The opinion
[Cite as Smith v. Ohio State Univ., 2024-Ohio-5887.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Brooke Smith, :
Plaintiff-Appellee, :
No. 22AP-125
v. : (Ct. of Cl. No. 2020-00321JD)
The Ohio State University, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 17, 2024
On brief: Mansour Gavin LPA, and Scott D. Simpkins;
Bursor & Fisher, P.A., and Joshua D. Arisohn, for appellee.
Argued: Joshua D. Arisohn.
On brief: Squire Patton Boggs (US) LLP, and John R. Gall,
Traci L. Martinez, E. Jospeh D’Andrea, and Elizabeth P.
Helpling, for appellant. Argued: John. R. Gall.
APPEAL from the Court of Claims of Ohio
BOGGS, J.
{¶ 1} This appeal is again before this court on remand from the Supreme Court of
Ohio, which reversed our decision in Smith v. Ohio State Univ., 10th Dist. No. 22AP-125,
2022-Ohio-4101, and remanded the matter with instructions to determine whether
defendant-appellant, The Ohio State University (“OSU”), “is protected by discretionary
immunity regarding its decisions in response to the COVID-19 pandemic—namely, to
suspend in-person instruction, transition to virtual learning, restrict access to its campus,
and provide limited refunds to students.” Smith v. Ohio State Univ., __ Ohio St.3d __,
2024-Ohio-764, ¶ 1. After reviewing the record and the parties’ original and supplemental
briefs, we answer the question proposed by the Supreme Court in the affirmative. Pursuant
to the Supreme Court’s opinion, because OSU is entitled to discretionary immunity, the
No. 22AP-125 2
Court of Claims lacks jurisdiction over this action filed by plaintiff-appellee, Brooke Smith.
Accordingly, we reverse the Court of Claims’ judgment certifying this matter as a class
action, and we remand the matter to the Court of Claims for dismissal.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 2} In the spring semester of 2020, Smith was completing her final semester of
college in OSU’s College of Education and Human Ecology and was enrolled in the last two
classes she needed to graduate: a supervised student teaching internship and an in-person
seminar that corresponded with her internship. Smith alleges that she paid $23,428 in
tuition and fees to OSU for the spring 2020 semester.
{¶ 3} On March 9, 2020, the first day of OSU’s scheduled spring break and the
same day that Ohio Governor, Mike DeWine, declared a state of emergency as a result of
the developing COVID-19 outbreak,1 OSU President, Michael V. Drake, advised the
university community by email that he had convened a task force of senior university
leadership and subject-matter experts to focus on the university’s response to COVID-19.
President Drake announced that, in service of its dual goals of preventing illness and
continuing the work of the university, OSU would be suspending face-to-face instruction
and transitioning to virtual instruction through at least March 30, 2020. He stated, “I
understand that our policy guidelines will cause measurable disruption, but the risk of not
acting outweighs the inconvenience of these temporary measures.” (McPheron Dep., Ex.
10.)
{¶ 4} Three days later, on March 12, 2020, President Drake again emailed the
university community with updates to OSU’s COVID-19 response. He emphasized,
“[E]very step we take as a university is aimed at reducing any potential spread of the virus
and ensuring the continuation of our academic mission.” (McPheron Dep., Ex. 12.) He
then announced that virtual instruction in lieu of face-to-face instruction would continue
through the end of the spring semester, that the university would facilitate a scheduled and
orderly process for students to move out of residence halls, and that spring break would be
extended for an additional week, through March 22, 2020, to facilitate that process and for
faculty and staff to further prepare for virtual instruction. To make up for the extra week
1 The World Heath Organization declared COVID-19 a pandemic on March 11, 2020.
https://www.cdc.gov/museum/timeline/covid19.html (accessed Dec. 16, 2024).
No. 22AP-125 3
of spring break, OSU extended the last day of spring semester classes to April 24, 2020, and
amended the dates of final examinations.
{¶ 5} Smith completed the remainder of her coursework through virtual
instruction, and she graduated on schedule, on May 3, 2020.
{¶ 6} OSU’s academic policy, set out in a publication entitled A Buckeye’s Guide to
Academic Policies (“Academic Policy”), requires every student to be “financially responsible
to [OSU] for payment of all tuition, room and board fees, and related costs added to a
student account,” including “fees, fines or penalties added to the account which are related
to attendance.” (Sept. 1, 2021 Def.’s Memo in Opp. to Class Certification, Bricker Aff., Ex.
A at 37.) Every student must “agree to [a] Financial Responsibility Statement” before
registering for classes each semester. Id. The Financial Responsibility Statement sets out
the student’s agreement to be “financially responsible to [OSU] for payment of all tuition,
room and board fees, and related costs that are added to my student account” and sets out
the student’s “promise to pay any fees, [f]ines or penalties” related to the student’s
university attendance. (Id., Ex. J.) The Academic Policy describes the fees that may be
assessed to a student’s account; they include, as relevant here, an instructional fee, general
fee, learning technology fee, program fee, course fee, student activity fee, Central Ohio
Transit Authority (“COTA”) bus fee, recreational sports fee, and student union facility fee.
Out-of-state residents, like Smith, and international students also incur a surcharge as
compared to students who are Ohio residents.
{¶ 7} On March 16, 2020, OSU announced that it would provide a prorated refund
of room and board fees for the spring 2020 semester, although it continued to consider how
to calculate those refunds. On or before March 18, 2020, OSU made the decision to issue
pro rata refunds of students’ recreational sports fees. On March 18, 2020, OSU’s Senior
Vice President and Chief Financial Officer, Michael Papadakis, informed business officers
at other Big Ten universities that OSU did not plan to refund tuition or other fees, although
conversations remained ongoing regarding certain fees. OSU did not provide any refunds
of students’ instructional fees, general fees, learning technology fees, program fees, course
fees, student activity fees, COTA fees, student union facility fees, or nonresident surcharges
for the spring 2020 semester.
