After the coronavirus pandemic upended the spring 2020 semester for UNC students, many expected a return to quasi-normal campus life in the fall. Students registered for courses, moved back into their dorms, and paid for their tuition, housing, meal plans, and campus services. As students returned to campus, however, the rate of positive Covid tests grew. Despite the fact that Covid-positive UNC students were exhibiting “mild symptoms,” the university deemed its public-health situation “untenable.”
After the first week of fall ’20 classes, UNC-Chapel Hill abruptly shut down in-person instruction. The following week, NC State University made a similar announcement, informing students they would “have to leave their on-campus housing.” While these two schools felt compelled to abdicate their pedagogical obligations at the first sight of danger, every one of the remaining 14 UNC-System schools “continued campus life, keeping campus facilities open.”
The subsequent exodus from campus of previously in-person students resulted in a financial scramble. Students who left campus were offered prorated refunds for housing and dining. Students’ tuition payments, however, including more than $900 per student in mandatory fees, were not adjusted. These mandatory fees included payments for athletic facilities, on-campus health centers, campus security, recreation equipment, libraries, and other services to which students lost access after their untimely eviction. Notably, UNC-Chapel Hill told students of its decision to take an “off-ramp” only “one hour and 15 minutes before the 5 p.m. deadline for fall tuition cancellations.”
UNC-Chapel Hill told students of its decision only one hour and 15 minutes before the deadline for fall tuition cancellations.Joseph Lannan, a graduate student at NC State, and Landry Kuehn, an undergraduate at UNC-Chapel Hill, eventually sued the UNC Board of Governors, seeking refunds for the mandatory student fees they paid for campus facilities that were closed in 2020. Lannan and Kuehn’s lawsuit seeks refunds both for themselves and for “others similarly situated.” The suit potentially exposes the universities to tens of millions of dollars in liabilities for the alleged breach of an implied-in-fact contract.
The student litigants argue that because their universities listed specific, itemized services on websites and in direct communications, and because students paid the fees expecting the university to provide those specific services, a contract was formed. Since the students “fully performed their duties” by paying the fees, while the universities reneged on their obligations in their “unnecessary” decision to shut down, UNC and NC State breached the contract.
The UNC System argues that such implied-in-fact contracts have not historically been recognized in educational settings and are insufficient to waive sovereign immunity, which shields the state “from most kinds of lawsuits unless the state consents to be sued.” However, a statute passed by the General Assembly in 2020 granted immunity to higher-education institutions against claims arising from responses to the pandemic for the spring 2020 semester. One wonders why the legislature would move to shield universities from liability if no liability existed.
After a trial court denied the UNC Board of Governors’ motion to dismiss the case, the UNC System appealed. A unanimous appellate court ruling in October 2022 found that “the trial court properly denied Defendant’s Motion to Dismiss the contract claims on sovereign immunity grounds because Plaintiffs adequately pled a valid implied-in-fact contract and such a contract can waive sovereign immunity.” The three-judge panel noted the fact that the General Assembly’s decision to grant immunity for spring 2020 liabilities weakened the universities’ argument, writing that “there would be no need for this separate immunity statute if the General Assembly believed sovereign immunity already prevented such a claim.”
The appeals court ruling would have allowed the case to move forward, but it was blocked by the N.C. Supreme Court, which agreed in March to hear the case. The universities have since pleaded with that body to dismiss the case, writing that the “plaintiffs invite the Court to depart from the fundamental principles of governmental authority, sovereign immunity, and contract law.” Lannan v. Board of Governors has not yet been scheduled for oral argument.
One wonders why the legislature would move to shield the UNC System from liability if no liability existed.Administrators at UNC-Chapel Hill and NC State should be held accountable for their poor decisionmaking during the pandemic. After committing to a return to in-person instruction, they abruptly backtracked, disrupting their students’ fall semesters. Their decisions to terminate in-person instruction were outliers among UNC-System schools—possibly driven by noise from zealous Covid alarmists. Though UNC-Chapel Hill initially stood by its plan to hold the semester in person, it had to deflect calls from officials at the Orange County Health Department to administer classes online and restrict housing to groups such as “marginalized students.” Activists on campus participated in an infantile “die-in” protest in front of South Building. Media critiques of objectively anodyne student behavior, such as playing on an outdoor slip-and-slide, likely fueled concerns about bad press among administrators. Nevertheless, university leaders should be the adults in the room—not followers of a media craze and activist demands.
Furthermore, UNC-Chapel Hill administrators (quite literally) waited until the 11th hour before tuition payments were due to make their “off-ramp” announcement. After justifying the closure by pointing to climbing positive Covid test rates, their post-transaction dismissal of students from dorms and fraternity houses only distributed the infected across the state. Administrators voiced concerns about the safety of the community, but they transplanted 20-year-olds with “mild symptoms” to neighborhoods with a far greater proportion of older, more vulnerable citizens. The university simply collected its fees and directly contravened its own purported public-health interests.
UNC-Chapel Hill and NC State illogically abandoned their reasonable plans to hold in-person instruction alongside other constituent schools in fall 2020. Their errant decision, based on questionable advice and activist panic, led them to deprive students of countless services for which students had paid. Sending their attorneys to Raleigh to plead sovereign immunity is yet another move in a sequence of university events that has hung students out to dry financially and academically. After robbing students of an educational experience to which they were entitled—and that could have been safely provided—and pulling a bait and switch with mandatory student fees for campus resources, UNC schools ought not to be absolved from the “massive liability” of their own making.
Harrington Shaw is an intern at the James G. Martin Center for Academic Renewal and a senior studying economics and philosophy at UNC-Chapel Hill.