- The Washington Times - Friday, October 1, 2021

A federal judge upheld the University of California’s decision to mandate the COVID-19 vaccine instead of siding with a professor who said he had natural immunity and didn’t need the shots.

It’s believed to be the first ruling of its kind as GOP lawmakers and others urge governments and employers to create exemptions for persons who recovered from COVID-19 and demonstrate antibody levels.

U.S. District Judge James Selna in Santa Ana, California, said Thursday the university acted rationally in imposing a mandate designed to protect public health while failing to provide an exemption for those with natural immunity. 

The ruling denied a motion for a preliminary injunction by Aaron Kheriaty, a psychiatry professor at UC-Irvine.

Biden administration officials have pressed people with prior infection to get the shots. They say immunity from vaccines is easier to measure, and it is unclear how durable natural infection is in each person. And they point to a study in Kentucky that found persons with prior infection were twice as likely to be reinfected if they shirked the vaccine versus those who came forward for the shots.

Sen. Roger Marshall, Kansas Republican, led a group of doctors this week in pressing the administration to give deference to those with some level of protection from their infection, especially as President Biden pushes a regulation that requires workers at large companies to get the vaccine or face weekly testing.

More than 43 million Americans have tested positive for the virus during the pandemic. The senators said failing to recognize those who recovered and have some level of protection could cause a crisis as military members refuse the vaccine, or employers see their workers walk off instead of getting the shots.

“We urge the CDC to harness available data and technology to establish better patient-centered solutions that will truly determine an individual’s level of protection against COVID-19,” the senators wrote to the Centers for Disease Control and Prevention. “It may be the case that it is not medically necessary for an individual to receive a vaccination. It may also be the case that a sufficient level of protection may be produced from one dose.”

Dr. Kheriaty said he knew his push for a preliminary injunction was a “long shot” because the decision preceded the discovery phase and trial, so all the evidence hasn’t been procured.

“We are eager to move to the discovery phase and depose their expert witnesses, gather data on infection rates from the university, etc.,” he said in an email. “If we lose the case at trial we certainly will appeal to the circuit court.”

The professor received a letter from a senior associate dean on Thursday that said he will be placed on “investigatory leave” with pay during the month of October, after which he could face “corrective action.”

“While on Investigatory Leave, you are not to perform any work for the university. You are not to be present on the premises at the UC Irvine campus in Irvine, California, nor on any clinical space owned or operated by the University of California, Irvine,” the letter says.

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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