The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CATALINA MESSINA, et al.,
Plaintiffs,
Civil Action No. 21-17576 (ZNQ) (DEA)
v.
OPINION
THE COLLEGE OF NEW JERSEY, et al.,
Defendants.
QURAISHI, District Judge
THIS MATTER comes before the Court upon a Motion for Temporary Restraining Order
filed by Plaintiffs Catalina Messina, Katherine Dieker, Christopher Jacob, Anna Zimberg, and
Isabella Walz (collectively “Plaintiffs”). (the “Motion,” ECF No. 2.) Plaintiffs filed a Brief in
Support of the Motion. (“Moving Br.,” ECF No. 3.) Defendants The College of New Jersey
(“TCNJ”) and The Board of Trustees of the College of New Jersey (collectively, “Defendants”)
opposed the Motion, (Opp’n Br., ECF No. 7), to which Plaintiffs replied, (Reply, ECF No. 9).
This Court carefully considered the parties’ submissions and decided the Motion without oral
argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. For the
reasons stated herein, the Motion will be denied.
I. BACKGROUND
On September 27, 2021, Plaintiffs filed a complaint (the “Complaint”) seeking declaratory
and injunctive relief from TCNJ’s COVID-19 Vaccine mandate (the “Mandate”). (Compl. ¶ 2,
ECF No. 1.) Plaintiffs are all current students at TCNJ except for Messina, who deferred
enrollment for a semester. (Id. ¶ 7.) According to the Complaint, on May 10, 2021, TCNJ
implemented the Mandate requiring all students to be “fully vaccinated with a COVID-19 vaccine
authorized by the U.S. Food and Drug Administration (FDA) or authorized for emergency use by
the World Health Organization (WHO).” (Id. ¶ 9.) TCNJ gave their students until August 9, 2021,
to receive the first dose of the vaccine and upload proof of same to TCNJ’s online application that
tracks students’ medical information. (Id. ¶ 11.) TCNJ’s website advised students that failure to
meet the vaccination deadline would result in deregistration from classes and render them
“ineligible to participate in academic or extracurricular activities in the 2021 Fall Term.” (Id.
¶ 12.)
Plaintiffs further allege that TCNJ would “consider applications for exemption” from
students who were fully remote, who “sincerely held religious beliefs that prevented them from
complying with the Mandate,” or who had “a medical contraindication that prevent[ed] them from
complying with the Mandate.” (Id. ¶ 13.) General objections to the COVID-19 vaccine
requirement along with “lack of confidence in or comfort with, or objection to the available
vaccines [were not] sufficient for an exemption.” (Id. ¶ 14.) Under the Mandate, exemption-
related documents become part of a student's immunization record and are subject to periodic
review by health professionals. (Id. ¶ 16.)
In addition, the Complaint alleges that the Mandate required students exempt from the
COVID-19 vaccination requirement “to undergo medical testing procedures twice a week” and
“submit to tracking and monitoring of their health through the test results and daily health
screenings.” (Id. ¶ 18.) The Mandate also required exempt students to practice social distancing,
and it banned them from living on campus, participating in non-varsity athletic clubs, engaging in
high contact activities, and traveling overnight with varsity teams. (Id.)
The Complaint contains the following counts: The Mandate Violates the Students’
Fourteenth Amendment Rights to Liberty and Privacy (First Cause of Action) (Id. ¶¶ 81–89); The
Mandate Violates Exempted Students’ Fourteenth Amendment Rights to Liberty and Privacy by
Medically Surveilling Them (Second Cause of Action) (Id. ¶¶ 90–101); The Mandate Violates the
Equal Protection Clause of the Fourteenth Amendment (Third Cause of Action) (Id. ¶¶ 102–08);
The Mandatory Medical Testing Violates the Students’ Right to be Free from Unreasonable
Searches and Seizures (Fourth Cause of Action) (Id. ¶¶ 110–13); Violation of 42 U.S.C. § 1983
(Fifth Cause of Action) (Id. ¶¶ 114–15).
On September 27, 2021, Plaintiffs applied for emergency relief, pursuant to Fed. R. Civ.
P. 65, seeking a temporary restraining order and/or preliminary injunction to enjoin TCNJ “from
enforcing any special requirements of students who have not received [the COVID-19 vaccine],”
such as routine medical testing and social distancing. (Motion at 1–2).
II. PARTIES’ ARGUMENTS
A. Plaintiffs’ Moving Brief
Plaintiffs argue that the Mandate is unconstitutional because it violates the due process and
equal protection under the Fourteenth Amendment in multiple ways, including “the liberty and
privacy to decline medical procedures, the liberty and privacy to be free of government medical
testing, the liberty and privacy to be free from government medical surveillance, and the right to
participate equally in campus activities.” (Moving Br. at 6–7.) Plaintiffs contend they are likely
to succeed on the merits because “there is no precedent historically or legally to which TCNJ can
point to justify its [Mandate].” (Id. at 38) (emphasis in original).
