Can OSU students get refunds for pandemic closures? Appeals court will decide

Republicans and Democrats on the Ohio Supreme Court split on who decides if students can sue Ohio State University for refunds because of COVID-19 pandemic closures.

Republicans, who control four of the court's seven seats, ruled that an appeals court must determine whether Ohio State University is immune from being sued over its decision to suspend in-person instruction and only provide refunds for certain fees.

Democrats, who are in the minority, would have sent the decision back to the original Court of Claims, which oversees lawsuits against state institutions. That court certified Ohio State University graduate Brooke Smith, who filed the lawsuit, and her fellow students as a class, allowing Smith's attorneys to argue that all students enrolled that semester were entitled to refunds.

At issue is whether Smith and her classmates can receive refunds for in-person classes and other fees they were charged when courses were shifted online amid the COVID-19 pandemic. Smith doesn't dispute OSU's decision to keep students safe, simply its choice to charge almost full price for it.

Case could have sweeping impact

Ohio State argues it has the authority to make basic policy decisions, such as halting in-person classes during a pandemic. This discretional immunity protects the university from lawsuits like Smith's, attorneys said.

That question now falls to the Tenth District Court of Appeals to decide. And it could have a sweeping impact: Similar lawsuits have been filed against the University of Cincinnati, Miami University, University of Akron and other Ohio institutions of higher education.

"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 Sharon Kennedy, a Republican, wrote in the court's opinion.

But Justice Jennifer Brunner, a Democrat, disagreed. She wrote in a dissent that skipping the Court of Claims would drag out lawsuits and delay justice for those suing universities and other state agencies.

"Smith may seek money damages that arose from Ohio State’s decisions, even though she may not challenge the propriety of those decisions," Brunner wrote. “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."

Appeals Court Must Decide if University Can Be Sued for Pandemic Closures by Jessie Balmert on Scribd

Jessie Balmert is a reporter for the USA TODAY Network Ohio Bureau, which serves the Columbus Dispatch, Cincinnati Enquirer, Akron Beacon Journal and 18 other affiliated news organizations across Ohio.

This article originally appeared on Cincinnati Enquirer: Appeals court will decide if students can sue over pandemic closures