Almost every member of North Carolina’s General Assembly backed a bill in June 2020 that would shield the University of North Carolina from lawsuits related to COVID shutdowns. Gov. Roy Cooper signed the measure into law six days after it reached his desk.
Now, the state Supreme Court could decide whether that law violated rights of students and parents who were forced to pay for services they never received.
The high court agreed on Dec. 15 to take the case Dieckhaus v. Board of Governors of UNC. Student and parent plaintiffs seek partial refunds of tuition and fees from the spring 2020 semester.
The Supreme Court’s order marked a rare win for the plaintiffs. A trial judge and unanimous Court of Appeals panel had ruled against them.
Now the state’s highest court will review whether the law violated the US Constitution’s contracts and takings clauses. Justices will consider whether the General Assembly’s approval of the law violated due process clauses in the state and federal constitutions. The high court also will determine whether campus shutdowns were “reasonably related to protecting the public health, safety, and welfare.”
The order featured no dissenting votes. Justice Tamara Barringer recused herself from the discussion.
North Carolina’s public universities moved from in-person to online classes on March 23, 2020, four days before Cooper issued a stay-at-home COVID-19 executive order.
Dieckhaus plaintiffs filed suit in May 2020. A revised version of Senate Bill 208 arrived in a state House education committee on June 24. The full House approved the bill, 118-1, that same day. The Senate following suit, 49-0, the following day.
Now NC Gen. Stat. § 116-311, the law says “an institution of higher education shall have immunity from claims” related to “tuition or fees paid to the institution of higher education for the spring academic semester of 2020,” if the “claim alleges losses or damages arising from an act or omission by the institution of higher education during or in response to COVID-19, the COVID-19 emergency declaration, or the COVID-19 essential business executive order.”
After losing at the state Appeals Court in January, Dieckhaus plaintiffs made their pitch to the state Supreme Court in April.
“Plaintiffs’ education was changed from in-person, hands-on learning to online instruction midway through the Spring 2020 semester,” wrote attorney Blake Abbott. “When this happened, Plaintiffs were forced from campus and deprived of the benefit of the bargain for which they had paid, and in exchange for which Defendant had accepted, tuition.”
Abbott also cited mandatory student fees. “[A]s a result of being moved off campus, Plaintiffs … no longer have the benefit of the services for which these fees have been paid.”
“For example, Plaintiffs were unable to participate in recreational and intramural programs; no longer had access to campus fitness centers or gymnasiums; no longer benefited from campus technology infrastructure or security measures; and no longer had the benefit of enjoying Spring intercollegiate competitions,” Abbott explained.
“On top of the mandatory fees charged to all students, Defendant charges other access or program-based fees, such as fees for laboratory-based courses, parking permits, graduation fees for graduating seniors, etc.,” Abbott wrote. Some plaintiffs paid fees for on-campus housing and meal plans.
“N.C.G.S. § 116-311 seeks to protect Universities from all repercussions related to their Spring 2020 decisions to close campuses,” Abbott wrote.
“This Statute, as applied here is unconstitutional first because it violates the Contracts Clause,” his petition claimed. “Even if it is constitutional, a reading of the Statute demonstrates that Defendant has violated it by unreasonably withholding a refund. In whole, the Statute itself as applied, permits Plaintiffs to recover their funds from Defendant.”
University lawyers reject the Dieckhaus arguments. “Notably, while the universities transitioned to online instruction for the final weeks of the semester, students continued at all times to receive instruction, remain enrolled in school, and receive full course credit for the entire semester,” UNC argued last spring.
“In enacting the statute, the General Assembly declared that: ‘[i]t is a matter of vital State concern affecting the public health, safety, and welfare that institutions of higher education continue to be able to fulfill their educational missions during the COVID-19 pandemic without civil liability for any acts or omissions for which immunity is provided,’” UNC lawyers wrote. “Moreover, the Immunity Statute applies only where the university ‘offered remote learning options … that allowed students to complete the semester coursework.’”
It’s clear that lawmakers crafted Senate Bill 208 to shield UNC from lawsuits like the Dieckhaus complaint. Our state’s highest court will decide in the months ahead whether legislators followed a constitutional path to reach that goal.
Mitch Kokai is senior political analyst for the John Locke Foundation.