In the spring of 2020, Brooke Smith was an Ohio State University (OSU) senior taking her final classes to earn an undergraduate degree. She paid tuition, room and board, and seven other fees to Ohio State.

Then the COVID-19 pandemic hit. OSU suspended in-person classes and all on-campus activities in March 2020. It closed all school facilities for the last five weeks of the 12-week semester. Smith received a partial refund for room and board and a share of the $74.87 recreational fee. The school transitioned to online instruction only. Smith graduated on time with her early childhood education degree and received a full-time teaching position in the fall.

Weeks after her graduation, Smith filed a class-action lawsuit in the name of all OSU undergraduates on campus for the 2020 spring semester. The lawsuit was filed in the Ohio Court of Claims. She claimed OSU breached its contract and was unjustly enriched by charging students the full price of tuition and fees without providing in-person instruction and full access to campus facilities.

Smith is not the only college student suing for return of tuition and fees from the pandemic shutdown. OSU faces a second class-action lawsuit related to its student union fee. Suits similar to Smith’s have been filed in the Court of Claims against Bowling Green State University, University of Cincinnati, Miami University, University of Akron, Ohio University, Kent State University, Wright State University, and University of Toledo.

Closing campus was a tough decision, OSU leaders say. And while students may have been unhappy with the abrupt changes, the school can’t be sued for it, OSU argues.

The Court of Claims rejected OSU’s arguments. The university appealed to the Tenth District Court of Appeals, which returned the class action to the Court of Claims because of an issue with the certification of the group for the lawsuit. The Tenth District found in Smith’s favor on other issues. OSU appealed to the Supreme Court of Ohio.

During oral arguments next week, the Supreme Court will consider OSU’s claims that “discretionary function immunity” bars lawsuits against it and the other universities for the results of their “essential decision-making actions.”

Students Can’t Sue Based on Judgment Call, University Asserts
The Court agreed to consider OSU’s argument that the Court of Claims has no jurisdiction to consider the student’s claim. OSU argues that universities can’t be sued if at the earliest stages of a case they can justify the defense that they had immunity based on their discretionary functions in making essential decisions. The school notes that the Supreme Court explained discretionary function immunity in its 1984 Reynolds v. State decision. The Court ruled “the state cannot be sued for its legislative or judicial functions or the exercise of an executive or planning function involving the making of a basic policy decision, which is characterized by the exercise of a high degree of official judgment or discretion.”

OSU maintains that deciding to close campus to protect the health and safety of its students and staff involved a high degree of discretion. The school can’t be sued for exercising its best judgment, the university concludes.

Case About Fees, Not Decision to Close, Students Maintain
The students say they aren’t opposing the university’s decision to close the campus and agree that it was an executive decision that required a high degree of judgment. What they are contesting is the implementation of the decision. Specifically, the students object to OSU retaining all the tuition and fees paid for in-person instruction without providing the services and access to the facilities. Breaching a contract by charging for services not provided isn’t related to OSU’s decision making, and the university’s actions aren’t immune from a lawsuit, the students argue. The Court of Claims can hear their lawsuit, the students conclude.

Watch Oral Arguments Online
The Supreme Court will hear four cases, including Smith v. The Ohio State University, on Sept. 12. The Court will hear four more appeals on Sept. 13. Oral arguments begin each day at 9 a.m. The arguments will be streamed live online at supremecourt.ohio.gov and broadcast live on the Ohio Channel, where they are archived.

Detailed case previews from the Office of Public Information are available by clicking on the case name above and each case name below.

Tuesday, Sept. 12
Parental Rights
A child was removed from the mother’s home by an Ashtabula County children services agency. The father lived elsewhere. When the agency asked a juvenile court to terminate the parents’ custody of the child for the foster family to adopt, the father objected but the court terminated both parent’s rights. In re Z.C. involves a conflict among Ohio appeals courts on the legal standard for reviewing cases that terminate a parent’s rights. The father maintains that the standard used in his case was too deferential to the juvenile court. Because the right to raise one’s children is so fundamental, the standard for these cases should be higher, the father contends.

Discovery Obligations
A Cincinnati woman found a car to purchase through an online application, and negotiated a price with the seller. In 2020, she went with a friend to pay for and pick up the car. The seller pulled a gun, stole the cash for the purchase, and ran away. The woman later testified at the defendant’s trial that a few days after the incident, she connected the seller’s email in the app to a Facebook account. She sent photos from that account to the detective, telling him the person in the photos was the robber. The defendant said the defense didn’t know until the woman testified how he had been identified as the suspect. In State v. Brown, the prosecutor argues that the necessary evidence was shared with the defense. The man responds that the case relied entirely on the woman’s research on social media — which should have been disclosed before the trial.

Interest on Judgments
A port authority redeveloping part of downtown Cincinnati agreed to pay fees to a private company for its assistance in acquiring and demolishing a blighted property. When the port authority failed to pay a $5 million fee, the company sued for breach of contract and won. The company asked the port authority to pay another $348,000 in interest to account for the time from when the company was to be paid until the court ruled in its favor. In Port of Greater Cincinnati Development Authority v. Vandercar, the Court will consider whether the port authority has immunity that protects it from paying prejudgment interest.

Wednesday, Sept. 13
Gun Offenses
In late 2020, a Clermont County man shot at four individuals. No one was injured. The man was sentenced to felonious assault, which included four firearm specifications. The judge imposed the three-year sentences for each gun specification consecutively to each other and consecutively to his assault sentence for a total of 16 to 18 years in prison. In State v. Baker Beatty, the offender argues state law only allows two firearm specifications to run consecutively, which would require his third and fourth gun sentences to run concurrently with the first two. This would reduce his prison sentence by six years. The Clermont County prosecutor argues state law gives the trial court discretion to run all four sentences consecutively.

Shared Liability
In 2014, the federal government alleged that a company violated accessibility requirements for disabled persons in 32 of its housing developments. The company licenses model architectural plans to franchisees to build the developments. The company settled with the federal government in 2020, agreeing to pay $2.5 million. In state court, the company then sued three franchisees that built projects in Ohio, arguing that they also were responsible for the accessibility issues and should contribute to paying the settlement. In Epcon Community Franchising v. Wilcox Development Group, the Court will review whether the franchisees can be sued in state court to pay part of a federal settlement.

Juvenile Rights
A Reynoldsburg teen had his stepfather’s gun when he and a friend confronted another friend about a stolen necklace. One of the two shot the alleged thief to death. The teen refused to answer questions from police without his attorney. Months later, after the teen turned 18, police interviewed him, and he talked without his attorney. He was arrested and bound over to adult court to face murder charges. In State v. Taylor, the Court will consider whether the bindover process was followed correctly and whether the teen’s constitutional rights were violated when he was interviewed without police notifying his attorney.

Appeal Deadlines
In Kyser v. Summit County Children Services, a child was removed from a foster family home in Summit County. The children services agency found the evidence supported child abuse, and the decision was mailed to the foster mother’s attorney. The attorney appealed to the common pleas court, but the court dismissed the case because the appeal was filed more than 30 days after the agency mailed the order. The foster mother contends that the clock for filing an appeal begins when the other side receives the order. The appeal was filed within 30 days after the decision reached her attorney, the foster mother asserts. The agency argues that the clock starts on the date the agency mails the order, so the foster parent’s filing was too late.