COLUMBUS, Ohio (WCMH) – A case before the Ohio Supreme Court will determine whether Ohio State University – and more than half of the state’s public universities – can be sued over the decision to close campus at the onset of the COVID-19 pandemic.

Ohio State has asked the state’s top court to determine whether it can be sued for not partially refunding tuition and other fees when it closed most university operations and moved classes online in March 2020. The plaintiff, May 2020 graduate Brooke Smith, argued in a class action lawsuit that part of the contract students sign with universities includes access to campus and in-person instruction – and that failing to reimburse students for what Smith claims is a lower educational value amounts to a breach of contract.

“The course of dealing between OSU and its students, as well as the way that OSU markets itself to prospective students, leaves little doubt that access to these services was an indispensable part of the bargain between the school and students who paid the costs of attendance,” Smith’s attorneys wrote to the Ohio Supreme Court.

But the court will not decide whether Smith’s claim is valid. Rather, it will decide a far more technical question: Whether the Ohio Court of Claims, where the complaint was originally filed, can hear the case at all. 

Ohio State declined to comment, and Smith’s attorneys did not respond to requests for comment.

State immunity from lawsuits

After the court of claims certified a class in the case – made of every student who paid tuition and fees for the spring 2020 semester – Ohio State appealed to the 10th District Court of Appeals, arguing that the university had “discretionary function immunity” for its decisions related to the COVID-19 public health emergency. Discretionary function immunity prevents state entities from being sued over basic policy decisions “characterized by a high degree of official judgment or discretion.”

The appellate court overruled the class certification but declined to answer whether the university had such immunity, ruling that Ohio State should have raised the immunity argument to the lower court when it had the chance.

The Ohio Supreme Court’s decision rests on its interpretation of discretionary function immunity – whether it’s something a state entity must argue or whether it’s a jurisdictional issue that automatically prohibits the lower court from hearing the case.

Ohio State argued that it did not need to raise the immunity defense before appealing on grounds of discretionary function immunity, asserting that the immunity defense is designed to preemptively block suits before the state must expend resources to argue them. With nearly 10 cases before various Ohio courts asking for compensation from other universities, including Toledo, Ohio, Miami and Bowling Green State universities, Ohio State has further argued the high court’s decision will have seismic impacts.

“This expansive holding by the Court of Appeals would also apply with equal force and effect to all other key decisions by State officials and instrumentalities who were forced to adjust quickly to COVID-19’s crippling impact,” Ohio State’s merit brief read.

Smith disagrees, arguing in a response that the only real impact the court’s decision will have is to force Ohio State to argue its immunity defense before the lower court. Such legal proceedings are the norm established by statute and court precedent, Smith’s attorneys argued, agreeing with the court of appeals’ ruling that discretionary function immunity is a defense state entities must raise before the court of original jurisdiction. 

Ohio State pointed to its own batch of prior court decisions as “unequivocal” evidence that the Court of Claims Act – a 1974 state law that outlined specific aspects of the court’s jurisdiction – waived state liability for the sort of “broad and decisive action to protect the health and safety of the public” as Ohio State undertook when it closed campus.

In Smith’s merit brief, her attorneys argued that determining whether state immunity applies in a case is an “inherently fact-based inquiry” that a court can only determine after evidentiary proceedings – not as a threshold matter of jurisdiction. 

Is closing campus a ‘basic policy decision’?

Ohio State asked the Ohio Supreme Court to determine whether its decision to close campus was the type of basic policy decision made with a high degree of discretion that qualifies under the discretion immunity defense – regardless of whether the lower court could hear the case or not. The Supreme Court declined to hear the question, but Ohio State restated the argument in its merit brief nevertheless.

“The hard decisions that OSU and other Ohio public universities made in the face of the COVID-19 pandemic are clearly discretionary function decisions and worthy of that jurisdictional protection in the once-in-a-lifetime circumstances that exist here,” Ohio State’s merit brief read.

The court is not required to consider the question, nor has it historically considered questions it previously rejected. But three justices – Patrick DeWine, Melody Stewart and Joe Deters – indicated upon accepting the case that they would have considered the proposition.

Smith’s attorney asserted if the court considers the question, Ohio State’s action – to close campus and not lower tuition or refund students for various fees – was less a decision originating from the university’s public health concern and more a result of Gov. Mike DeWine and the Ohio Department of Health’s basic policy decision to declare a state of emergency.

Ohio State was merely implementing the state’s public health policy, not decision-making, Smith argued. She asserted the university’s decision to not lower tuition or refund the majority of students’ fees was not designed to mitigate COVID-19’s threat, and Ohio should be held liable for it “in the same manner as private parties” as outlined in previous discretionary immunity cases.

“It was operating just like any other private actor in the market,” Smith’s attorneys wrote. “If discretionary immunity applies to such a scenario, it becomes difficult to imagine any case involving a governmental entity in which it would not apply.”

Read both parties’ merit briefs below.