Century Tower at the University of Florida. Credit: UF website
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A University of Florida alumnus’ bid to recover fees he paid for student services but couldn’t use because of a switch to remote learning during COVID remains in the courts, more than three years after he filed suit.
Anthony Rojas — a Virginian who attended graduate school at UF and has now returned to his home state — hasn’t objected to paying tuition for online classes instead of in-person education during the pandemic. But he filed a class action in April 2021 seeking to recover other fees meant to support student activities and other services.
Gov. Ron DeSantis announces a statewide stay-at-home order during a news conference in his Capitol office on April 1, 2020. Since then, he’s drawn criticism for responses to COVID-19 that critics see as lax. Screenshot image.
Rojas hasn’t yet responded to a request for comment that the Phoenix made through his attorneys.
The Florida Board of Governors, which controls state universities, closed campuses in March 2020 through the end of that year’s summer term after Gov. Ron DeSantis ordered that “all persons in Florida shall limit their movements and personal interactions outside of their home to only those necessary to obtain or provide essential services or conduct essential activities.”
Rojas sued on behalf of himself and other UF students affected by the campus closure.
Now his case is before the Florida Supreme Court, having survived the university’s motion to dismiss at the trial-court stage but having been rejected by the Florida First District Court of Appeal. That court urged the Supreme Court to consider the case as a matter of “great public importance.”
Rojas faces opposition not only from the university, but also from Florida Attorney General Ashley Moody, who filed her own brief in the case. The National Association of Consumer Advocates, comprising 1,600 attorneys and consumer advocates, filed a friend-of-the-court brief supporting Rojas and the other students.
The justices have scheduled oral arguments for the morning of June 5.
The case hinges on whether, having paid his student fees, Rojas could reasonably have expected to obtain the services allegedly promised — essentially, whether the transaction formed a legally enforceable contract. Another factor is whether the state and university are entitled to sovereign immunity from the lawsuit.
$81.96 per credit hour
UF during the period at issue charged students fees totaling $81.96 per credit hour above tuition, including $19.06 for activities and services, a $22.43 financial aid fee, a $15.81 health fee, $9.44 for access to a campus transportation system, a $6.56 technology fee, a $1.90 athletic fee, and $6.46 for a capital improvement trust fund, according to the complaint filed on Rojas’ behalf in Alachua County Circuit Court.
University officials considered at least prorating those fees but opted against doing so, the complaint alleges.
Rojas’ team claims failure to provide those services broke an express contract between him and the university.
“Were all these terms included in a single document entitled ‘Contract,’ no court would have any difficulty holding that an express contract existed that obligated UF to provide on campus services in exchange for the fees. That same holding should be reached here even though these terms were not all contained in a single document,” their most recent appellate brief argues.
The Rojas Supreme Court brief argues that students deserve at least the ability to gather evidence into matters including whether the fees were spent in accordance with the wishes of UF’s student government. That would be hashed out in advance of a trial, if the Supreme Court authorizes one, as well as which specific fees he would be eligible to recover, according to his attorney, Howard Bushman of the Moskowitz Law Firm in Coconut Grove.
Lawyers for UF filed their brief at the end of January (the justices allowed the Rojas team to delay filing their brief for several months), arguing that the lawsuit seeks to punish it for trying to protect its students from the virus.
“This was no bait-and-switch to bring students onto the university’s campus at the start of the semester to supposedly leave them empty-handed months later, but the premise of petitioner’s lawsuit challenges how the state and the university responded to an emergency pandemic on the campus in a responsible and legal manner,” it reads.
The original complaint alleged unjust enrichment and breach of contract, but the trial judge dismissed the first count while sustaining the second. The First DCA rejected the contract claim, too, however, ruling that there never was an express, written agreement to provide the services in exchange for the fee.
And a written agreement is necessary to assert a claim against the state’s and the university’s sovereign immunity, the DCA concluded. Moreover, other documents implying a quid pro quo, including descriptions on the university’s website about what the fees would pay for, weren’t legally binding, that court said.
Contract?
“The university does not deny that it must provide ‘educational services’ in exchange for tuition and fees paid, but petitioner does not present any document requiring on-campus services and facilities to be provided in the Spring and Summer 2020 semesters for the fees that were paid. Thus, there is no express, written contract for in-person services and resources as petitioner demands in his complaint,” UF’s brief reads.
Sovereign immunity is intended to prevent the courts from intruding on the authority of the executive and legislative branches of government, to protect taxpayer money, and to ensure “an orderly administration of government,” the UF brief adds.
There’s a strong presumption against breaking sovereign immunity, which can happen only when the Legislature has authorized an agency to enter into the agreement at issue. The assumption is that “where the Legislature authorized a state agency to contract, the Legislature similarly intended the contract to be valid and enforceable,” the university brief says.
However, the waiver must be “clear and unequivocal,” it adds.
Rojas filed his brief at the beginning of May. It insists he is agnostic about the merits of the campus closure.
“This litigation in no way attacks UF’s decision [to] close its campuses in order to protect the health and safety of its students. Nor does it accuse UF of participating in a bait-and-switch scheme to unjustly profit from these unfortunate circumstances. This litigation simply challenges UF’s decision to retain funds paid by its students for services that UF no longer had to provide because the campus was closed,” his brief says.
Amicus arguments
Florida Attorney Ashley Moody. Source: Screenshot/Florida Channel
Moody’s brief argues that state entities enjoy sovereign immunity “unless general law clearly and unequivocally provides otherwise. Even then, language allegedly constituting waiver is to be construed narrowly and in favor of the state.”
However, “Rojas has not identified any provision of law authorizing the specific kind of contract at issue. The services at issue were authorized by statute, as were the fees collected, but no statute authorizes the university to bind the state to provide one in exchange for the other,” her brief continues.
“That is, no provision of law indicates that the Legislature contemplated the kind of contract Rojas alleges — one guaranteeing uninterrupted access to a suite of unspecified extracurricular services in exchange for fees, much less that the Legislature intended to waive sovereign immunity for litigation to recover the unused portions of student fees. And in the absence of a ‘clear’ and ‘unequivocal’ provision waiving sovereign immunity for the kind of contract alleged, the suit must be dismissed,” her brief concludes.
The Consumer Advocates also weighed in.
“Should the court find that public schools and universities can use sovereign immunity to avoid liability for breaching their own self-acknowledged ‘contracts,’ students will be left with no recourse in what is, for many of them, the most significant financial obligation they will ever undertake,” the group’s brief says.
“Students will be left in the untenable position of having paid for specifically promised services while lacking any recourse when those promises are unfulfilled. That result, which will have its heaviest impact on already disadvantaged students, is untenable,” the group continues.
The Florida Defense Lawyers Association filed a brief supporting the state and university, arguing Rojas hasn’t overcome the high burden of piercing their sovereign immunity.
“The petitioner has not — and cannot — meet this burden. The hodge podge of documents put forth by the petitioner does not meet even the most basic of contract principles. The First District correctly concluded that the subject documents do not ‘obligat[e] the university to provide specific, on-campus services to any student during any specific time,’” the group wrote.
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