Appeals court to decide whether Ohio State can be sued for COVID-19 policies, campus closure – NBC4 WCMH-TV

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COLUMBUS, Ohio (WCMH) The Ohio Supreme Court has punted a decision about Ohio universities liability for COVID-19 policies down to an appellate court.

In a 4-3 decision released Wednesday, the high court ruled that government immunity from lawsuits related to basic policy decisions is not something Ohio State University had to raise as a defense when sued about its decision to close campus in March 2020. But the court stopped short of tossing out the complaint altogether; instead, an appeals court must now decide whether something called discretionary function immunity applies in this case.

Ohio State asked the states 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 university, meanwhile, argued that it was automatically protected from such a lawsuit, citing government immunity from complaints that target policies made with a high degree of official judgment or discretion. Ohio State closed campus at the onset of the COVID-19 pandemic to protect the health of students, faculty and staff, its attorney argued in oral arguments last fall.

Smiths attorneys contended that if Ohio State wanted to claim discretionary function immunity, it needed to do so before the Court of Claims ruled the lawsuit could proceed as a class action complaint. But the Ohio Supreme Courts conservative justices disagreed, ruling that such immunity was an automatic bar, not a defense that Ohio State needed to raise.

The majority opinion, authored by Chief Justice Sharon Kennedy, emphasized that it was not determining whether Ohio States decision to not refund students when it closed campus facilities amounted to a policy decision protected under state immunity. The appeals court must decide that, Kennedy said.

When 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, Kennedy wrote.

Justice Jennifer Brunner, joined by her fellow Democrats on the bench, wrote in a dissent that discretionary function immunity should not be a jurisdictional bar, but rather something the university needed to raise. Ohio States raising of the argument was neither timely argued nor proved in trial court, she wrote, meaning the university was too little, too late.

Brunner also argued that the Court of Claims is empowered to determine, on its own, if it is allowed to hear a case, meaning the case should return to that court for determination. The law creating the Court of Claims granted it powers to determine immunity, she said. Allowing state actors to raise the immunity question could result in significant court delays, she added.

I do not want the majoritys decision today to create confusion and render the 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.

Other Ohio colleges, including Toledo and Bowling Green, face similar lawsuits regarding COVID-19 closures, vaccine requirements and mask mandates.

Read the full opinion below.

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Appeals court to decide whether Ohio State can be sued for COVID-19 policies, campus closure - NBC4 WCMH-TV