the school’s policies allow exemptions for those who have medical issues related to the vaccine or religious objections.
“These plaintiffs just need to wear a mask and be tested, requirements that are not constitutionally problematic,” the court held, and added that otherwise, vaccination is a condition for attending the university. Those who do not want to be vaccinated may “go elsewhere.”
“A university will have trouble operating when each student fears that everyone else may be spreading diseases,” the court held. “Few people want to return to remote education — and we do not think that the Constitution forces the distance-learning approach on a university that believes vaccination (or masks and frequent testing of the unvaccinated) will make in-person operations safe enough.”
Indiana University spokesperson Chuck Carney said that 85% of students, faculty and staff already “are approaching full vaccination.”
“With a third ruling, now from the nation’s highest court, affirming Indiana University’s COVID-19 vaccination plan, we look forward to beginning fall semester with our health and safety policies in place,” Carney said.
Bopp said the students are “disappointed that Justice Barrett refused to intervene” but they will continue to fight the vaccine mandate at lower courts.
This story has been updated with reaction from Indiana University and students.