Children's Health Defense Inc. v.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 22-2970

_____________

CHILDREN’S HEALTH DEFENSE, INC.; PETER CORDI;

RAELYNNE MILLER; KAYLA MATEO;

ADRIANA PINTO; JAKE BOTHE; ANTHONY

LAMANCUSA; JESSICA MOORE;

RYAN SANDOR; GIANNA CORALLO;

RYAN FARRELL; SEBASTIAN BLASI;

MAGGIE HORN; LINDSAY MANCINI,

Appellants

v.

RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY;

BOARD OF GOVERNORS;

RUTGERS SCHOOL OF BIOMEDICAL

AND HEALTH SCIENCES;

CHANCELLOR BRIAN L. STROM;

PRESIDENT JONATHAN HOLLOWAY, in their official

capacities

_______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 3-21-cv-15333)

District Judge: Honorable Zahid N. Quraishi

_______________

Argued June 27, 2023

Before: JORDAN, KRAUSE, and MONTGOMERY-

REEVES, Circuit Judges.

(Filed: February 15, 2024)

Ray L. Flores

Law Offices of Ray L. Flores

11622 El Camino Real

San Diego, CA 92130

Julio C. Gomez [ARGUED]

Gomez LLC

1451 Cooper Road

Scotch Plains, NJ 07023

Mary S. Holland

Children’s Health Defense

852 Franklin Avenue

Franklin Lakes, NJ 07417

Robert F. Kennedy, Jr.

Kennedy & Madonna

48 Dewitt Mills Road

Hurley, NY 12443

Counsel for Appellants

Jeffrey S. Jacobson [ARGUED]

Faegre Drinker Biddle & Reath

1177 Avenue of the Americas

2

41st Floor

New York, NY 10036

Andrew B. Joseph

Faegre Drinker Biddle & Reath

One Logan Square

Suite 2000

Philadelphia, PA 19103

William J. Latimore

Faegre Drinker Biddle & Reath

600 Campus Drive

Florham Park, NJ 07932

Counsel for Appellees

_______________

OPINION OF THE COURT

___________

KRAUSE, Circuit Judge.

The core educational mission of a university

presupposes a safe and healthy student body to educate. For

that reason, a university’s responsibilities necessarily extend

beyond the curriculum to the significant challenge, even in

normal times, of safeguarding its population. Of course, the

past few years have been anything but normal. The challenges

posed by the COVID-19 pandemic were unprecedented, and

universities around the country, indeed, around the world, had

to wrestle with hard choices like whether to mask, to require

vaccination, to “go remote,” or to “go hybrid.” They also faced

hard choices in the sequencing of such safety measures across

different components of the university as they attempted, in

novel and fast-changing circumstances, to resume in-person

3

classes and target the spread of the virus among those most at

risk for “super spreader” transmission.

In preparing for a safe return to campus in the fall of

2021, Appellee, Rutgers University, took a phased approach

that, in the first instance, prioritized the health of the student

body. That spring, as the prior school year came to a close,

Rutgers announced that student vaccination would be a

condition of attending fall classes in person or having physical

access to campus resources. At the same time, it provided

students the options to decline vaccination for medical or

religious reasons, to become a fully remote student, or to

disenroll and attend a different university. Within a few

months, it extended that in-person vaccination requirement to

its health care and public safety personnel, and a few months

after that, to all in-person faculty and staff.

Appellants include thirteen Rutgers University students

who took issue with the student policy. Along with Appellant

Children’s Health Defense, Inc.,1 these students filed suit

against Rutgers, raising various constitutional and statutory

1

Children’s Health Defense, Inc. (“CHD”) identifies

itself as an organization that seeks to “end childhood health

epidemics by working aggressively to eliminate harmful

exposures, [to] hold those responsible accountable, and to

establish safeguards.” JA 160. For ease of reference and

because CHD brought suit on behalf of the student plaintiffs,

we will refer to the appellants, collectively, as “the Students”

or “Appellants.” Likewise, we will refer to Appellees Rutgers,

the Board of Governors, Rutgers School of Biomedical and

Health Sciences, Chancellor Brian Strom, and President

Jonathan Holloway, in their official capacities, as “Rutgers.”

4

claims. Although vaccination was one among the other options

for matriculating and was required only for in-person

attendance, Appellants’ complaint pejoratively labelled the

policy a “vaccine mandate” and sought general damages as

well as declaratory and injunctive relief. The District Court

dismissed all claims as either moot or failing to state a claim.

We will affirm the District Court’s judgment because,

even accepting the complaint’s factual allegations as true, as

we must at this stage, see Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009), the Students have not stated any plausible claim for

relief. We reach this conclusion based on the application of

well-settled law and in line with every other federal court to

have considered similar challenges.2

I. Factual and Procedural Background

The essential contours of the COVID-19 pandemic are

well-known. The first wave of cases came to the United States

in early March 2020, and by mid-to-late March, several states

had in place emergency orders closing non-essential businesses

2

See, e.g., Klaassen v. Trs. of Ind. Univ., 7 F.4th 592

(7th Cir. 2021); Norris v. Stanley, 73 F.4th 431 (6th Cir. 2023);

Kheriaty v. Regents of the Univ. of Cal., No. 22-55001, 2022

WL 17175070 (9th Cir. Nov. 23, 2022); Harris v. Univ. of

Mass., Lowell, 557 F. Supp. 3d 304 (D. Mass. 2021), appeal

dismissed, 43 F.4th 187 (1st Cir. 2022); Messina v. Coll. of

N.J., 566 F. Supp. 3d 236 (D.N.J. 2021); Pavlock v. Perman,

No. RDB-21-2376, 2022 WL 3975177 (D. Md. Sept. 1, 2022);

George v. Grossmont Cuyamaca Cmty. Coll. Dist. Bd. of

Governors, No. 22-cv-0424-BAS-DDL, 2022 WL 16722357

(S.D. Cal. Nov. 4, 2022).

5

and limiting large gatherings.3 New Jersey was one of them:

On March 21, 2020, Governor Murphy issued Executive Order

No. 107, which directed “[a]ll New Jersey residents [to] remain

at home” except for certain exigencies. JA 284. The order

closed most businesses, cancelled social gatherings, and

required “[a]ll institutions of higher education,” including

Rutgers, to “cease in-person instruction.” Id. But New Jersey,

like most of the country, began a slow return to normalcy in

spring 2021, when two, then three, COVID-19 vaccines

received emergency use authorization and were made available

to the public.4

3

2020–2021 Executive Orders, The Council of State

Gov’ts, https://web.csg.org/covid19/executive-orders/ (last

visited December 19, 2023). Where we rely on information

beyond what the parties included in their filings, “that

information is publicly available on government websites and

therefore we take judicial notice of it.” Vanderklok v. United

States, 868 F.3d 189, 205 n.16 (3d Cir. 2017); see also Kos

Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 705 n.5 (3d Cir.

2004) (same). This includes materials available on the website

of Rutgers, which, as an instrumentality of the State of New

Jersey for regulatory purposes, see San Filippo v. Bongiovanni,

961 F.2d 1125, 1134 n.12 (3d Cir. 1992); Fine v. Rutgers, 750

A.2d 68, 71-72 (N.J. 2000), is subject to public records laws,

see Sussex Commons Assocs., LLC v. Rutgers, 46 A.3d 536,

544 (N.J. 2012); N.J.S.A. 47:1A-1.1 (defining “Government

record” and “Public agency”).

4

Emergency Use Authorization–Archived Information,

Food and Drug Administration,

https://www.fda.gov/emergency-preparedness-and-

response/mcm-legal-regulatory-and-policy-

6

One year into the pandemic, Rutgers announced that it

would resume in-person learning for the fall 2021 semester,

and on April 13, 2021, it issued the first iteration of its COVID-

19 vaccination policy (the “Policy”).5 Consistent with

Rutgers’ decision to prioritize student health, the initial goal of

the Policy was “[t]o minimize outbreaks of COVID-19 among

students,”6 and by the fall, Rutgers had expanded that goal “[t]o

minimize outbreaks of COVID-19 in the Rutgers University

community” at large. JA 350. Thus, the April 2021 Policy

required students, as a condition of in-person campus access,

to be vaccinated before the start of the new school year. Two

months later, in June 2021, Rutgers extended the Policy to

“health care personnel and all Rutgers University public safety

personnel at all locations,”7 and by October 2021, tracking

framework/emergency-use-authorization-archived-

information#H1N1 (last updated December 15, 2023).

5

Interim COVID-19 Immunization Record

Requirement for Students at 1, Children’s Health Defense, Inc.

et al v. Rutgers et al, 3:21-cv-15333-ZNQ-TJB (Aug. 30,

2021), ECF No. 10-3, (hereinafter “ECF No. 10-3”). In full,

the “Reason for Policy” in April 2021 read: “[t]o minimize

outbreaks of COVID-19 among students; to prevent or reduce

the risk of transmission of COVID-19 among all persons at

Rutgers University and Rutgers-affiliated health care units; and

to promote the public health of the community consistent with

federal, State, and local efforts to stem the pandemic.”

6

Id.

7

Antonio M. Calcado, Guide to Returning to Rutgers–

Update 7/28/21, Rutgers (July 28, 2021),

https://coronavirus.rutgers.edu/guide-to-returning-to-rutgers-

7

President Biden’s Executive Order,8 it had expanded the in-

person vaccine requirement to the remainder of its population,

i.e., all staff and faculty.9

The student policy included three exemptions: (1)

students enrolled in fully online degree-granting programs;10

(2) students with a documented medical contraindication to the

COVID-19 vaccination; and (3) students with a conflicting

bona fide religious belief or practice.11 Exempt students,

however, were subject to certain restrictions, including that

they were excluded from university housing, required to test

update-7-28-21/; Section 100.3.1, Immunization Policy for

Covered Individuals, Rutgers (Jun. 21, 2021),

https://web.archive.org/web/20210628160715/https://policies.

rutgers.edu/sites/default/files/100-3-1-current.pdf.

8

See Antonio M. Calcado, President Biden’s Executive

Order Requiring Coronavirus Vaccines, Rutgers (Oct. 25,

2021), https://coronavirus.rutgers.edu/president-bidens-

executive-order-requiring-coronavirus-vaccines/.

9

Id.

10

The Policy specified: “Students enrolled in those

programs generally do not receive Rutgers student

identification, are not given access to Rutgers campus

resources, and are not expected to have any physical presence

on campus during the course of their pursuit of a Rutgers

degree.” JA 351. In contrast, “[m]atriculated students who

select courses denoted as ‘remote,’ but who are not enrolled in

a fully online degree-granting program, are not exempt.” Id.

11

Per the Policy, “[a] general philosophical or moral

objection to immunization shall not suffice[.]” JA 352.

8

weekly, and in addition to the indoor mask requirement,

required to mask in congregate settings.12 As the Policy was

informally announced in March 2021, students had

approximately six months to seek exemptions on health or

religious grounds, take classes at a different university, change

their status at Rutgers to fully remote,13 or, for students who

required a particular in-person-only course to graduate, to take

that class over the summer before the Policy came into effect.

Appellants objected to the Policy and filed a complaint

against Rutgers in the District of New Jersey in August 2021.14

Twelve of the thirteen Students had applied for and received

medical or religious exemptions. JA 165. The remaining

student, Adriana Pinto, also “struggled with her health” but

opted not to seek a medical exemption. JA 138. While one of

the remaining classes that Pinto needed to graduate allegedly

was an in-person-only course, she opted not to take it over the

summer before the vaccine requirement became effective and

instead became a plaintiff in this action.15 See JA 139-40.

12

The masking requirements have since been lifted.

13

As set forth above, students enrolled in one of

Rutgers’ online degree-granting programs had no access to

Rutgers’ campuses and were, therefore, considered to be “fully

remote.” See supra note 10. A student enrolled in the regular

program, in contrast, retained access to campus even if that

student’s professors opted to hold their classes remotely.

14

The Operative Complaint (“the Complaint”) is the

First Amended Complaint, filed on October 19, 2021.

15

See also JA 95; Decl. of Adriana Pinto, Children’s

Health Defense, Inc. v. Rutgers et al, 3:21-cv-15333-ZNQ-TJB

(Sep. 20, 2021), ECF No. 24-11 at 2.

9

The Students’ Complaint broadly alleged that “[a]ll

available vaccines in the United States are emergency-

authorized COVID-19 vaccines made by Pfizer, Moderna and

Johnson & Johnson. They are not FDA approved, and are not

proven safe and effective.” JA 194. It also alleged: “Rutgers

has been involved in the clinical trials for all three COVID

vaccines—those of Pfizer, Moderna, and Johnson & Johnson,”

and, although it does not explain how, it asserts Rutgers “will

gain financially from universal mandates for the vaccines it has

helped to develop.” JA 157. The upshot, according to the

Complaint, was that:

As a result of its financial ties to COVID-19

vaccine manufacturers, its involvement in

clinical trials for all of the currently available

COVID-19 vaccines, and its stake in the

approval and widespread dissemination and use

of COVID-19 vaccines, [Rutgers is] conflicted

from making any objective decision or imposing

any mandate concerning the administration of

COVID-19 vaccines upon its students.

