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Law professor with COVID antibodies sues GMU over vaccine mandate

A George Mason University law professor with naturally acquired immunity from COVID has filed a lawsuit demanding an exemption from a policy that requires employees get the COVID vaccine or face numerous sanctions.

The nonprofit New Civil Liberties Alliance filed the complaint Tuesday on behalf of Antonin Scalia Law School Professor Todd Zywicki. It alleges that the public university’s vaccine policy violates Zywicki’s right to privacy and due process, among other claims.

GMU spokesperson Robin Parker told The College Fix on Wednesday the university “has no comment on the ongoing litigation.”

Jenin Younes, an attorney representing the professor, told The College Fix on Wednesday that as far as she knows this may be the first lawsuit in which a person with naturally acquired COVID immunity has sued their employer over a vaccine mandate.

The lawsuit seeks a declaratory judgment that GMU’s policy infringes on the professor’s “constitutionally protected rights to protect his bodily integrity and to refuse unnecessary medical treatment.”

George Mason University’s reopening policy for the fall 2021 semester allows administrators to strip employees who choose not to share their vaccination status of eligibility for future merit pay increases. It also threatens employees with disciplinary action that includes “unpaid leave or possible loss of employment,” the alliance argues.

Zywicki (pictured) requested a medical exemption based on his natural immunity and his doctor’s statement that vaccinating him would violate the principle of medical necessity, Younes told The Fix.

“GMU wrote in their letter to me that natural immunity didn’t qualify,” she said. “This is a copy-paste: ‘Mason is not currently exempting individuals who previously had COVID-19 from the vaccination requirement as such an exemption is not consistent with the guidance issued by the CDC.'”

In addition to Zywicki’s medical doctor advising the professor not to get the vaccine, he has obtained medical affidavits from Jay Bhattacharya of Stanford and Martin Kulldorff of Harvard, who agree Zywicki should be exempt.

The two cite several studies that found those who have recovered from a COVID infection “possess immunity as robust and durable as that acquired through vaccination.”

“In Professor Zywicki’s case, there is no doubt that, based on recent measures of his antibody levels and his history of prior COVID infection, he is protected by natural immunity,” the two medical professors state.

“There is no good reason from the point of view of Professor Zywicki’s personal health that he should be vaccinated. At the very least, the decision should be left to Professor Zywicki and his doctors without coercion applied by the University.”

Weighing in on the lawsuit, George Washington University law Professor John Banzhaf said he believes Zywicki faces an uphill battle in court.

Banzhaf, who has achieved success in public health litigation related to cigarettes, said in a statement that because the “science is obviously unclear, it’s wise for the university — and therefore judges — to err on the side of caution, safety, and protection rather than risking the lives and health of others.”

“Forcing a university to make individualized assessments of every professor (as well as all staff members and students, since the same rule should apply to all) who claims to have had COVID, and, more importantly, claims that he still have enough antibodies to prevent any spread to anyone, is simply not economically possible and workable,” Banzhaf said.

He also argued Zywicki has a plausible workaround.

“It appears that the professor can, if he wishes, obtain an exemption. For example, he can simply work — and teach — from home,” Banzhaf said. “This is something which most professors have been forced to do anyway for most of the last year, so it is clearly not an unprecedented or unreasonable requirement.”

MORE: Professor with naturally acquired COVID immunity battles GMU vaccine mandate

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About the Author
Fix Editor
Jennifer Kabbany is editor-in-chief of The College Fix.