Henning Jacobson Agreed That Schools Could Mandate Vaccines

"The school is a part of the state's domestic economy, and the state may regulate it in its own discretion."


Today, a Seventh Circuit panel, per Judge Easterbrook, upheld Indiana University's vaccine mandate. (Eugene blogged about it here). The Court distinguished the school-wide mandate at issue in Indiana with the population-wide mandate in Jacobson:

Second, Indiana does not require every adult member of the public to be vaccinated, as Massachusetts did in Jacobson. Vaccination is instead a condition of attending Indiana University. People who do not want to be vaccinated may go elsewhere.

More than a century ago, Henning Jacobson agreed. He argued before the Supreme Court that school-wide vaccine mandates are permissible, because schools can choose who attend. By contrast, Jacobson argued against the population-wide mandate.

Here an excerpt from his brief:

Stay tuned for more, from my forthcoming article, The Irrepressible Myth of Jacobson v. Massachusetts.

NEXT: Eviction Moratoria and Nondelegation

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  1. Ergo, ipso facto, henceforth thereunto, we need to provide education funding directly to parents useable at any educational institution of their choice, including funding home schooling activities,

    1. Some can’t-keep-up states might go for that.

  2. See, I wonder how many people would agree with that statement nowadays.

    1. “No right to attend the schools is inherent in our laws … attendance is a privilege … it may exclude anyone it chooses”

      Given the application of constitutional law to public schools and universities, of which both liberals and conservatives support for different reasons, I do not think you can make that argument today. that a population wide mandate is distinct from a school mandate

      1. All states mandate that children of certain ages attend schools, in fact, and require their localities to provide free schooling for children between some large set of ages: https://nces.ed.gov/programs/statereform/tab5_1.asp

      2. SCOTUS has been clear that public education isn’t a right. In terms of the constitutional application to attendance differentiations that has been not one of right based litigation but EPC based litigation. You can argue that allowing vaccinated but not unvaccinated violates the EPC but that isn’t going to succeed in front of any judge.

        1. mse326, many state constitutions elucidate a right to a free public education. To me, it is a state matter, not federal.

          1. That’d be a cause of action in state court.

          2. Texas is one of those states.

        2. mse326
          August.3.2021 at 2:38 am
          Flag Comment Mute User
          “SCOTUS has been clear that public education isn’t a right.”

          Plyer v doe says otherwise

          1. That was rational basis EPC.

            San Antonio Independent School District v. Rodriguez is the case on point, and it finds there is no right.

  3. The irrepressible myth of Jacobson is that ideologues like Josh Blackman want to pretend it is limited to its facts and people have the right to kill others because they assert a phony freedom against inoculation.

    It’s really sad, and Prof. Blackman ought to apply his talents to advocating things that don’t kill people.

    1. Are you seeking to overturn Roe v. Wade?

    2. “The irrepressible myth of Jacobson is that ideologues like Josh Blackman want to pretend it is limited to its facts…”

      Sure, expand Jacobson a little. What could go wrong?

      1. Arguably a lot less than if we pretend public health in a pandemic is a private decision.

        Dilan isn’t advocating for some kind of infinite expansion, so don’t exclude the middle. Rarely are cases limited to their facts; that’s how our whole legal system is designed.

        1. Leave you neighbor’s body alone, racist thug

          1. Redefining words won’t change how to fight a pandemic.

            1. Somehow, the same lawyers who have no trouble picking apart anything said by a Trump official cannot be bothered to independently evaluate the narrative on “how to fight a pandemic”.

              The facts are that:
              * Many people have natural immunity, which appears to be broader in scope than vaccine immunity.
              * The vaccines do cause some injury, especially to those who least need them (i.e., under 30 year olds).
              * The media and some craven politicians have fanned a major scapegoating narrative to deflect from their inability to bring the pandemic under control over 15 months of disastrous policies.
              * There are promising treatments (like ivermectin and 500 others under review by the FDA) that appear to have been actively attenuated in support of the “everyone must vaccinate” narrative.

              Where is the critical thinking for which this country was known?

              1. You start with whattaboutism, and then move on to some really vague statements about ‘many people’ ‘some injury’ ‘appear to…’

                Why do you think you needed to use such general language and weasel words? Perhaps because you don’t care to check if you really have numbers on your side?

                The pandemic hasn’t subsided worldwide, I don’t think much political cover for America being part of the world is really needed.