JA 206. Based on these allegations, the Complaint asserted

seven claims, three of which have been abandoned on appeal.16

The four remaining claims, for which the Students sought

damages as well as injunctive relief,17 are: (1) preemption

16

The abandoned claims are for violations of the First

Amendment’s Free Exercise Clause, breach of contract, and

promissory estoppel.

17

Although the pandemic has largely subsided,

rendering claims for injunctive relief moot in a number of

10

under the federal Emergency Use Authorization (“EUA”)

statute, 21 U.S.C. § 360bbb-3; (2) lack of authorization under

New Jersey law; (3) violation of substantive due process under

the Fourteenth Amendment; and (4) violation of equal

protection under the Fourteenth Amendment for the unequal

treatment of (a) staff and students, as only the latter were

initially required to vaccinate; and (b) vaccinated and

unvaccinated students (including unvaccinated students with

“natural immunity” from having had COVID-19).

The District Court granted Rutgers’ motion to dismiss,

brought under Federal Rule of Civil Procedure 12(b)(6),

concluding that none of the claims pleaded stated a viable

cause of action. At the outset, the District Court found that all

Students, other than Pinto and CHD, lacked standing and that

their claims were moot, because they were exempt from

Rutgers’ vaccine requirement. It then considered the Students’

constitutional claims, first recognizing that the Supreme

Court’s seminal decision in Jacobson v. Massachusetts, 197

U.S. 11 (1905) permitted a state to require its residents to be

vaccinated, even without exemptions, if a rational basis exists

to determine that such a step is necessary to mitigate a public

health emergency. Because the District Court found Rutgers

“undoubtedly has a legitimate interest” in enforcing its Policy

to curb the spread of the COVID-19 pandemic, JA 18, it

COVID-19 related appeals, see, e.g., Sczesny v. Murphy, No.

22-2230, 2023 WL 4402426, at *1 (3d Cir. June 14, 2023);

Clark v. Governor of N.J., 53 F.4th 769, 781 (3d Cir. 2022);

County of Butler v. Governor of Pa., 8 F.4th 226, 232 (3d Cir.

2021), the Students’ request for damages in this case ensures

that we have a live controversy, see Bd. of Pardons v. Allen,

482 U.S. 369, 370 n.1 (1987).

11

dismissed the Students’ substantive due process and equal

protection claims. And because Rutgers had required staff to

be vaccinated a few months after it imposed that requirement

on students, the District Court dismissed as moot their equal

protection claim concerning the disparate treatment of students

and staff.

As to the Students’ preemption claim, the District Court

rejected the argument that federal law preempted Rutgers’

Policy, in part because “Rutgers has not mandated any medical

products” in violation of 21 U.S.C. § 360bbb-3, but rather “has

simply made adherence to the mandate a condition to []

enrollment at the university.” JA 26. Finally, the District

Court concluded that Rutgers’ Policy was not ultra vires under

state law because the university was authorized to require

COVID-19 vaccinations under N.J.S.A. § 18A:61D-1 and N.J.

Admin. Code § 8:57-6.4(c), and to exclude exempted students

from university housing under N.J. Admin. Code §§ 8:57-

6.14(d), 6.15(c).

II. Jurisdiction and Standard of Review

The District Court had jurisdiction over the Students’

federal claims under 28 U.S.C. § 1331 and related state law

claims under 28 U.S.C. § 1367(a). We have appellate

jurisdiction under 28 U.S.C. § 1291.

We review a district court’s ruling on a motion to

dismiss de novo. Doe v. Univ. of the Scis., 961 F.3d 203, 208

(3d Cir. 2020). In conducting that review, we construe the

complaint in the light most favorable to the plaintiff, accept all

“well-pleaded factual allegations” as true, and examine

whether the complaint contains “sufficient factual matter,

12

accepted as true, to state a claim for relief that is plausible on

its face.” Iqbal, 556 U.S. at 678-79 (internal quotation

omitted). We need not accept as true legal conclusions or

unwarranted factual inferences. Curay-Cramer v. Ursuline

Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir.

2006) (citation omitted).

III. Discussion

Because Article III standing is a prerequisite for our

jurisdiction, we will address the question of the exempt

Students’ standing before turning to the merits of the Students’

four claims.

A. Standing

Article III of the Constitution requires that a plaintiff

establish standing to sue in federal court. TransUnion LLC v.

Ramirez, 141 S. Ct. 2190, 2203 (2021). A plaintiff meets that

burden by showing “(i) that [the plaintiff] suffered an injury in

fact that is concrete, particularized, and actual or imminent; (ii)

that the injury was likely caused by the defendant; and (iii) that

the injury would likely be redressed by judicial relief.” Id.

(citation omitted). When multiple plaintiffs sue, at least one

plaintiff must have standing to assert each claim. Horne v.

Flores, 557 U.S. 433, 445 (2009) (citations omitted).

Here, it is beyond dispute that at least two of the

Appellants have standing to challenge Rutgers’ vaccine

requirement: (1) Adriana Pinto, the Rutgers student who did

not request or receive an exemption—and who, per Rutgers’

Policy, has been disenrolled from her classes; and (2) CHD

itself, whose standing mirrors that of Pinto (a member).

13

It is a closer question whether the exempt students have

standing to challenge Rutgers’ exclusion of unvaccinated

students from university housing and other exemption

conditions. If we read the Students’ Complaint to allege no

injury beyond “their fear of future potential harm,” we might

agree that they have not suffered any actual or imminent injury.

JA 15. But other aspects of the Complaint can be read to allege

more concrete injuries fairly traceable to Rutgers’ Policy, like

the loss of student housing, which could be redressed by a

decision in the Students’ favor. See JA 232 (alleging that

denial of university housing is a condition of exemptions,

which can further subject students to “loss of scholarships,

Honors Program enrollments, athletics”); 173-74 (alleging that

“Doe 9 is incurring additional cost and expense to reside off-

campus as a result of Defendants’ actions”); 176 (same for Doe

13).18 Thus, we conclude that even the exempt students have

standing, and we may consider all of the Students’ claims.

B. Appellants’ Claims

Proceeding to the merits, we address below the

Students’ four claims on appeal.

18

The concepts of standing and mootness are “closely

related” because both deal with the Court’s ability to provide

redress. Because the exempt students here have a legally

cognizable interest in the outcome, and we could grant them

“effectual relief,” their claims are not moot. Calderon v.

Moore, 518 U.S. 149, 150 (1996).

14

1. Federal Preemption19

The Students first contend that Rutgers’ Policy conflicts

with “[t]he principle that it is illegal to coerce an individual to

accept an experimental medical product,” grounded in federal

law governing EUA products, namely 21 U.S.C. § 360bbb-3,

which requires “that individuals to whom the product is

administered are informed . . . of the option to accept or refuse

administration of the product.” Opening Br. 55, 57. But the

District Court correctly dismissed this claim for two reasons.

First, § 360bbb-3(e)(1)(A) obligates only the Secretary

of Health and Human Services to act, by establishing

“conditions designed to ensure” informed consent.20 Because

19

We assume for purposes of the appeal that the

Students have a private cause of action under § 360-bbb.

Rutgers does not contend otherwise, and the District Court did

not consider the issue. But see Merrell Dow Pharm., Inc. v.

Thompson, 478 U.S. 804, 817 (1986) (holding that private

actors have no federal cause of action for a violation of the

Federal Drug and Cosmetic Act); Bridges v. Houston

Methodist Hosp., 543 F. Supp. 3d 525, 527 (S.D. Tex. 2021)

(holding that § 360-bbb “does not confer a private opportunity

to sue the government, employer, or worker”), aff’d sub nom.

Bridges v. Methodist Hosp., No. 21-20311, 2022 WL 2116213

(5th Cir. June 13, 2022); Crosby v. Austin, No. 8:21-cv-2730,

2022 WL 603784, at *1 (M.D. Fla. March 1, 2022) (no right of

action under 21 U.S.C. § 360bbb-3); Norris v. Stanley, No.

1:21-cv-756, 2022 WL 247507, at *5 (W.D. Mich. Jan. 21,

2022) (same).

20

As the Students acknowledge, the Secretary enforces

these requirements by requiring healthcare providers to

15

Section 360bbb-3(e)(1)(A) does not impose any obligations on

state universities, it cannot conflict with Rutgers’ Policy.

Second, the Students were not deprived of the right “to

accept or refuse” the vaccine. In fact, all but one Student

exercised their right to refuse and remain unvaccinated.

Rutgers’ Policy simply provided the Students with three

options: get the vaccine, apply for an exemption, or pursue

education elsewhere (i.e., in a remote Rutgers program or at

another university). That choice may have been difficult. But

there is no unqualified right to decide whether to “accept or

refuse” an EUA product without consequence.21 To the

contrary, being advised of the consequences is precisely what

§ 360bbb-3(e)(1)(A)(ii)(III) requires, providing explicitly that

the recipient of an EUA product shall be informed “of the

consequences, if any, of refusing administration of the

product.” Nor is there an unqualified right to attend a

university, let alone the university of one’s choice, without

distribute to potential vaccine recipients an authorized fact

sheet which states: “[i]t is your choice to receive or not receive

[the vaccine].” JA 187; accord Norris, 73 F.4th at 438 (“The

EUA statute’s relevant language . . . addresses the interaction

between the medical provider and the person receiving the

vaccine . . . . ”).

21

Accord Norris, 73 F.4th at 438 (“The statute is meant

to ensure patients’ consent to the pharmaceutical they are

receiving, but this does not mean that MSU cannot require

vaccination as a term of employment.”); Johnson v. Brown,

567 F. Supp. 3d 1230, 1256-57 (D. Or. 2021) (Plaintiffs had

informed consent where they retained the option to “get the

vaccine, apply for an exception, or look for employment

elsewhere”).

16

conditions. See San Antonio Indep. Sch. Dist. v. Rodriguez,

411 U.S. 1, 37 (1973) (no fundamental right to education);

Kolbeck v. Kramer, 202 A.2d 889, 889-90 (N.J. Super. Ct.

Law. Div. 1964) (recognizing vaccination as a permissible

condition of university admittance, with accordance for

religious exemptions).

We will therefore affirm the dismissal of the Students’

preemption claim.

2. State Law Authorization

Next, the Students assert that Rutgers’ Policy is ultra

vires under New Jersey law. Though a “state university” of

New Jersey, N.J.S.A. 18A:65-1, Rutgers has aspects of both a

private and public institution.22 Thus, while it is not a state

actor for Eleventh Amendment purposes, see Kovats v.

Rutgers, 822 F.2d 1303, 1312 (3d Cir. 1987), it is still

considered a government instrumentality for purposes of

constitutional and federal civil rights law, San Filippo, 961

F.2d at 1134 n.12. As the New Jersey Supreme Court

explained, unless Rutgers’ “public status”—and, therefore, the

applicability of a state law or rule to the university—would

“frustrate the purposes of Rutgers’ charter or the primary

22

Nothing we say here limits the authority of private

universities to require vaccines as a condition of attendance or

participation, within the bounds of any applicable statutory

limitations. See, e.g., Bishop v. Univ. of Scranton, No. 3:22-

CV-01831, 2023 WL 4565468, at *3-5 (M.D. Pa. July 17,

2023); Storino v. N.Y. Univ., 146 N.Y.S.3d 594, 596 (N.Y.

App. Div. 2021); Doe v. N.Y. Univ., 537 F.Supp.3d 483, 494-

496 (S.D.N.Y. 2021).

17

purpose of the underlying law or [r]ule, Rutgers ordinarily

should be considered an instrumentality of the state.” Fine,

750 A.2d at 71-72 (citations omitted).

In this case, pointing to particular state statutes and

rules, Appellants contend that Rutgers lacks authority either (i)

to require COVID-19 vaccination as a condition of attendance;

or (ii) to exclude unvaccinated students from university

housing. Yet both claims fail as a matter of law.

As for the first, Rutgers’ authority to require COVID-

19 vaccination is found in the interplay between N.J.S.A. §

18A:61D-1 and N.J. Admin. Code § 8:57-6.4. The former

obligates state universities to require students to provide proof

of certain mandatory vaccinations in accordance with New

Jersey Department of Health regulations. See N.J.S.A. §

18A:61D-1. The latter, N.J. Admin. Code § 8:57-6.4, is the

implementing regulation that authorizes state universities “to

establish additional requirements for student immunizations

and documentation that [they] shall determine appropriate,” if,

as here, the vaccines are “recommended by the ACIP”—the

Advisory Committee on Immunization Practices within the

CDC. See COVID-19 ACIP Vaccine Recommendation,

Centers for Disease Control and Prevention,

https://bit.ly/3x7u7ee (recommending all COVID-19 vaccines

with emergency use authorization).

The Students retort that “[t]he ACIP recommendations

. . . require compliance with 21 U.S.C. § 360bbb-

3(e)(1)(A)(ii)(III).” Opening Br. 34. But even aside from the

fact that the Students have not demonstrated a violation of §

360bbb-3(e)(1)(A), this response misses the mark. N.J.

Admin. Code § 8:57-6.4 authorizes Rutgers to require any

18

immunization that, as here, has been recommended by ACIP.

