Law prof who had COVID-19 sues over university's mask, testing mandates

Pharmacy manager Jayme Strnatka prepares a coronavirus disease (COVID-19) vaccine at a Walgreens store in Chicago, Illinois, U.S. February 11, 2021. REUTERS/Eileen T. Meslar/File Photo
  • Todd Zywicki claims he shouldn't be subject to a vaccination requirement because he has natural antibodies from the virus
  • Lawsuit calls George Mason University's policy an "unlawful mandate"

(Reuters) - A George Mason University law professor has sued the Virginia university's leadership in federal court over its reopening policy, alleging its requirement that unvaccinated employees wear masks on campus and submit to COVID-19 testing violates his constitutional rights.

Todd Zywicki, who has taught at the Antonin Scalia School of Law since 1998, said in a lawsuit filed Tuesday in U.S. District Court for the Eastern District of Virginia that the policy is "unmistakably coercive" and an "unlawful mandate" that places unfair additional burdens on unvaccinated employees who come on campus.

Because he tested positive for COVID-19 antibodies after a bout with the virus last year, there is no "compelling governmental interest in overriding Professor Zywicki’s personal autonomy and constitutional rights by forcing him, in essence, to either be vaccinated or to suffer adverse professional consequences," the complaint asserts.

Zywicki is represented by lawyers at the New Civil Liberties Alliance, a nonprofit civil rights firm founded in 2017 that aims to "protect constitutional freedoms from violations by the Administrative State," according to its website.

The lawsuit claims Zywicki's doctor advised that receiving the vaccine wouldn't give him any additional benefit due to the presence of antibodies and would expose Zywicki to a “heightened risk for adverse side effects." (The Centers for Disease Control and Prevention recommends that even those who have contracted COVID-19 get vaccinated.)

George Mason’s policy, which stops short of requiring all employees to be vaccinated in order to be on campus, says workers who do not disclose their vaccination status to the university may face disciplinary action including unpaid leave or “possible loss of employment,” according to the complaint. Additionally, employees who do not disclose their vaccination status are not eligible for merit pay increases.

The university did not immediately respond to requests for comment Wednesday on Zywicki’s lawsuit.

Zywicki appears to be the first faculty member at a U.S. university to sue over masking and social distancing requirements for the unvaccinated. At least five universities have been sued by students challenging their COVID-19 vaccination mandates. A federal judge in Indiana in July declined to block Indiana University’s student vaccine mandate — a decision the 7th U.S. Circuit Court of Appeals upheld on Monday.

“(George Mason University’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,” said New Civil Liberties Alliance litigation counsel Jenin Younes in a statement.

Zywicki’s complaint says he applied for an exemption to the policy on medical grounds but was denied because the university does not accept that people with COVID-19 antibodies should be treated on par with vaccinated individuals.

He claims that wearing a mask will hinder his ability to teach his 61-student contracts course this fall, and that social distancing requirements will make it impossible to hold office hours and attend faculty workshops and other campus events.

“By imposing such impediments, the Policy prevents Professor Zywicki from carrying out his responsibilities as successfully as his vaccinated colleagues, jeopardizing his teaching evaluations, future student enrollment, opportunities for academic collaboration, reputational standing, pay raises, and other professional opportunities,” the complaint reads.

Read more:

Indiana University's mandated vaccine survives 7th Circuit appeal

Returning to law school this fall? Better get vaccinated

Students say Loyola Marymount's vaccine mandate is 'apartheid'

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Karen Sloan reports on law firms, law schools, and the business of law. Reach her at