On March 6, 2024, the Ohio Supreme Court issued a decision in a lawsuit filed on behalf of a putative class of students from The Ohio State University. The suit alleged breach of contract and unjust enrichment against the University, seeking refunds for a portion of the tuition and fees paid during the spring of 2020 when the University suspended in-person instruction due to the COVID-19 pandemic.

In a 4-3 ruling, the Supreme Court instructed the Tenth District Court of Appeals to ascertain if the University is “immune from suit in the Court of Claims regarding its decisions in response to the COVID-19 pandemic including to suspend in-person instruction, transition to virtual learning, restrict access to its campus, and provide pro rata refunds to students only for the recreational fee and for room and board.”

At the trial court level, the Ohio Court of Claims granted class certification on behalf of a class that included “all undergraduate students enrolled in classes at the Columbus campus of The Ohio State University during the spring of 2020 who paid tuition, the general fee, student activity fee, learning technology fee, course fees, program fees, and/or COTA bus fees.” The University appealed this decision, contending that the plaintiff’s claims were barred by the doctrine of discretionary immunity, which they raised for the first time on appeal. The plaintiff argued that discretionary immunity is an affirmative defense that cannot be raised for the first time on appeal and doesn’t apply to the case’s facts. The Court of Appeals acknowledged discretionary immunity as an affirmative defense but concluded that the trial court hadn't conducted the necessary "rigorous analysis" before granting class certification.

The University appealed the Court of Appeals’ decision regarding discretionary immunity to the Ohio Supreme Court, which agreed to hear the case on appeal. The Ohio Supreme Court ruled that discretionary immunity was not an affirmative defense but a matter of subject matter jurisdiction that can be raised by a party at any stage, including the Court of Appeals. Consequently, the Ohio Supreme Court remanded the matter to the Tenth District Court of Appeals for a determination as to whether discretionary immunity applied to the University’s decision to suspend in-person instruction and only provide refunds for certain fees, excluding tuition refunds to students.

Mansour Gavin attorney Scott Simpkins is co-counsel for the putative class and presented oral argument in the matter before the Ohio Supreme Court. Scott’s litigation practice includes contract dispute, labor and employment, municipal/public entity, construction, real estate, and general commercial litigation.