Upholding the Fifth Amendment isn’t optional. Even during Covid.
That is the message a brave judge sent in a recent Florida case, striking down part of an unconstitutional Florida statute that would retroactively eliminate contract liability for universities so long as they claimed their actions were motivated by fears over coronavirus.
As the owners and employees of the over 97,000 businesses that went under during 2020 can attest, widespread closures–even when mandated by government order–do not relieve a business from contractual liability.[1] Bills still need to be paid. Rent still comes due.[2] Commitments made long before the world went nuts still need to be honored, even if it means financial ruin for someone who has done nothing wrong.
One class of business, though, saw itself as immune to these responsibilities. The wealthiest colleges and universities across the country, blessed with multi-million-dollar endowments and many billions in Covid relief funds, believed they were not obligated to return any of the money they collected from students after promising an in-person, on-campus experience, even revenue collected specifically as fees for on-campus services (such as a “parking fee” or “technology fee”).[3] More shockingly, many schools threatened to remove students who did not continue with online education in the fall semester, or–even worse–would make the same promises and collect the same fees as they had pre-pandemic, only to then renege again.[4]
Faced with breach of contract and unjust enrichment lawsuits for their actions, a few schools—like Columbia University—agreed to settle to pay back fees, but not the tuition.[5] Most refused to even do that. Instead, universities across the nation went to court with a variety of disingenuous arguments, all of which amounted to ignoring basic contract law because of the mystique of their field of business.[6] Such appeals cater to the egos of the judges, most of whom (at least in federal courts) owe their confirmations to decorations from prestigious universities and may thus be fearful to go tugging at the base of that house of cards.
Some judges, sadly, succumbed to these arguments.[7] For example, Yale and NYU-educated Judge Kevin McNulty (the brother-in-law of Senate Majority Leader Chuck Schumer), announced he would depart from traditional contract law when deciding a tuition case (in the school’s favor) because “universities are entitled to deference so that they can fulfill their educational role.”[8] Fortunately, not all judges were so easily swayed. Shaffer v. George Washington Univ, the highest profile Covid tuition case yet, was a victory for the plaintiffs.[9] There, in an opinion by veteran Judge Harry T. Edwards, the DC Circuit reversed the dismissals of suits against American and George Washington Universities, noting that applying contract law to breach of promise claims regarding tuition did “not require [the] court to subjectively value the quality of Plaintiffs’ education.”[10] Edwards expressed particular frustration that according to their pre-Covid advertisements, “the Universities themselves apparently charge different rates for online and in-person instruction.”[11]
Fearing rulings like Schaffer, some universities decided to bypass the judicial system and instead use their vast political power to pressure state legislatures into simply making their problems go away. A few states, such as North Carolina and Texas, enacted immunity bills that would give universities the ability to breach their contracts whenever they felt compelled to do so by Covid.[12] This in and of itself is a policy disaster, giving the nation’s universities further avenues to dodge responsibility.[13] However, the laws contain an extra addition that goes straight to the heart of due process: They apply retroactively.[14] This means that students who have already been defrauded are stripped of their day in court.
This brings us to the case of Ferretti v. Nova Southeastern University. The facts are as typical of the university Covid tuition cases as they are sad. Nova Southeastern University is a private, for-profit Florida college that boasts of its “open and truthful engagement with the community through effective communication, policies and practices.”[15] Nova offered some online classes, but charged more for its in-campus experience, boasting it offered “opportunities for contextual learning, state-of-the-art facilities, beautiful surroundings, and effective resources necessary to support learning at the highest level.”[16] In addition to charging $15,575-a-semester tuition for in-person classes, the school tacked on a number of administrative fees.[17] Among these was a $500-a-semester “Student Services Fee” meant (in their words) “to help offset university expenses for classroom technology, labs, facilities, curriculum enhancement, parking technology, and other student services.”[18] Other majors had additional costs, such as a “Microscope/Laboratory Fee” ($100) and a “Health Professions Division General Access Fee” ($145).[19]
When Covid hit, Nova–in keeping with the guidelines of Governor Ron DeSantis–moved all classes online and barred students from campus.[20] Despite having made $660 million the previous year and receiving an additional $7 million in taxpayer funded Covid-relief funds, Nova did not refund tuition, nor did it return the majority of fees, including the obviously campus-specific ones just detailed.[21] Nova then decided to shut down for the next semester as well, despite DeSantis’s orders being lifted and other colleges—both in Florida and across the country—safely reopening.[22]
A class action suit for breach of contract and unjust enrichment was timely filed by some of the students Nova had just cozened.[23] Significantly into litigation, in June of 2021, DeSantis signed House Bill 1261, which granted immunity for any Covid-motivated decision (regardless of whether it was legally mandated) both retroactively and going forward.[24] Nova then eagerly moved for the case to be dismissed, expecting Florida’s bill to get the same rubber stamp the judiciary has used to bless nearly every Covid-justified power grab since March 2020.[25]
That did not happen. Ferretti was decided by Judge Rudy Ruiz, a former Florida state judge appointed to the federal court by President Donald Trump.[26] Instead of focusing on Covid hysteria or nonsensical “educational role” deference, Ruiz focused on the rights at issue.[27] Specifically, vested rights.[28]
Vested rights are rights a party possesses that were not created by state or federal law: they are the type of rights that preexisted statutes and executive orders and the modern bureaucracy.[29] Stripping a vested right in property falls under the Fifth Amendment (incorporated to states by the Fourteenth), which promises “no person shall. . . . be deprived of life, liberty, or property, without due process.”[30]
The Ferretti plaintiffs did not have some statutory entitlement promise. They had a basic contract, where they exchanged their money for an in-person school experience they did not get. Once Ruiz swept away all the Covid culture nonsense, it was apparent that the students had a vested right in getting their tuition and fees money back. This right, Ruiz concluded, was “protected by the due process clauses of the United States and Florida Constitutions.” Applying HB 1261 retroactively was federally unconstitutional.