Plaintiffs distinguish this case from Jacobson and its progeny in several ways.1 First, they
argue that Jacobson is inapplicable because the COVID-19 vaccines are not vaccines but are
instead “Gene Therapy Products.” (Id. at 9–10.) Plaintiffs claim the COVID-19 vaccines “do not
1 Jacobson v. Massachusetts, 197 U.S. 11 (1905).
fall under any relevant statutory definition” and “are excluded from most dictionary definitions
due to their composition.” (Id. at 10.) Plaintiffs note that there exists “no statutory definition for
the word ‘vaccine’ in federal statutes concerning vaccination.” (Id. at 11.) Neither the Vaccination
Assistance Act of 1962 (“VAA”) nor the National Childhood Vaccine Injury Act (“NCVIA”)
provide a definition for the word “vaccine.” (Id. at 10–11.) In addition, the COVID-19 vaccines
“do not fit under the traditional meaning of the word vaccine” and do not qualify as vaccines under
most dictionary definitions. (Id. at 18–19.)
Second, Plaintiffs further distinguish this case from Jacobson by emphasizing that this
action does not involve a legislative enactment. (Id. at 10.) They argue that this action challenges
TCNJ’s “bureaucratic” Mandate instead of a legislative enactment like in Jacobson. (Id. at 19.)
This action falls “outside the ambit of Jacobson” because “the Mandate is not the result of a
legislative process.” (Id. at 19–20.)
Third, Plaintiffs claim the consequence of declining the COVID-19 vaccine is far more
serious here than in Jacobson. (Id. at 10.) They argue that Jacobson involved a minor fine while
TCNJ’s Mandate “imposes an invasive system of ongoing medical testing, medical surveillance,
and segregation.” (Id. at 20.) Jacobson is not controlling in this instance because TCNJ’s liberty
intrusion is much greater. (Id. at 21). Plaintiffs contend the TCNJ Mandate “derails a person’s
plotted course in life by banning them from continuing their education at TCNJ despite years of
investment and considerable expense.” (Id. at 20.) For example, “[e]xempt students must undergo
twice weekly medical testing procedures and daily medical reporting and surveillance.” (Id. at
21). In addition, unvaccinated students “are banned or highly limited from partaking in regular
campus activities,” and their vaccination status is reported to their teachers. (Id.)
Fourth, Plaintiffs claim COVID-19 vaccines are not supported by “a century of medical
data” and “scientific consensus” like the smallpox vaccine in Jacobson. (Id. at 10.) When the
Supreme Court decided Jacobson, the “smallpox vaccine and information concerning its safety
existed for more than 100 years at the time.” (Id. at 21). By contrast, Plaintiffs argue the
COVID-19 vaccines are “novel medical products” that have existed for less than two years, “have
been administered to the general population for less than a year, and are still in clinical trials.”
(Id. at 21–22) (emphasis in original). For this reason, Jacobson is inapplicable because
“[k]nowledge concerning the [COVID-19 vaccines’] efficacy and safety is evolving in real time.”
(Id.)
In conclusion, Plaintiffs urge this Court to apply strict scrutiny because they contend
Jacobson does not apply. (Id.) They argue that the Mandate is unconstitutional because requiring
vaccination and medical testing violates their fundamental right to refuse medical treatment. (Id.
at 22–23.) Moreover, they posit that the ongoing medical surveillance and disclosure of personal
medical information to professors infringe their privacy interests under the Fourteenth
Amendment. (Id. at 23.) Plaintiffs ask this Court to consider several factors in balancing TCNJ’s
interest against intrusion of Plaintiffs’ fundamental liberties. (Id. at 23–38.) Alternatively,
Plaintiffs contend the unconstitutional conditions doctrine applies. (Id. at 6, 20.)
As for irreparable harm to Plaintiffs, they argue that allowing the Mandate to stand would
result in “repeated violations of their rights and bodily autonomy.” (Id. at 38–39). For Messina,
“it means a total derailment of her education because she cannot attend school.” (Id. at 39.) As
for Dieker, Jacob, Zimberg, and Walz, “they must indefinitely undergo twice weekly medical
testing procedures, continue under intrusive medical surveillance of their private health
information, and continue to be singled out and treated in a discriminatory manner . . . .” (Id.) In
contrast, Plaintiffs contend Defendants will suffer no harm if the Mandate were enjoined and that
Defendants have “many alternative and constitutional methods” at their disposal to control the
spread of COVID-19 on campus. (Id.) Last, they argue that enjoining unconstitutional policies
that intrude on liberty and privacy rights serves the public interest. (Id. at 40.)
B. Defendants’ Opposition
Defendants argue that this Court should deny Plaintiffs’ motion because they will not
succeed on the merits “and the remaining equitable factors militate against granting the requested
relief.” (Opp’n Br. at 16.) First, they claim they are immune from suit in this Court because
“TCNJ is an arm of the State of New Jersey” and enjoys sovereign immunity. (Id. at 17–20.)
