Ohio Supreme Court sends OSU COVID-19 case back to appeals court

An Ohio State University student who asked for a refund of fees after the COVID-19 pandemic interrupted in-person instruction will have to wait a bit longer for a resolution.

A split 4-3 Ohio Supreme Court declined to rule on whether Ohio State could face liability or enjoys immunity, and returned the case to an appeals court.

Fourth-year education and human ecology student Brooke Smith first went to the Ohio Court of Claims with the lawsuit saying OSU was in breach of contract for charging instructional, general, learning-technology, student-activity, student union facility, international undergraduate student, bus, program, course and nonresident fees, despite the fact that it gave refunds for recreational fees and room and board costs.

Smith also alleged “unjust enrichment and conversion” in her case against the university.

“According to Smith, students ‘lost the benefit of the education for which they paid, and/or the services for which their fees paid, without having their tuition and fees refunded to them,” court documents stated.

The Ohio Supreme Court received an appeal of the case from the Tenth District Court of Appeals, who ruled against the university in arguments against the Court of Claims decision, but did not decide whether or not OSU was immune from such a lawsuit.

The university’s main argument to the state supreme court was that the court of claims does not have the authority to decide whether or not they have “discretionary immunity,” therefore can’t decide the case.

The Ohio Court of Claims is the venue for legal suits in which plaintiffs are asking for monetary damages from the state. Cases before that court range from medical malpractice to personal injury, contract disputes and public records disputes.

One of the case categories listed on the court of claims website is “immunity of state officers and employees.”

In its Wednesday ruling written by Chief Justice Sharon Kennedy and supported by Justices Patrick Fischer, Pat DeWine and Joe Deters, the state’s highest court said the court of appeals will need to decide whether the university has discretionary immunity, particularly “regarding its decisions in response to the COVID-19 pandemic – namely, to suspend in-person instruction, transition to virtual learning, restrict access to its campus and provide limited refunds to students.”

Justice Jennifer Brunner dissented in the case, who argued the case should be sent back to the Court of Claims, not the court of appeals, for final decisions. She called the case “an outlier, one arising from the rare occurrence of a worldwide pandemic.”

She expressed concern that the ruling by the majority to negate the authority of the Ohio Court of Claims in deciding whether a lawsuit can be leveled against a state agency could have long-reaching impacts

“In short, I do not want the majority’s decision today to create confusion and render the (court of claims’ authority) statute inoperable or to in effect cause nearly every action that is brought in the Court of Claims to be subject to dismissal at the moment the state raises the defense of discretionary immunity,” Brunner wrote in her dissent.

The Court of Claims,” Brunner wrote, “has expertise developed from years of litigation on the specific issue of the state’s waiver of immunity,” making it “best suited for the immunity issues raised by the state here.”