                But the bottom line is DWB is arguing, as usual, from a simplistic and radical place – that all pandemic restrictions are bad. You’re still wrong, but arguing a much more nuanced and less childish cost-benefit thesis.

              2. WTF is this “natural immunity?”

                Did you get that from Tucker Carlson?

                1. I suspect this is a Russian troll.

              3. I couldn’t think when I saw great doctors and nurses broken down by the toll of so many deaths and so much work when people refuse to take basic safety measures and insist they’re all making it up.

              4. * Many people have natural immunity, which appears to be broader in scope than vaccine immunity.

                No such “appearance” exists; you made that up.

                * The vaccines do cause some injury, especially to those who least need them (i.e., under 30 year olds).

                If this is a reference to the clotting issues, this is far less frequent than the effects of covid.

                * The media and some craven politicians have fanned a major scapegoating narrative to deflect from their inability to bring the pandemic under control over 15 months of disastrous policies.

                This is the “You fucked up; you trusted us” argument. Conservatives did everything they could to spread covid, and then blamed other people for not stopping covid.

                * There are promising treatments (like ivermectin

                No, you kook/liar.

    3. How is what he is advocating killing people?

      1. Michael Ejercito
        August.3.2021 at 10:51 am
        Flag Comment Mute User
        “How is what he is advocating killing people?”

        Its a common theme promoted by the science of covid paranoia that the young will continue to infect grandma and kill grandma – not withstanding that over 90% of the vunerable have been vaccinated. Also ignoring that the young, when infected, typically have much lower viral loads and thus , less infectious. Also ignoring that actual covid infection provides equal to or better long term immunity than the most of effective vaccine and substantially better immunity than the weaker vaccines.

        FWIW, I just left a meeting with a nursing home operator, who mentioned that they have had several residents become infected even though all the residents and staff have been fully vaccinated.

        1. “promoted by the science of covid paranoia that the young will continue to infect”
          Such patent BS is not worth replying to.

          BTW no one said that vaccinated persons cannot spread the disease.

        2. Also ignoring that actual covid infection provides equal to or better long term immunity than the most of effective vaccine

          No. No. No. Stop lying.

    4. Government is the largest mass-murderer in history

      1. WOW! the man has discovered War.

      2. Besides mosquitos, maybe.

  4. Remember two years ago when nobody ever questioned vaccine mandates for attending school? Those mandates that the vast majority of people kvetching today already experienced themselves and with their children without issue? Yeah, that was great.

    1. Remember two years ago when nobody questioned the integrity of the FDA or CDC? Yeah, that was great.

      1. No I don’t since both agencies have been targets of “conservatives” for decades now.

        1. Yeah, although usually the criticism about the FDA was that it was too slow at approving things…

          1. As always with “conservatives,” the “argument” is whatever they need it to be.

      2. AtR,
        Why don’t you tell us what agencies and who have integrity
        UK NHS?
        Israeli Ministry of Public Health?
        Fox News?

        Tell us please so that we can assess your comments

        1. Why don’t you tell us the relevance of your question so that I can assess whether it’s worth my time to formulate an answer?

          1. That’s kind of his point – broad spectrum dismissal of institutions is basically contentless.
            You shouldn’t ever put blind trust in them, and you shouldn’t ever knee-jerk dismiss them as liars a priori.

            1. S_0,
              These pandemic related comment threads are a lesson that it is a waste of time to try to discuss anything with people who have no interest doing more that parroting the usual nonsense they have gotten from social media, talk radio, and Fox

              1. Yeah. It is a bad habit of mine. I always think their response might be interesting, and it never is.

                1. Your level of discourse is downright puerile … like two frat boys high fiving each other after doing a Cuomo … feh

                  1. So why don’t you answer?
                    Or are you too superior?
                    I am actually tired of wasting time with characters like you and Armchair Lawyer

                  2. Wow! your read about Cuomo; good for you.
                    How about doing a Trump? Talk about puerile, your comment defines it.

          2. Why don’t you answer.
            The relevance is obvious; there is no point discussing the pandemic with people who think no institutions have any credibility

    2. Existing vaccine mandatwes were for tried and true vaccines for diseases which hasd a high risk of complications for childREN.

    3. “Remember two years ago when nobody ever questioned vaccine mandates for attending school?”

      No. Because that was not the case two years ago. Or twenty or thirty years ago. As long as there have been vaccine mandates for school enrollment / attendance, there have been controversies.

      Remember the multiple times that opponents of measles vaccine were widespread enough to defeat herd immunity in CA?