Second, Defendants argue that Plaintiffs have no standing to challenge the Mandate
because they have no injury-in-fact. (Id. at 21.) Defendants contend that Plaintiffs’ “mere
disagreement with the vaccine requirement does not confer standing on them.” (Id.) Plaintiffs
received exemptions from the vaccine requirement and “pled no facts suggesting concrete and
imminent imposition of the vaccine requirement.” (Id.) Moreover, TCNJ’s policy of periodic
reviews of exempt students by health professionals does not confer standing. (Id.)
Third, Defendants argue that Jacobson forecloses any constitutional challenge to the
Mandate. (Id. at 22.) Defendants note that “courts reviewing similar college COVID-19 vaccine
mandates have uniformly concluded[] Jacobson controls.” (Id. at 22–23.) In response to
Plaintiffs’ argument that the COVID-19 vaccines are “Gene Therapy Products,” Defendants argue
that Plaintiffs cite no medical authority for the proposition that the three FDA-authorized
COVID-19 vaccines are not vaccines. (Id. at 23.) As for Plaintiffs’ arguments concerning the
efficacy of the COVID-19 vaccines, Defendants emphasize that, in Jacobson, the Court
specifically explained that it is not the court or the jury’s function to determine the most effective
method to protect the public against diseases. (Id. at 24–25.) With respect to Plaintiffs’ argument
that this action challenges a mandate rather than a legislation, Defendants explain that, in
Jacobson, the City of Cambridge adopted a smallpox vaccine regulation pursuant to a general
statute dealing with vaccinations. (Id. at 26.) In comparison, colleges and universities in New
Jersey are allowed to mandate vaccinations pursuant to a general statute as well. (Id.) “[C]olleges
and universities have long required numerous vaccinations as a prerequisite for attendance and
communal living” on campus. (Id. at 25.) They note that if “schools were powerless to adopt
basic immunization measures, it would be unable to ensure its very ability to operate in a safe
setting and provide educational services at all.” (Id. at 25 –26.) Defendants rely on Klaassen v.
Trustees of Indiana University, 7 F.4th 592, 593 (7th Cir. 2004), for the proposition that TCNJ’s
Mandate is subject to rational basis review and argues that TCNJ’s Mandate “is a rational way to
ensure public health protection for the campus community.” (Id. 26–27.)
As for Plaintiffs’ arguments against regular COVID-19 testing and social distancing for
exempt students, Defendants contend Plaintiffs provide no support for their constitutional claims.
(Id. at 28.) First, “there is simply no support in law for the proposition that routine testing for an
airborne, contagious disease during a pandemic violates substantive due process.” (Id. at 29.)
Conducting regular testing to detect a potentially deadly, airborne disease during a pandemic is
vital to public safety just like compulsory vaccination. (Id.) Second, Plaintiffs “could choose not
to be subject to any of TCNJ’s rules” because “there is no fundamental right to attend this particular
college.” (Id. at 30.) “If Plaintiffs do not wish to be subject to TCNJ's rules, they are free to
withdraw.” (Id. at 31.) Third, even if Plaintiffs could make out a substantive due process claim
against TCNJ's testing and social distancing requirements, the requirements pass rational basis
review given the public’s interest in preventing the spread of COVID-19. (Id.) Defendants explain
that the “testing requirement is an effective mechanism to ensure early detection of COVID-19
cases in the campus community” and that even the CDC “recommended that campuses implement
regular testing requirements to control the spread of the virus.” (Id.)
Defendants further argue that Plaintiffs Equal Protection and Fourth Amendment claims
are meritless. (Id. at 32.) Defendants contend that Plaintiffs’ claims are subject to rational basis
review because vaccination status is not a suspect class. (Id.) Defendants argue that TCNJ’s
Mandate “for unvaccinated students clearly bears ‘a rational relation to some legitimate end’ . . .
because its testing and social distancing requirements are rationally related to the government
interest in preventing COVID-19 spread and negative health effects for students and the
community.” (Id.) As for Plaintiffs’ Fourth Amendment claim, Defendants argue that “[t]esting
requirements during a pandemic for unvaccinated students do not constitute an unreasonable
search. (Id. at 33.) Defendants reiterate that Plaintiffs chose to be subjected to TCNJ’s
requirements for unvaccinated students because they chose to attend TCNJ in person and also
sought—and were granted—exemptions from the vaccination requirement. (Id.) Defendants
emphasize Plaintiffs had alternatives available to avoid testing, such as becoming vaccinated,
enrolling in online courses, or attending a different college. (Id.) Last, Defendants argue that
Plaintiffs’ Fourth Amendment claims have no likelihood of success on the merits because the
government’s interest in preventing COVID-19 from spreading outweighs the minimal intrusion
into a student’s privacy interest, especially where the student has a diminished expectation of
privacy because he or she attends a public school. (Id. at 33–34.)
Finally, Defendants argue that Plaintiffs have failed to demonstrate irreparable harm
because Plaintiffs were not forced to receive the COVID-19 vaccine and any alleged
inconvenience caused by the testing and social distancing requirements falls short of the
irreparable harm. (Id. at 35–36.) Since Plaintiffs waited over four months to request injunctive
relief, any harm resulting from this delay is self-inflicted rather than irreparable. (Id. at 36–37.)
