FSU wants judge to toss lawsuit over shutdown

By Jim Saunders
News Service of Florida

 Florida State University is asking a federal judge to toss out a potential class-action lawsuit seeking refunds for students who were forced to learn remotely in spring 2020 because of the COVID-19 pandemic.

The lawsuit, filed on behalf of FSU law student Harrison Broer, is one of numerous similar cases filed against colleges and universities in Florida and other states. What FSU attorneys described as a “flood of litigation” spurred Florida lawmakers to pass legislation this spring to try to shield schools from such lawsuits.

The Broer case, initially filed in May in Leon County circuit court and moved this month to federal court, contends that students should receive partial refunds of tuition and fees because the FSU campus shut down in March 2020 and classes were shifted online.

In part, the lawsuit alleges that FSU breached contracts with students, who had paid money expecting on-campus classes and services.

But in a motion to dismiss the lawsuit last Friday, the university’s attorneys disputed that an “enforceable written contract” existed between Broer and the school. Without such a contract, the motion said, the university is shielded from a breach-of-contract claim because of sovereign immunity, which helps protect government entities from lawsuits.

“There is no contract between plaintiff and FSU — let alone an express contract — thereby dictating dismissal of plaintiff’s breach of contract claim based upon sovereign immunity,” the motion said.

But in an amended version of the lawsuit filed July 30, Broer’s attorneys said FSU students entered into “express” contracts with the university through a series of steps, including submitting applications, accepting offers of admission, registering for classes and paying tuition and fees.

“The scope of the agreement between plaintiff and defendants was formed throughout the application process, admission, enrollment, registration and payment — including through all the documents and materials shared and agreed to during those processes. … By enrolling in courses and paying his fees for tuition and other services for the spring 2020 semester, plaintiff provided consideration for and accepted the regulations and policies established by defendants and governing fees for tuition and other services,” the lawsuit said.

But FSU attorneys, in last week’s motion to dismiss, said a “hodgepodge of documents patched together, none of which singularly, or in the whole, amount to an express contract, do not promise plaintiff the refund he seeks.”

The lawsuit also raises other arguments, including that the university has violated what is known as the “takings clause” of the U.S. Constitution. FSU attorneys pointed to the federal constitutional question in shifting the case early this month from state court to federal court in Tallahassee.

U.S. District Judge Allen Winsor has scheduled a June 2022 trial in the dispute, though that could be short-circuited if he agrees with the university’s motion to dismiss the case. The lawsuit does not specify an amount of refunds sought for FSU students.

The legislation passed this spring by state lawmakers and signed by Gov. Ron DeSantis provided liability protections for public and private universities and colleges for actions taken because of COVID-19.

The legislation took effect July 1, and Broer’s attorneys wrote that any attempt to use it in the lawsuit would be an unconstitutional impairment of an existing contract. The university’s attorneys did not focus heavily on the new law in the motion to dismiss, though they wrote that “retrospective-looking language of the statute indicates that the law was meant to apply retroactively to the COVID-19 emergency period.”

In the lawsuit, Broer’s attorneys wrote that there is “no question” classroom learning is more valuable to students than online learning and that FSU students were deprived of “the opportunity, services and experiences for which they paid” after the campus shut down.

“Rather than offer partial refunds, credits or discounts to students like plaintiff and members of the proposed class and balance the financial difficulties associated with COVID-19, defendants have instead elected to place the financial burden entirely upon its students by charging them full fees for tuition and other services when the services FSU provided were not the full educational and on-campus opportunities, experiences and services that plaintiffs and members of the proposed class agreed to and reasonably expected,” the lawsuit said.

But in the motion to dismiss, the university’s attorneys wrote that payment of “student fees is not a ‘pay as you go,’ ‘fee for service’ model as plaintiff would have this court believe. Moreover, while FSU is sympathetic to all of its students for the many interruptions caused by the COVID-19 pandemic, no provision of the Florida statutes guarantee students a seamless in-person instructional experience, nor has plaintiff attached or cited any document explicitly guaranteeing such an experience.”