That statutory authority does not depend on whether ACIP

should have recommended the immunization or whether the

HHS Secretary adequately ensured that medical providers

obtain informed consent.

The Students’ second claim—that Rutgers lacks

authority to exclude exempt students from university

housing—is debunked by longstanding historical practice, for

schools have long required vaccination as a prerequisite for in-

person attendance. See Jacobson, 197 U.S. at 25, 31-33

(“[T]he principle of vaccination as a means to prevent the

spread of smallpox has been enforced in many states by

statutes making the vaccination of children a condition of their

right to enter or remain in public schools.”) (citations omitted);

Kolbeck, 202 A.2d at 889-90 (recognizing vaccination as a

permissible condition of university admittance, with

accordance for religious exemptions). Consistent with that

practice, Rutgers’ general vaccination policy required students

to provide proof of certain vaccinations as a condition of

attendance, “subject to amendment,”23 and while that policy

provided for medical and religious exemptions, it also alerted

23

See Section 10.3.13, Student Immunizations and

Health Requirements, Rutgers (Dec. 3, 2020),

https://policies.rutgers.edu/sites/default/files/10-3-13-

current.pdf (hyperlinked in Rutgers’ April 13, 2021 student

vaccination policy, available at Children’s Health Defense,

Inc. et al v. Rutgers et al, 3:21-cv-15333-ZNQ-TJB (Aug. 30,

2021), ECF No. 10-3) (hereinafter “Rutgers’ Student

Immunization Policy”).

19

unvaccinated students that they may be removed from campus

in case of a disease outbreak.24

Even aside from the terms to which the students agreed

on as a condition of matriculation, N.J. Admin. Code §§ 8:57-

6.14(d) and 6.15(c) provided Rutgers with statutory authority

to “temporarily exclude a student with [medical or religious]

exemptions . . . from classes and from participating in

institution-sponsored activities” during outbreaks after a

consultation with the Commissioner of Health.

In view of Rutgers’ explicit statutory authority to take

the actions it did, we perceive no error in the District Court’s

dismissal of the claim that the Policy was ultra vires under state

law.

3. Substantive Due Process

The Students next allege that Rutgers’ Policy violated

their substantive due process rights under the Fourteenth

Amendment. In reviewing such claims, we apply rational basis

review unless there has been a violation of a fundamental right.

See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228,

2283 (2022). Seeing none, we review the Policy for a rational

basis and conclude that it satisfies this standard.

24

Id.

20

i. Fundamental Right to Refuse

Vaccination and Rational Basis

Review

As federal courts have uniformly held, there is no

fundamental right to refuse vaccination.25 A “fundamental

right” must be either enumerated in the Bill of Rights or

“deeply rooted in this Nation’s history and tradition, and

implicit in the concept of ordered liberty.” Washington v.

Glucksberg, 521 U.S. 702, 720-21 (1997) (quotations and

citations omitted). The Students fail to offer any historical

example to establish a “fundamental right” to be free from a

vaccine requirement at a public university. To the contrary, the

Supreme Court’s decision in Jacobson, which sustained a

25

See, e.g., Klaassen, 7 F.4th at 593; Lukaszczyk v.

Cook County, 47 F.4th 587, 603 (7th Cir. 2022); Kheriaty,

2022 WL 17175070, at *1; Clark v. Jackson, No. 22-5553,

2023 WL 2787325, at *6 (6th Cir. Apr. 5, 2023); We The

Patriots USA, Inc. v. Hochul, 17 F.4th 266, 293 (2d Cir. 2021);

Bauer v. Summey, 568 F. Supp. 3d 573, 592-93 (D.S.C. 2021);

Dixon v. De Blasio, 566 F. Supp. 3d 171, 185 (E.D.N.Y. 2021),

vacated as moot, No. 21-2666, 2022 WL 961191, at *1 (2d Cir.

Mar. 28, 2022); Harris, 557 F. Supp. 3d at 313; Norris v.

Stanley, 567 F. Supp. 3d 818, 821 (W.D. Mich. 2021); Valdez

v. Grisham, 559 F. Supp. 3d 1161, 1173 (D.N.M. 2021);

Williams v. Brown, 567 F. Supp. 3d 1213, 1224-25 (D. Or.

2021).

21

criminal conviction for refusing to be vaccinated, conclusively

demonstrates that there is no such right. 197 U.S. 11.

In Jacobson, the Supreme Court considered the

constitutionality of a Massachusetts statute authorizing “the

board of health of a city or town” to require all persons older

than 21 to be vaccinated against smallpox. Id. at 12. In

response to the state law, the city of Cambridge adopted a

regulation requiring that all city inhabitants be vaccinated. Id.

at 12-13. Jacobson did not comply with the mandate, was

criminally prosecuted, was sentenced to pay a fine, and was

ordered to “stand committed until the fine was paid.” Id. at 13-

14. He appealed, claiming the Massachusetts law authorizing

the local mandate violated his constitutional rights under the

Fourteenth Amendment. Id. at 14.

The Supreme Court upheld the statute, and in so doing,

rejected the notion that individuals have a fundamental or

unfettered right to refuse vaccination. As it explained, 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. Instead,

the Court recognized, “[t]here are manifold restraints to which

every person is necessarily subject for the common good,” id.,

including a community’s “right to protect itself against an

epidemic of disease which threatens the safety of its members,”

id. at 27.

Finding no fundamental right, Jacobson applied a

standard similar to modern rational basis review, stating that it

would overturn “statute[s] purporting to have been enacted to

protect the public health . . . or the public safety” only if they

lacked any “real or substantial relation to those objects, or

22

[were], beyond all question, a plain, palpable invasion of rights

secured by the fundamental law.” Id. at 31; see Roman Cath.

Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 70 (2020)

(Gorsuch, J., concurring) (“Although Jacobson pre-dated the

modern tiers of scrutiny, this Court essentially applied rational

basis review.”).

Appellants’ attempts to distinguish Jacobson on the

basis that it involved a “nearly 100-year old smallpox vaccine

and a $5 fine” are unpersuasive. Opening Br. 44. While the

Students allege that “so much remains unknown” about

COVID-19 vaccines, JA 208, which, at the time of the

Complaint, were in public use “for less than a year,” id. at 207,

Jacobson did not turn on the longevity of the vaccine or

consensus regarding its efficacy. To the contrary, the Court

recognized:

The fact that the belief [in effectiveness] is not

universal is not controlling, for there is scarcely

any belief that is accepted by everyone. The

possibility that the belief may be wrong, and that

science may yet show it to be wrong, is not

conclusive; for the legislature has the right to

pass laws which, according to the common belief

of the people, are adapted to prevent the spread

of contagious diseases.

197 U.S. at 35. And the penalties for non-compliance in

Jacobson were more, not less, severe than those at issue here:

23

The city ordinance authorized criminal prosecution and

imprisonment for up to fifteen days.26 Id. at 13.

Nevertheless, the Students assert a right “to refuse

unwanted medical treatment” based on cases they say

supersede Jacobson. Opening Br. 4. For instance, they point

to Cruzan v. Director, Missouri Department of Health, 497

U.S. 261 (1990), which recognized “the right of a competent

individual to refuse medical treatment,” id. at 277, in a case

involving a request to refuse life support following a serious

car accident, and Washington v. Glucksberg, 521 U.S. 702, 720

(1997), which acknowledged a right to “bodily integrity.”27

These cases, however, are categorically distinct. In

stark contrast to Jacobson and its progeny, they involved

health decisions with consequences for only the individual

involved, rather than broad-based matters of “public health and

safety.” 197 U.S. at 12. For that reason, the Supreme Court

did not even have occasion to reference Jacobson in

26

See Michael R. Albert et al., The Last Smallpox

Epidemic in Boston and the Vaccination Controversy, 1901-

1903, 344 NEW ENG. J. MED. 375, 375 (2001).

27

To be sure, the Court in Glucksberg declined to

recognize a fundamental right to physician-assisted suicide.

Id. at 728. It observed that in Cruzan, it “assumed, and strongly

suggested, that the Due Process Clause protects the traditional

right to refuse unwanted lifesaving medical treatment.” Id. at

720. But, it continued, “[t]he right assumed in Cruzan [] was .

. . entirely consistent with this Nation’s history and

constitutional traditions,” id. at 725, whereas there was no

history supporting a fundamental right to assisted suicide,

which had long been banned in the United States, id. at 728.

24

Glucksberg, and in Cruzan, the Court explained Jacobson as a

case where “an individual’s liberty interest in declining an

unwanted smallpox vaccine” was outweighed by “the State’s

interest in preventing disease.” 497 U.S. at 278.

The Court’s more recent pronouncements confirm

Jacobson’s vitality. Just last term, the Supreme Court declined

to recognize a substantive due process right against substantial

and lengthy intrusions on a person’s right to control her body

where even one “life or potential life” is at risk. See Dobbs,

142 S. Ct. at 2277 (citation omitted). Surely, then, it would not

now recognize a fundamental right to avoid the “relatively

modest” intrusion of a vaccine, Roman Cath. Diocese of

Brooklyn, 141 S. Ct. at 71 (Gorsuch, J., concurring), where

innumerable lives are at risk. To the contrary, in the last three

years alone, the Supreme Court has cited Jacobson five

times,28 and the federal appellate courts, for their part, have

uniformly relied on Jacobson in dismissing challenges to

vaccination requirements.29

28

See Chrysafis v. Marks, 141 S. Ct. 2482, 2484 (2021)

(Breyer, J., dissenting); Roman Cath. Diocese of Brooklyn, 141

S. Ct. at 70-71 (Gorsuch, J., concurring); id. at 75-76 (Roberts,

C.J., dissenting); Food & Drug Admin. v. Am. Coll. of

Obstetricians & Gynecologists, 141 S. Ct. 10, 11-12 (2020)

(Alito, J., dissenting); Calvary Chapel Dayton Valley v.

Sisolak, 140 S. Ct. 2603, 2608 (2020) (Alito, J., dissenting); id.

at 2614 (Kavanaugh, J., dissenting); South Bay United

Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613-14

(2020) (Roberts, C.J., concurring).

29

See Lukaszczyk, 47 F.4th at 601; Klaassen, 7 F.4th at

593; Clark, 2023 WL 2787325, at *5-6; We The Patriots USA,

25

Our conclusion that Jacobson controls and the Students

failed to state a substantive due process claim also resolves

their claim under the unconstitutional conditions doctrine. To

establish an unconstitutional condition, the Students needed to

demonstrate that a state actor—here, Rutgers—“burden[ed] the

Constitution’s enumerated rights by coercively withholding

benefits from those who exercise them.” Koontz v. St. Johns

River Water Mgmt. Dist., 570 U.S. 595, 606 (2013). But there

is no constitutional right either to refuse vaccination, Jacobson,

197 U.S. at 31, or to receive a public higher education, San

Antonio Indep. Sch. Dist., 411 U.S. at 35; cf. N.J. Const. art.

VIII, § 4, para. 1 (requiring “thorough and efficient” education

only for children ages 5 through 18). Thus, we join other courts

in holding that, even viewing higher education as a government

benefit, requiring vaccination as a condition of in-person

matriculation is not an unconstitutional condition.30

Inc., 17 F.4th at 293-94; Norris, 73 F.4th at 435-38; Phillips v.

City of New York, 775 F.3d 538, 542-43 (2d Cir. 2015).

30

See Andre-Rodney v. Hochul, 618 F. Supp. 3d 72, 84

(N.D.N.Y. 2022) (state employees “failed to plausibly allege a

constitutional violation based on the unconstitutional

conditions doctrine” because there is no fundamental right to

refuse vaccination during a public health emergency);

Legaretta v. Macias, 603 F. Supp. 3d 1050, 1071 (D.N.M.

2022) (because vaccine requirement does not violate

fundamental rights, county employees could not state a claim

for violation of the unconstitutional conditions doctrine);

Klaassen v. Trs. of Ind. Univ., 549 F. Supp. 3d 836, 870 (N.D.

Ind. 2021) (“[T]he Constitution never provides a fundamental

right to a collegiate education. Nor does it secure as a

fundamental liberty a student’s right to attend a public

26

In short, there is no fundamental right to refuse

vaccination, nor any unconstitutional condition implicated

here. Accordingly, we apply rational basis review to Rutgers’

Policy as did the Court in Jacobson and as we have done

traditionally with the policies of other universities. See, e.g.,

Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d

435, 447 n.6 (3d Cir. 2000); Bowers v. Nat’l Collegiate Athletic

Ass’n, 475 F.3d 524, 553-54 (3d Cir. 2007); Benner v. Oswald,

592 F.2d 174, 183-84 (3d Cir. 1979).

ii. Rutgers’ Policy and Rational Basis

Review

Under rational basis review, Rutgers need only “set

forth a satisfactory, rational explanation” for its Policy.

