(1) The Legislature finds that during the COVID-19 public health emergency, educational institutions had little choice but to close or restrict access to their campuses in an effort to protect the health of their students, educators, staff, and communities. Despite these efforts, more than 120,000 cases of COVID-19 have been linked to colleges and universities nationwide, and the deaths of more than 100 college students have been attributed to the disease. The Legislature further finds that lawsuits against educational institutions based on their efforts to provide educational services while keeping students, faculty, staff, and communities safe during the COVID-19 public health emergency are without legal precedent. One court has even acknowledged that the “legal system is now feeling COVID-19’s havoc with the current wave of class action lawsuits that seek tuition reimbursement related to forced online tutelage.” Under these circumstances, the Legislature finds that there is an overpowering public necessity for, and no reasonable alternative to, providing educational institutions with liability protections against lawsuits seeking tuition or fee reimbursements or related damages resulting from the institutions changing the delivery of educational services, limiting access to facilities, or closing campuses during the COVID-19 public health emergency.
(2) For the purposes of this section, the term “educational institution” means any postsecondary institution, whether public or nonpublic. The Board of Governors of the State University System and the State Board of Education are also included within the immunity protections afforded by this section.
(3)(a) An educational institution that has taken reasonably necessary actions in compliance with federal, state, or local guidance to diminish the impact or the spread of COVID-19 may not be held liable for, and shall be immune from, any civil damages, equitable relief, or other remedies relating to such actions. Reasonably necessary actions taken while a state of emergency was declared for this state for the COVID-19 pandemic include, but are not limited to, any of the following:1. Shifting in-person instruction to online or remote instruction for any period of time;
2. Closing or modifying the provision of facilities, other than housing or dining facilities, on the campus of the educational institution; or
3. Pausing or modifying ancillary student activities and services available through the educational institution.
(b) The provision of in-person or on-campus education and related services is deemed to have been impossible for educational institutions during any period of time in which such institutions took reasonably necessary actions described in paragraph (a) to protect students, staff, and educators in response to the COVID-19 public health emergency.
(c) As a result of the various governmental orders and the need for educational institutions to protect their communities, the reasonably necessary actions described in paragraph (a) are deemed justified.
(4) In any action against an educational institution, the Board of Governors of the State University System, or the State Board of Education for the reimbursement of tuition or fees, invoices, catalogs, and general publications of an educational institution are not evidence of an express or implied contract to provide in-person or on-campus education and related services or access to facilities during the COVID-19 public health emergency.
(5)(a) This section does not apply to losses or damages that resulted solely from a breach of an express contractual provision allocating liability.
(b) This section does not apply to losses or damages caused by an act or omission of a college or university which was in bad faith or malicious.
(6) If any aspect of the immunity under subsection (3) is limited by a court or by operation of law from applying to certain types of claims or causes of action, the immunity under this section must still be provided to the fullest extent authorized by law to any other types of claims or causes of action.
(7) If an educational institution is required by federal, state, or local order or a directive of the Board of Governors of the State University System or the State Board of Education issued in response to the COVID-19 public health emergency to alter the mode of delivery of instruction and related services or access to facilities, the burden of proof for any plaintiff bringing an action against the educational institution for compliance with such order or directive shall be by clear and convincing evidence to prevail for damages against the institution.