  5. Hmm.

    1, If Indiana University was private, this would look like a fairly material change to the contract, which for existing students who have already dropped $11,000, or 2 x $11,000, plus one or two years of their life, would be a big deal (if they didn’t want the vaccine.)

    2. So IU would presumably need to be pointing to a clause in its contract reserving the right to change the rules half way through, the reasonableness of which, and the application thereof, the court would presumably feel was an OK subject to opine on.

    3. So when it’s IU, the public university, an educational institution rather than the State medical board or whatever, it seems to get some magic pixie dust on account of being a state agent, and we seem not to need to get into whether there’s a material change in the contract and whether it’s justifiable, or whether existing students should get their money back if it’s not.

    4. How far does this magic pixie dust go ? I presume there are quite a few businesses which have commercial contracts with State institutions, which involve an expectation that the terms will not be changed materially half way through, without compensation. eg a contract to build a highway. In such a case, can the State just change the contract spec anyway – eg for some genuine safety purpose – without reference to the clause in the contract dealing with modifications of spec ? And if the contractor demurs, the State can just say “feel free to walk away” ?

    1. I would bet that IU, like every other school, already has vaccination requirements in place. Adding a new vaccine because of a new public health threat is probably already covered and wouldn’t be considered any kind of breach of contract.

    2. This must be the latest from the right wing dumb argument generator because it’s coming up a lot lately. It mostly just makes it clear that even on this law blog, apparently most of the right wing commentators have never been to college since they would know all of the following otherwise:

      1) There’s no four year contract to attend a university. Each semester you pay some tuition and get your credits. Maybe you sign a year long lease on student housing.

      2) Prior to going to universities, students ALREADY agree to get vaccinated for various things, and unless the university’s lawyers are really bad at their job, the exact list of vaccines will be set at the discretion of the university. So this isn’t a new requirement being introduced into an existing agreement.

      3) You actually have the issue exactly backwards. The only reason this is controversial at all is that it’s a public university and therefore could be an instance of the state compelling you to do something. Tons of private institutions already have started requiring Covid vaccinations. See:


      1. Thank you for your helpful reply, jb.

        But returning to the point I’m asking. If the university introduced a vaccine requirement mid-semester, and it did not have a flexible vaccine clause in its contract with the student, would the legal position differ between public and private universities ?

        Would a private university be allowed to introduce a new material contractual change within the term of the contract, and would the question of materiality be a matter solely for the university’s discretion, or would the court review it ?

        And would the position of a public university be any different, simply because it’s a state body ?

        1. Lee,
          I can only tell you directly about my university. All returning and new students as well as staff and faculty have been informed on a regular basis of the rules regarding access to and use of campus facilities. Our legal department has been fully involved. I don’t see any such issues arising for us.

        2. Overall, I think the shift to remote learning was a much more material change and in general I don’t think students were able to get money back for that, so it seems very unlikely that a student would succeed in a claim that updating the roster of required vaccines would be a material change to the contract by the university. But it would probably be dependent on the exact details of the vaccine policy, what agreement was signed, etc. It’s possible some lawyer drafted an agreement that gives students some recourse, but I think those would be a very rare exception not the common case.

          But also, most of the times I’ve seen these sorts of changes (including at IU) have been for the start of new semesters so if you don’t want to get vaccinated, you can just stop paying for the school and go somewhere else.

      2. @jb this comment is ill-informed. Universities are very much concerned about the implied contract with students.

        For example, the description of a course in the course catalog is considered part of this implied contract … and we are extremely careful not to diverge too much from this description.

        Some universities provide students 4-year financial aid offers when they join the university. If the university changes its contract in the middle, this can materially affect the student’s ability to pay for college.

        1. AtR,
          And how would a vaccine requirement affect the students ability to pay?
          Also the offer of 4 years of financial assistance always has conditions> So be specific here.

          1. After two or three years in a BS program, the value of a student to a different institution is significantly decreased, and the student’s ability to get a good financial aid package may be likewise.

            I have never seen conditions on a financial assistance package that the student has to stipulate to any medical interventions the university feels is appropriate.

            1. Again you did not answer the question.
              There is no point discussing it with you.

              1. Your question: “And how would a vaccine requirement affect the students ability to pay?”

                My answer: “the value of a student to a different institution is significantly decreased, and the student’s ability to get a good financial aid package may be likewise.”