Nazareth Hosp. v. Sec’y U.S. Dep’t of Health & Hum. Servs.,

747 F.3d 172, 180 (3d Cir. 2014). Curbing the spread of

COVID-19 is “unquestionably a compelling interest.” Roman

Cath. Diocese of Brooklyn, 141 S. Ct. at 67. So, a fortiori,

Rutgers’ stated purpose—“to minimize outbreaks of COVID-

19 among students; to prevent or reduce the risk of

transmission of COVID-19 among all persons at Rutgers

university no matter his or her vaccinated status.”), vacated

and remanded with instructions to dismiss as moot, 24 F.4th

638 (7th Cir. 2022); Smith v. Biden, No. 21-cv-19457, 2021

WL 5195688, at *8 (D.N.J. Nov. 8, 2021) (“Plaintiffs are

undeniably being presented with a difficult choice—comply

with the vaccine mandate or risk losing their employment.

They are, however, presented with a choice and are not being

coerced to give up a fundamental right since there is no

fundamental right to refuse vaccination.”).

27

University and Rutgers-affiliated health care units; and to

promote the public health of the community consistent with

federal, State and local efforts to stem the pandemic”—is

undoubtedly rational.31 It is also grounded in the

recommendations of experts, including at the CDC and FDA,

which only authorized the vaccines for emergency use after

determining “based on the totality of scientific evidence

available . . . the known and potential benefits of the [vaccines]

. . . outweigh the known and potential risks.” 21 U.S.C. §

360bbb-3(c)(2)(B).

The Students acknowledge that at least one reason

Rutgers adopted its vaccine Policy was to minimize the spread

of COVID-19 among students, consistent with public health

efforts. But they allege there was a second motive: that Rutgers

“also adopted the Policy to curry favor with vaccine

manufacturers with which they have partnered to investigate

and develop COVID-19 vaccines.” Id. (emphasis added).

Because Rutgers was a clinical trial site for COVID-19 vaccine

testing and had other existing relationships with

pharmaceuticals, they contend, it was “conflicted from making

any objective decision or imposing any mandate concerning

the administration of COVID-19 vaccines upon its students,”

id. at 206, and “will gain financially if every man, woman and

child in the state, the country and globally is coerced to take a

COVID-19 vaccine it helped develop,” id. at 207.

These allegations do not alter our conclusion that

Rutgers’ Policy is rational for three reasons. First, even

assuming that Rutgers also had a secondary financial incentive

to require vaccines for on-campus access, its other incentive—

31

ECF No. 10-3 at 1.

28

protecting the health of its student body—is “unquestionably a

compelling interest,” Roman Cath. Diocese of Brooklyn, 141

S. Ct. at 67, and thus more than sufficient to satisfy rational

basis review.

Second, Rutgers’ “objectivity . . . to decide that

emergency-use authorized COVID-19 vaccines are safe

enough” and that the “benefits of these vaccines outweigh their

risks” is irrelevant. JA 201. The decision as to the “safety and

potential effectiveness” of the vaccines and that “the[ir] known

and potential benefits . . . outweigh the[ir] known and potential

risks,” was made not by Rutgers but by the CDC, which made

those findings as a precondition for emergency use

authorization. See 21 U.S.C. § 360bbb-3(c)(2)(B).32 What

matters for rational basis review is that the CDC’s objective,

scientific judgment about the safety and relative benefits of the

vaccines established the requisite nexus between vaccination

and Rutgers’ “compelling interest” in curbing the spread of

COVID-19. Roman Cath. Diocese of Brooklyn, 141 S. Ct. at

67.33

32

Under the EUA statute, 21 U.S.C. § 360bbb-

3(c)(2)(B), the HHS Secretary may authorize a product for

emergency use only if, after consultation with the Director of

the CDC, among others, the Secretary concludes that “the

known and potential benefits of the product . . . outweigh the

known and potential risks.” The authorization of the product

must state the Secretary’s conclusions “concerning the safety

and potential effectiveness of the product[.]” Id. § 360bbb-

3(d)(3).

33

As the Students candidly admitted at oral argument,

the crux of their Complaint is not that Rutgers lacked a rational

basis for following the CDC’s recommendation, but that the

29

Lastly, as Rutgers pointed out in its motion to dismiss,

the assertion that, by virtue of participating in clinical trials or

its other ties with pharmaceutical companies, Rutgers had

some “stake in the approval and widespread dissemination and

use of COVID-19 vaccines,” JA 206, is the sort of “conclusory

or ‘bare-bones’ allegation[] [that] will no[t] [] survive a motion

to dismiss,” Fowler v. UPMC Shadyside, 578 F.3d 203, 210

(3d Cir. 2009) (quoting Iqbal, 556 U.S. at 678). The Complaint

identifies nothing but “information and belief” for the

proposition that allowing Johnson & Johnson or Pfizer to

conduct clinical trials on site somehow gave Rutgers an interest

in the outcomes of those trials or the eventual decision of the

FDA. JA 206-07. Neither do its allegations of a prior Pfizer

grant to the School of Engineering or a fellowship program that

the pharmaceutical industry had been funding, id. at 205-06—

without more—support the inference that Rutgers would gain

financially from “every man, woman and child . . . globally

[being] coerced to take a COVID-19 vaccine,” id. at 207. The

Students hypothesize that linkage, but that is not “enough to

raise a right to relief above [a] speculative level.” Twombly,

550 U.S. at 555; see also Xi v. Haugen, 68 F.4th 824, 841 (3d

Cir. 2023) (“We may not fill this gap in [their] pleading with

speculation.”).34

CDC’s recommendation itself lacked a rational basis and that

the Students should therefore have “the opportunity to take this

case to discovery . . . to assess the statement of the CDC and

test it.” Oral Arg. Tr. 49:15-18.

34

It is not clear from the Students’ briefing whether they

intend to pursue an independent claim for Rutgers’ masking

and testing requirements or if they challenge those

requirements only as part of their claim for disparate treatment

30

4. Equal Protection

In the third count of their Complaint, the Students

claimed that Rutgers denied them equal protection of the law

by discriminating against (1) students relative to faculty and

staff, and (2) vaccinated students relative to unvaccinated

students (including “naturally immune” students). We

consider whether the first of these arguments is moot, the

proper standard of review, and, finally, the merits of the

Students’ equal protection claim.

i. Mootness

By the time the District Court ruled on Rutgers’ motion

to dismiss, Rutgers had extended the in-person vaccination

requirement of its Policy to all of its employees pursuant to

President Biden’s Executive Order 14042.35 The District Court

under the Equal Protection Clause. To the extent they pursue

a freestanding claim, it is meritless. As federal courts have

routinely recognized, such challenges do not state

constitutional claims. See, e.g., Klaassen, 7 F.4th at 593

(“These plaintiffs just need to wear masks and be tested,

requirements that are not constitutionally problematic.”);

Pavlock, 2022 WL 3975177, at *4; George, 2022 WL

16722357, at *11–12; McArthur v. Brabrand, 610 F. Supp. 3d

822, 835 (E.D. Va. 2022). The Students’ equal protection

challenge is addressed below. See infra Section III.B.4.

35

See Antonio M. Calcado, President Biden’s Executive

Order Requiring Coronavirus Vaccines, Rutgers (Oct. 25,

2021), https://coronavirus.rutgers.edu/president-bidens-

executive-order-requiring-coronavirus-vaccines/.

31

thus dismissed this aspect of the Students’ equal protection

claim, reasoning that the Students “are now treated similarly to

[staff and faculty] with respect to the vaccination requirements

and the Court can no longer give meaningful relief.” JA 16.

But that was true only in part: The District Court could no

longer provide injunctive relief as to staff and faculty, but the

Complaint also sought general damages, and even nominal

monetary compensation qualifies as “effectual relief” for a

constitutional violation. Calderon, 518 U.S. at 150. So, to the

extent the Students seek monetary relief with regard to this

aspect of their equal protection claim, see infra note 40, the

District Court erred in holding that it was moot.

Although we disagree with the District Court’s

reasoning, “‘[w]e exercise plenary review of the District

Court’s dismissal of the [Complaint],’ and ‘may affirm on any

basis supported by the record, even if it departs from the

District Court’s rationale.’” Host Int’l v. Marketplace, PHL,

LLC, 32 F.4th 242, 247 n.3 (3d Cir. 2022) (second alteration in

original) (citations omitted); see also Guerra v. Consol. Rail

Corp., 936 F.3d 124, 135 (3d Cir. 2019) (concluding that

district court erred in dismissing the complaint for lack of

jurisdiction and affirming on alternative grounds); Int’l

Internship Program v. Napolitano, 718 F.3d 986, 988 n.2 (D.C.

Cir. 2013) (Kavanaugh, J.) (holding that district court erred in

declining to reach arguments on mootness grounds and

affirming on the merits). Here, as in the District Court, Rutgers

has argued that it had a rational basis for imposing the in-

person vaccine requirement on students before it extended that

requirement to its employees. We therefore proceed to

32

consider whether rational basis is the proper standard of review

and, if so, whether it has been satisfied here.36

ii. The Proper Standard of Review

The Equal Protection Clause provides that no State shall

“deny to any person within its jurisdiction the equal protection

of the laws.” U.S. Const. amend. XIV, § 1. But as we and the

Supreme Court have clarified, “[t]his is not a command that all

persons shall be treated alike but, rather, ‘a direction that all

persons similarly situated should be treated alike.’” Artway v.

Att’y Gen. of State of N.J., 81 F.3d 1235, 1267 (3d Cir. 1996)

(quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S.

432, 439 (1985)). So to bring a successful equal protection

36

The Dissent would remand for the District Court to

consider Rutgers’ other arguments for dismissing the Students’

equal protection claims. It is not apparent why the Dissent

would dismiss the Students’ ultra vires claim on the ground

that Rutgers may act “as could a private university,” Dissent 7,

but would treat the Students’ equal protection claim as if

Rutgers were a government actor. In any event, a Court of

Appeals “review[s] a district court’s ruling granting a motion

to dismiss de novo,” Hickey v. Univ. of Pittsburgh, 81 F.4th

301, 308 (3d Cir. 2023), so as long as an alternative ground for

dismissal was presented to the District Court, the Court of

Appeals may affirm on that basis, see Guerra, 936 F.3d at 135;

Beck Chevrolet Co. v. Gen. Motors LLC, 787 F.3d 663, 679-80

(2d Cir. 2015); Napolitano, 718 F.3d at 988 n.2; Moncrief Oil

Int’l v. OAO Gazprom, 481 F.3d 309, 311 (5th Cir. 2007);

Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964,

974 (7th Cir. 2001); In re Best Prods. Co. v. Resol. Trust Corp.,

68 F.3d 26, 30 (2d Cir. 1995).

33

claim, plaintiffs “must demonstrate that they received different

treatment from that received by other individuals similarly

situated.” Chambers ex rel. Chambers v. Sch. Dist. of Phila.

Bd. of Educ., 587 F.3d 176, 196 (3d Cir. 2009) (quotation

omitted). At the pleading stage, that means plaintiffs must

adequately allege that they are “alike ‘in all relevant respects,’”

Harvard v. Cesnalis, 973 F.3d 190, 205 (3d Cir. 2020) (quoting

Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)), and must offer

more than conclusory assertions, Twombly, 550 U.S. at 555;

Iqbal, 556 U.S. at 663.

The level of scrutiny applied also differs depending on

the nature of the classification at issue.37 In the normal course,

37

Our dissenting colleague would apply a heightened

form of rational basis review to executive, as opposed to

legislative, action that would not be satisfied by the state

offering a conceivable rational basis for its action or the court

hypothesizing the motivations of the state actor. Dissent 11-

13. Jacobson, however, did not turn on the legitimacy of

legislative action as opposed to executive action. The law in

Jacobson granted significant power and discretion to local

boards of health to determine how the mandate would be

enacted. Jacobson, 197 U.S. at 12, 27. The Court stated that

investing local, non-legislative bodies with “authority” over

matters of public health was not only “appropriate” but also not

“unusual” given “their fitness to determine such questions.”

Id. at 27; see also Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab.,

142 S. Ct. 661, 668 (2022) (Gorsuch, J. concurring) (noting

that “[h]istorically, such matters [as vaccine mandates] have

been regulated at the state level by authorities who enjoy

broader and more general governmental powers” in contrast to

federal agencies). That observation is no less true today: In

34

classifications need only survive rational basis review. See

City of Cleburne, 473 U.S. at 440. However, classifications

affecting either fundamental rights or involving a protected

class are subject to heightened scrutiny. Id. Unsurprisingly,

the Students attempt to argue they fall into one of those two

categories.

They do not. For the reasons explained above, the

Students’ claims do not involve a fundamental right. And

though they posit that they “invoke[d] their Due Process

rights,” Opening Br. 52, that argument conflates the

fundamental-rights and protected-class inquiries. The due

process right by which they seek to distinguish themselves is,

in any court, a meritless claim.38 See supra Section III.B.3.

Thus, we review only for rational basis.

times of crisis, agencies, governors, and local authorities may

often be best-positioned to respond to conditions on the

ground, a fact that state legislatures have recognized in

granting emergency powers. See, e.g., Emergency Health

Powers Act, N.J. Stat. Ann. §§ 26:13-1 to -31; Civilian Defense

and Disaster Control Act, N.J. Stat. Ann. app. A:9-30 to -63.

There is simply no general principle under which we apply a

more demanding rational basis review to non-legislative state

action than we do to legislative state action during pandemics.