{¶ 8} On May 21, 2020, Smith filed a class action complaint in the Court of Claims
against OSU and the Ohio Department of Higher Education, alleging claims for breach of
No. 22AP-125 4
contract, unjust enrichment, and conversion. Smith filed an amended compliant on
May 27, 2020. She later voluntarily dismissed her claims against the Ohio Department of
Higher Education and abandoned her conversion claim.
{¶ 9} In her amended complaint, Smith alleges that she and other students entered
into binding contracts with OSU “through the admission agreement and payment of tuition
and fees,” pursuant to which OSU promised to provide certain services, including “in-
person educational services,” for the entirety of the spring 2020 semester. (May 27, 2020
Am. Compl. at ¶ 39-40.) She alleges that OSU has “not performed under the contract,” id.
at ¶ 41, as upon the closure of its campus, OSU did not “deliver[] the educational services,
facilities, access and/or opportunities that [she and other students] contracted and paid
for,” id. at ¶ 6, 22. In particular, she alleges that the “online learning options” that OSU
offered students were “subpar in practically every aspect” to the in-person education that
students contracted and paid for. Id. at ¶ 6. Smith further contends that OSU has retained
students’ moneys “without providing them the benefit of their bargain,” id. at ¶ 41, and that
students “lost the benefit of the education for which they paid, and/or the services for which
their fees paid, without having their tuition and fees refunded to them,” id. at ¶ 1. She seeks,
for herself and members of the putative class, “disgorgement of the pro-rated portion of
tuition and fees, proportionate to the amount of time that remained in the Spring Semester
2020 when classes moved online and campus services ceased being provided.” Id. at ¶ 9,
28.
{¶ 10} After unsuccessfully moving the Court of Claims to dismiss Smith’s complaint
for failure to state a claim upon which relief could be granted, OSU filed an answer, in which
it asserted discretionary immunity as one of many affirmative defenses.
{¶ 11} Smith moved the Court of Claims to certify her case as a class action, pursuant
to Civ.R. 23. She sought certification of a class consisting of “[a]ll undergraduate students
enrolled in classes at the Columbus campus of [OSU] during the Spring 2020 semester who
paid tuition and/or fees.” (June 25, 2021 Pl.’s Mot. for Class Certification at 6.) OSU
opposed Smith’s motion for class certification and filed a motion for summary judgment
on the issue of liability, which the Court of Claims did not decide. With respect to class
certification, OSU argued that Smith could not meet her burden of demonstrating that
certification was appropriate under Civ.R. 23(B)(3) by showing “that the questions of law
or fact common to class members predominate over any questions affecting only individual
No. 22AP-125 5
members, and that a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” OSU argued, in part, that Smith failed to establish
that common issues of fact exist, let alone predominate, since there is no common, class
wide proof of a breach of contract or injury, and because the facts and extent of injury would
require individual inquiries as to each student.
{¶ 12} The Court of Claims rejected OSU’s arguments and granted Smith’s motion,
certifying a plaintiff class consisting of “all undergraduate students enrolled in classes at
the Columbus campus of [OSU] during the Spring 2020 semester who paid tuition, the
general fee, student activity fee, learning technology fee, course fees, program fees, and/or
the COTA bus fee.”2 (Jan. 21, 2022 Decision at 4.)
{¶ 13} OSU appealed the Court of Claims’ class certification decision to this court,
asserting eight assignments of error, most of which challenged the court’s analysis under
Civ.R. 23. OSU’s last assignment of error, however, stated that the Court of Claims erred
by certifying a class because the Court of Claims lacked subject-matter jurisdiction over this
action, an argument OSU had not made below. Under that assignment of error, OSU
argued for the first time, in a single paragraph at the end of its appellate brief, that Smith’s
claims are barred by discretionary immunity because OSU is an agent or instrumentality of
the state, and its decision to transition to virtual instruction and to temporarily close or
restrict access to its on-campus facilities in the face of COVID-19 was a basic policy decision
characterized by a high degree of official judgment and discretion. OSU argued that
because it was entitled to discretionary immunity for its decisions in response to COVID-
19, the Court of Claims lacked jurisdiction over Smith’s claims.
{¶ 14} This court began its analysis of OSU’s appeal with OSU’s last assignment of
error, reasoning that if we agreed with OSU that the Court of Claims lacked jurisdiction,
then OSU’s remaining assignments of error would be moot. But we disagreed with OSU’s
argument that discretionary immunity is a jurisdictional bar to Smith’s claims. Instead, we
held that discretionary immunity is an affirmative defense, and we declined to decide in the
first instance whether OSU was entitled to discretionary immunity. Smith, 2022-Ohio-
4101, at ¶ 29. Nevertheless, we agreed with OSU that the Court of Claims had failed to
2 The Court of Claims had already certified a class of undergraduate and graduate students who were enrolled
at OSU’s Columbus campus and who had paid the student union facility fee for the spring 2020 semester, in
McDermott v. Ohio State Univ., Ct. of Cl. No. 2020-00286JD. It held that McDermott had “staked its claim
on the student union fee.” (Jan. 21, 2022 Decision at 3-4.)
No. 22AP-125 6
rigorously analyze the requirements for class certification under Civ.R. 23, and we reversed
the Court of Claims’ class certification decision.
{¶ 15} OSU appealed our decision regarding discretionary immunity, and the
Supreme Court accepted the appeal on a single proposition of law: “The Court of Claims
does not have subject[-]matter jurisdiction to hear claims against the State that are subject
to discretionary immunity.” Smith, 2024-Ohio-764, at ¶ 9. In a 4 to 3 decision, the
Supreme Court agreed with OSU’s proposition of law, holding that “discretionary immunity
is a jurisdictional bar, not an affirmative defense, to suits brought against the state in the
Court of Claims.” Id. at ¶ 10. It remanded the matter to this court with instructions “to
determine whether [OSU] 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.” Id. at ¶ 20.