The Ferretti ruling, if upheld by higher courts, could have sweeping effects across the nation. The validity of retroactive portions of other states with tuition immunity laws are now in question. What is more, though, other states considering such a law are now on notice that such a tactic is prohibited not just by basic decency, but by the Bill of Rights. Universities pushing more lockdowns and more closures will now have to remind themselves that they may have to foot the bill.
For years now, Covid has been a magic word to get courts to stop protecting individual liberties. Many in the judiciary instead allowed the wealthiest and most powerful actors to exploit a public health crisis for their own interests. Ferretti makes it clear that this is no longer the case. The Fifth Amendment is not going to be erased by a few woke colleges trying to escape their debts.
[1] Lisa Fickenscher, Nearly 60 percent of Covid-19 business closures are permanent: report, Nᴇᴡ Yᴏʀᴋ Pᴏsᴛ (Sep. 17, 2020), https://nypost.com/2020/09/17/majority-of-covid-19-business-closures-are-permanent-report/. [2] SeeAlabama Ass’n of Realtors v. Dep. of Health and Human Services, 594 U.S. 1, 1-2 (2021). [3] Dougherty v. Drew Univ., 534 F. Supp. 3d 363, 383 (D.N.J. 2021), reconsideration denied sub nom. Dougherty v. Univ., No. CV2100249KMESK, 2021 WL 2310094 (D.N.J. June 7, 2021); Carter Forninash, Duke to receive more than $6 million from coronavirus economic stimulus bill, Tʜᴇ Cʜʀᴏɴɪᴄʟᴇ (April 16, 2020), https://www.dukechronicle.com/article/2020/04/duke-university-receive-6-million-coronavirus-economic-stimulus-bill (“[A]pproximately $14 billion allocated directly to higher education under the CARES Act”); Endowments, Nᴀᴛɪᴏɴᴀʟ Cᴇɴᴛᴇʀ ғᴏʀ Eᴅᴜᴄᴀᴛɪᴏɴ Sᴛᴀᴛɪsᴛɪᴄs (2021), https://nces.ed.gov/fastfacts/display.asp?id=73; see Ferretti v. Nova Southeastern Univ., Ferretti v. Nova Se. Univ., No. 20-CIV-61431-RAR, 2022 WL 471213 at *1-2 (S.D. Fla. 2022); and see Michel v. Yale Univ. 3d Amended Complaint. [4] See, e.g., Michel, 3d Amended Complaint [5] Josh Moody, Columbia Settles COVID-19 Refund Case, Iɴsɪᴅᴇ Hɪɢʜᴇʀ Eᴅ (Nov. 29, 2021), https://www.insidehighered.com/quicktakes/2021/11/29/columbia-settles-covid-19-refund-case. [6] See, e.g. Evans v. Brigham Young Univ., No. 1:20-CV-100-TS, 2022 WL 596862, at *3-4 (D. Utah Feb. 28, 2022); see also Dougherty, 534 F. Supp. 3d at 372-74; and see Michel v. Yale Univ., 547 F. Supp. 3d 179, 185-190 (D. Conn. 2021); and see Hassan v. Fordham Univ., 515 F. Supp. 3d 77, 83-88 (S.D.N.Y.), opinion amended and superseded in part, 533 F. Supp. 3d 164 (S.D.N.Y. 2021). [7] See, e.g., Evans, 2022 WL 596862, at *3-4; and see Michel v. Yale Univ., 547 F. Supp. 3d 179, 185-190 (D. Conn. 2021); see also Dougherty, 534 F. Supp. 3d at 373-74. [8] Dougherty, 534 F. Supp. 3d at 373-74, McNulty backs up his bold assertion by selectively quoting Napolitano v. Trustees of Princeton Univ., 186 N.J. Super. 