38

Being unvaccinated or “naturally immune” to

COVID-19 also does not confer protected status, as courts have

uniformly held. See, e.g., Clark, 2023 WL 2787325, at *9

(holding, in COVID-19 vaccine mandate challenge, that

“naturally immune” persons are not a suspect or quasi-suspect

class); Norris, 567 F. Supp. 3d at 820-23 (same); Kheriaty,

2022 WL 1715070, at *1 (applying rational basis review to

35

iii. Adequacy of Pleadings Under the

Proper Standard

To ascertain whether Rutgers had a rational basis for

treating students differently from staff or vaccinated students

differently from unvaccinated students, we first assess whether

the Students met their burden to adequately allege that the

comparator groups were “similarly situated.” Here, again,

conclusory assertions are insufficient at the pleading stage.

Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 663. Only if the

comparator groups were indeed similarly situated do we then

consider whether it was nevertheless rational for Rutgers to

treat these groups differently.

a. Differential Treatment of Students and Staff

Appellants contend that Rutgers’ decision to impose the

in-person vaccine requirement on them as of August 2021, and

to only include health and safety personnel, and then all faculty

equal protection challenge to state university COVID-19

vaccine mandate); Does 1-6 v. Mills, 16 F.4th 20, 35 (1st Cir.

2021) (same, for state regulation requiring all workers in

licensed healthcare facilities to be vaccinated against COVID-

19); George, 2022 WL 16722357, at *10 (“Plaintiffs

acknowledge unvaccinated individuals do not constitute a

suspect class and, thus, their equal protection claim does not

trigger strict scrutiny.”); Williams, 567 F. Supp. 3d at 1228

(agreeing with “growing consensus” that “no fundamental

right or suspect classification is implicated by [COVID-19]

vaccine mandates and so rational basis review will apply”).

36

and staff in October 2021, violated the Equal Protection Clause

because staff and faculty were, in their view, “similarly

situated.” Opening Br. 52. But Appellants have failed to plead

how and why students and staff are similarly situated, let alone

to show that they were “alike ‘in all relevant respects,’”

Harvard, 973 F.3d at 205 (quoting Nordlinger, 505 U.S. at 10),

and that is fatal to their equal protection claim, see Melrose v.

City of Pittsburgh, 613 F.3d 380, 394 (3d Cir. 2010) (observing

that an equal protection inquiry “properly places the initial

burden on the complaining party first to demonstrate that it is

‘similarly situated’ to an entity that is being treated

differently”). They allege no specifics as to why these different

populations are similarly situated vis-à-vis the university’s

authority or their relative risks of communal spread. In fact,

all the Students plead is that Rutgers violated equal protection

because it required in-person vaccination for its students but

not its staff and faculty.

Because that ipse dixit does not suffice under Twombly

and Iqbal, 550 U.S. at 555; 556 U.S. at 663, it is readily

apparent that the Students have failed to state a claim. And the

reason for that, as Rutgers highlighted in the District Court and

on appeal, is that students and faculty are not similarly

situated.39 First and foremost, those populations are treated

39

Far from “conced[ing] that the students are similarly

situated” to faculty and staff, Dissent 16, Rutgers argued to the

contrary even though the Students appeared to waive this claim

on appeal. In their opening brief, the Students observed—

without objection or argument—that the District Court had

“resolved [the staff and faculty] classification as moot.”

Opening Br. 52. What they alleged as error was that the

District Court failed to recognize that the “students also

37

very differently under the laws governing vaccination. New

Jersey law explicitly authorizes institutions of higher education

to require students to take ACIP-recommended vaccines. See

N.J.S.A. § 18A:61D-1; N.J. Admin. Code § 8:57-6.4. Thus,

students, even before the pandemic, were subject to Rutgers’

immunization policy, which required them to submit their

complete vaccination history at least six months before

alleged” two other equal protection claims: (1) “that Rutgers

Policy unlawfully discriminates against [the Students] for

invoking their Due Process rights,” and (2) “that naturally-

immune students . . . are similarly situated to vaccinated

students and should be treated similarly.” Id. And because

“[t]he district court did not rule or otherwise address those two

particular claims of disparate treatment,” the Students argued,

“those claims must survive.” Id. (emphasis added). Of course,

the only way the Students’ staff-and-faculty claim would be

moot, as they appeared to concede, was if the District Court

correctly assumed they were seeking only equitable relief and

not damages for that claim. See Merle v. United States, 351

F.3d 92, 94 (3d Cir. 2003) (we lack jurisdiction over claims

that are no longer live or where “the parties lack a legally

cognizable interest in the outcome”) (citation omitted).

Rutgers thus focused primarily on what it reasonably perceived

to be “Plaintiffs’ two Equal Protection claims” on appeal,

Answering Br. 37, and argued only secondarily why its

disparate treatment of students and employees would satisfy

rational basis review “even had Rutgers continued to apply the

Policy only to students.” Id. at 38. Prioritizing its response

this way makes perfect sense in view of the Students’ bait-and-

switch, see Reply Br. 26 (arguing for the first time on appeal

that the District Court erred in finding the faculty-and-staff

claim moot), and regardless, does not constitute a concession.

38

enrollment, required in-person students to be vaccinated

against even less virulent viruses like influenza, and reserved

Rutgers’ right to deny unvaccinated students access to housing

or class registration in the “case of a public health

emergency.”40 That policy was “subject to” unilateral

amendment by Rutgers.41

In contrast, Rutgers’ ability to impose such

requirements on staff and faculty is far more constrained. See,

e.g., N.J.S.A. § 34:13A (discussing public employee collective

bargaining rights); Oral Arg. Tr. 43:11-16 (same); N.J.S.A. §

18A:6-18 (discussing tenure rights). Not until President

Biden’s Executive Order 14042, concerning university faculty

and staff in September, was it even clear that universities were

legally authorized to require that population be vaccinated.

When that became clear, Rutgers extended the requirement to

staff and faculty as well—just one month after the start of the

school year.42

Rutgers’ adoption of the Policy for students before staff

and faculty was also consistent with its stated priority for the

start of the fall term “[t]o minimize outbreaks of COVID-19

among students,”43 even before taking on the more ambitious

goal of requiring employee vaccinations to protect the broader

40

Rutgers’ Student Immunization Policy.

41

Id.

42

See Antonio M. Calcado, President Biden’s

Executive Order Requiring Coronavirus Vaccines, Rutgers

(Oct. 25, 2021), https://coronavirus.rutgers.edu/president-

bidens-executive-order-requiring-coronavirus-vaccines/.

43

ECF No. 10-3 at 1.

39

“Rutgers University community,” JA 350. As Rutgers

explained in the District Court and on appeal,

“even if a university only require[d] students to be vaccinated,

this [would] ha[ve] a rational basis” for the reasons set forth in

Harris v. University of Massachusetts, Lowell, JA 297;

Answering Br. 29 n.1, 38, namely, “the higher transmission

rate among young people, and the fact that it is the students

who are congregating in close quarters on campus,” 557 F.

Supp. 3d 304, 313 (D. Mass. 2021) (citations omitted); see also

Oral Arg. Tr. 43:24-25 (Rutgers’ counsel explaining that

students, who sit “shoulder to shoulder” in classrooms and live

in communal settings present a greater risk of transmission

than faculty and staff who are typically at a distance). Rutgers

also highlighted “the logic of excluding unvaccinated persons

from communal living situations during a pandemic, because

alternatives like masking are not feasible in dormitory life.” JA

283. In sum, Rutgers adequately explained why Students are

situated differently in the most “relevant respect[],” i.e.,

containing a virus that spreads through close personal contact.

Harvard, 973 F.3d at 205 (quoting Nordlinger, 505 U.S. at 10).

In view of these differences, Rutgers easily passes the

low threshold for a “rational basis” to require vaccination for

students in April 2021 before requiring the same of health care

workers in June and other staff and faculty in October 2021.

And that does not change even if the Policy is viewed (at least

initially and briefly) as underinclusive because rational-basis

review, unlike strict scrutiny, tolerates an “imperfect fit

between means and ends.” Heller v. Doe, 509 U.S. 312, 321

(1993). In other words, “the Equal Protection Clause does not

require that a State must choose between attacking every aspect

of a problem or not attacking the problem at all. It is enough

that the State’s action be rationally based and free from

40

invidious discrimination.” Dandridge v. Williams, 397 U.S.

471, 486-87 (1970) (citation omitted). Rutgers’ action in

requiring in-person vacation for students matriculating in

September 2021 and requiring the same of staff and faculty in

October 2021 satisfies that rational basis standard.

b. Differential Treatment of Vaccinated Students

and Unvaccinated Students with “Natural

Immunity”

The Students next contend that “naturally immune

students (who recovered from a COVID-19 infection) are

similarly situated to vaccinated students” and, therefore, must

be treated similarly. Opening Br. 52. Again, they are

mistaken.

For one, the CDC itself determined that these groups

posed different risks. See Frequently Asked Questions about

COVID-19 Vaccination, Centers for Disease Control and

Prevention, https://www.cdc.gov/coronavirus/2019-

ncov/vaccines/faq.html (last visited December 19, 2023)

(“People who already had COVID-19 and do not get

vaccinated after their recovery are more likely to get COVID-

19 again than those who get vaccinated after their recovery.”).

And per N.J. Admin. Code 8:57-6.4, Rutgers followed the

CDC’s recommendations. That Appellants would reach a

different conclusion than those experts does not render

Rutgers’ vaccine Policy arbitrary or irrational.

Second, Rutgers sought to comply with “[s]tate law,”

JA 350, and New Jersey allows evidence of immunity in lieu

of vaccination only where a student is able to provide

“laboratory evidence of immunity.” See N.J.S.A. § 18A:61D-

1 (providing that students may submit “evidence of immunity”

41

as an alternative to a valid immunization record, “in

accordance with regulations promulgated by the Department of

Health”); N.J. Admin. Code § 8:57-6.16 (directing institutions

to maintain student records of immunization or “laboratory

evidence of immunity”). At the time Rutgers enacted its

Policy, “no laboratory test exist[ed]” that would satisfy that

requirement. JA 307. And still today, “[a]ntibody tests are not

recommended or authorized by FDA to assess someone’s

immunity after COVID-19 vaccination.” Antibody Testing,

Centers for Disease Control and Prevention,

https://www.cdc.gov/coronavirus/2019-ncov/hcp/testing/

antibody-tests-gui

delines.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.

gov%2Fcoronavirus%2F2019-

ncov%2Flab%2Fresources%2Fantibody-

tests.html#AntibodyTests (last visited December 19, 2023).

And again, even if Rutgers’ Policy was “to some extent

both underinclusive”—by (initially) excluding certain staff

members—“and overinclusive”—by including students with

‘natural immunity’—“perfection is by no means required”

under rational basis review. Vance v. Bradley, 440 U.S. 93,

108 (1979) (citation omitted).

In sum, Rutgers set forth a rational basis for its

differential treatment not only of students and staff, but also of

vaccinated and unvaccinated students with “natural

immunity.”

***

We conclude by acknowledging the difficult choices

confronted by all parties here as they navigated the uncharted

territory of the COVID-19 pandemic and its aftermath.

Rutgers had to decide in real time, on a changing landscape of

42

executive pronouncements and medical judgments, how to

sustain its educational mission while protecting the safety of

its student body. Students had to choose whether to vaccinate

and resume in-person or to decline and proceed masked (for

exempt students) or remotely or elsewhere (for non-exempt

students). None of these options were ideal, and no doubt they

created hardship for many. What we judge today, however, is

not the wisdom of any party’s choice but whether the

Complaint stated a claim. It did not. Because Rutgers was

statutorily permitted to impose the requirements it did, and

Appellants have not pleaded a constitutional violation on

rational basis review, the District Court properly granted

Rutgers’ motion to dismiss, and we will affirm.

IV. Conclusion

For the foregoing reasons, we will affirm the judgment

of the District Court.

43

Children’s Health Defense, Inc., et al., v. Rutgers, The State

University of New Jersey, et al., No. 22-2970

______________

JORDAN, Circuit Judge, concurring in part, dissenting in part.

I agree with much of what my colleagues have said in

their Majority opinion, though I doubt that there is anything

inherent in the nature of a university that required imposing the

vaccine mandate, as my colleagues seem to imply. The

administrators of Rutgers University had a range of choices,

and the wisdom of the one they selected is open to debate. That

doesn’t make it unlawful, but it doesn’t make it laudatory

either. Given that Rutgers allowed its faculty and staff to begin

the Fall 2021 semester unvaccinated while compelling students

to have a COVID-19 shot (as if the SARS-CoV-2 virus1 were

careful about academic status), and further given that Rutgers

stopped Plaintiff Adriana Pinto – a student just a few credits

shy of qualifying for graduation – from attending a single

course remotely, even though the course allowed remote

attendance and even after she submitted a sworn statement that

she would not set foot on campus for the entire semester, there

is ample room to question why the University chose to force

vaccines on students as it did.

Indeed, in a video circulated to the entire Rutgers

student body two-and-a-half months before the mandate was

announced, Rutgers Vice President for Health Affairs, Vicente

1

The SARS-CoV-2 virus is the cause of the illness the

world has come to know as COVID-19.

