Professor Todd Zywicki v. Gregory Washington, in his official capacity as President of George Mason University, et al. 

CASE SUMMARY

George Mason University (GMU) is threatening students, faculty, and staff with disciplinary action that includes “unpaid leave or possible loss of employment” for faculty if they don’t comply with the public university’s vaccine mandate.

NCLA filed a complaint in the U.S. District Court for the Eastern District of Virginia on behalf of Antonin Scalia Law School Professor Todd Zywicki against GMU’s unconstitutional reopening policy for the Fall 2021 semester. The policy requires all unvaccinated faculty and staff members, including those who can demonstrate naturally-acquired immunity through recovery from a prior Covid-19 infection, to disclose their vaccination status as “a prerequisite for eligibility for any merit pay increases.” The policy could also force them into choosing between their health and personal autonomy and suffering serious detriment to their professional careers.

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CASE STATUS: Active

CASE START DATE: August 3, 2021

DECIDING COURT: U. S. District Court For the Eastern District of Virginia

ORIGINAL COURT: U. S. District Court For the Eastern District of Virginia

CASE DOCUMENTS

August 3, 2021 | Complaint for Declaratory Judgment and Injunctive Relief
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PRESS RELEASES

August 17, 2021 | George Mason Univ. Caves to NCLA’s Lawsuit over Vaccine Mandate, Grants Prof. Medical Exemption

Washington, DC (August 17, 2021) – The New Civil Liberties Alliance is pleased to announce today that George Mason University (GMU) has granted a medical exemption from its mandatory Covid-19 vaccination policy to NCLA client Todd Zywicki, George Mason University Foundation Professor of Law at Antonin Scalia Law School. NCLA is delighted with Prof. Zywicki’s victory for freedom. His brave determination to fight the university’s misguided and scientifically unsound vaccination mandate has garnered nationwide attention. GMU and other universities must stop ignoring science and cease forcing mandatory vaccines on even those with naturally acquired immunity (especially if only approved under a federal Emergency Use Authorization statute).

Strangely, despite solid scientific evidence, GMU continues to refuse to recognize that Covid-19 vaccination is medically unnecessary for ALL students, faculty, and staff with naturally acquired immunity demonstrated with antibody testing. At times GMU officials have appeared to deny that such a thing as naturally acquired immunity exists. This refusal is particularly odd, as the efficacy of the very vaccines GMU wishes to mandate are measured against levels of natural immunity acquired by those who have recovered from Covid-19.  For this reason, NCLA continues to explore litigation against GMU. We also welcome hearing from others on public-university campuses in Virginia—particularly tenured faculty—who have naturally acquired immunity backed by antibody testing and whose schools are similarly disregarding the scientific facts surrounding naturally acquired immunity.

NCLA filed Professor Zywicki’s complaint in the Eastern District of Virginia on August 3, 2021, challenging GMU’s “reopening policy.” The policy, announced June 28, requires all faculty and staff members, including those who can demonstrate natural immunity through recovery from a prior Covid-19 infection, to disclose their vaccination status as “a prerequisite for eligibility for any merit pay increases,” unless they obtain a religious or medical exemption. On July 22, GMU emailed the policy to students and employees and threatened disciplinary action—including termination of employment—against any who do not comply with the vaccine mandate. The university’s website describing its vaccination policy reiterated this threat.

Prof. Zywicki has already contracted and fully recovered from Covid-19. As a result, he has acquired robust natural immunity, confirmed unequivocally by multiple positive SARS-CoV-2 antibody tests conducted over the past year. In fact, Prof. Zywicki’s immunologist, Dr. Hooman Noorchashm, has advised him that, based on his personal health and immunity status, it is medically unnecessary to get a Covid-19 vaccine—and that it violates medical ethics to order unnecessary procedures.

As a result of the exemption it granted, GMU is permitting Prof. Zywicki to remain unvaccinated for medical reasons. GMU has assured Prof. Zywicki that he will not be subject to disciplinary action, and that he will be allowed to hold office hours and attend in-person events provided he maintains six feet of distance. He must get tested for Covid-19 once per week on campus at no cost to himself. This favorable result should encourage others to fight irrational vaccine mandates elsewhere on the same bases laid out in the Zywicki complaint against GMU.

NCLA, a nonpartisan, nonprofit civil rights group, argued in the lawsuit that under GMU’s flawed reopening policy, unvaccinated professors cannot carry out their responsibilities as effectively as their vaccinated counterparts, jeopardizing teaching evaluations, future student enrollment, opportunities for academic collaboration, reputational standing, pay raises, and other professional opportunities. Because these requirements would have diminished Prof. Zywicki’s efficacy in performing his professional responsibilities, the policy would have coerced him into receiving the vaccine.

NCLA released the following statements:

“NCLA is pleased that GMU granted Professor Zywicki’s medical exemption, which we believe it only did because he filed this lawsuit. According to GMU, with the medical exemption, Prof. Zywicki may continue serving the GMU community, as he has for more than two decades, without receiving a medically unnecessary vaccine and without undue burden. Nevertheless, NCLA remains dismayed by GMU’s refusal—along with many other public and private universities and other employers—to recognize that the science establishes beyond any doubt that natural immunity is as robust or more so than vaccine immunity.”
Jenin Younes, NCLA Litigation Counsel and lead counsel in Zywicki v. Washington, et al.

