Law School Professor Sues Over Vaccine Mandate, Because Of Course He Does

You'll absolutely guess which law school!

To dispense with whatever minuscule doubt the reader may have, this is obviously a story about George Mason University Law School. The program, which rebranded itself as ASSLaw[1] a few years ago continues to live up to its name. The law school that prides itself on the tirelessly academic study of America’s most sacred legal document (Atlas Shrugged) is now in the midst of a legal battle over whether or not an educational institution can mandate vaccines for staff.

If this sounds like a question that already got laughed out of a federal appellate court, you’d be right! But if first you don’t succeed… try and waste judicial resources again.

Here’s the complaint.

Todd Zywicki has already contracted COVID and recovered, which he reasons should exempt him from any vaccination requirement. The university, however, says everyone needs proof of vaccination or must continue wearing masks and distancing. That places the school very much within the guidance of national public health officials and the consensus of medical professionals. But, Zywicki’s personal immunologist doesn’t think he should get it so therefore the whole medical establishment needs to reorient around him.

And, of course, there are valid reasons why someone might not be able to get the vaccine. But if you’re wondering why GMU’s reasonable caveat that the unvaccinated just continue wearing masks doesn’t resolve literally every one of Zywicki’s complaints:

Yet, if Professor Zywicki follows his doctor’s advice and elects not to take the vaccine, that will diminish his efficacy in performing his professional responsibilities by hamstringing him in various ways, such as requiring him to wear a mask that has no public health value given his naturally acquired immunity.

Ah. That little known side effect of masks that make one unable to explain what “consideration” means. He later describes wearing a mask as “punitive” because he’s basically that wacko from the Trader Joe’s line with a law degree.

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Of course most of the complaint is an effort to diminish the efficacy of vaccines based on cherry-picking data from various studies circulating around your uncle’s Facebook page. However, before going into his criticisms, Zywicki is conscientious enough to resolve the logical gap facing conservatives everywhere in the second real sentence of the whole complaint.

Since then, and because of the federal government’s “Operation Warp Speed,” three separate coronavirus vaccines have been developed and approved more swiftly than any other vaccine in our nation’s history.

The shorter version is “These vaccines suck… but thankfully Dear Leader Trump delivered them to us through a government spending program that we’re going to pretend didn’t violate most every opinion my colleagues have ever expressed about the ‘free market’ and ‘government overreach.'” Masterful mental gymnastics.

Like a lot of GMU Law’s worldview, it’s not so much that Zywicki’s wrong as that he’s an “ASSoL” as one might say. His natural immunity, derived from a bout with the disease early last year, may in his case offer sufficient antibody protection. But the vaccine isn’t going to wipe that out. And even if he thinks he’s going to be fine, wearing a mask isn’t going to hurt. In short, there’s no reason not to comply with a policy designed to prevent the further spread of the disease except he doesn’t want to because FREEDOM!TM

I mean, would the Founders have forced employees to get a vaccine? Oh. Yes, they would have and in fact did. I’m no expert on this whole “original public meaning” thing, but this seems significant. I wonder if Washington had a carveout for anyone who had already survived a case of small pox?

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At the end of the day, Zywicki’s only concern as far as doubling up his immunity with a vaccine is the possibility of side effects, as explained here:

Put differently, as a matter of simple logic, one cannot be certain about the long-term effects of a vaccine that has existed only for approximately a year, and thus cannot have been studied over a substantial period of time.

As a matter of simple logic!

Of course, there are rare side effects experienced by some who’ve gotten the vaccine. One working theory is that those experiencing horrific side effects are also those who would have had catastrophically bad cases of COVID. Whether that pans out or not, there doesn’t appear to be much to suggest someone who already had a mild case would then have one of these deadly reactions due to the vaccine.

His first count asserts that he’s being forced to undergo unwanted medical care for which he cites the deep constitutional record in this space. The state can’t forcibly treat a prisoner — check and citations! The state can prevent mentally incapacitated individuals from life terminating treatments — check and citations!

Coercing employees to receive an EUA vaccine for a virus that presents a near-zero risk of illness or death to them and which they are exceedingly unlikely to pass on to others, because those employees already possess natural immunity to the virus, violates the liberty and privacy interests that the Ninth and Fourteenth Amendments protect.

Not so much with the citations on this one. But protecting liberty requires constant vigilance. It’s like the saying goes, “First they came for the people who thought masks were punitive, and I did not speak out—because I was not a fucking idiot.

This is also a claim that this policy constitutes a due process violation. That’s weird because this doesn’t seem coercive at all especially with all the caveats.

It is less appreciated in legal circles that, to prevail, unconstitutional conditions claims do not need to establish that a challenged government policy amounts to coercion.

Oh, is it now?

For example, in Speiser v. Randall, 357 U.S. 513 (1958)…

I’ll stop you right there and aver that this 1958 case is going to be the only citation for this principle. The whole section amounts to a repudiation of vaccine requirements of all kinds, because even though he contends that he’s unique for having had the disease and not yet lost his antibodies, he also says it’s a constitutional violation to make someone prove that fact in order to get out of the policy meaning in the landscape he’s seeking there just can’t be vaccination rules for any vaccines at all.

Then there’s a lot of bureaucratic jiggery-pokery about whether an “Emergency Use Authorization” prevents the school from having a policy because of the Supremacy Clause and 1983 claim to bring it all home.

Is there a reason why employers can’t impose an entirely reasonable vaccine requirement upon employees? No. Does the fact that the university is public change this? As we learned in the Indiana case, no. Is there any the free marketeers at GMU can’t just and pursue their careers elsewhere if they don’t like this policy? Absolutely no.[2]

If only George Mason Law really grasped the essence of the free market.


[1] Antonin Scalia School of Law… sometimes also denoted as ASSoL.
[2] For a rundown of more reasons he’s going to lose, check out this law professor’s take.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.