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Zywicki's CNN Smerconish Interview: Follow-up to my earlier Zywicki v. George Mason University post

Updated: Aug 18, 2021

Max Stearns

[Special note: This lawsuit is now settled. I provide an update and relevant links on the original post on this topic, available in the first link in the next paragraph].

This post follows up on my earlier and longer post concerning the lawsuit by my friend and former colleague, Todd Zywicki, against George Mason University. Professor Zywicki is suing because the university has denied him an unconditional exemption against its mandatory vaccine policy.

In this clip from today's CNN's Smerconish, totaling about five minutes, Professor Zywicki addresses several questions concerning his claim of entitlement to an unqualified exemption to the university policy. Two of Zywicki's responses are both important and potentially misleading, and a few additional issues remain unaddressed. These arguments go beyond Zywicki's WSJ op-ed and his case filings, which were the focus of my earlier post.

First, Zywicki claims that the study relied upon by the CDC has been misrepresented because it has been cited as saying that those who received a full vaccine regimen are is twice as likely to avoid contracting COVID as those with natural immunity from having previously contracted COVID. Zywicki claims instead that the study, which he claims to be flawed, only demonstrates that vaccines have two-fold effectiveness as compared with natural immunity. Two-fold literally means double, or twice as effective. These are two ways of saying the same thing.

Second, toward the end of the segment, Professor Zywicki ran some decimals (0.02 vs 0.05) to show that the incidence of reinfection is small in either case. Let us improve the math slightly and compare .025 and .05, which is likely what Professor Zywicki intended. (This correction is not a criticism; I too would struggle to perform decimal valuations on national TV.) The criticism involves reliance upon the small incidence of reinfection for either cohort--those with natural immunity and those with a full vaccine regimen as an argument for an unqualified exemption. What matters isn't the absolute values; rather it is the relationship between the values. Zywicki's (now slightly adjusted) numbers demonstrate precisely what the CDC relied upon its study to show: vaccinated persons are twice as likely to be protected against COVID infection as persons who acquired natural immunity from having previously contracted COVID.

A few additional points require comment:

One, none of this explains the claim for an unconditional exemption. Specifically the arguments do not explain why, if George Mason University grants Zywicki an exemption due to his specific medical circumstances, which I'm not qualified to address, the university may not require, for example, that he wear a mask and socially distance. Professor Zywicki's discussion of heightened vaccine risk for persons with natural immunity simply ignores this point. A conditional exemption would allow those in the law school community to understand Zywicki's unvaccinated status and also to know that despite this, he was approved for live instruction. Those in the community could then decide, based on their own sense of safety and risk, including that of family members, how they wish to proceed.

Two, as Zywicki points out, there are multiple studies, as is almost always the case. I do not believe law professors, as opposed to the world's leading experts in the field, are equipped to determine which of those studies are more reliable. Zywicki observes that one study demonstrates the higher risk of some adverse consequences for persons who have natural immunity, but again, that is separate from whether the university may impose conditions on an exemption. In addition, it is critical that we have processes that ensure our institutions, including universities, are able to formulate policies based on the best available expert guidance.

Here the ultimate question is whether George Mason University may rely upon CDC guidance, including the studies that the CDC found most important and persuasive in advising states and institutions throughout the nation. If each individual could select on her or his own the studies that must inform such policies, no university could devise a policy to reduce the risk of infection for the members of its community other than, perhaps, by continuing to insist upon remote instruction. I believe George Mason acted properly in relying upon CDC guidance, and I see nothing in this interview to change that view.

Finally, Professor Zywicki mentions, as he did in the op-ed, the relative efficacy of the approved vaccine regimes--Johnson & Johnson, Moderna, or Pfizer--claiming that the lower effectiveness of J&J, justifies avoiding the George Mason policy. I believe that claim is mistaken for reasons explained in my earlier post.

I welcome your comments.

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