{¶ 16} On remand, both parties filed supplemental briefs regarding OSU’s
entitlement to discretionary immunity.
II. ANALYSIS
{¶ 17} The Supreme Court has tasked this court with determining whether OSU is
immune from suit in the Court of Claims regarding its decisions in response to the COVID-
19 pandemic. To do so, we begin by reviewing the doctrine of sovereign immunity, the
state’s waiver of that immunity, and the limits of the General Assembly’s consent for the
state to be sued in the Court of Claims.
A. Sovereign Immunity and its Waiver
{¶ 18} “Under the doctrine of sovereign immunity, ‘a state is not subject to suit in its
own courts unless it expressly consents to be sued.’ ” Smith, 2024-Ohio-764, at ¶ 12,
quoting Proctor v. Kardassilaris, 115 Ohio St.3d 71, 2007-Ohio-4838, ¶ 7.
{¶ 19} As amended in 1912, the Ohio Constitution allows “[s]uits [to] be brought
against the state, in such courts and in such manner, as may be provided by law.” Ohio
Constitution, Article I, Section 16. The amendment of Article I, Section 16, of the Ohio
Constitution “abolished the defense of governmental immunity,” Krause v. State, 31 Ohio
St.2d 132, 144 (1972), overruled in part on other grounds, by Schenkolewski v. Cleveland
Metroparks Sys., 67 Ohio St.2d 31 (1981), but it is “not self-executing,” Raudabaugh v.
State, 96 Ohio St. 513, 518 (1917), overruled in part on other grounds, by Schenkolewski.
No. 22AP-125 7
The amendment “gave to the General Assembly the authority to determine in what courts
and in what manner suits may be brought against the state,” and the legislature’s consent
to suit “is manifest when it designates, by law, the courts and the manner in which such
suits may be brought.” Krause at 144. In Schenkolewski, the Supreme Court held that,
consistent with Article I, Section 16, of the Ohio Constitution, sovereign immunity can be
abolished or altered not only by the General Assembly but also by the judiciary.
Schenkilewski at paragraph one of the syllabus.
{¶ 20} In 1975, the General Assembly enacted the Court of Claims Act, R.C. 2743.01
et seq., in which it consented to certain suits against the state in the newly created Court of
Claims. R.C. 2743.02(A)(1) states, in part: “The state hereby waives its immunity from
liability * * * and consents to be sued, and have its liability determined, in the court of claims
created in this chapter in accordance with the same rules of law applicable to suits between
private parties.” As used in R.C. Chapter 2743, “ ‘[s]tate’ means the state of Ohio, including,
but not limited to, the general assembly, the supreme court, the offices of all elected state
officers, and all departments, boards, offices, commissions, agencies, institutions, and
other instrumentalities of the state.” R.C. 2743.01(A). Neither Smith nor OSU disputes
that OSU falls within that applicable definition, as an instrumentality of the state.
{¶ 21} The Court of Claims “has exclusive, original jurisdiction of all civil actions
against the state permitted by the waiver of immunity” in R.C. 2743.02. R.C. 2743.03(A)(1).
The Court of Claims’ jurisdiction is therefore tied to the scope of the state’s waiver of
immunity and consent to be sued in R.C. 2743.02. Cirino v. Ohio Bur. of Workers’ Comp.,
153 Ohio St.3d 333, 2018-Ohio-2665, ¶ 19.
B. Reynolds and the Recognition of Discretionary Immunity
{¶ 22} Despite the broad language in R.C. 2743.02, “the state’s potential liability
under R.C. Chapter 2743 is not unbounded.” Wallace v. Ohio Dept. of Commerce, 96 Ohio
St.3d 266, 2002-Ohio-4210, ¶ 34, citing Reynolds v. State, 14 Ohio St.3d 68 (1984). In
Reynolds, the Supreme Court addressed the scope of the General Assembly’s consent to
suit in R.C. 2743.02 and purportedly relied on the statutory language itself as limiting the
abrogation of sovereign immunity, consistent with the Supreme Court’s own limited
abrogation of municipal immunity in Haverlack v. Portage Homes, Inc., 2 Ohio St.3d 26
(1982), and Enghauser Mfg. Co. v. Eriksson Eng. Ltd., 6 Ohio St.3d 31 (1983). Reynolds
at 70. The court held:
No. 22AP-125 8
The language in R.C. 2743.02 that “the state” shall “have its
liability determined * * * in accordance with the same rules of
law applicable to suits between private parties * * *” means that
the state cannot be sued for its legislative or judicial functions
or the exercise of an executive or planning function involving
the making of a basic policy decision which is characterized by
the exercise of a high degree of official judgment or discretion.
Id.3
{¶ 23} The Supreme Court has characterized Reynolds as “reject[ing] the notion
that the General Assembly’s abrogation of sovereign immunity in R.C. 2743.02 extended to
essential acts of governmental decisionmaking.” Wallace at ¶ 34. The Court of Claims thus
lacks jurisdiction over claims based on the state’s “highly discretionary decisions pursuant
to its legislative, judicial, executive, or planning functions, because the state has not waived
its sovereign immunity for those decisions.” (Emphasis added.) Smith, 2024-Ohio-764,
at ¶ 16. The Supreme Court has “adopt[ed] the phrase ‘discretionary-function doctrine’ as
shorthand” for the limitation on the state’s consent to be sued, as expressed in Reynolds.
Risner v. Ohio Dept. of Transp., 145 Ohio St.3d 55, 2015-Ohio-4443, ¶ 12. It more recently
referred to that doctrine in Smith as simply “discretionary immunity.” Smith, 2024-Ohio-
764, at ¶ 16. Under the doctrine of discretionary immunity, the state “is immune from any
liability arising from the decisions made pursuant to its discretionary function.” Risner at
¶ 24.