548, 566, 453 A.2d 263, 272 (App. Div. 1982), a case that dealt with university leeway in administering disciplinary policy. [9] Shaffer v. George Washington Univ., No. 21-7040, 2022 WL 678086, at *6-8 (D.C. Cir. 2022). [10] Id. at 6. [11] Id. [12] See Fla. Stat. Ann. § 768.39 (West); and see S.B. 208, 2019 Leg., 2019-20 Sess. (N.C. 2020); and see S.B. 6, 2020 Special Sess. (Tex. 2020); see also H.B. 9, 2020 Leg., 1st Extraordinary Sess. (La. 2020) (enacted), for an arguable example of such a statute. [13] Prager University, Bill Maher: College Has Become an Outright Scam, YᴏᴜTᴜʙᴇ (June 10, 2021), https://www.youtube.com/watch?v=B4AOjVrxrCo. [14] See Fla. Stat. Ann. § 768.39 (West); and see S.B. 208, 2019 Leg., 2019-20 Sess. (N.C. 2020); see also and see H.B. 9, 2020 Leg., 1st Extraordinary Sess. (La. 2020) (enacted). [15] Vision, Mission, and Core Values, Nᴏᴠᴀ Sᴏᴜᴛʜᴇᴀsᴛᴇʀɴ Uɴɪᴠᴇʀsɪᴛʏ (2022), https://www.nova.edu/about/mission.html. [16] First Amended Complaint, Ferretti v. Nova Se Univ., 2020 WL 9348398 ¶ 45 (S.D.Fla.). [17] Id. at ¶ 21. [18] Id. [19] Id. at ¶ 58. [20] First Amended Complaint, Ferretti, 2020 WL 9348398 at ¶¶ 61-65; and see Renzo Downey, Gov. DeSantis orders schools closed rest of academic year, Fʟᴏʀɪᴅᴀ Pᴏʟɪᴛɪᴄs (April 19, 2020), https://floridapolitics.com/archives/328896-florida-students-will-continue-distance-learning-through-rest-of-school-year/ (“Campuses will remain closed to students for the rest of the school year as Gov. Ron DeSantis put to rest questions of whether students could be asked to finish the final month of school in person”). [21] First Amended Complaint, Ferretti, 2020 WL 9348398 at ¶¶ 5-8, 21. [22] Ferretti v. Nova Se. Univ., No. 20-CIV-61431-RAR, 2022 WL 471213, at *2 (S.D. Fla. Feb. 16, 2022); additional citations needed. [23] Id. (“Plaintiff filed his class action Complaint on July 15, 2020, followed by his FAC on September 25, 2020”). [24] Ferretti, No. 20-CIV-61431-RAR, 2022 WL 471213, at *2; Ryan Dailey, Florida Colleges are Now Shielded from COVID-19 Lawsuits, Hᴇᴀʟᴛʜ Nᴇᴡs Fʟᴏʀɪᴅᴀ (June 30, 2021), https://health.wusf.usf.edu/health-news-florida/2021-06-30/florida-colleges-are-now-shielded-from-covid-19-lawsuits. Interestingly, DeSantis has seemingly reversed his position on tuition immunity now that he signed legislation giving the universities what they want. See Jason Delgado, Gov. DeSantis: College students forced to learn online deserve tuition refunds, Fʟᴏʀɪᴅᴀ Pᴏʟɪᴛɪᴄs (Jan. 3, 2022), https://floridapolitics.com/archives/482963-gov-desantis-college-students-forced-to-learn-online-deserve-tuition-refunds/. [25] Ferretti, No. 20-CIV-61431-RAR, 2022 WL 471213, at *1; for examples of unconstitutional covid-deference, see Biden v. Missouri, 142 S. Ct. 647, 650, 211 L. Ed. 2d 433 (2022); and see Alabama Ass'n of Realtors v. Dep't of Health & Hum. Servs., 141 S. Ct. 2320 (2021); and see Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 207 L. Ed. 2d 1129 (2020); and see Ill Republican Party v. Pritzker, 973 F.3d 760, 762 (7th Cir. 2020), cert. denied, 141 S. Ct. 1754, 209 L. Ed. 2d 515 (2022). [26] Rodolfo Ruiz, Tʜᴇ Fᴇᴅᴇʀᴀʟɪsᴛ Sᴏᴄɪᴇᴛʏ (2022), https://fedsoc.org/contributors/rodolfo-ruiz; Tim Ryan, Judiciary Snapshot: Trump Nominees Confirmed May 1-3, Cᴏᴜʀᴛʜᴏᴜsᴇ Nᴇᴡs Sᴇʀᴠɪᴄᴇ (May 3, 2019), https://www.courthousenews.com/judiciary-snapshot-trump-nominees-confirmed-may-1-3/. [27] CompareFerretti, No. 20-CIV-61431-RAR, 2022 WL 471213, at *6; and Dougherty, 534 F. Supp. 3d at 373-74. [28] Ferretti, No. 20-CIV-61431-RAR, 2022 WL 471213, at *6. [29] Citation needed. [30] U.S. Const. amend V; U.S. Const. amend IV.