                I’ll spell out the obvious for the reading impaired: if there is a vaccine requirement and a student leaves the institution to exercise her rights, under EUA, to refuse the vaccine, then she is in a much weaker position to get similar financial aid at a different institution.

                1. That is not an answer it is a simple dodge.
                  Again, it it is pointless to try a hold an honest discussion with thse who duck event the simplest of questiosns.
                  As for your dodge, it is BS.
                  Exercise her rights? what rights, to act like a child? she gets a vaccine or gets tested twice a week.
                  If she leaves it is her FREE choice,

                  1. It never seemed to me that you were attempting an honest discussion @Don … you just like to hear yourself talk.

                    No college is offering “she gets a vaccine or gets tested twice a week”. They are mandating vaccines, in part, to cut down on testing … but in many schools the vaccination is not a choice for students. If they want to study at the university, they must be vaccinated.

                  2. It’s seldom wise to intervene in other folk’s spat, but whatever.

                    It seems to me that both parties understand each other’s position perfectly well. Don Nico understands that if you leave college A midstream because it imposes a new condition of attendance that is unacceptable to you, you can suffer financial disadvantages in trying to continue your course of study elsewhere.

                    And AtR understands that the financial disadvantage is not the direct and automatic result of the imposition of the new condition of attendance, it is the result of your leaving the college on account of its unacceptability to you.

                    The question is whether Don Nico is correct in saying :

                    If she leaves it is her FREE choice

                    And that seems to be doubtful. In the first place the immediate cause of the student’s departure is the university’s decision to expel her. It is not the student’s choice at all. The indirect cause of the expulsion was the student’s refusal to get vaccinated, but even then it’s doubtful that we would normally call this a “free choice”, since what we seem to have is a case of attempted coercion, which has failed. ie the college says “vaccine or you’re out” and the student has the “free choice” of submitting to the coercion, or being “out.”

                    In examples with knife wielding robbers and wallets, we tend not to say that the guy who chooses to hang on to his wallet and gets slashed, “freely” chose the slashing. It was imposed on him because he declined to submit to the coercion.

                    Obviously this has nothing to do with whether vaccines and vaccine mandates are a good idea, it is simply to do with the decision structure offered to the student. And as a more general matter, how and when “do this or else” works under contract law.

                  3. And I if put up a sign on my property that trespassers will be shot dead, and do so to a trespasser, the gubmint will convict me of manslaughter or murder because I was obviously “looking for trouble” against trespassers whose trespassed by their free choice

        2. I didn’t actually say that universities aren’t concerned with implied contract with students; I said that this change wouldn’t violate the contract (since vaccines are already required) and that the contract is semester-by-semester.

          The financial aid angle is interesting, but those committments are strictly limited to the financial aid itself. The university doesn’t promise to keep the course catalog identical during the four years of attendance, for example, so your other analogy to course descriptions actually makes my point that the real implied contract is semester by semester.

    3. Lee,

      Do you really imagine that students are not required to comply with health and safety requirements?

      1. I’m more interested in whether one party can introduce a new requirement (whether to do with health and safety, or anything else) in the middle of a contract; and whether the answer depends on whether the contracting party seeking a change is a state body or not.

        The particularities of colleges and vaccines are simply specific illustrations.

        So, for example, mid-semester the university introduces a uniform requirement, as the Dean feels the students’ standard of dress reflects poorly on the university. Shell out $1,000 on new duds or go home. Is that OK for public uiversities but not private ? Or the other way round ? Or both ? Or neither ?

        1. Lee,
          Mid-semester 2020, we as well as many other universities public and private told students not to return to campus from spring break and that classes would resume on line. Various accommodations were made regarding food and housing for those who would nt have returned home. I cannot say that there were no outstanding complaints (I just don’t know) but if there were they were few and far between

        2. Lee,


          My point was only that I imagine – don’t know for absolute certain – that most or all universities have, and have had for a long time, a rule that says students must comply with such health and safety requirements as the school deems appropriate, and that a vaccine requirement would surely fall under that rule. (No doubt there is a “reasonableness” consideration.)

          So that’s in the “contract.”

          I doubt a mid-semester uniform requirement would be allowed.

          1. Yup, understood. If it’s in the contract, then the courts can determine whether the contractual clause covers the thing that the university wants to do. So if there’s a “uniform” clause, or a “proper standards of dress in class” clause, presumably the same would apply as if there was a “health and safety” clause.

            Though I imagine in practice most judges would cut the university a lot more slack, in interpreting a vague clause about health and safety, than in interpreting a vague clause about proper standards of dress.