H. Gracias, M.D., rejected the idea of mandatory vaccination.

His words are worth repeating:

“[I]t is America. And Rutgers is part of America.

So, the vaccine at this point is not mandatory

across the United States or here in New Jersey.

And certainly Rutgers, with our stance of human

liberties and our history of protecting that, the

vaccine is not mandatory. It is something that we

think, because we are a university, we can

educate our community and we can educate

ourselves. And I think we can show everyone

that it is essential that our Rutgers community

vaccinate itself.”2

This Court is not tasked with assessing the wisdom of

Rutgers’s about-face on education versus compulsion when it

comes to vaccination. One can wonder why it made that turn

and, further, why the University is still mandating vaccination

when the rest of the world has largely put the COVID-19

pandemic in the rearview mirror, but our role is confined to

ascertaining whether the mandate comports with controlling

2

The video is available on the internet at the following

link:

https://vimeo.com/502384549/10286f6cb1?utm_campaign=5

370367&utm_source=affiliate&utm_channel=affiliate&cjeve

nt=ea9051b9045311ec80c547850a82b838&clickid=ea9051b

9045311ec80c547850a82b838 [https://perma.cc/8DNE-

6B9U]. The relevant 40 seconds of the clip begins at

approximately 7:30.

2

law.3 The constitutional questions here turn on whether the

University’s articulated reason for imposing the vaccine

mandate rationally justified that imposition. And my

colleagues’ answers to the questions on appeal are mostly

correct.

For example, I concur in their disposition of the

Plaintiffs’ federal preemption claim. I also concur in their

judgment as to both the Plaintiffs’ state law ultra vires claim

and the equal protection claim as it relates to natural immunity,

though I differ on the analytical approach to the former and

conclude that the latter was not properly preserved for our

review. Further, I agree that we ought to apply rational basis

review to the challenged vaccine mandate, which is an

executive action of the University.

Nevertheless, I depart from the Majority’s judgment on

two significant issues. First, I believe we should remand the

Plaintiffs’ equal protection claim as it relates to Rutgers’s still

unexplained initial decision to impose a vaccine mandate on

students while leaving the faculty and staff free to abstain.

Rational basis review requires us to look to the rationale

Rutgers gave for imposing the mandate, not to some

3

As of February 5, 2024, the University’s website states

that “COVID-19 vaccines are required of students and

employees unless granted a medical or religious exemption by

the university.” COVID-19 Information, Rutgers,

https://coronavirus.rutgers.edu/ [https://perma.cc/6US6-

2CK3] (emphasis in original).

3

hypothetical rationale the University might wish it had given,

or, as in this case, one the Majority devises.4

Second, as to the substantive due process claim, while I

do not gainsay my colleagues’ conclusion that the University’s

vaccine mandate satisfied rational basis review when it was

issued, I believe we should remand to allow the Plaintiffs the

4

The rationale for the University’s vaccine mandate

policy is stated under the apt heading: “Reason for Policy.” JA

350. It provides that vaccination is mandated:

[t]o minimize outbreaks of COVID-19 in the

Rutgers University community; to prevent or

reduce the risk of transmission of COVID-19

among all persons at Rutgers University and

Rutgers–affiliated health care units; and to

promote the public health of the community in a

manner consistent with federal, State, and local

efforts to stem the COVID-19 pandemic as well

as federal and State law.

(Id.)

On April 13, 2021, Rutgers formally adopted policy

section 10.3.14 entitled, “Interim COVID-19 Immunization

Record Requirement for Students.” JA 226 ¶ 196. The Policy

that the parties provided in the Joint Appendix is not the

original policy; it is the one revised in November 2021. The

original appears on the District Court’s docket. The reason

given in both the original and revised sections is the same

except that, before the Rutgers faculty and staff were subjected

to the vaccine mandate, the phrase, “To minimize outbreaks of

COVID-19 in the Rutgers University community,” had read,

“To minimize outbreaks of COVID-19 among students[.]”

ECF No. 10-3 at 1.

4

opportunity to amend their complaint to challenge the

continued imposition of the mandate. The reasons Rutgers

gave to justify the mandate’s continued existence – namely,

compliance with federal and state government pandemic

policies – were circumstance-specific and those circumstances

have manifestly changed.

I. POINTS OF AGREEMENT

A. Rational Basis Review

The Majority holds that there is not a fundamental right

to refuse vaccination, citing the Supreme Court’s decision in

Jacobson v. Massachusetts, 197 U.S. 11 (1905), and the

apparent uniform treatment of Jacobson by federal courts that

have reviewed COVID-19 vaccination mandates. I agree that,

although Jacobson, which dealt with a smallpox vaccine

mandate, “pre-date[s] the modern tiers of scrutiny” used to

analyze constitutional rights, the opinion in that case

“essentially applied rational basis review[.]” Roman Cath.

Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 70 (2020)

(Gorsuch, J., concurring). Accordingly, rational basis review

is rightly applied to the Plaintiffs’ equal protection and

substantive due process challenges.

The Majority is also on logically sound ground when it

observes that, if the University’s proffered reasons for

imposing the vaccine mandate pass rational basis review, those

reasons do not become irrational if one accepts, as we must at

this stage, the truth of the Plaintiffs’ allegation that the vaccine

mandate was “also adopted … to curry favor with vaccine

manufacturers with which [Rutgers] ha[s] partnered to

investigate and develop COVID-19 vaccines.” Maj. Op. 28

5

(quoting JA 253) (emphasis added by Majority). That

conclusion is consistent with precedent showing the parallels

between rational basis review of executive action and arbitrary

and capricious review under the Administrative Procedure Act

(“APA”). See Dep’t of Com. v. New York, 139 S. Ct. 2551,

2573 (2019) (“[A] court may not reject an agency’s stated

reasons for acting simply because the agency might also have

had other unstated reasons.”). Thus, I agree with my

colleagues that the outcome is not changed by allegations of

mixed motive.

B. The Ultra Vires Claim

I likewise agree with the Majority that the Plaintiffs’

ultra vires claim is untenable. But I would reach that

conclusion for the reasons we explored at oral argument, in

particular the interplay of our decision in Kovats v. Rutgers,

The State Univ., 822 F.2d 1303 (3d Cir. 1987) (discussed infra

note 6), and the subchapter of the New Jersey Administrative

Code dealing with vaccination requirements for college

students. Section 8:57-6.4(c) of the New Jersey

Administrative Code provides: “Nothing in th[e

aforementioned] subchapter shall be construed as limiting the

authority of a New Jersey institution of higher education to

establish additional requirements for student immunizations

and documentation that such institution shall determine

appropriate and which is recommended by the ACIP.”5 The

5

As noted by the Majority, ACIP is the acronym for the

Advisory Committee on Immunization Practices within the

Centers for Disease Control and Prevention.

6

Plaintiffs do not dispute that the ACIP has recommended the

mandated vaccines.

But, of course, not “limiting” authority is different than

granting authority. The authority must have been granted in

the first place. And the source of Rutgers’s authority is what

we recognized in Kovats: that the State of New Jersey has

expressly granted Rutgers, a previously private institution, the

authority to continue to function, in effect, as a private

university with respect to its operations, with minimal

limitations, none of which prevents its imposing a vaccine

mandate on its students, faculty, and staff, as could a private

university.6 822 F.2d at 1311.

6

In articulating why Rutgers does not have sovereign

immunity under the Eleventh Amendment, we explained in

detail how Rutgers functions, tracing its origin as “a private

institution” to becoming a “corporation which is an

‘instrumentality of the state’” in 1956. Kovats v. Rutgers, The

State Univ., 822 F.2d 1303, 1306-12 (3d Cir. 1987). In short,

Rutgers is governed primarily by two bodies: a Board of

Governors and a Board of Trustees. Id. at 1311. For our

purposes, those boards are free to govern Rutgers as if it were

a private university. “In running the university, the governors

and trustees are ‘given a high degree of self-government.’” Id.

at 1311 (quoting N.J. Stat. Ann. § 18A:65-27(I)(a)). And,

“[m]ore generally, both boards may exercise their powers

‘without recourse or reference to any department or agency of

the state, except as otherwise expressly provided by this

chapter or other applicable statutes.’” Id. (quoting N.J. Stat.

Ann. § 18A:65-28). Further, we explained that the “two

limitations [imposed] on the boards’ operation” of Rutgers,

namely, that they comply with the “state’s budget

7

The Plaintiffs have not identified any restriction on

Rutgers’s ability to impose vaccine mandates on its students

under state law. Instead, they go far afield, asserting the

incompatibility of allowing Rutgers to require vaccines beyond

those already specified in state regulations. See N.J. Admin.

Code §§ 8:57-6.5 through 8:57-6.9 (requiring vaccination for

measles, mumps, rubella, meningitis, hepatitis-B). But once it

is understood that Rutgers has been broadly empowered to

operate like a private university, unless expressly restricted, the

Plaintiffs’ ultra vires claim crumbles. It is on that basis that I

concur in the dismissal of the claim.

Likewise unavailing is the Plaintiffs’ assertion that,

under N.J. Admin. Code §§ 8:57-6.14(d) and -6.15(c), Rutgers

cannot deny university housing to unvaccinated students, even

those who were exempted from the mandate because of

medical or religious reasons. As the Plaintiffs observe, those

regulatory provisions restrict Rutgers from excluding

exempted students from two – and only two – things: “classes”

and “participat[ion] in institution-sponsored activities[,]” N.J.

Admin. Code §§ 8:57-6.14(d) and 6.15(c), unless two

circumstances are met. First, there must be “a vaccine-

preventable disease outbreak.” Id. And, second, the “decision

to exclude” an exempted student must be “made by the

institution in consultation with the Commissioner [of Health.]”

Id. §§ 8:57-6.14(d)(1) and 8:57-6.15(c)(1). As the Plaintiffs

see it, because those regulations are silent on whether a

university can exclude students from university housing, there

appropriations” and “state laws and regulations[,]” result in

“minimal” “state intervention.” Id.

8

is no authority for Rutgers to do so. They also argue that the

two required conditions were not met here.

The Plaintiffs fail to appreciate that §§ 8:57-6.14(d) and

6.15(c) provide no limitation on Rutgers’s authority to exclude

the Plaintiffs from housing. As just noted, those two

provisions operate as a limitation on authority only with

respect to the two things identified, classes and activities, not

as to housing, which the Plaintiffs acknowledge is not covered

by the text of those provisions. Consequently, I concur in the

Majority’s conclusion that the exempted students were not

improperly excluded from university housing under state law.

II. POINTS OF DISAGREEMENT

A. Equal Protection Claim Relating to Faculty

and Staff

I now turn to the equal protection claim relating to the

University’s different treatment of students on the one hand

and faculty and staff on the other. I have two points of

agreement with my colleagues, and a whole lot of

disagreement on this subject. As to where we can agree, I

concur in my colleagues’ judgment regarding the Plaintiffs’

equal protection claim as it relates to natural immunity, but I

do so without reaching the merits. Rutgers argues before us

that, for the Plaintiffs to succeed on this claim, an “approved

laboratory test for immunity conferred by infection” must have

existed when the vaccine mandate was imposed. Answering

Br. 39. That prompted no response by the Plaintiffs in their

reply brief, which effectively concedes the point. See Beazer

E., Inc. v. Mead Corp., 412 F.3d 429, 437 n.11 (3d Cir. 2005)

(explaining that failure to respond to an opponent’s arguments

9

“waives, as a practical matter anyway, any objections not

obvious to the court to specific points urged by the

[opponent]”). The issue having been forfeited, Rutgers gets a

win.

I further agree that the District Court erred in holding

the equal protection claim to be moot. It did so at Rutgers’s

urging because, after the commencement of this action, the

University imposed a vaccine mandate on its faculty and staff

that it justified as being necessary to comply with President

Biden’s Executive Order 14042, which imposed a vaccine

mandate on certain federal government contractors. 86 Fed.

Reg. 50,985 (Sept. 9, 2021). But the dismissal on grounds of

mootness was error since, as the Majority recognizes, the

Plaintiffs have put forward a claim for damages for the period

that students were being treated differently than other members

of the University community. Thus, we have a live equal

protection claim that the District Court never analyzed on the

merits.

That’s where our consensus ends. Our ordinary course

when a district court has not spoken on a live issue is to vacate

the dismissal and remand for the court to address the issue in

the first instance. See O’Hanlon v. Uber Techs., Inc., 990 F.3d

757, 763 n.3 (3d Cir. 2021) (citation omitted) (“[A]s a ‘court

of review, not of first view,’ we will analyze a legal issue

without the district court’s having done so first only in

extraordinary circumstances.”). But the Majority does not do

that, despite identifying no extraordinary circumstance.

Instead, it justifies dismissal on the merits on grounds that are

not properly before us and, in any event, do not withstand

examination.

10

Although a legislative enactment will survive rational

basis review if “the State offers a conceivable rational basis for

its action, and ‘[t]he court may even hypothesize the

motivations of the state legislature to find a legitimate

objective promoted by the provision under attack[,]’” Am.

