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