            1. Lee,
              There are relevant cases. In New York courts have said that when admitted, an implied contract arises: if the student follows all of the college’s rules and procedures and comports with academic standards (including passing all required classes, etc) then the college will award the appropriate degree sought.

              Note well: all the university’s rules and procedures. This law suit for breach of contract does not have much of a chance given the deference of the courts to the university’s judgement of how best to safeguard the health and safety of students and university employees

    4. Lee,
      I would be surprised if the usual contract clause of Force Majeur were not operative give a declared national emergency.
      Naturally organizations with long-standing business interests value their relationship and seek some mutually agreeable accommodation.

  6. I guess this is going to be the Contract Law thread.

  7. It sounds like Jacobson’s rationale relies on the fact that vaccination (then) made you less likely to transmit the disease. But today’s so-called vaccines do the opposite. Hopefully someone will prove this in court and get the mandates tossed out the window.

    1. These are your peeps, Conspirators.

      This is why you have not won. This is why you are not winning. This is why you will not win.

      If you are lucky, strong law school faculties will continue to keep a few token conservatives around for sport.

    2. But today’s so-called vaccines do the opposite.

      No. This is loony.

  8. I’m struck by the concept of “proof of vaccination.” What exactly does that mean? Is it similar to “proof of baptism”? At one point, many American public Universities required proof of baptism and noone raised constitutional issues about such a requirement. There is no objective standard defining either baptism or vaccination… and no reason to believe that a vacuously defined baptism offers any more or less “protection” of self or others than does a vacuously defined vaccination.

    While the opinion of the Seventh makes many points with which I agree, its opinion both lacks a limiting principle and, worse, tends to blur the lines of definition.

    Considering the second point first, there IS a difference between a requirement to show proof of having a class-of-thing and a requirement to have a thing done; that is, there is a difference between the requirement to show proof, perhaps or perhaps not under oath, that one has had a “CoViD vaccine” (a now-popular injection of one of a multitude of scantly-tested elixirs purported to “save” self and others from the “dangers” of one or more variants of a common ailment which in rare instances leads to sickness and in rarer instances leads to death) and the requirement that one submit oneself to the injection of a specific anti-toxin proven beyond all doubt to prevent the spread of an easily-transmissible and always-deadly disease. One who is demanding to perform baptism by whole-body immersion in Holy water has a role different from one who demands proof of proper baptism, just as the injection of a specific chemical has a role which differs from a request for proof of “proper vaccination.” Recall that the mark of smallpox vaccination was indelible!

    “Beware of beans, not bullets” has been a mantra for more than a century: experiences from the American Civil War have demonstrated the need for //public hygiene// to prevent “camp fever” and other illnesses spread in communal settings. But where does this end? What illness or trauma is too insignificant to escape the “common good”? Are physical ailments alone subject to mandated mitigation or do emotional ailments qualify as well? Again, public health was the basis for eugenic sterilization and, at the time performance of such eugenic sterilization began, it was well-known (and well-published) that such eugenic practices would have absolutely no health effect unless practiced without exception for at least 7,000 years: pseudo-science prevailed over science and the remnants of that prevalence — Jacobson and Buck — remain with us today.

    1. “The fairly obvious lesson to be learned is that where science appears to validate folk beliefs, it needs to be subjected to considerably higher standards of scrutiny than ordinary science.”
      [Marks J. Racism, Eugenics, and the Burdens of History. IX International Congress of Human Genetics. 20 August 1996, Rio de Janeiro, 1996.]

    2. “I’m struck by the concept of “proof of vaccination.” What exactly does that mean? ”

      Relax. School administrators (and business owners, and event sponsors, and government officials) will figure that out, and seem unlikely to rely on you for guidance.

    3. “and in rarer instances leads to death”
      I am sure that the families of the 630,000 dead American will agree that the deaths were as rare as you think

  9. Looking back on the past two years, people will say, there are two things that have given conservatives (and psuedo-liberatrians) a bad name:
    Covid and Donald Trump.

  10. Suppose the student has a right to education. In some state constitutions, there is such a right. See Washington state. In that case, would the school have the “right” to pick and choose the student. A possible counter-argument is it’s only one school in the Indiana University system and UI does limit the number of people who can attend. However, of those already chosen to attend and deemed academically eligible, can they then deny the public service of education. Does denial raise separate but equal arguments. I find the free denial of public services and the lack of any attempt to find a least restrictive alternative disturbing.

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