Express Travel Related Servs., Inc. v. Sidamon-Eristoff, 669

F.3d 359, 367 (3d Cir. 2012), rational basis review of an

executive action – like Rutgers’s vaccination policy – is

different. We must, under our precedent, look to the reasons

Rutgers itself gave for its action, rather than hypothesizing

reasons that it could have given.7 Nazareth Hosp. v. Sec’y U.S.

Dep’t of Health & Hum. Servs., 747 F.3d 172, 180 (3d Cir.

2014). As noted earlier, such review of executive action is akin

to arbitrary and capricious review under the APA. See Real

Alternatives, Inc. v. Sec’y Dep’t of Health & Hum. Servs., 867

F.3d 338, 353 (3d Cir. 2017) (“We have held that the standard

for determining whether an APA violation exists under the

arbitrary and capricious standard is substantially similar to

rational basis review[.]”); see also Nazareth Hosp., 747 F.3d at

180 (noting the similarity of the two types of review and stating

7

The Majority suggests that dismissing the Plaintiff’s

ultra vires claim because Rutgers can function as a private

institution in its operations is inconsistent with treating it as a

state university for the Plaintiff’s equal protection claim. Maj.

Op. 33 n.36. Not so. The State of New Jersey may grant

Rutgers autonomy over its operations, but it cannot grant it

immunity from constitutional violations. Therefore, although

Rutgers has a sphere of authority to act as a private institution

in its operations for state law purposes, it is not relieved from

the requirement that it must provide a rational basis when it

discriminates against similarly situated persons.

11

that, “[t]aken together, we need only consider whether the

Secretary set forth a satisfactory, rational explanation for her

actions here”).

Bear in mind that no decisionmaker from Rutgers has

ever suggested a justification for the University’s disparate

treatment of students as compared with faculty and staff. The

single-sentence given to explain the vaccine mandate on

students – the “Reason for Policy” – offers no such rationale.8

JA 350 (quoted supra note 4). Furthermore, Rutgers did not

suggest in the District Court, or in its brief before us, that any

of its decisionmakers had a rational basis for initially excluding

faculty and staff. See Simko v. United States Steel Corp., 992

F.3d 198, 205 (3d Cir. 2021) (explaining a party forfeits an

argument for purposes of our review if it is not raised before

the district court); Geness v. Cox, 902 F.3d 344, 355 & n.6 (3d

Cir. 2018) (noting that arguments not raised on appeal are

8

The public announcement by Rutgers’s Executive

Vice President and Chief Operating Officer in connection with

the imposition of the vaccine requirement on faculty and staff,

cited by the Majority at note 8, is titled “President Biden’s

Executive Order Requiring Coronavirus Vaccines.” Antonio

M. Calcado, Rutgers (Oct. 25, 2021),

https://coronavirus.rutgers.edu/president-bidens-executive-

order-requiring-coronavirus-vaccines/

[https://web.archive.org/web/20230920233021/https://corona

virus.rutgers.edu/president-bidens-executive-order-requiring-

coronavirus-vaccines/]. As the name suggests, it says, in

effect, “President Biden made us do it.”

12

likewise forfeited). We are thus left with an executive action

bereft of justification.9

My colleagues in the Majority forge ahead anyway, and,

without adversary briefing, choose to answer a question that

the District Court didn’t. I cannot join them in that exercise.

See generally United States v. Sineneng-Smith, 140 S. Ct.

1575, 1579 (2020) (“[A]s a general rule, our system is designed

around the premise that [parties represented by competent

counsel] know what is best for them, and are responsible for

advancing the facts and argument entitling them to relief.”

9

My colleagues attempt to overcome that fact by

suggesting that Jacobson “did not turn on the legitimacy of

legislative action as opposed to executive action[,]” and

asserting that, “[i]n times of crisis, agencies, governors, and

local authorities may often be best-positioned to respond to

conditions on the ground, a fact that state legislatures have

recognized in granting emergency powers[.]” Maj. Op. 34

n.37. In essence, the Majority, without citing any relevant

authority, says that a health pandemic relieves a state actor

from providing any reason for its executive action. That is not

the law. Local authorities may well have substantial authority

to make, and be in the best position to make, decisions

regarding public health. But, even accepting that as true,

government officials must provide a rational reason to justify

their decisions. And, as this case and the COVID-19 pandemic

has generally shown, that requirement is especially important

amid a health crisis in which government authorities exercise

extraordinary power. Such exercises of power without

explanation may breed doubt about the government’s

underlying motives for implementing safety measures.

13

(internal quotation marks and citation omitted; second

alteration in original)).

1. Rutgers bore the initial burden on its

motion to dismiss.

First, the Majority contends that the Plaintiffs “have

failed to plead how and why students and staff are similarly

situated, … and that is fatal to their equal protection claim.”

Maj. Op. 37. Civil litigation is indeed a contest governed by

burdens of proof and persuasion. But it is well-settled that “the

burden of persuasion” is on “the defendant bringing a Rule

12(b)(6) motion … [to] show that the plaintiff has not stated a

claim[.]” Potter v. Cozen & O’Connor, 46 F.4th 148, 155 (3d

Cir. 2022); see also Davis v. Wells Fargo, 824 F.3d 333, 350

(3d Cir. 2016) (“[T]he burden of persuasion … properly falls

on [the movant] on a motion to dismiss under Rule

12(b)(6)[.]”).

My colleagues are correct that the Plaintiffs must state

in their complaint how faculty10 and students were similarly

situated, but all that is required of the Plaintiffs at this stage is

to plead how they were similarly situated to faculty “in all

relevant respects[;]” they are not required to show that they

were identically situated to faculty. Harvard v. Cesnalis, 973

F.3d 190, 205 (3d Cir. 2020). The Majority’s assertion that “all

the Students plead is that Rutgers violated equal protection

because it required in-person vaccination for its students but

not its staff and faculty” is manifestly wrong. Maj. Op. 37. In

10

Rather than always repeating the phrase “faculty and

staff,” I will often refer to “faculty” with the intent that the

word encompass all University employees.

14

fact, the Plaintiffs pled how faculty and students are similarly

situated in what is arguably the only relevant way, stating in

their complaint: “Defendants are applying and enforcing

Rutgers’ Policy in a discriminatory, arbitrary and capricious

manner by excluding staff and employees who are equally

capable of being infected with SARS-CoV-2 and transmitting it

to others, including students who have recovered from

COVID-19, students who have medical exemptions, students

with religious exemptions, and vaccinated students.”11 JA

257-58 (emphasis added). The Plaintiffs then alleged that

“Rutgers’ Policy and practice of discriminating against

students by mandating EUA COVID-19 vaccines for them but

not for the administration, faculty, staff, employees or

contractors of Rutgers denies students equal protection of the

law.” JA 259.

The Plaintiffs thus adequately pled how they were

similarly situated to faculty and staff: both students and staff

can be infected and infect others with COVID-19. Upon that

adequate pleading, Rutgers had the burden to rebut the

Plaintiffs’ contention that faculty and staff were similarly

situated to students. It did not make any such argument before

the District Court.12 And on appeal, Rutgers failed to address

11

This allegation, although in the substantive due

process claim of the Plaintiff’s complaint, was incorporated

into the Plaintiff’s equal protection claim. The Majority does

not address this allegation in its opinion.

12

Rutgers devoted one paragraph to this claim in its

briefing before the District Court. Affording that argument the

most generous possible reading, Rutgers contended that,

because of Executive Order 14042, faculty and staff would no

15

at all the merits of the equal protection claim relating to the

more favorable treatment given to faculty and staff.13 The sole

basis for the District Court’s order on this equal protection

claim was mootness. So, with respect to the “similarly

situated” issue, the Plaintiffs were not faced with anything

requiring a response and, consequently, cannot be said to have

failed to discharge the burden of proving that they were

similarly situated to other people on campus.

Moreover, a fair argument can be made that Rutgers has

conceded that the students are similarly situated. In the District

Court, the Plaintiffs claimed that “Rutgers’ initial decision to

mandate [vaccinations for] students but not staff and

employees intentionally treated them differently from others

similarly situated and that there is no rational basis for the

difference in treatment[.]” ECF No. 42 at 19. They made the

same assertion before us. Opening Br. 52 (“Students alleged

that Rutgers’ initial decision to mandate vaccines upon them,

but not faculty or employees, treated them differently from

others similarly situated.”). Neither assertion drew a response

from Rutgers that the Plaintiffs were not similarly situated with

faculty and staff in some pertinent sense. So, it was Rutgers

that did not discharge its burden, and a failure to meet an

opponent’s assertion can operate as a concession that the

assertion is correct. See In re Bestwall LLC, 47 F.4th 233, 244

longer be treated differently and, accordingly, the claim was

moot, or, if not moot, that the claim now failed on the merits.

But none of that explains the period of disparate treatment.

13

The word “faculty” nowhere appears, and “staff”

appears only in an unrelated context.

16

(3d Cir. 2022) (citing In re Incident Aboard D/B Ocean King,

758 F.2d 1063, 1071 n.9 (5th Cir. 1985)).

In any event, there was simply no suggestion that the

students and the University employees were not similarly

situated as alleged, and, after the Plaintiffs adequately pled that

they were similarly situated, putting that issue in contention

was the University’s responsibility, not the Plaintiffs’. Despite

my colleagues’ citations to Rutgers’s briefing, the fact remains

that no party has made the arguments on appeal that my

colleagues have made. The failure to raise an issue in the

District Court and again on appeal has consequences, and, in

this instance, the consequence should be clear: the “similarly

situated” issue is off the table.

2. Rutgers failed to proffer a rational basis

for distinguishing between students and

University employees.

Even if we could rightly consider that issue, however,

the arguments offered by the Majority that the Plaintiffs are not

similarly situated to faculty and staff are unpersuasive. The

reasons they assert are exactly the kind of after-the-fact

justifications that we have been counseled to avoid. See Dep’t

of Com., 139 S. Ct. at 2573 (“[I]n reviewing agency action, a

court is ordinarily limited to evaluating the agency’s

contemporaneous explanation in light of the existing

administrative record.”); New Jersey Hosp. Ass’n v. Waldman,

73 F.3d 509, 517 (3d Cir. 1995) (explaining that reviewing

courts have been “cautioned” to “not undertake an independent

assessment” of an agency’s action).

17

The first reason the Majority proffers is that students

and faculty “are treated very differently under the laws

governing vaccination.” Maj. Op. 37-38. My colleagues

explain that New Jersey law authorizes institutions of higher

education to require certain vaccines for its students, but that

Rutgers’s “ability to impose such requirements on staff and

faculty is far more constrained.” Maj. Op. 39. The Majority,

claiming Rutgers provided that reason, cites Rutgers’s District

Court briefing, in which Rutgers asserted that there is a rational

basis to impose a vaccine mandate on students because New

Jersey law requires universities to require certain vaccinations.

Maj. Op. 40 (quoting JA 297 (“[E]ven if a university only

requires students to be vaccinated, this has a rational basis.

That is particularly true in New Jersey, which requires

universities by law to impose vaccine mandates on

students.”)). But, even if true, that assertion does not

satisfactorily address why Rutgers did not impose the COVID-

19 vaccine mandate on faculty; rather, it argues only that

imposing a vaccine requirement on students has its own

rational basis. Consequently, that argument does not

adequately describe the reason for the disparate treatment for

groups of people who are both capable of contracting and

transmitting COVID-19.

My colleagues also cite Rutgers’s appellate briefing, in

which it contended that its policy to exclude faculty from

receiving the vaccine was consistent with New Jersey law.

Maj. Op. 37-39, 37 n.39 (quoting Answering Br. 38 (“[E]ven

[if] Rutgers continued to apply the Policy only to students, and

not to employees, this would have been consistent with New

Jersey law[.]”)). But saying a policy is consistent with state

law, after the policy was instituted, does not explain why the

policy treated faculty and students differently in the first place.

18

Because we can look only at the reasons Rutgers gave for

instituting the policy, Rutgers’s after-the-fact characterization

of its lawfulness under state law is beside the point and wholly

inadequate.14

The second reason the Majority provides is that

Rutgers’s “adoption of the Policy for students before staff and

faculty was also consistent with its stated priority for … the fall

term to minimize outbreaks of COVID-19 among students,

even before taking on the more ambitious goal of requiring

employee vaccinations to protect the broader Rutgers

University community.” Maj. Op. 39-40 (cleaned up).

According to the Majority, Rutgers was just following a

sensible, “phased approach” to protecting its community,

which “prioritized the health of the student body.” Maj. Op. 4,

39-40. Unfortunately for Rutgers, however, it has never

asserted that it had in mind a phased approach to vaccination.

This argument is entirely my colleagues’ invention. And the

14

For the first time, at oral argument, counsel for

Rutgers also explained that “the faculty were subject to

collective bargaining … so there’s a whole different

circumstance with regard to faculty and staff because we have

collective bargaining issues with them.” Oral Arg. Tr. 43:12-

16. In addition to that argument being forfeited by not being

raised in the District Court, Simko v. United States Steel Corp,

992 F.3d 198, 205 (3d Cir. 2021), it is unpersuasive. Faculty

with PhDs can be infected and infect others with COVID-19 in

the same way as can first-year college students, and no reason

was provided to explain what collective bargaining has to do

with that and the consequent risks to the University

community.

