Bass, Berry & Sims Audrey Anderson provided insight on the lawsuit against the University of South Florida (USF) related to campus shutdowns during the COVID-19 pandemic. Florida’s state Supreme Court agreed to hear a class action lawsuit that was filed against the university alleging the institution was in breach of contract for not fulfilling its contractual obligations when the campus shutdown. While many universities in previous lawsuits relied on the “educational malpractice doctrine” defense, the lawsuit against USF is relying on a broad interpretation of the 11th Amendment, specifically sovereign immunity. USF’s lawyers argue that because the university is a public institution, it cannot be sued by any citizen without the state’s consent.

“The state Supreme Court is not going to be quite as interested in the factual determination of the University of Southern Florida’s contractual obligations. That’s not the kind of question they’d want to spend their time on,” Audrey said. “But a question like what actions are state universities immune from? That’s something that really warrants their attention.”

Audrey added, “Public universities really want to strengthen sovereign immunity, so having an opportunity to clarify the law about the contours of that principle is the kind of case where an institution could reasonably say, ‘Let’s not settle, let’s move ahead with this.’ The savings will be so much more if they can make it clear that students just can’t be suing over this kind of stuff.”

However, Audrey warned, “There is a danger that you’ll get a bad decision, which will narrow things more than [institutions] want them narrowed. There’s always risk and reward to weigh against one another in litigation.”

The full article, “Florida Supreme Court to Hear Campus Shutdown Case,” was published by Inside Higher Ed on November 11 and is available online.