“I am gratified that George Mason has given me a medical exemption to allow me to fulfill my duties this fall semester in light of unprecedented circumstances. Thanks to NCLA, we have increased public awareness that vaccinating the naturally immune is medically unnecessary and presents an elevated risk of harm to Covid-19 survivors. I speak for tens of millions of Americans in the same circumstances I am in, and I call on leaders across the country to develop humane and science-based approaches as opposed to one-size-fits-all policies.”
Todd Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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August 4, 2021 | NCLA Sues GMU Officials Over Their Refusal to Recognize Prof.’s Naturally-Acquired Covid Immunity

Washington, DC (August 4, 2021) – George Mason University (GMU) is threatening employees with disciplinary action that includes “unpaid leave or possible loss of employment” if they don’t comply with the public university’s vaccine mandate. Late last night, the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed a complaint in the U.S. District Court for the Eastern District of Virginia on behalf of Antonin Scalia Law School Professor Todd Zywicki against GMU’s unconstitutional reopening policy for the Fall 2021 semester. The policy requires all unvaccinated faculty and staff members, including those who can demonstrate natural immunity through recovery from a prior Covid-19 infection, to not only disclose their vaccination status as “a prerequisite for eligibility for any merit pay increases,” but also be forced into choosing between their health and personal autonomy and suffering serious detriment to their professional careers.

Professor Zywicki has recovered from Covid-19 and thereby acquired robust natural immunity, as confirmed in multiple positive SARS-CoV-2 antibody tests during the past year. Professor Zywicki’s immunologist, Dr. Hooman Noorchashm, has advised him that, based on his personal health and immunity status, it is medically unnecessary to get a Covid-19 vaccine—and that it violates medical ethics to order unnecessary procedures. Affidavits from Drs. Jay Bhattacharya, Martin Kulldorff, and Noorchashm explain that undergoing a full vaccination course creates a risk of harm and provides no benefit either to Prof. Zywicki or the GMU community.

To remain unvaccinated without facing disciplinary action, Professor Zywicki must obtain an exemption to work at home. Otherwise, he must comply with punitive masking, testing, and social-distancing requirements, while facing the prospect of disciplinary action, including termination of employment and lost eligibility for raises. These requirements diminish Professor Zywicki’s efficacy in performing his professional responsibilities; thus, the policy coerces him into receiving the vaccine. In addition, the policy represents an unconstitutional condition being applied to Professor Zywicki’s rights to bodily integrity and informed medical choice.

As an administrative unit of the Commonwealth of Virginia, GMU has no compelling state interest in overriding Professor Zywicki’s personal autonomy by effectively forcing him to receive a vaccine or suffer adverse professional consequences. Because of his natural immunity, Prof. Zywicki already has the same or better antibody levels than a vaccine would give him. In fact, his immunity status makes him far better protected—and less likely to spread the virus—than others on GMU’s campus who have taken one of the inferior foreign vaccines (e.g., Sinovac). As a result, GMU’s arbitrary reopening policy infringes upon Professor Zywicki’s rights under the Ninth and Fourteenth Amendments to the U.S. Constitution—including his rights to due process of law.

The reopening policy also conflicts with federal law. None of the vaccines approved for use in the U.S. has received full Food and Drug Administration (FDA) approval. Rather, they have only been granted Emergency Use Authorization (EUA) status, which means anyone offered the vaccine may withhold their informed consent. The policy thus conflicts with the EUA statute and thereby violates the Supremacy Clause of the U.S. Constitution, which dictates that a state or local law is preempted when it creates “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

NCLA urges the Court to issue a declaratory judgment that GMU’s reopening policy infringes Prof. Zywicki’s right to bodily integrity and to refuse unnecessary medical treatment; that it represents an unconstitutional condition that also denies him due process of law; and that it conflicts with the federal EUA statute and thus violates the Supremacy Clause. For these reasons, NCLA also asks the Court to enjoin enforcement of the policy.

NCLA released the following statements:

“George Mason University’s arbitrary, irrational, and unscientific policy forces our client, a tenured law school professor who has devoted his life to serving his community and his country, to ignore the medical advice of his own doctor. Receiving the vaccine would provide neither Professor Zywicki nor the GMU community any benefit, since he already has demonstrable, robust natural immunity. GMU’s attempt to interfere with Professor Zywicki’s bodily autonomy, with no legitimate rationale for doing so, not only violates medical ethics, but also fundamental rights protected in the Ninth and Fourteenth Amendments to the United States Constitution.”
— Jenin Younes, Litigation Counsel, NCLA

“George Mason University’s policy is indefensible from a medical standpoint, violates our client’s constitutional rights, and deprives him of due process of law. Common sense and medical science should underpin GMU’s actions. Both have gone missing with this latest effort to force a distinguished professor to take a vaccine that he does not need—not for his own protection nor for anyone else’s safety at Scalia Law School.”
— Harriet Hageman, Senior Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document