A federal appeals court yesterday upheld an earlier lower-court ruling that a woman who was suspended from the theology master's program at Boston University for refusing to take the nasal Covid-19 tests the university once required has no case because the school no longer requires the tests.
The court's rejected Caitlin Corrigan's argument that BU could bring back the testing regimen in the future and that she needed protection should she in fact take the school up on its offer to resume the classes she stopped not long after she started at the BU School of Theology, and so her case remains as moot.
Because it is absolutely clear that BU ended its mandatory testing program in response to encouraging public health data and there are no signs that the pandemic will worsen, it is not reasonable to expect that BU again will impose a similar testing program.
Corrigan, who loves horse deworming paste as much as she hates Covid-19 vaccines, was represented by Robert Meltzer, a Concord attorney who has had his own problems convincing federal judges that public-health efforts to combat Covid-19 are evil incarnate. In his case, a federal judge rejected his lawsuit against the Massachusetts state court system for requiring masks after courts reopened, in which he claimed the requirement was the equivalent of waterboarding and a violation of the United Nations Convention Against Torture.
Meltzer's work on Corrigan's case was supported by Children's Health Defense, the anti-vax group run by Robert F. Kennedy, Jr. at least until he officially declared he was running for president. Last fall, Kennedy told the group that if elected, he would stop all government research into communicable diseases for at least eight years.
In addition to declaring her suit moot in general, the court also rejected Corrigan's claim that Boston University had somehow stealthily enacted and then rescinded its testing requirements too quickly for a court to have considered them - which would give the appeals court an exception under mootness rules to consider them. Referring to the two years the BU requirement was in place, the court said:
It is struthious at best to suggest that a resource-intensive effort continuously spanning almost two years is so fleeting that a court could never have time to pass on its legality.
"Struthious" is a word referring to the behavior of ostriches, which are sometimes thought to bury their heads in the sand - and an indication for people who have yet to read the full opinion that it was written by Judge Bruce Selya, who has long been known for making lawyers and other judges reach for their dictionaries.