{¶ 24} Discretionary immunity does not “extend beyond [the state’s] discretionary
function to acts of implementation.” Id. Once the state has made a discretionary policy
decision to engage in certain activity, “the state may be held liable, in the same manner as
private parties, for the negligence of the actions of its employees and agents in the
performance of such activities.” Reynolds, at paragraph one of the syllabus. Accordingly,
“when a suit challenges the manner in which the state implements one of its discretionary
decisions,” rather than the discretionary decision itself, “the Court of Claims will not be
barred from hearing the case.” Smith, 2024-Ohio-764, at ¶ 17, citing Risner at ¶ 23.
3 Smith boldly argues in her supplemental brief that the Supreme Court’s decision in Reynolds is wrong and
“should be overturned.” (Supp. Brief of Plaintiff-Appellee at 12.) Of course, as an intermediate appellate court,
we are bound to follow the law as set forth by the Supreme Court, and we cannot make a determination that
conflicts with a decision from that court that has not been reversed or overruled. Wagner v. Ohio State Univ.
Med. Ctr., 10th Dist. No. 12AP-399, 2013-Ohio-2451, ¶ 102, citing State v. Rigsbee, 174 Ohio App.3d 12, 2007-
Ohio-6267, ¶ 43 (2d Dist.), and State v. Croskey, 10th Dist. No. 09AP-57, 2009-Ohio-4216, ¶ 7.
No. 22AP-125 9
{¶ 25} To determine whether OSU is entitled to discretionary immunity, we turn to
Smith’s amended complaint to determine which decisions or actions by OSU she
challenges.
C. Smith’s Claims Assert Liability Based on OSU’s Decisions to
Transition to Online Instruction and Restrict Access to Campus
Facilities
{¶ 26} Smith alleges that she and members of the putative class entered into binding
contracts with OSU upon the payment of their tuition and fees. This court has previously
recognized that, “ ‘when a student enrolls in a college or university, pays his or her tuition
and fees, and attends such school, the resulting relationship may reasonably be construed
as being contractual in nature.’ ” Bleicher v. Univ. of Cincinnati College of Medicine, 78
Ohio App.3d 302, 308 (10th Dist.1992), quoting Behrend v. State, 55 Ohio App.2d 135, 139
(10th Dist.1977). The terms of the contract between a university and its enrolled students
are generally found in the university catalog and handbook. Leiby v. Univ. of Akron, 10th
Dist. No. 05AP-1281, 2006-Ohio-2831, ¶ 15, citing Embry v. Cent. State Univ., 10th Dist.
No. 90AP-1302, 1991 Ohio App. LEXIS 4886, *3 (Oct. 8, 1991).
{¶ 27} Smith alleges that OSU promised to provide students with certain services,
including “in-person educational services through the end of the Spring Semester.” (Am.
Compl. at ¶ 40.) She alleges that students fulfilled their end of the bargain by paying tuition
and fees, but that OSU breached its contracts with students by failing to provide the
contracted-for services. As a result, she alleges that she and members of the putative class
“have suffered damage,” including “being deprived of the education, experience, and
services to which they [had been] promised and for which they ha[d] already paid.” Id. at
¶ 42. She maintains that members of the putative class are “entitled to a refund of tuition
and fees for in-person educational services, facilities, access and/or opportunities that
[OSU has] not provided.” Id. at ¶ 8.
{¶ 28} In her supplemental brief, Smith argues that she is not challenging OSU’s
decisions to transition to virtual instruction and to limit access to campus facilities, but as
set out in the amended complaint, her breach of contract claim expressly challenges those
decisions. The alleged breaches by OSU and the source of OSU’s alleged contractual
liability are OSU’s discretionary policy decisions to transition to virtual instruction and to
restrict access to campus facilities. It is those decisions that allegedly deprived students of
“the education, experiences, and services” OSU had promised them and for which those
No. 22AP-125 10
students had paid. Id. at ¶ 42. In other words, it is those decisions that allegedly denied
students the benefit of their bargain.
{¶ 29} Inasmuch as Smith seeks “reimbursement of * * * tuition, fees, and other
expenses that were collected by [OSU] for services that [OSU has] failed to deliver,”
reimbursement would constitute damages for OSU’s alleged breaches of contract by
transitioning to virtual instruction and restricting access to campus facilities. Id. at ¶ 43.
Smith does not allege that OSU’s decision not to reimburse students tuition and certain fees
for the spring 2020 semester was itself a breach of the contracts between OSU and students.
Instead, in her amended complaint, she seeks a pro rata reimbursement of tuition and fees
for services that OSU was allegedly contractually obligated to deliver, as damages for OSU’s
alleged breach of the contracts.
{¶ 30} Any liability under Smith’s unjust enrichment claim would similarly stem
directly from those same policy decisions, to transition to virtual instruction and restrict
access to campus facilities, by which OSU allegedly failed to provide Smith and members of
the putative class the in-person educational services they had paid for. Denial of those
services is the foundation upon which Smith constructs her claim that OSU’s retention of
students’ tuition and fee payments is unjust.
{¶ 31} President Drake acknowledged the vast scope of formulating OSU’s response
to the rapidly changing public health landscape brought on by COVID-19 in his March 12,
2020 email to the university community: “We have a large student population and global
reach that require us to manage the issue while taking a variety of circumstances into
consideration.” (McPheron Dep., Ex. 12.) Dr. Bruce McPheron, who was at all relevant
times OSU’s Executive Vice President and Provost, as well as a member of the COVID-19
task force convened by President Drake, testified about the initial “hard decision” to
temporarily transition to virtual instruction following spring break:
The emergence of this pandemic created a lot of uncertainty.
Data were scarce, and as we thought about how best to actually
ensure the health of our faculty, staff and students while still
being able to deliver our university’s mission -- which is largely
based around education; disseminating information -- this was
a way to give ourselves some time to actually learn how best to
protect students should we actually return to face-to-face
activities.
