Court News Ohio
Court News Ohio
Court News Ohio

Appeals Court Must Decide if University Can Be Sued for Pandemic Closures

Image of an empty university lecture hall.

Appeals court ordered to reconsider student's lawsuit seeking refund for campus closure.

Image of an empty university lecture hall.

Appeals court ordered to reconsider student's lawsuit seeking refund for campus closure.

The Supreme Court of Ohio today returned to an appeals court a lawsuit from an Ohio State University student seeking partial refunds due to the COVID-19 pandemic campus shutdown.

In a 4-3 decision, the Supreme Court directed the Tenth District Court of Appeals to determine if Ohio State is entitled to “discretionary immunity,” for its decision to close campus in the middle of the 2020 spring semester and retain fees paid for the time of closure.

Ohio State appealed an Ohio Court of Claims ruling that found the students could proceed as a class to seek refunds. The university argued to the Tenth District that it was entitled to discretionary immunity, and that the Court of Claims could not consider the lawsuit. The Tenth District ruled that the Court of Claims could consider the lawsuit and refused to decide whether discretionary immunity applied in Ohio State’s case because the issue had not been considered by the Court of Claims first.

Writing for the Court majority, Chief Sharon L. Kennedy explained that discretionary immunity does bar the Court of Claims from considering a lawsuit and stated that the Tenth District should be the court considering whether the students had the legal right to sue the university based on its policy decisions.

Justices Patrick F. Fischer, R. Patrick DeWine, and Joseph T. Deters joined the chief justice’s opinion.

In a dissenting opinion, Justice Jennifer Brunner wrote the case should return to the Court of Claims, where it started, and that court should consider Ohio State’s discretionary immunity claim. She stated that the majority decision might lead to unnecessary delays in this case and future cases against governmental agencies.

Justices Michael P. Donnelly and Melody Stewart joined Justice Brunner’s opinion.

Student Seeks Campus Closure Refund
Brooke Smith was a fourth year Ohio State student in 2020 when Ohio State suspended in-person instruction because of the pandemic. The university moved to online classes and provided partial refunds of the recreational fee and room and board costs. Ohio State did not provide partial refunds of student instruction fees, or eight other fees students paid.

Smith filed a class action lawsuit in the Court of Claims, alleging breach of contract and other claims. Smith argued the students lost the benefit of the education they paid for when classes were moved online, and campus services were suspended. She also argued the students were entitled to refunds of portions of all the tuition and fees paid.

Ohio State asked the Court of Claims to dismiss the case, but did not reference discretionary immunity. The court denied the request and required Ohio State to answer Smith’s complaint. Ohio State then asserted discretionary immunity as a defense.

Smith then sought to certify her case as a class action so that other students could formally join her in seeking the refunds. The Court of Claims certified that “all undergraduates students enrolled in classes at the Columbus campus of The Ohio State University during the Spring of 2020 who paid tuition, the general fee, student activity fee, learning technology fee, course fees, program fees, and/or COTA bus fees” could sue the school. Ohio State opposed the certification and requested summary judgment.

Ohio State appealed the certification to the Tenth District. At the Tenth District, Ohio State argued that the Court of Claims failed to “conduct a rigorous analysis” required to certify a class. It also argued that the Court of Claims had no jurisdiction to even consider the lawsuit because the school’s decision to temporarily close its campus in the face of the COVID-19 pandemic was protected by discretionary immunity.

The Tenth District agreed that the class was improperly certified, but did not agree that the Court of Claims lacked jurisdiction to consider the case. The appeals court found that discretionary immunity was a defense, and declined to decide whether it applied in this case because the Court of Claims had not considered it first.

Ohio State appealed the immunity issue to the Supreme Court, which agreed to consider the case. Before the Court, Ohio State argued that discretionary immunity cannot be waived, and a lawsuit cannot proceed if Ohio State is deemed to have acted under discretionary immunity.

Supreme Court Analyzed Immunity Claim
The Ohio Constitution was amended in 1912 to allow lawsuits to be brought against the state and its political subdivisions. State lawmakers passed the Court of Claims Act, which gave the Court of Claims exclusive jurisdiction over civil suits against the state and its agencies, institutions, and instrumentalities, where money damages were sought.

In the Court’s 1984 Reynolds v. State decision, the Court explained that the state has immunity from lawsuits for “essential acts of governmental decisionmaking.”  In Reynolds, the Court defined “discretionary immunity” by ruling that 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.”

The opinion stated that “the Court of Claims does not have jurisdiction when the state makes highly discretionary decisions pursuant to its legislative, judicial, executive, or planning functions, because the state has not waived its sovereign immunity for those decisions.”

Chief Justice Kennedy then stated that the discretionary immunity described in Reynolds is not a defense, but a bar that prevents the Court of Claims from considering the case. Although the majority determined that discretionary immunity is a bar on certain lawsuits against the state in the Court of Claims, it clarified that discretionary immunity does not always apply. “[W]hen a suit challenges the manner in which the state implements one of its discretionary decisions, the Court of Claims will not be barred from hearing the case,” the opinion stated.

Because the Tenth District held that discretionary immunity was a defense and not a bar, the Court remanded the matter to the Tenth District. The Court directed the Tenth District to determine whether Ohio State is immune from the lawsuit regarding its decisions in response to the COVID-19 pandemic, including its decisions to suspend in-person instruction and only provide refunds for certain fees.

Court of Claims Can Consider Immunity Claim, Dissent Maintains
In her dissenting opinion, Justice Brunner expressed her concerns about the impact the Court majority’s decision will have on future cases against the state in which discretionary immunity is raised. She argued that discretionary immunity is an affirmative defense, which is one that if proved negates liability regardless of whether the facts alleged by the complaining party are true. 

Justice Brunner stated that the issue of discretionary immunity should be decided by the Court of Claims in the first instance. The dissent argued that, by allowing the Tenth District to first consider the issue, the ruling does not promote efficient adjudication of cases against the state; instead, it opens the door for governmental bodies to delay lawsuits against them by raising discretionary immunity late in litigation, such as Ohio State did, or appealing the issue of discretionary immunity before the Court of Claims ever sees the case. Justice Brunner discussed the weaknesses of the existing statutes and rules that could have the effect of dragging out such lawsuits for years, even to the point that the statute of limitations could expire before the merits of a lawsuit could be considered.

“The Court of Claims, which has expertise developed from years of litigation on the specific issue of the state’s waiver of immunity, is best suited for the immunity issues raised by the state here,” the dissent stated.

2023-0009. Smith v. Ohio State Univ., Slip Opinion No. 2024-Ohio-764.

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