Defendants contend that enjoining TCNJ’s Mandate would result in irreparable harm to TCNJ and
the community at large because the spread of COVID-19 threatens public health and safety. (Id.
at 38–40.)
C. Plaintiffs’ Reply
Plaintiffs argue they have standing to bring this action because they suffered an injury in
fact, there exists a causal connection between the injury and TCNJ’s conduct, and there is
likelihood their injury will be redressed by a favorable decision. (Reply at 2.) They claim that the
Mandate requires exempt students—such as themselves—to undergo testing, segregation, and
other impositions. (Id.) Plaintiffs distinguish this action by arguing that they “were subjected to
disparate treatment or other constitutional violations predicated on their exempt status . . . .” (Id.)
Additionally, they argue that TCNJ’s sovereign immunity argument is irrelevant and “belongs in
a motion to dismiss.” (Id. at 15.)
Plaintiffs reiterate that Jacobson is inapplicable because: (1) this action does not challenge
a vaccine but rather “pharmaceuticals,” which fall outside the scope of Jacobson; (2) the TCNJ
Mandate is not legislative; and (3) “the consequences for declining the pharmaceuticals are more
serious and extreme than” in Jacobson. (Id. at 3.) In response to Defendants’ argument that the
FDA classified the COVID-19 vaccines as vaccines, Plaintiffs urge this court “to look at the
substance of what the pharmaceuticals are, not just how they are labeled by federal agencies.” (Id.
at 3–4.) They argue that the FDA’s “classification of [the COVID-19 vaccines] as such is not
determinative,” and this Court “is required to look at substance over form.” (Id. at 6.) Plaintiffs
contend “it is clear that [the COVID-19 vaccines] are not ‘vaccines’ under Jacobson or the
ordinary meaning that would be found in the dictionary of most libraries.” (Id.) Plaintiffs also
differentiate the COVID-19 vaccines from the smallpox vaccine in Jacobson by arguing that the
COVID-19 vaccines are novel, use novel technology that has been tested for less than two years,
“have been available to the public for less than a year, and are still in clinical trials.” (Id.)
Moreover, Plaintiffs contend that Defendants failed to provide any case law that supports
TCNJ’s medical testing and surveillance requirements for those students exempt from vaccination.
(Id. at 7.) They maintain that there is no precedent for “ongoing indefinite weekly testing” and
surveillance. (Id. at 7–9.) “TCNJ cannot assert any special need for the testing and has not shown
any data that testing students who have not taken the [vaccine] is protecting the campus.” (Id. at
9.) Plaintiffs contend TCNJ’s argument that Plaintiffs are free to attend another school ignores the
unconstitutional conditions doctrine. (Id.)
Finally, Plaintiffs urge this court to apply strict scrutiny because “Plaintiffs’ liberty rights
in declining the [vaccine] is very strong compared to TCNJ’s asserted interests.” (Id. at 9–10.) In
weighing the competing interests, they discuss the vaccine’s efficacy and natural immunity at
length. Plaintiffs argue they will suffer irreparable harm from the Mandate’s imposition on exempt
students such as themselves. (Id. at 15.) They contend their delay in filing this action “is irrelevant
and excusable because they are college students” and are “disadvantaged at securing legal
counsel.” (Id.)
III. LEGAL STANDARD
Rule 65 governs temporary restraining orders and preliminary injunctions. Fed. R. Civ. P.
65; Vuitton v. White, 945 F.2d 569, 573 (3d Cir. 1991). A restraining order loses its temporary
status and becomes a preliminary injunction if it continues beyond a ten-day limit. Id. (citing Sims
v. Greene, 160 F.2d 512, 517 (3d Cir. 1947)). Courts “will look beyond terminology to the actual
content, purport, and effect of that which may otherwise described as a temporary restraining order
or as a preliminary injunction.” In re Arthur Treacher's Franchise Litig., 689 F.2d 1150, 1155 n.7
(3d Cir. 1982).
“Preliminary injunctive relief is an ‘extraordinary remedy, which should be granted only
in limited circumstances.’” Ferring Pharms., Inc. v. Watson Pharms, Inc., 765 F.3d 205, 210 (3d
Cir. 2014) (quoting Novartis Consumer Health, Inc. v. Johnson & Johnson-Merk Consumer
Pharms. Co., 290 F.3d 578, 586 (3d Cir. 2002)). As courts in this district have emphasized, “there
is no power the exercise of which is more delicate, which requires greater caution, deliberation,
and sound discretion, or more dangerous in a doubtful case, than the issuing [of] an injunction.”
FM 103.1, Inc. v. Universal Broad., 929 F. Supp. 187, 193 (D.N.J. 1996) (citing E.B. v. Poritz,
914 F. Supp. 85, 90 (D.N.J. 1996)). A court should only issue an injunction “if the plaintiff
produces evidence sufficient to convince the district court that all four factors favor preliminary
relief.” AT&T v. Winback & Conserve Program, 42 F.3d 1421, 1427 (3d Cir. 1994) (emphasis
added). Further, it is within “the sound discretion of the district judge” to balance all of these
factors “in making a decision.” Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir. 1982).