(McPheron Dep. at 44.) He testified, “the complexity of all the different decisions a place
like Ohio State needs to make were on the table and under discussion here,” especially given
No. 22AP-125 11
the uncertainty as to what actions federal, state, and local governments would take in
response to COVID-19.4 Id. at 57. He explained:
President Drake was engaged with all of us in leadership and
we were trying to make decisions on the suite of options that
would allow us to continue to deliver on the mission of the
university. And this -- this approach at this particular point in
time was the -- the best solution that we could arrive at.
Id. at 44. He stated that the decision to transition all instruction to virtual instruction “was
based upon the premise that we were going to continue the semester to its conclusion, and
finding * * * the best pathway toward that.” Id. at 45. A decision to instead close the
university entirely, “would have disrupted the academic progress of * * * tens of thousands
of students” and was unnecessary because OSU “had a way of actually delivering the
education that we had indicated students would receive using * * * distance tools.” Id. at
136.
{¶ 32} The decisions to transition from in-person to virtual instruction and to
temporarily restrict access to campus facilities made by President Drake, with the advice of
a task force comprised of university leadership and subject-matter experts, reflected a
balancing of the university’s policy goals of protecting the health and safety of the university
community while continuing to serve the university’s educational mission. We have no
trouble concluding that those decisions constituted basic policy decisions, characterized by
the exercise of a high degree of official judgment or discretion.
D. Smith’s Claims Do Not Challenge Negligent Implementation of a
Discretionary Policy Decision
{¶ 33} In her supplemental brief, Smith argues that OSU’s failure to provide
students with partial refunds was part of the implementation of OSU’s policy decision to
close its campus and move classes online, for which OSU is not entitled to immunity. We
disagree. Again, as the claims are framed in the amended complaint, OSU’s policy decisions
to move classes online and to restrict access to campus facilities are the bases for any
liability for breach of contract or unjust enrichment. But even were we to put that
constraint aside and to consider OSU’s decisions whether to make pro rata refunds of
4 It is notable that OSU announced its decision to transition classes to solely virtual instruction through the
end of the spring semester before the Director of the Ohio Department of Health: (1) ordered, on March 14,
2020, the closure of kindergarten through 12th grade school buildings; (2) prohibited, on March 17, 2020,
mass gatherings of 50 or more people and required the closure of indoor athletic and entertainment facilities;
and (3) issued, on March 22, 2020, a stay-at-home order. After March 22, 2020, it was unlawful for students,
faculty, or staff to be inside OSU’s campus facilities except as permitted by the stay-at-home order.
No. 22AP-125 12
tuition and fees independently, we cannot conclude that those decisions constituted
implementation of the underlying policy decisions to transition to virtual instruction and
restrict access to campus facilities.
{¶ 34} In Reynolds, the Supreme Court distinguished between a policy decision and
implementation of that decision. The plaintiff in Reynolds sought damages from the state
for injuries she sustained when she was assaulted and raped by an Ohio prisoner who was
on a statutorily authorized work furlough. The relevant statute allowed the Ohio Adult
Parole Authority (“OAPA”) to grant furloughs to “trustworthy prisoners” to participate in
approved educational or work-training programs, but it required that furloughed prisoners
be confined during any period that they were not working at an approved program.
Reynolds at 68-69, citing former R.C. 2967.26. The Supreme Court held that a plaintiff
could “not maintain an action against the state for its decision to furlough a prisoner,” but
that once a furlough decision had been made, a plaintiff could maintain an action against
the state “for personal injuries proximately caused by the failure to confine the prisoner
during non-working hours,” which constituted negligence per se in the implementation of
the furlough decision. Id. at 70. The failure to confine the furloughed prisoner when he
was not working on an approved educational or work-training program was not a
discretionary decision; the statute that afforded the OAPA discretion to grant a furlough
expressly required that the furloughed prisoner be confined while not working on an
approved program. The OAPA was negligent per se when, in implementing its decision to
furlough the prisoner, it did not comply with the statutory mandate.
{¶ 35} OSU’s need to decide whether to partially refund tuition and certain fees for
the spring 2020 semester arose because of its decisions to transition to virtual instruction
and limit access to campus facilities, but the decisions to offer pro rata refunds of room and
board fees and recreational sports fees did not constitute negligent implementation of the
underlying decisions regarding instruction and access. To the contrary, the decisions
regarding refunds were, themselves, basic policy decisions characterized by the exercise of
a high degree of official judgment or discretion as to an executive or planning function, for
which the state has not consented to be sued.
{¶ 36} President Drake, with help from members of his cabinet, made the ultimate
decision regarding which fees to partially refund for spring semester 2020. Papadakis was
a member of the president’s cabinet. Dr. McPheron, who was part of the decision-making
No. 22AP-125 13
process regarding refunds, explained, “There would have been conversations with”
Papadakis, and a “recommendation would have been carried to the president.” (McPheron
Dep. at 150.) Kristine Devine, OSU’s Deputy Chief Financial Officer and Vice President for
Financial Operations, also participated in conversations concerning which fees should be
refunded, based on the purpose and intent of each fee. Devine had conversations with
Papadakis (her direct superior), Dr. McPheron, and Dave Wiseley, the Senior Fiscal Officer
for Student Life. According to Devine, the focus in determining whether to refund
particular fees was on “the intent and purpose for each fee.” (Devine Dep. at 77.)
{¶ 37} OSU individually considered each of the fees charged and decided whether to
issue refunds “based on the merits of each fee,” considering how the decisions to transition
to online instruction and to restrict access to campus facilities affected the subject of each
fee. Id. at 86; see also McPheron Dep. at 171 (with respect to refunds, “we went through
th[e] whole fee table”). In other words, OSU considered with respect to each fee whether,
in light of its move to online classes and restricted access to campus facilities, it was able to
continue providing the services supported by the fees. For example, OSU decided to not
refund any portion of students’ tuition or instructional fees, including nonresident
surcharge fees, all of which fund instructional costs, because OSU continued to provide
instruction for the remainder of the semester and awarded students credit accordingly. See
McPheron Dep. at 153-54, 157-58, 168. Similarly, OSU made the policy decision not to
refund any portion of students’ general fee, which funds non-instructional student services
(Academic Policy at 37), because OSU continued to provide such services, at least virtually,
throughout the semester. On the other hand, OSU made a policy decision to issue pro rata
refunds of room and board fees and recreational sports fees. As to room and board,
Papadakis testified that a student’s refund was “essentially prorated by the number of days
that they were not able to have the services provided for housing or dining.” (Papadakis
Dep. at 20.) OSU refunded approximately $34 million in room and board fees for the spring
2020 semester. As to the recreational sports fee, Papadakis explained that the fee was
refunded on a pro rata basis “because the students couldn’t access the services that [the
recreational] facilities typically provide.” (Papadakis Dep. at 55.)