References [1] Lisa Fickenscher, Nearly 60 percent of Covid-19 business closures are permanent: report, Nᴇᴡ Yᴏʀᴋ Pᴏsᴛ (Sep. 17, 2020), https://nypost.com/2020/09/17/majority-of-covid-19-business-closures-are-permanent-report/. [2] See Alabama Ass’n of Realtors v. Dep. of Health and Human Services, 594 U.S. 1, 1-2 (2021). [3] Dougherty v. Drew Univ., 534 F. Supp. 3d 363, 383 (D.N.J. 2021), reconsideration denied sub nom. Dougherty v. Univ., No. CV2100249KMESK, 2021 WL 2310094 (D.N.J. June 7, 2021); Carter Forninash, Duke to receive more than $6 million from coronavirus economic stimulus bill, Tʜᴇ Cʜʀᴏɴɪᴄʟᴇ (April 16, 2020), https://www.dukechronicle.com/article/2020/04/duke-university-receive-6-million-coronavirus-economic-stimulus-bill (“[A]pproximately $14 billion allocated directly to higher education under the CARES Act”); Endowments, Nᴀᴛɪᴏɴᴀʟ Cᴇɴᴛᴇʀ ғᴏʀ Eᴅᴜᴄᴀᴛɪᴏɴ Sᴛᴀᴛɪsᴛɪᴄs (2021), https://nces.ed.gov/fastfacts/display.asp?id=73; see Ferretti v. Nova Southeastern Univ., Ferretti v. Nova Se. Univ., No. 20-CIV-61431-RAR, 2022 WL 471213 at *1-2 (S.D. Fla. 2022); and see Michel v. Yale Univ. 3d Amended Complaint. [4] See, e.g., Michel, 3d Amended Complaint [5] Josh Moody, Columbia Settles COVID-19 Refund Case, Iɴsɪᴅᴇ Hɪɢʜᴇʀ Eᴅ (Nov. 29, 2021), https://www.insidehighered.com/quicktakes/2021/11/29/columbia-settles-covid-19-refund-case. [6] See, e.g. Evans v. Brigham Young Univ., No. 1:20-CV-100-TS, 2022 WL 596862, at *3-4 (D. Utah Feb. 28, 2022); see also Dougherty, 534 F. Supp. 3d at 372-74; and see Michel v. Yale Univ., 547 F. Supp. 3d 179, 185-190 (D. Conn. 2021); and see Hassan v. Fordham Univ., 515 F. Supp. 3d 77, 83-88 (S.D.N.Y.), opinion amended and superseded in part, 533 F. Supp. 3d 164 (S.D.N.Y. 2021). [7] See, e.g., Evans, 2022 WL 596862, at *3-4; and see Michel v. Yale Univ., 547 F. Supp. 3d 179, 185-190 (D. Conn. 2021); see also Dougherty, 534 F. Supp. 3d at 373-74. [8] Dougherty, 534 F. Supp. 3d at 373-74, McNulty backs up his bold assertion by selectively quoting Napolitano v. Trustees of Princeton Univ., 186 N.J. Super. 548, 566, 453 A.2d 263, 272 (App. Div. 1982), a case that dealt with university leeway in administering disciplinary policy. [9] Shaffer v. George Washington Univ., No. 21-7040, 2022 WL 678086, at *6-8 (D.C. Cir. 2022). [10] Id. at 6. [11] Id. [12] See Fla. Stat. Ann. § 768.39 (West); and see S.B. 208, 2019 Leg., 2019-20 Sess. (N.C. 2020); and see S.B. 6, 2020 Special Sess. (Tex. 2020); see also H.B. 9, 2020 Leg., 1st Extraordinary Sess. (La. 2020) (enacted), for an arguable example of such a statute. [13] Prager University, Bill Maher: College Has Become an Outright Scam, YᴏᴜTᴜʙᴇ (June 10, 2021), https://www.youtube.com/watch?v=B4AOjVrxrCo. [14] See Fla. Stat. Ann. § 768.39 (West); and see S.B. 208, 2019 Leg., 2019-20 Sess. (N.C. 2020); see also and see H.B. 9, 2020 Leg., 1st Extraordinary