Court upholds dismissal of suit by BU students over campus shutdown at the start of the pandemic

A federal appeals court yesterday upheld a lower-court judge's dismissal of a suit by several Boston University students over the move to online education, ruling that a state law passed last year specifically to bar such suits is constitutionally valid.

In an earlier ruling, a judge in US District Court had dismissed the BU suit in large part on the basis of "impossibility" - that even if a contract did exist between the university and its students to provide on-campus teaching, the school could no longer legally fulfill that contract after Gov. Baker declared a state of emergency on March 10, 2020. BU announced its shift to online classes the next day. On March 23, Gov. Baker banned all large public gatherings, including college classes.

At issue in the students' appeal of that decision was a state law enacted last year that bars claims against colleges and universities for "good faith" actions they took after the declaration of a state of emergency to deal with the public-health emergency, at least, claims that had not been settled by the time they law went into effect - for example, Emerson College's $2.1-million settlement of a similar suit

In their appeal, the students argued the retroactive nature of the law violated their due-process rights. Nope, the US Court of Appeals for the First Circuit ruled.

The court began by asserting the law was in the public interest.

The students claimed the law served no public interest because it was passed long after the immediate crisis had passed, but the court said au contraire, the legislature was protecting the public interest by helping ensure schools would comply with public-health declarations in the future. The court said that moving to online classes was actually expensive for BU, which had to spend $52 million just to upgrade its IT systems to handle all those online classes. And it noted the law only applies to "good faith" efforts; somebody who can prove a school acted malevolently in relation to a public-health declaration can still sue over that.

BU, like other universities in Massachusetts, was required to close its facilities to the public to comply with Governor Baker's March 23 emergency order. Underlying BU's compliance was the need for public safety and the reality that large in-person gatherings throughout Massachusetts were no longer an option. ... The Legislature could have found that an immunity statute, like Law 80, would ensure that higher education institutions would not hesitate to follow prospective emergency public health orders meant to protect the safety of students and others. More so, securing compliance with these orders was likely to reduce the economic and other strains on the state itself as it coped with a public health emergency. The Legislature could also have determined that litigation risks and costs accompanying past universities' compliance could deter them from future compliance. And although the COVID-19 public health emergency officially ended in Massachusetts on May 11, 2023, the Legislature could have found that the negative financial effects that higher education institutions experienced during the Spring 2020 semester were ongoing.

And the court sided with BU on the "impossibility" of continuing to hold classes once Gov. Baker outlawed large public gatherings.

Plaintiffs argue that they reasonably expected BU to perform its obligations of providing services that were expected and paid for -- claiming that on-campus classes and services were expected, not remote instruction. Even accepting Plaintiffs' arguments that they expected on-campus classes and services when they registered and began their Spring 2020 semester before the pandemic hit, they ignore key later events. Given that Governor Baker had ordered practically all large in-person gatherings -- which unquestionably includes university campuses -- to cease, Plaintiffs could not reasonably continue to have such expectations in light of the state mandated emergency measures. As this Court held in Burt, the affirmative defenses of impossibility and frustration of purpose resulting from compliance with the Governor's orders meant Plaintiffs no longer had any reasonable reliance on the performance of illegal contracts.

But what about the retroactive nature of the law?

The students say it violates the contractual rights they had in place at the beginning of 2020 and that they might have done things differently legally had the law been in place then, only it wasn't.

But the court says the retroactivity issue doesn't apply because the law is limited in scope - specifically to lawsuits related to events in the spring of 2020 - it has an exemption for lawsuits over "malicious or bad faith" actions and as they wrote from the outset of their ruling, the justices said the law served a public interest, to help ensure schools would do the right thing in a public-health emergency.

Thus, because a balancing of all three factors weighs in favor of retroactive application of Law 80 to this case, we find that Law 80 does not violate due process.