Cases & Developments

Opinion reversing dismissal and certifying question to the Texas Supreme Court.  Plaintiff, a student at Southern Methodist University during Spring 2020, on behalf of himself and a putative class, brought contract, conversion, and unjust enrichment claims against the University after it ceased in-person instruction and closed campus facilities due to the coronavirus pandemic.  The district court dismissed his claims, finding, as relevant here, his contract claim “long on words but short of actionable detail” and recovery barred by the Texas Pandemic Liability Protection Act, which was passed in June 2021.  Applying its own subsequent precedent, the Fifth Circuit reversed dismissal of plaintiff’s contract claim, finding that the district court failed to consider whether plaintiff’s interpretation of “educational purposes” in the University’s Student Rights and Responsibilities Agreement to include in-person services was reasonable and, if so, whether that term is ambiguous.  Then, noting that two federal district courts have split on the question, the court certified to the Texas Supreme Court the question, “Does the application of the Pandemic Liability Protection Act to Hogan’s breach-of-contract claim violate the retroactivity clause in article I, section 16 of the Texas Constitution?” 

Opinion affirming-in-part and reversing-in-part dismissal.  Plaintiffs, several students and one employee of Ohio University who had received vaccine exemptions, challenged the University’s COVID-19 “Community Health Directives,” which included a mask mandate and a requirement that unvaccinated persons submit to weekly asymptomatic testing.  The trial court dismissed plaintiffs’ claims for lack of standing.  The Court of Appeals of Ohio reversed on plaintiffs’ claim that the Directives violated an October 2021 state statute prohibiting institutions of higher education from (1) requiring individuals to receive a vaccine without full FDA approval or (2) discriminating against individuals who had not received such a vaccine.  The court found that plaintiffs had sufficiently alleged they were treated differently from those who had received vaccines that only had FDA emergency use authorization.  The court, however, affirmed dismissal of their challenge of the University’s mask requirement, noting that none of the plaintiffs had applied for an exemption to that requirement.  

Memorandum granting Defendants’ Motions to Dismiss.  Plaintiff, a former tenured professor at the University of Scranton, brought constitutional, contract, and defamation claims against the University and its Provost after he was terminated in May 2022 for refusing to disclose his COVID-19 vaccination status.  The court dismissed his First Amendment compelled political speech, Fourteenth Amendment privacy and bodily autonomy, and selective enforcement claims under §1983, finding that the University is not a state actor.  It dismissed his claim that he was denied the procedural requirements for dismissal outlined in the Faculty Handbook, noting that it was plaintiff’s decision not to attend his termination hearing because he would be required to mask and provide a negative COVID-19 test result.  It dismissed his defamation claim against the University and Provost, holding that he had insufficiently alleged that statements made during his termination hearing were published.   

Opinion affirming-in-part and reversing-in-part dismissal and remanding.  Plaintiff, a student at Colorado State University during spring 2020, on behalf of herself and a putative class, brought contract and unjust enrichment claims against CSU after it ceased in-person instruction and closed campus facilities due to the coronavirus pandemic.  In affirming dismissal of plaintiff’s contract claim, the Court of Appeals of Colorado held that the closures were fairly within the meaning of a state statute, included by operation of law in any contract between plaintiff and CSU, providing that the board may “temporarily suspend a university in case of fire, the prevalence of fatal diseases, or other unforeseen calamity.”  It reversed dismissal of plaintiff’s unjust enrichment claim, however, holding that because plaintiff’s remedy under her implied-in-fact contract with CSU is unavailable due to the operation of state statute, equity requires that she be permitted to pursue her claim in the alternative for unjust enrichment.   

Opinion reversing dismissal and remanding.  Plaintiff, a student at McKendree University during spring 2020, on behalf of herself and a putative class, brought contract and unjust enrichment claims against the University after it ceased in-person instruction and closed campus facilities due to the coronavirus pandemic.  In reversing dismissal, the Seventh Circuit applied its holdings in similar recent cases to find that plaintiff had sufficiently alleged an implied contract under Illinois law through reference to various website and catalogue statements and a pre-pandemic course of practice.  It also held that plaintiff should be permitted the opportunity to amend her complaint with respect to her unjust enrichment claim to cure the error of incorporating contract allegations.  

Opinion & Order granting Defendant’s Motion for Summary Judgment.  Plaintiff, a student at Manhattan College during the Spring 2020 semester, on behalf of herself and a putative class, brought contract and unjust enrichment claims against the College after it ceased in-person instruction and closed campus facilities due to the coronavirus pandemic.  Previously, the court dismissed plaintiff’s contract claim, but it permitted her to proceed to discovery on her unjust enrichment claim regarding the College’s decision not to provide a tuition refund.  In granting summary judgment in favor of the College, the court held, first, that retention of tuition payments was not unjust, noting (1) the declared pandemic and state-mandated shutdown of non-essential businesses and (2) the continuity not only of plaintiff’s coursework, but also of extra-curricular activities and student services at the College.  It further held that the College was not enriched by retention of the payments, noting that it lost over $2 million for the fiscal year.  

Opinion affirming denial of governmental immunity.  Plaintiffs, students at the University of Kentucky during the spring 2020 semester, brought contract claims against the University after it ceased in-person instruction and closed campus facilities due to the coronavirus pandemic.  The University Bulletin detailed different mandatory fees for students with at least one on-campus course and those studying entirely online, but the Bulletin was not referenced in the Student Financial Obligation, to which students agreed in order to register.  Affirming denial of the University’s assertion governmental immunity defense, the Supreme Court of Kentucky held that the University’s Student Financial Obligation incorporated the University Bulletin because the “two documents were delivered together, share mutuality of subject matter, and the overwhelming implication and surrounding circumstances leave no doubt that they were meant to be read together, thereby forming on binding contract.”