A party seeking a preliminary injunction must satisfy the traditional four-factor test: (1) a
likelihood of success on the merits; (2) he or she will suffer irreparable harm if the injunction is
denied; (3) granting relief will not result in even greater harm to the nonmoving party; and (4) the
public interest favors such relief. Child Evangelism Fellowship of N.J. Inc. v. Stafford Twp. Sch.
Dist., 386 F.3d 514, 524 (3d Cir. 2004). However, “the moving party must demonstrate both a
likelihood of success on the merits and the probability of irreparable harm if relief is not granted.”
Morton v. Beyer, 822 F.2d 364, 367 (3d Cir. 1987) (emphasis in original). “A likelihood of success
on the merits requires ‘a showing significantly better than negligible but not necessarily more
likely than not.’” Durel B. v. Decker, 455 F. Supp. 3d 99, 106 (D.N.J. 2020). The strength of a
claim “depends on the balance of the harms: the more net harm an injunction can prevent, the
weaker the plaintiff’s claim on the merits can be while still supporting some preliminary relief.’”
Id. (quoting Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721,
725 (7th Cir. 2009)).
IV. DISCUSSION
As a preliminary matter, the Court first addresses Defendants’ claim to sovereign
immunity. Determining whether a public college is a state entity for Eleventh Amendment
purposes involves “a fact-intensive review that calls for individualized determinations.” Bowers
v. NCAA, 475 F.3d 524, 546 (3d Cir. 2007); Kovats v. Rutgers, State Univ., 822 F.2d 1303, 1312
(3d Cir. 1987) (“[E]ach state university exists in a unique governmental context, and each must be
considered on the basis of its own peculiar circumstances.”) (quoting Soni v. Bd. of Trs. of the
Univ. of Tenn., 513 F.2d 347, 352 (6th Cir. 1975)). Notably, not every public state college or
university enjoys the protection of sovereign immunity in New Jersey. See Kovats, 822 F.2d at
1312 (regarding Rutgers University); Bostanci v. N.J. City Univ., Civ. No. 8-4339, 2010 WL
4961621, *1 (D.N.J. Dec. 1, 2010) (regarding New Jersey City University).
The Third Circuit adopted a three-part test to determine if “an entity is an arm of the state
for Eleventh Amendment purposes. That test examines the following three elements: (1) whether
the payment of the judgment would come from the state; (2) what status the entity has under state
law; and (3) what degree of autonomy the entity has.” Bowers, 475 F.3d at 546; see also Fitchik
v. N.J. Transit Rail Operations, Inc., 873 F.2d 655 (3d Cir. 1989). “[T]he party asserting Eleventh
Amendment immunity (and standing to benefit from its acceptance) bears the burden of proving
its applicability.” Christy v. Pa. Turnpike Comm'n, 54 F.3d 1140, 1144 (3d Cir. 1995). In baldly
asserting sovereign immunity, Defendants provide nothing more than conclusory statements under
this three-part test. The Court, therefore, finds that Defendants have failed to meet their burden of
proving its applicability.2 Although Defendants have failed to establish sovereign immunity at
this time, this issue may nonetheless be revisited at a later stage. See Brennan v. William Paterson
Coll., 34 F. Supp. 3d 416, 432 (D.N.J. 2014).
Moreover, after a careful review of the parties’ submissions and relevant case law, this
Court concludes that Plaintiffs failed to satisfy the requirements necessary to grant injunctive
relief.
A. Likelihood of Success on the Merits
Given United States Supreme Court precedent and persuasive authorities from other
circuits on this issue, this Court concludes that Plaintiffs failed to establish their likelihood of
success on the merits. In Jacobson v. Massachusetts, the Supreme Court upheld the
constitutionality of a state compulsory vaccination law enacted to combat a smallpox outbreak.
197 U.S. at 39. Pursuant to the state statute in that case, the board of health for the City of
Cambridge adopted regulations requiring its residents to receive the smallpox vaccine. Id. at 12–
13. Jacobson, a resident of Cambridge, refused the vaccine and was criminally charged. Id. at 13.
After a jury found Jacobson guilty, the court ordered him to pay $5 as required by the state statute.
Id. at 14. Jacobson challenged the state statute and argued that it violated his constitutionally
protected liberty interest because it was unreasonable, arbitrary, and oppressive. Id. at 26.
2 Contrary to Defendants’ argument, this Court also finds that Plaintiffs have standing to bring this action because
they allege the Mandate places several unconstitutional requirements on exempt students such as themselves.
Plaintiffs have alleged “an invasion of a legally protected interest” that is concrete, particularized, and imminent.
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992));
see In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 272 (3d Cir. 2016).
The Jacobson Court emphasized that the “liberty secured by the Constitution . . . does not
import an absolute right in each person to be, at all times and in all circumstances, wholly freed
from restraint.” Id. at 26. The Court recognized that states have the authority to enact quarantine
and health laws, id. at 25, and that “a community has the right to protect itself against an epidemic
of disease which threatens the safety of its members,” id. at 27. The Court explained that it was
not the judiciary’s role to determine the most effective method to protect the public against disease.