{¶ 38} Like its decisions to transition to virtual instruction and to restrict access to
campus facilities, OSU’s decisions regarding fee refunds involved the exercise of a high
degree of official discretion and judgment as to an executive or planning function, related
No. 22AP-125 14
to OSU’s fulfillment of its educational mission and its allocation of resources in the face of
the existence of a global public health pandemic. See Wallace, 2002-Ohio-4210, at ¶ 36
(“the state already enjoys a fair degree of protection from litigious second-guessing of
discretionary governmental decisions that necessarily involve difficult choices about how
to allocate the state’s resources”).
{¶ 39} For these reasons, we reject Smith’s argument that her claims seeking
refunds of tuition and fees for the spring 2020 semester challenge only the implementation
of OSU’s basic policy decisions. Smith’s claims—whether with respect to OSU’s decisions
to transition to virtual instruction and to restrict access to campus facilities, or with respect
to OSU’s decisions regarding which fees to refund—challenge OSU’s exercise of an
executive or planning function involving the making of a basic policy decision which is
characterized by the exercise of a high degree of official judgment or discretion. OSU is
therefore entitled to discretionary immunity regarding those decisions.
E. Application of Discretionary Immunity is not Limited to Tort Claims
{¶ 40} We next address and reject Smith’s argument that discretionary immunity
does not apply to claims for breach of contract.
{¶ 41} The General Assembly’s consent to suits against the state in R.C.
2743.02(A)(1) does not distinguish between claims sounding in tort and claims sounding
in contract. It broadly states, “[t]he state hereby waives its immunity from liability * * * and
consents to be sued, and have its liability determined, in the court of claims * * * in
accordance with the same rules of law applicable to suits between private parties.” R.C.
2743.02(A)(1). The statute contains no limitation on the types of actions which may be
brought against the state; it requires only that the rules applicable to suits between private
parties apply to suits against the state. Indeed, there is no question that, by R.C. 2743.02,
the state has waived immunity from liability for claims sounding in contract, including
claims for breach of an implied contract, and unjust enrichment, as those claims seek
monetary relief from the state under legal theories applicable to suits between private
parties. Buerger v. Office of Pub. Defender, 17 Ohio App.3d 29, 29 (10th Dist.1984) (“the
jurisdiction of the Court of Claims extending to all suits against the state as to which
sovereign immunity previously attached * * * is not limited to actions founded in tort but
applies to all actions, including actions founded in contract”). See also Cristino v. Ohio Bur.
of Workers’ Comp., 10th Dist. No. 13AP-772, 2014-Ohio-1383, ¶ 16 (finding no dispute that
No. 22AP-125 15
“claims for breach of contract * * * were permitted by the state’s waiver of immunity, and
[that] the Court of Claims had subject-matter jurisdiction over them”); Great W. Cas. Co.
v. Ohio Bur. of Workers’ Comp., 10th Dist. No. 14AP-524, 2015-Ohio-1555 (Court of Claims
had jurisdiction over plaintiff’s unjust enrichment claim, which sought money from the
state as compensation for a benefit the state received). Further, this court has considered,
without controversy, appeals of Court of Claims’ decisions that specifically addressed
students’ breach of contract claims against state universities. See, e.g., Prince v. Kent State
Univ., 10th Dist. No. 11AP-493, 2012 Ohio App. LEXIS 896 (Mar. 13, 2012); Leiby, 2006-
Ohio-2831; Bleicher, 78 Ohio App.3d 302; Behrend, 55 Ohio App.2d 135.
{¶ 42} We recall that “discretionary immunity” is but shorthand for describing the
limits of the General Assembly’s consent for the state to be sued, which the Supreme Court
inferred from the statutory language in R.C. 2743.02. See Risner, 2015-Ohio-4443, at ¶ 12;
Smith, 2024-Ohio-764, at ¶ 16. Unless that limitation applies, Smith’s claims for breach of
contract and unjust enrichment may proceed in the Court of Claims.
{¶ 43} In Reynolds, the Supreme Court read the statutory language in R.C. 2743.02
that “ ‘the state’ shall ‘have its liability determined * * * in accordance with the same rules
of law applicable to suits between private parties * * *’ ” as limiting the waiver of sovereign
immunity by withholding consent to be sued for the state’s “legislative or judicial functions
or the exercise of an executive or planning function involving the making of a basic policy
decision which is characterized by the exercise of a high degree of official judgment or
discretion.” Reynolds at 70, quoting R.C. 2743.02. The Reynolds court reasoned that the
General Assembly’s consent to suits against the state in R.C. 2743.02 was not significantly
different from the Supreme Court’s own recent abrogation of municipal immunity in
Haverlack, 2 Ohio St.3d 26, and Enghauser, 6 Ohio St.3d 31, superseded by statute as
stated in Sawicki v. Ottawa Hills, 37 Ohio St.3d 222, 225 (1988).5 Indeed, it is from
Enghauser, that the Supreme Court drew the language to exempt the state from liability for
“the exercise of an executive or planning function involving the making of a basic policy
decision which is characterized by the exercise of a high degree of official judgment or
discretion.” Enghauser at paragraph two of the syllabus; Reynolds at 70. The Supreme
5 The General Assembly responded to the Supreme Court’s decision in Haverlack, Enghauser, and Zents v.
Summit Cty. Bd. of Commrs., 9 Ohio St.3d 204 (1984), by enacting the Political Subdivision Tort Liability Act,
which provided that political subdivisions, including municipalities, would be liable in tort only as set forth in
R.C. Chapter 2744. Butler v. Jordan, 92 Ohio St.3d 354, 376 (Cook, J., concurring in judgment).
