COLUMBUS, Ohio (WCMH) – The Ohio Supreme Court will soon decide whether Ohio State University – and several other state universities – can be sued for decisions made in the initial weeks of COVID-19’s spread across the state.

On Tuesday, the high court heard oral arguments debating whether the university is automatically immune from lawsuits related to its decision to close campus at the beginning of the COVID-19 pandemic. It is one of more than six related lawsuits filed against Ohio universities, including a second complaint filed against Ohio State and a lawsuit against Ohio University that was recently appealed to the Ohio Supreme Court.

Brooke Smith, a May 2020 alumna of Ohio State, filed her suit weeks after graduating. She contended that the university’s decision to not refund certain tuition and fees constituted a breach of contract between students and the university.

To Ohio State, the answer is simple: As an instrumentality of the state, it cannot be sued for executing a “basic policy decision characterized by a high degree of official judgment and discretion.” In both court filings and oral arguments, Ohio State’s attorney, John Gall, contended that such immunity acts as an automatic bar on COVID-19 policy-related lawsuits filed against the state.

“We cannot be second-guessing, after the fact, in hindsight, those kinds of decisions upon which health and safety depend,” Gall said Tuesday. 

To Smith and her attorney, Scott Simpkins, Ohio State has conflated the decision to close campus with the decision to not refund certain fees related to the use of campus facilities. While the decision to close campus may constitute such a basic policy decision shielded from liability, the decision to charge Smith and other students fees – ranging from a COTA bus fee to a charge for use of recreational facilities –  is distinct and separate, Simpkins argued.

“There is a difference between the determination that the governor and the Department of Health, and Ohio State made with regard to closing the facilities in light of the COVID emergency versus the determination that Ohio State made with regard to the refund of a portion of the tuition,” Simpkins said.

The Court of Claims originally certified a class in the case of all students who paid tuition and fees during the spring 2020 semester. Ohio State successfully appealed the class certification but failed to convince the appellate court that it was automatically immune from the suit.

The crux of the case pending before the Ohio Supreme Court rests on one it heard nearly 40 years ago, relating to the violent attack of a woman by a prisoner released on furlough. In that case, Reynolds v. State, the court held that while the state parole authority could not be sued for its decision to release the prisoner on furlough, it could be sued for negligence arising from the carrying out of that decision.

Gall called the decision not to refund tuition and fees “intertwined” with Ohio State’s initial decision to close campus facilities. That decision is akin to the parole authority’s decision in Reynolds to release a prisoner on furlough, he argued. 

Justice Melody Stewart asked Gall why that was the case. If Ohio State made a decision to refund fees, she asked, would a lawsuit have been filed in the first place?

Justice Jennifer Brunner similarly asked Gall why the decisions could not be separated for purposes of liability. In the legal filings, Smith did not argue that Ohio State’s decision to close campus was an incorrect one.

“It’s like saying a jelly donut is really two donuts, one with the jelly and one with the dough,” Gall said. “The decision not to refund was part of the decision to transition the same quality of instruction from in-person to online.”

Simpkins told the court that Ohio State is within its right to argue it is immune from liability. But the path forged by Reynolds is clear, he said. The decision to not refund tuition and fees was not a central component of the basic policy decision to close the campus; rather, it was a decision made during the implementation of that policy.