Id. at 30. Instead, “[t]hat was for the legislative department to determine in the light of all the
information it had or could obtain.” Id. Applying a deferential standard, the Court asserted that it
would only find a statute unconstitutional if the statute purporting to protect public health, safety,
and morals had “no real or substantial relation” to those objectives or was, “beyond all question, a
plain, palpable invasion of rights secured by the fundamental law.” Id. at 31. The Court concluded
the Massachusetts statute was constitutional because it had a real and substantial relation “to the
protection of the public health and the public safety” amid the smallpox epidemic. Id. at 30–32.
See Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 70 (2020) (Gorsuch, J., concurring)
(explaining that Jacobson is “essentially . . . rational basis review”).
In Klaassen v. Trustees of Indiana University, 7 F.4th 592, 594 (7th Cir. 2021), the Seventh
Circuit rejected similar arguments made by plaintiffs who challenged Indiana University’s
COVID-19 vaccination policy. In that case, eight students from Indiana University sought to
enjoin the university’s policy requiring “all students . . . [to] be vaccinated against COVID-19
unless they [were] exempt for religious or medical reasons.” Id. at 592. More specifically, the
plaintiffs claimed this policy violated the Due Process Clause under the Fourteenth Amendment.
Id. The court rejected the plaintiffs’ argument and noted that “this case [wa]s easier than Jacobson
for the University, for two reasons.” Id. at 593. First, unlike the compulsory vaccination law in
Jacobson, Indiana’s policy provided exemptions for “religious beliefs and persons for whom
vaccination [was] medically contraindicated.” Id. The Seventh Circuit explained that the plaintiffs
who were exempt or qualified for an exemption “just need[ed] to wear masks and be tested,
requirements that are not constitutionally problematic.” Id. Second, “Indiana does not require
every adult member of the public to be vaccinated, as Massachusetts did in Jacobson. Vaccination
is instead a condition of attending Indiana University.” Id. The Seventh Circuit noted that those
who do not wish to be vaccinated “may go elsewhere” because there are other universities that do
not require COVID-19 vaccination. Id. The Seventh Circuit denied the plaintiffs’ request for an
injunction pending appeal and concluded by stating, “If conditions of higher education may
include surrendering property [to pay tuition] and following instructions about what to read and
write [as part of the curriculum], it is hard to see a greater problem with medical conditions that
help all students remain safe when learning.” Id. at 594. Notably, the United States Supreme
Court also denied the plaintiffs’ application for injunctive relief without explanation. Klaassen v.
Trs. of Ind. Univ., No. 21A15, 2021 U.S. LEXIS 3677 (U.S. Aug. 12, 2021).
Similarly, in Harris v. University of Massachusetts, Lowell, Civ. No. 21-11244, 2021 WL
3848012, at *8 (D. Mass. Aug. 27, 2021), a district court denied the plaintiffs’ motion for
injunctive relief seeking to prevent the University of Massachusetts (“UMass”) from enforcing
COVID-19 vaccine requirements before the school year began. In that case, UMass imposed a
vaccine requirement for students reporting to campus during the fall semester, and two students—
one who sought exemption and the other who did not—brought suit alleging violations of their
Fourteenth Amendment rights. Id at *1–2. In their complaint, the plaintiffs alleged they faced
expulsion for refusing the COVID-19 vaccine. Id. at *2. The court disagreed and determined the
plaintiffs had no likelihood of success on the merits. Id. at *5. As for the plaintiffs’ procedural
due process claim, the court rejected the plaintiffs’ argument that the vaccine policy left them
without an option because it prohibited unvaccinated students from in-person classes, dormitories,
and other activities but allowed them to still enroll in online classes. Id. The court further
explained that the plaintiffs’ due process claim also failed because even if the plaintiffs were faced
with expulsion, the vaccine policy, which was announced in April 2021, was “generally applicable
to all students and formulated prospectively toward the fall semester.” Id. The court also rejected
the plaintiffs’ substantive due process claim after applying rational basis review. Id. at *6. The
court explained that the vaccine policy, which was based “upon both medical and scientific
evidence and research and guidance,” rationally related to the unquestionably compelling interest
of curbing the spread of COVID-19. Id. In doing so, the court explained that the UMass vaccine
policy “pose[d] even fewer constitutional concerns than in Jacobson” because the policy allowed
students to seek exemptions, opt to take online classes, or defer their enrollment for the semester.
Id. The court next determined that the remaining factors for granting injunctive relief militated
against granting the plaintiffs’ request. Id. at *8. The court concluded that the plaintiffs would
not suffer any irreparable harm because they still had the choice to take online classes or defer
enrollment. The court also found that “the balance of equities tip[ed] in [the defendants’] favor
given the strong public interest . . . [in] preventing further spread of COVID-19 on campus . . . .”