19

irony here is that the University’s “phased approach,” as the

Majority would have it, was exactly backwards, at least if one

accepts as wise what federal and state agencies were doing

when implementing a “phased allocation” that provided

vaccines first to older people and educators, rather than to

students.15 See Kathleen Dooling, MD et al., The Advisory

Committee on Immunization Practices’ Updated Interim

Recommendation for Allocation of COVID-19 Vaccine –

United States, December 2020, Centers for Disease Control

and Prevention (Jan. 1, 2021),

https://www.cdc.gov/mmwr/volumes/69/wr/mm695152e2.ht

m [https://perma.cc/2X8G-YB3W] (recommending that

frontline essential workers, including “those who work in the

education sector (teachers and support staff members)” receive

the vaccine prior to healthy young people). My colleagues rely

15

The Majority appears to have developed its “phased

approach” explanation by comparing Rutgers’s initial COVID

vaccination policy, issued in April 2021, with the updated

version of that policy released in November 2021. As noted

earlier, supra note 4, in the April policy, its stated purpose

included to “minimize outbreaks of COVID-19 among

students[.]” ECF No. 10-3 at 1. The November policy changed

that purpose to include, “to minimize outbreaks of COVID-19

in the Rutgers University community[.]” JA 350. But the

articulated purpose of both the April and November versions

of the policy included “to prevent or reduce the risk of

transmission of COVID-19 among all persons at Rutgers

University and Rutgers–affiliated health care units; and to

promote the public health of the community in a manner

consistent with federal, State, and local efforts to stem” the

pandemic. ECF No. 10-3 at 1; JA 350 (emphasis added).

20

on a remark by Rutgers’s counsel when asked what in the

operative complaint or associated documents established a

rational basis for the vaccine mandate. He observed that

students “live in dorms” and sit “shoulder to shoulder” in

classrooms while professors in classrooms are approximately

the same distance from students as a lawyer at the lectern is

from judges on the bench.16 Oral Arg. Tr. 43:22-44:1.

Dormitory living, however, does not explain a university-wide

student vaccination mandate, since a great many students do

not live in dorms. Nor does the assumption – and it is a pure

assumption with no record support – that students are more

likely to contract COVID-19 from other students than from

faculty.

16

He did not get to this suggestion right away. He first

responded that, “getting people vaccinated and getting back to

normal was its own rational basis.” Oral Arg. Tr. 41:21-23.

That prompted the further question of why, then, it was rational

to exclude faculty and staff. A colloquy followed, during

which counsel said four things. First, he indicated there may

have been a lack of regulatory authority to impose a mandate

on faculty and staff, though he did not address how that squared

with Kovats, nor did he articulate why there was no authority

under state law. He then indulged in a non-sequitur by saying

that the treatment of faculty and staff did not matter because

they had not sued Rutgers. Next, when it was pointed out that

the virus wasn’t choosing to avoid some people because they

had the title of professor, counsel responded with the further

non-sequitur that faculty and staff are subject to collective

bargaining (a point addressed supra note 14). He saved the

“close quarters” suggestion for last.

21

My colleagues also say that Rutgers relied on Harris v.

University of Massachusetts, Lowell, 557 F. Supp. 3d 304 (D.

Mass. 2021), to argue that it had legitimate reasons to require

vaccination for students but not for faculty. In that out-of-

circuit case, the district court held that a university has a

rational basis to impose a vaccine mandate on students, without

it being imposed on faculty, because of, as the Majority quotes,

“the higher transmission rate among young people, and the fact

that it is the students who are congregating in close quarters on

campus.” Maj. Op. 40 (quoting Harris, 557 F. Supp. 3d at

313.). But Rutgers never relied on the reasons the Majority

quotes from Harris. More to the point, there was no equal

protection challenge in Harris. The district court there was

tasked with determining whether the fact that university faculty

were not required to be vaccinated undermined the plaintiffs’

substantive due process claim. Harris, 557 F. Supp. 3d at 313.

Thus, Harris is inapplicable to the argument at hand.

But there is still more wrong with using this “close

quarters” argument to rule on the merits. It is irreconcilable

with the position Rutgers took to justify its harsh treatment of

Adriana Pinto, who Rutgers disenrolled from the single course

she wished to attend for the Fall 2021 semester. Rutgers did

so even though the professor in that course would have allowed

her to attend remotely; even though Ms. Pinto executed a

declaration swearing she would not set foot on campus that

semester; and even though she was only a handful of credits

away from graduating with her psychology degree, a degree

that Rutgers does not offer though its online degree program.

Rutgers took the position below – and reiterated it before us –

that Ms. Pinto, being unvaccinated, will only be permitted to

be a Rutgers student if she enrolls in an online degree program,

with the consequence, of course, that she gives up her nearly

22

completed psychology degree. It was not enough that she

would not need to be on campus and had promised not to go.

And yet it was fine, by the University’s lights, for any number

of faculty and staff to be on campus irrespective of their

vaccination status. The inconsistency is glaring. The Plaintiffs

pointed this out, saying, “[t]here is no rational basis for

requiring a student enrolled in remote classes and not

physically present to vaccinate … when unvaccinated faculty

and staff were permitted on campus freely when [Ms. Pinto]

was deregistered.” Opening Br. 20. There may be an answer

to that argument, but, if there is, Rutgers has not offered it, nor

is it readily apparent.

In the end, we don’t really have to guess at the

University’s reasons; they are stated and have nothing to do

with New Jersey state law treating students differently from

faculty and staff or with Rutgers developing a “phased

approach.” The reason actually given was not confined to

students or even to the campus itself. The stated concern from

the very beginning was for “all persons at Rutgers

University[,]” and the stated purpose was “to promote the

public health of the community[.]” ECF No. 10-3 at 1

(emphasis added). Perhaps Rutgers will want to subscribe to

the arguments that the Majority now hypothesizes for them.

But we should put the onus on Rutgers to make and defend

those positions. See Sineneng-Smith, 140 S. Ct. at 1579 (see

parenthetical supra). That is how our adversarial litigation

system is supposed to function, and we should accordingly

remand for consideration of the University’s own arguments.

B. The Substantive Due Process Claim

23

Lastly, I turn to the Plaintiffs’ substantive due process

claim. In support of it, the Plaintiffs have leveled a multi-prong

assault on the vaccine mandate. First, they contend that they

had a fundamental right to refuse vaccination and thus the

mandate should be subject to strict scrutiny. Next, they

contend that, if not strict scrutiny, we should apply some form

of heightened scrutiny more stringent than rational basis

review. Finally, they contend that Rutgers’s justification of its

vaccine mandate flunks even rational basis review.

Specifically, they contend that, in addition to Rutgers’s stated

rationale, the University improperly sought to ingratiate itself

with vaccine manufacturers. The Plaintiffs further argue that

Rutgers’s public health rationale is unsupported by science.

With respect to this claim, I am back in sync with much

of my colleagues’ analysis. The Plaintiffs’ arguments are

almost entirely without a serious legal basis. There is no doubt

that “[v]accine mandates … fall squarely within a State’s

police power[.]” Biden v. Missouri, 595 U.S. 87, 104 (2022)

(Thomas, J., dissenting) (citing Zucht v. King, 260 U.S. 174,

176 (1922)). So, as already discussed, rational basis review is

in order. And I think it plain that Rutgers’s vaccine mandate

had a rational basis when it was first imposed. Moreover,

vaccine mandates have often been imposed with rationales that

are evergreen and so need not be constantly justified. The

world is a vastly better place, for example, with polio held at

bay.

The point I endeavor to make here with respect to the

Plaintiffs’ substantive due process claim is a modest one. It is

simply this: because Rutgers chose to proffer a circumstance-

specific justification for its vaccine mandate, it must live with

the corollary that changed circumstances matter. Decision-

24

makers cannot pretend changed circumstances don’t exist or

are irrelevant.

This is not a novel principle. To the contrary, there are

two long-standing maxims recognizing the effect of changed

circumstances on the continued lawfulness of challenged

conduct: Cessante ratione legis cessat et ipsa lex (“When the

reason of the law ceases, the law itself also ceases”) and Ratio

est legis anima, mutata legis ratione mutatur et lex (“Reason is

the soul of the law; when the reason of the law has been

changed, the law is also changed”). Legal Maxims, Black’s

Law Dictionary, App. A (11th ed. 2019). Those maxims do

not stand for the proposition that the overarching legal precept

changes, or that the original precept is bad law, or that the

subject conduct was unlawful ab initio. See Rogers v.

Tennessee, 532 U.S. 451, 474-75 (2001) (Scalia, J., dissenting)

(discussing the two maxims, which he identifies as going back

at least to Lord Coke). Rather, changes in circumstances may

require a different result than would have obtained had the

changes not taken place. See id. at 474 (As to the first maxim,

stating: “It had to do, not with a changing of the common-law

rule, but with a change of circumstances that rendered the

common-law rule no longer applicable to the case.”); id. at 475

(As to the second maxim, explaining the non-extension of the

common law rule in such a circumstance “involves no

overruling, but nothing more than normal, case-by-case

common-law adjudication.”).

Rutgers has repeatedly pressed the notion in its briefing

and at oral argument that its vaccine mandate simply reflects

the dictates of governmental authorities, including public

health officials. But Congress, the President, federal public

health agencies, the New Jersey Legislature, the New Jersey

25

Governor, and the New Jersey Secretary of Health did not

impose a vaccine mandate on Rutgers students. Rutgers did.

The reality is that the University had the discretion not to do

that, and its own justifications for its own actions are subject to

challenge, albeit under a deferential standard.17 Faced with the

complaint in this case seeking prospective equitable relief that

would prevent Rutgers from continuing its vaccine mandate,

the University has to justify what it is continuing to do. It is

not free to ignore the current state of the world, a point its own

vaccine mandate policy expressly recognizes.18

17

As is well-settled in the analogous APA context,

however, a government official may have authority to take an

action (at least in some circumstances) but nevertheless justify

his action in a way that flunks even a very deferential standard

of review. See Dep’t of Com., 139 S. Ct. at 2567, 2569

(holding that the Secretary of Commerce had the power “to

inquire about citizenship on the census questionnaire[,]” but

concluding the reasons he had given for doing so for the 2020

census – at the point the case came to the Supreme Court –

were insufficient to survive the “narrow” and “deferential

‘arbitrary and capricious’ standard”); see also Dep’t of

Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891,

1905, 1912 (2020) (concluding that the Secretary of Homeland

Security’s explanation for rescinding the Deferred Action for

Childhood Arrivals program did not pass muster even though

“[a]ll parties agree” she had the power to rescind the program).

18

Specifically, the policy states: “This policy is subject

to change based on factors such as the progress of the COVID-

19 pandemic and guidance from governmental authorities.” JA

351.

26

The public health landscape has changed markedly

since Rutgers imposed the mandate. As President Biden put it

when rescinding Executive Order 14042, “[c]onsidering th[e]

progress [made], and based on the latest guidance from our

public health experts, we no longer need” the vaccine mandates

that were earlier imposed on federal employees and

contractors. Exec. Order No. 14099, 88 Fed. Reg. 30891

(May 15, 2023). Further, consistent with the President’s

“wind[ing] down certain remaining COVID-19 vaccination

requirements to coincide with the May 11, 2023 termination of

the federal public health emergency,” New Jersey’s Governor

rescinded vaccine mandates applicable to various employees

working in a broadly defined category of covered “health care

settings.”19 N.J. Exec. Order No. 332 at 7-9. In taking that

important step, the Governor likewise relied on the current

state of COVID-19 infection and vaccination rates, nationally

and in New Jersey. Id.

Rutgers argues that its vaccination mandate is

“consistent with federal, State, and local efforts to stem the

pandemic,” JA 350, and that may have once been true. But in

light of the aforementioned presidential and gubernatorial

vaccine-mandate rescissions, the assertion that the

continuation of the vaccine mandate for students at Rutgers is

still consistent with federal, state, and local policies can be

viewed with a strong dose of skepticism. Consequently, I

19

The term was defined to include places ranging from

“acute [and] pediatric … hospitals” to “specialty hospitals, and

ambulatory surgical centers” to “long-term care facilities” and

“dialysis centers” and facilities providing “[a]ll-inclusive

[c]are for the [e]lderly.” N.J. Exec. Order No. 332 at 10.

27

believe the Plaintiffs should be permitted to amend their

complaint to test the rationality of leaving the mandate in place.

III. CONCLUSION

I concur in the Majority’s judgment affirming the

dismissal with prejudice of the Plaintiffs’ federal preemption

claim, ultra vires claim, and equal protection claim as it relates

to natural immunity. Additionally, I concur in my colleagues’

reasoning that rational basis review applies to the Plaintiffs’

constitutional claims. I concur further in their conclusion that

the Plaintiffs’ equal protection claim relating to the faculty and

staff is not moot. I dissent as to their judgment to dismiss rather

than to remand the matter to the District Court for further

proceedings on the merits. I would further permit the Plaintiffs

to seek leave to amend their complaint to challenge the

University’s continued imposition of the vaccine mandate.

28