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George Mason rejects exemption from vaccine mandate for natural immunity, prompting legal threat

D.C.-area university accepts WHO-approved vaccines with less efficacy than antibodies from COVID recovery.

Updated: July 23, 2021 - 11:46pm

George Mason University's refusal to recognize natural immunity from COVID-19 or grant merit pay to employees who don't share their vaccination status could land the Virginia public university in court.

A law professor who recovered from COVID-19, and whose doctor says he faces needless risk from vaccination, is challenging GMU's sweeping COVID rules on 9th and 14th Amendment grounds.

GMU is forcing Todd Zywicki to "choose between risking injury to his health on one hand and sustaining injury to his career on the other," says a Wednesday letter to the university from his lawyers at the New Civil Liberties Alliance (NCLA).

Zywicki's doctor and two authors of the Great Barrington Declaration filed 27 pages of statements in support of the law professor, pointing to his robust antibody levels, likely medical complications from vaccination and research on natural immunity's comparable effectiveness to vaccination.

The letter also zings the D.C.-area university for accepting any vaccine approved by the World Health Organization (WHO), including some the reported effectiveness of which is far below that provided by natural immunity.

GMU issued a press release signed by President Gregory Washington the following afternoon. It promised that "disciplinary action will be pursued," including paid leave and termination, against employees who fail to get an exemption and subsequently hide their vaccination status or refuse the vaccine.

NCLA claimed the university scrubbed the "incendiary" promise to discipline noncompliant employees from its own website less than an hour after the release went out Thursday. The new version also linked to a video from President Gregory Washington that does not mention disciplinary action.

When Just the News visited the page for the first time Friday morning, however, the disciplinary language remained. Within two hours of contacting GMU for comment, the language had disappeared. The original is preserved in an archived version from Thursday.

Zywicki told Just the News Friday that GMU has yet to respond to his Wednesday letter, which requested a response before July 28 at the latest. 

He speculated in a phone interview that President Washington's Thursday statement was a "show of force" that GMU quickly regretted.

"Maybe," he added, "he accidentally said what he meant."

Faculty in the law and economics departments have shared similar concerns about the policy, specifically its "threatening language and the bullying approach," Zywicki said.  

He marveled that the university has more confidence in "the crappy Sinovaccine from China," with 51% efficacy in one study, than natural immunity. "Some university bureaucrat thinks they know better than my doctor ... that's a precedent that no American should be willing to go along with."

GMU did not respond to a request to provide a medical basis for elevating any WHO-approved vaccine over natural immunity and pressuring COVID-recovered faculty to take vaccines that could harm them.

The university may be confident in its legal chances, given that a federal judge recently refused to block Indiana University's COVID vaccine mandate, which has similar punitive measures for unvaccinated community members. One of the plaintiffs in that lawsuit also cited her doctor's warning not to get a COVID vaccine based on her medical history.

Natural immunity valid for Va. schoolchildren

The finalized campus policy requires unvaccinated employees to continue wearing masks, physically distancing and undergoing frequent testing for the novel coronavirus, regardless of prior infection and recovery.

Zywicki told Just the News he doesn't expect a final policy to be confirmed before the FDA gives full approval to at least one of the vaccines issued under emergency use authorization (EUA). 

Not only would mandating an EUA vaccine be illegal, but it's never been done even for vaccines that treat "truly horrible, deadly diseases" such as polio, he said. "It's clear that what they want to do is stigmatize and shame us," which flouts the spirit of true exemptions.

The letter distinguishes GMU's regime from Virginia's rules for vaccination of schoolchildren for measles, mumps, rubella, and chickenpox. The latter explicitly exempt children "who can demonstrate existing immunity through serological testing that measures protective antibodies."

GMU's new rules "diminish Professor Zywicki's efficacy in performing his professional responsibilities," making it harder to communicate in the classroom, hold office hours or attend academic events, and stigmatizing him to students.

Because these restrictions threaten everything from his teaching evaluations to opportunities for academic collaboration, the purportedly optional vaccine policy for employees is actually an "ineluctable mandate," the letter says.

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The law professor has an "unbroken string" of COVID antibody tests from last summer through this winter, which Zywicki requested to "reassure students of his immunity status" when he volunteered to teach in person last fall.

"They are preying on my sense of dedication, which I showed last year to do the right thing for my students," he told Just the News.

Zywicki also had a shingles infection this spring that paralyzed his face for two weeks. His immunologist, former University of Pennsylvania and Harvard Med professor Hooman Noorchashm, warned that the shingles virus "can be reactivated" by COVID vaccination.

Even as it accepts any WHO-approved vaccine, GMU is out of step with the European Union, which is now recognizing a "record of previous infection" in lieu of vaccination, Noorchashm wrote in his declaration.

Stanford and Harvard Med professors Jay Bhattacharya and Martin Kulldorff analyzed GMU's employee policy at NCLA's request.

"There is no reason to presume that vaccine immunity provides a higher level of protection than natural immunity," they wrote in a joint declaration. "Since vaccines arrived one year after the disease, there is stronger evidence for long lasting immunity from natural infection than from the vaccines."

They cited multiple peer-reviewed studies of natural immunity versus immunity from the Pfizer and Moderna mRNA vaccines, whose reported effectiveness is far higher than other WHO-approved vaccines. 

These studies "overwhelmingly conclude" that natural immunity provides equivalent or greater protection against "severe infection" than even the highest-rated vaccines, Bhattacharya and Kulldorff wrote.

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