Id. See also Norris v. Stanley, Civ. No. 21-756, 2021 WL 3891615 (W.D. Mich. Aug. 31, 2021)
(denying an employees’ petition for injunctive relief against Michigan State University’s
COVID-19 vaccine mandate based on Jacobson and other persuasive authorities, together with her
failure to demonstrate that she had a constitutionally protected property interest in her employment
and her inability to show the vaccine policy was not rationally related to a legitimate government
interest).
Here, the Court finds Plaintiffs’ attempt to distinguish Jacobson unpersuasive. First, the
Court rejects Plaintiffs’ ill-fated effort to circumvent well-established Supreme Court precedent
by re-categorizing the COVID-19 vaccines as “Gene Therapy Products.” As Defendants point
out, Plaintiffs have advanced no medical authority for this notion. Moreover, Defendants have
supplied the position of the Centers for Disease Control and Prevention (“CDC”) with respect to
whether the COVID-19 vaccines in fact qualify as vaccines:
Is the mRNA vaccine considered a vaccine?
Yes. mRNA vaccines, such as Pfizer-BioNTech and Moderna, work
differently than other types of vaccines, but they still trigger an
immune response inside your body. This type of vaccine is new, but
research and development on it has been under way for decades.
Centers for Disease Control and Prevention, “Myths and Facts about COVID-19 Vaccines,”
attached as Exhibit 20 to the Declaration of Daniel M. Vannella, Esq. (ECF No. 7-3.)
Accordingly, the CDC has clearly opined that these constitute “vaccines.” The Court has deferred
to the expertise of the CDC and its guidance with respect to COVID-19 in the past and sees no
reason to depart from it in this case. See, e.g., United States v. Roberts, Crim. No. 19-134 (ECF
No. 650) (D.N.J. Sept. 21, 2021) (Wolfson, Ch. J.) (citing to CDC guidance as part of denying a
challenge to the district’s standing order regarding COVID-19 safety requirements for courthouse
admission).
Plaintiffs’ semantic argument aside, the United States Supreme Court recently denied,
without explanation, an application for injunctive relief against Indiana University’s COVID-19
vaccination policy. As explained above, the Seventh Circuit reviewed this same application and
denied the plaintiffs’ request for injunctive relief based on Jacobson. In addition, other courts—
including this one—reviewed similar challenges to COVID-19 vaccine policies and have
uniformly concluded that Jacobson controls.
This case is easier than Jacobson for several reasons. See Klaassen, 7 F.4th at 593; Harris,
2021 WL 3848012, at *6. First, the compulsory vaccination statute in Jacobson was even more
stringent than TCNJ’s Mandate, which provides stronger grounds to deny injunctive relief. Unlike
the statute in Jacobson, there is no criminal or financial penalty for failure to comply with the
Mandate. Second, the Mandate is limited to TCNJ students attending campus, and it incorporates
accommodations by allowing students to apply for exemptions based on religious or medical
grounds. Third, Plaintiffs have the choice to become fully remote students, defer enrollment for a
semester (like Messina), or transfer to a school with no COVID-19 vaccination policy. To the
extent Plaintiffs take issue with the restrictions imposed on exempt students, “Plaintiffs have ample
educational opportunities” and “may go elsewhere.” Klaassen, 7 F.4th at 593. Moreover, this
Court agrees with the Seventh Circuit’s observation that restrictions placed on exempt students,
namely routine testing and social distancing, are “requirements that are not constitutionally
problematic.” Id.
As for Plaintiffs’ arguments concerning the efficacy of the COVID-19 vaccines, it is not
this Court’s function to determine the most effective method to protect the public against
COVID-19. Jacobson, 197 U.S. at 30. Instead, it is for the legislature to determine what method
of protection would likely be effective. Id. Moreover, in New Jersey, every public and
independent institution of higher education must, “as a condition of admission or continued
enrollment, require every graduate and undergraduate student” to provide the school with valid
immunization records. N.J. Stat. Ann. § 18A:61D-1. New Jersey colleges and universities are
allowed to “establish additional requirements for student immunizations and documentation that
such institution shall determine appropriate and which is recommended by the [Advisory
Committee on Immunization Practices (“ACIP”)].” N.J. Admin. Code § 8:57-6.4. As Defendants
point out, each of the three COVID-19 vaccines have indeed been recommended by the ACIP.
(Defs.’ Ex. 29, ECF No. 7-4)
Although Plaintiffs have a right to refuse unwanted medical treatment, this right is not
absolute. Jacobson 197 U.S. at 26. Given the severity of the ongoing COVID-19 pandemic and
number of COVID-19-related deaths in New Jersey, there is a real and substantial relation between
the Mandate and the need to protect the public health. Like in Jacobson, other states and countries
have enacted similar vaccine policies, and this lends more credence to the Mandate at issue.
Accordingly, the Court finds that Plaintiffs have failed to show likelihood of success on the merits.
B. Irreparable Harm to the Moving Party
Plaintiffs also failed to establish they will suffer irreparable harm or injury if this Court
does not grant them injunctive relief. Dieker, Jacob, Zimberg, and Walz—all of whom are exempt
students subject to routine testing and several restrictions under the Mandate—argue that denying
injunctive relief would result in “repeated violations of their rights and bodily autonomy.”