No. 22AP-125 16
Court emphasized in Enghauser that its abrogation of municipal immunity “should not be
interpreted as abolishing immunity to those certain acts which go to the essence of
governing.” Enghauser at 35. The focus of the limitation on the consent to be sued in R.C.
2743.02 is not on the type of claim being made, but on the governmental decision being
challenged.
{¶ 44} As Smith points out, this court has described discretionary immunity as
“preclud[ing] tort liability against the state.” (Emphasis sic.) Wassenaar v. Ohio Dept. of
Rehab. & Corr., 10th Dist. No. 10AP-395, 2010-Ohio-6125, ¶ 16, citing Hughes v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 09AP-1052, 2010-Ohio-4736, ¶ 16. But our
emphasis in Wassenaar was intended to distinguish not between types of legal claims—for
example, between claims sounding in tort and claims sounding in contract—but instead to
distinguish legal claims from the plaintiff’s equitable claim for declaratory judgment in that
case. We held that “[d]iscretionary immunity does not * * * preclude claims for declaratory
relief.” Id. at ¶ 16, citing Bradley v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 07AP-506,
2007-Ohio-7150, ¶ 18. That holding is consistent with the Supreme Court’s recognition that
sovereign immunity has “never barred equitable claims, which have always been cognizable
against the state.” Cleveland v. Ohio Bur. of Workers’ Comp., 159 Ohio St.3d 459, 2020-
Ohio-337, ¶ 10. The General Assembly recognized as much in its prescription of the Court
of Claims’ jurisdiction. Under R.C. 2743.03(A)(1), the Court of Claims has “exclusive,
original jurisdiction of all civil actions against the state permitted by the waiver of immunity
contained in section 2743.02 of the Revised Code,” but R.C. 2743.03 “does not affect, and
shall not be construed as affecting, the original jurisdiction of another court of this state to
hear and determine a civil action in which the sole relief that the claimant seeks against the
state is a declaratory judgment, injunctive relief, or other equitable relief,” R.C.
2743.03(A)(2). The justiciability of claims for declaratory judgment, injunctive relief, or
other equitable relief against the state was not dependent on the waiver of immunity in R.C.
2743.02, but have always been cognizable.6
{¶ 45} Although Smith is correct that questions concerning the application of
discretionary immunity have most often arisen in relation to tort claims against the state,
6 If a claimant who files a legal claim that is subject to the exclusive, original jurisdiction of the Court of Claims
also files a claim for declaratory judgment, injunction, or other equitable relief against the state that arises out
of the same circumstances that gave rise to the legal claim for damages, then the claims for equitable relief
must also be filed in the Court of Claims. R.C. 2743.03(A)(2).
No. 22AP-125 17
she has not identified, nor has this court found, any precedent for holding that the limits
on claims against the state described by the discretionary immunity doctrine apply only to
causes of action sounding in tort. We therefore reject Smith’s argument that the doctrine
of discretionary immunity does not apply to contract claims that seek to impose liability for
the state’s exercise of an executive or planning function involving the making of a basic
policy decision which is characterized by the exercise of a high degree of official judgment
or discretion.
F. Smith’s Constitutional Arguments Lack Merit
{¶ 46} In her supplemental brief, Smith also argues that application of discretionary
immunity to this case would violate both the United States and Ohio Constitutions.
Specifically, she argues that applying discretionary immunity to her claims against OSU
would violate the “takings” provisions of the Fifth Amendment to the United States
Constitution (“nor shall private property be taken for public use, without just
compensation”)7 and Article I, Section 19 of the Ohio Constitution (“[p]rivate property shall
ever be held inviolate”). Smith also argues that applying discretionary immunity here
would constitute an unconstitutional impairment of the obligation of contracts, in violation
of Article I, Section 10 of the United States Constitution (“[n]o State shall * * * pass any * * *
Law impairing the Obligation of Contracts”) and Article II, Section 28 of the Ohio
Constitution (“[t]he general assembly shall have no power to pass * * * laws impairing the
obligation of contracts”).
{¶ 47} Smith cites cases from other Ohio appellate districts, which have held that
sovereign immunity does not apply to a takings claim. See, e.g., Nau v. Martins Ferry, 7th
Dist. No. 13 BE 24, 2014-Ohio-2466, ¶ 15, citing Mortensen v. Butler Cty. Bd. of Commrs.,
12th Dist. No. CA2008-10-255, 2009-Ohio-1728, ¶ 38. See also DLX, Inc. v. Kentucky, 381
F.3d 511, 528 (6th Cir.2004) (“where the Constitution requires a particular remedy, such
as through * * * the Takings Clause * * *, the state is required to provide that remedy in its
own courts, notwithstanding sovereign immunity”); First English Evangelical Lutheran
Church v. Cty. of Los Angeles, 482 U.S. 304, 315 (1987) (describing the Fifth Amendment’s
just compensation clause as self-executing). But even if sovereign or discretionary
7 The Fifth Amendment’s prohibition on government takings without just compensation applies to the states
through the Fourteenth Amendment to the United States Constitution. State ex rel. Awms Water Solutions v.
Mertz, 162 Ohio St.3d 400, 2020-Ohio-5482, ¶ 25, citing Chicago, Burlington & Quincy R.R. Co. v. Chicago,
166 U.S. 226, 239-41 (1897).
No. 22AP-125 18
immunity would not preclude Smith from maintaining a takings claim for just
compensation, Smith’s amended complaint does not assert a takings claim against OSU.
Instead, she has asserted only claims for common law breach of contract and unjust
enrichment.