Sess. (La. 2020) (enacted). [15] Vision, Mission, and Core Values, Nᴏᴠᴀ Sᴏᴜᴛʜᴇᴀsᴛᴇʀɴ Uɴɪᴠᴇʀsɪᴛʏ (2022), https://www.nova.edu/about/mission.html. [16] First Amended Complaint, Ferretti v. Nova Se Univ., 2020 WL 9348398 ¶ 45 (S.D.Fla.). [17] Id. at ¶ 21. [18] Id. [19] Id. at ¶ 58. [20] First Amended Complaint, Ferretti, 2020 WL 9348398 at ¶¶ 61-65; and see Renzo Downey, Gov. DeSantis orders schools closed rest of academic year, Fʟᴏʀɪᴅᴀ Pᴏʟɪᴛɪᴄs (April 19, 2020), https://floridapolitics.com/archives/328896-florida-students-will-continue-distance-learning-through-rest-of-school-year/ (“Campuses will remain closed to students for the rest of the school year as Gov. Ron DeSantis put to rest questions of whether students could be asked to finish the final month of school in person”). [21] First Amended Complaint, Ferretti, 2020 WL 9348398 at ¶¶ 5-8, 21. [22] Ferretti v. Nova Se. Univ., No. 20-CIV-61431-RAR, 2022 WL 471213, at *2 (S.D. Fla. Feb. 16, 2022); additional citations needed. [23] Id. (“Plaintiff filed his class action Complaint on July 15, 2020, followed by his FAC on September 25, 2020”). [24] Ferretti, No. 20-CIV-61431-RAR, 2022 WL 471213, at *2; Ryan Dailey, Florida Colleges are Now Shielded from COVID-19 Lawsuits, Hᴇᴀʟᴛʜ Nᴇᴡs Fʟᴏʀɪᴅᴀ (June 30, 2021), https://health.wusf.usf.edu/health-news-florida/2021-06-30/florida-colleges-are-now-shielded-from-covid-19-lawsuits. Interestingly, DeSantis has seemingly reversed his position on tuition immunity now that he signed legislation giving the universities what they want. See Jason Delgado, Gov. DeSantis: College students forced to learn online deserve tuition refunds, Fʟᴏʀɪᴅᴀ Pᴏʟɪᴛɪᴄs (Jan. 3, 2022), https://floridapolitics.com/archives/482963-gov-desantis-college-students-forced-to-learn-online-deserve-tuition-refunds/. [25] Ferretti, No. 20-CIV-61431-RAR, 2022 WL 471213, at *1; for examples of unconstitutional Covid-deference, see Biden v. Missouri, 142 S. Ct. 647, 650, 211 L. Ed. 2d 433 (2022); and see Alabama Ass'n of Realtors v. Dep't of Health & Hum. Servs., 141 S. Ct. 2320 (2021); and see Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 207 L. Ed. 2d 1129 (2020); and see Ill. Republican Party v. Pritzker, 973 F.3d 760, 762 (7th Cir. 2020), cert. denied, 141 S. Ct. 1754, 209 L. Ed. 2d 515 (2022). [26] Rodolfo Ruiz, Tʜᴇ Fᴇᴅᴇʀᴀʟɪsᴛ Sᴏᴄɪᴇᴛʏ (2022), https://fedsoc.org/contributors/rodolfo-ruiz; Tim Ryan, Judiciary Snapshot: Trump Nominees Confirmed May 1-3, Cᴏᴜʀᴛʜᴏᴜsᴇ Nᴇᴡs Sᴇʀᴠɪᴄᴇ (May 3, 2019), https://www.courthousenews.com/judiciary-snapshot-trump-nominees-confirmed-may-1-3/. [27] Compare Ferretti, No. 20-CIV-61431-RAR, 2022 WL 471213, at *6; and Dougherty, 534 F. Supp. 3d at 373-74. [28] Ferretti, No. 20-CIV-61431-RAR, 2022 WL 471213, at *6. [29] Citation needed. [30] U.S. Const. amend V; U.S. Const. amend IV.
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