(Moving Br. at 38–39.) Messina, who has deferred enrollment for a semester, argues that denying
injunctive relief would result in “a total derailment of her education because she cannot attend
school.” (Id.) However, TCNJ announced its Mandate on or around May 10, 2021, and Plaintiffs
commenced this action on September 27, 2021. (Compl. at ¶ 9.) Therefore, any purported harm
Plaintiffs may face is a consequence of their own delay because they waited over four months to
request injunctive relief. See EMSL Analytical, Inc. v. Testamerica Analytical Testing Corp., Civ.
No. 05-5259, 2006 WL 892718, at *12 (D.N.J. Apr. 4, 2006) (explaining that a plaintiff’s delay
“in seeking preliminary injunctive relief . . . is evidence that speedy relief is not needed”); Lanin
v. Borough of Tenafly, No. 12-3399, 2013 WL 936363, at *3 (3d Cir. Mar. 12, 2013)
(“[P]reliminary injunctions are generally granted under the theory that there is an urgent need for
speedy action to protect the plaintiffs' rights. Delay in seeking enforcement of those rights . . .
tends to indicate at least a reduced need for such drastic, speedy action.” (quoting Citibank, N.A.
v. Citytrust, 756 F.2d 273, 275 (2d Cir.1985)).
Plaintiffs also could have sought a preliminary injunction months before the semester
began rather than after the semester began. In addition, Plaintiffs had the opportunity to become
fully remote students or to transfer to another university without a COVID-19 vaccination
requirement. As for Messina, she faces no irreparable harm because she deferred enrollment this
semester. See Harris, 2021 WL 3848012, at *8 (“Even with the Vaccine Policy, students who
choose not to comply with [it] may still take online classes at UMass, or defer their enrollment for
a semester, not amounting to irreparable harm.”). Accordingly, this Court finds that Plaintiffs’
delay, which indicates a reduced need for speedy relief, created self-inflicted harm and weighs
against granting injunctive relief.
C. Harm to the Non-moving Party
This Court turns next to whether granting relief would result in greater harm to Defendants.
Plaintiffs argue that Defendants would suffer “no irreparable harm” by enjoining the Mandate.
(Moving Br. at 39.) However, if an injunctive relief were granted and the Mandate lifted, TCNJ
would face the possibility of a widespread COVID-19 outbreak on campus. This outbreak would
impact TCNJ’s faculty and staff, students living on campus, students who commute, and anyone
else these individuals interact with both on and off campus. Plaintiffs argue that TCNJ has “many
alternative and constitutional methods” at its disposal to control the spread of COVID-19 on
campus. (Id.) However, beyond this bald statement Plaintiffs provide not a single example of any
appropriate methods. For these reasons, this Court concludes that granting injunctive relief in this
instance would cause greater harm to Defendants by exposing TCNJ and its community to
significant health and safety risks.
D. Public Interest
Plaintiffs also failed to show that granting injunctive relief in this instance would serve the
public interest. Plaintiffs argue the public interest is served by enjoining unconstitutional policies
that intrude upon people’s liberty and privacy rights. (Moving Br. at 40.) However, as the district
court in Klaassen explained, “students have a significant liberty interest in refusing unwanted
medical treatment,” but “power can be rightfully exercised over any member of a civilized
community, against his will, . . . to prevent harm to others.” Klaassen v. Trs. of Ind. Univ., Civ.
No. 21-238, 2021 WL 3073926, at *43 (N.D. Ind. July 18, 2021) (citation omitted). “If the
students’ decision to refuse the vaccine affected themselves alone, the balance of harms would
almost certainly weigh in favor of granting a preliminary injunction.” Id. However, it does not.
Plaintiffs are not the only ones harmed by refusing to comply with the Mandate’s vaccination
requirement and restrictions. See Klaassen, 2021 WL 3073926, at *43 (explaining that refusal to
become vaccinated and to comply with heightened safety precautions “impacts the public interest”
because “the students ‘are not asking to be allowed to make a self-contained choice to risk only
their own health’ in making this decision—their decision necessarily bears on the health of other
students, faculty, and staff” (quoting Cassell v. Snyders, 990 F.3d 539, 550 (7th Cir. 2021))).
TCNJ’s Mandate protects both its community and the public at large. Enjoining the
Mandate would not serve the public interest in preventing the spread of COVID-19, a virus that
has taken the lives of many New Jersey residents. See Harris, 2021 WL 3848012, at *8 (noting
there was a “strong public interest” in “preventing further spread of COVID-19 on campus, a virus
which has infected and taken the lives of thousands of Massachusetts residents”). Therefore, this
strong public interest weighs against granting Plaintiffs injunctive relief.
V. CONCLUSION
For the reasons set forth above, the Court finds that Plaintiffs have not shown a preliminary
injunction is warranted in this case. Plaintiffs’ motion will therefore be denied. An appropriate
order will follow.
s/ Zahid N. Quraishi
.
ZAHID N. QURAISHI
UNITED STATES DISTRICT JUDGE