{¶ 48} In any event, Smith’s belated argument that application of discretionary
immunity to her breach of contract and unjust enrichment claims against OSU would
deprive her of a protected property interest without just compensation, in violation of the
United States and Ohio Constitutions, is unpersuasive. Her argument that she has a
constitutionally protected property interest in a recovery on her claims against the state
would essentially transform any application of sovereign immunity into an
unconstitutional taking. As United States Supreme Court Justice John M. Harlan II stated,
albeit in dissent, “The very nature of the doctrine of sovereign immunity precludes
regarding its interposition as a Fifth Amendment ‘taking.’ It seems to me that a Court
which, having established this immunity, then declares that the Government must pay for
exercising it, is effectively negativing it.” Armstrong v. United States, 364 U.S. 40, 50
(1960) (Harlan, J., dissenting).
{¶ 49} In Armstrong, petitioners held valid and enforceable liens under Maine law
on materials it had supplied to a contractor that was building boats pursuant to a contract
with the United States. Pursuant to its contract with the contractor-shipbuilder, the United
States exercised an option to terminate the contract and required the contractor-
shipbuilder to transfer title and deliver to the government all completed and uncompleted
work, together with all manufacturing materials acquired by the contractor-shipbuilder for
building the boats. Petitioners, who had not been paid for their materials at the time of the
transfer, claimed that the government’s action destroyed their liens by making them
unenforceable, because of the government’s sovereign immunity against materialmen’s
liens. The Supreme Court of the United States stated, “[a]fter transfer to the United States
the liens were still valid, * * * but they could not be enforced because of the sovereign
immunity of the Government and its property from suit.” (Internal citation omitted.) Id.
at 46. Petitioners argued that this destruction of their liens constituted a taking without
just compensation in violation of the Fifth Amendment. A majority of the Supreme Court
held that the petitioners’ right to resort to the specific property (the furnished materials and
unfinished boats) for the satisfaction of their claims was a compensable right under the
No. 22AP-125 19
Fifth Amendment, and that a governmental taking occurred when the appellants’
compensable liens were destroyed when the government took title to that property, because
the government’s property was not subject to suit. Id. at 44, 48. Smith’s speculative claims
against OSU here are different from the established property rights and enforceable liens
at issue in Armstrong.
{¶ 50} Smith’s arguments that, under the contract clauses in the United States and
Ohio Constitutions, R.C. 2743.02(A)(1) cannot be used to substantially interfere with OSU’s
contracts are similarly unpersuasive. Article I, Section 10, of the United States Constitution
provides, “No State shall * * * pass any * * * Law impairing the Obligation of Contracts,”
and Article II, Section 28 of the Ohio Constitution provides, “The general assembly shall
have no power to pass * * * laws impairing the obligation of contracts.” The text of both
clauses focuses on the legislative power to pass laws that will impair existing contractual
obligations. Thus, in determining whether there has been a violation of the contract clause,
“we first ask whether the change in state law has ‘operated as a substantial impairment of
a contractual relationship.’ ” Gen. Motors Corp. v. Romein, 503 U.S. 181, 186 (1992),
quoting Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244 (1978). “This inquiry
has three components: whether there is a contractual relationship, whether a change in
law impairs that contractual relationship, and whether the impairment is substantial.”
(Emphasis added.) Id. See also, State ex rel. Horvath v. State Teachers Retirement Bd.,
83 Ohio St.3d 67, 76 (1998), citing Gen. Motors Corp. at 186.
{¶ 51} More than a century ago, the Supreme Court of the United States explained,
“[a] contract is an agreement in which a party undertakes to do, or not to do, a particular
thing. The law binds him to perform his undertaking, and this is, of course, the obligation
of his contract.” Sturges v. Crowninshield, 17 U.S. 122, 197 (1819). The “ ‘laws which
subsist at the time and place of the making of a contract, and where it is to be performed,
enter into and form a part of it, as if they were expressly referred to or incorporated in its
terms. This principle embraces alike those which affect its validity, construction, discharge
and enforcement.’ ” Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 429-30 (1934),
quoting Van Hoffman v. Quincy, 71 U.S. 535, 550 (1867). A contract cannot be
unconstitutionally impaired by a law that was in effect at the time of the making of the
contract, for that is the law which binds the contract. McGuire v. Ameritech Servs., 253
F.Supp.2d 988, 1006 (S.D.Ohio 2003), citing Blaisdell. The only cases Smith cites in
No. 22AP-125 20
support of her contract-clause argument involved the application of statutory changes to
preexisting contracts and are therefore distinguishable from this case. See U.S. Trust Co.
of New York v. New Jersey, 431 U.S. 1 (1977); Trumbull Cty. Bd. of Commrs. v. Warren,
142 Ohio App.3d 599 (11th Dist.2001).
{¶ 52} As both R.C. 2743.02(A)(1) and the Supreme Court of Ohio’s interpretation
of that statute as retaining for the state discretionary immunity long predated any contract
between OSU and its students for the spring 2020 semester, we conclude that Smith’s
invocation of the contract clauses in the United States and Ohio Constitutions as precluding
application of discretionary immunity lacks merit.
III. CONCLUSION
{¶ 53} For these reasons, we conclude that OSU is immune from liability on the
claims asserted in Smith’s amended complaint regarding OSU’s decisions in response to
the COVID-19 pandemic, including its decisions to suspend in-person instruction,
transition to virtual learning, restrict access to campus facilities, and provide pro rata
refunds to students only for room and board fees and recreational sports fees. Because OSU
is entitled to discretionary immunity, the Court of Claims lacks jurisdiction over this action
pursuant to the Supreme Court of Ohio’s decision in Smith, 2024-Ohio-764. We therefore
reverse the Court of Claims’ decision certifying a class action and remand this matter to that
court with instructions to dismiss this action.
Judgment reversed;
cause remanded.
BEATTY BLUNT and EDELSTEIN, JJ., concur.