SAN FRANCISCO (CN) — University of California officials cannot be sued on claims of cheating students out of hundreds of millions of dollars in fees for on-campus services not provided due to the Covid-19 pandemic because they are immune from federal lawsuits, a judge said in court Monday.
Advancing two federal lawsuits over on-campus fees would allow “every person who is unhappy with the services” provided by state governments to sue in federal court, despite state officials’ right to immunity from federal lawsuits under the 11th Amendment, U.S. Magistrate Judge Sallie Kim said during a virtual hearing Monday on the UC system’s motion to dismiss.
“The door that you’re opening is huge,” Kim told a lawyer for students suing the University of California Regents and former UC President Janet Napolitano.
Lead plaintiffs Claire Brandmeyer and Noah Ritter, who attended UC Davis and UC Berkeley, respectively, in the spring of 2020, sued the university system in separate lawsuits this past April, claiming their colleges refused to refund fees of over $1,000 each student paid for on-campus activities, safety and health care, among other services they say were never provided.
“The issue is they’ve taken hundreds of millions of dollars from class members here for services they can’t provide,” said plaintiffs’ lawyer Adam Levitt of the firm DiCello Levitt Gutzler in Chicago.
Attorneys for the University of California say the state-funded institution and its officials are immune from federal liability unless they violate a clearly established constitutional right.
“Students don’t have a clearly established constitutional right in the fees they pay to the university,” UC Regents attorney Karen Johnson-McKewan of the firm Orrick Herrington & Sutcliffe in San Francisco argued in court Monday.
Johnson-McKewan said these cases belong in state court, where six separate class actions seeking to recover on-campus fees from University of California schools were recently consolidated in Los Angeles Superior Court.
The plaintiffs say the millions of dollars in fees charged for services not provided represents an unjust taking of property in violation of the Fifth Amendment.
Noting that the U.S. Supreme Court has twice called out the Ninth Circuit for improperly limiting qualified immunity, Judge Kim said the nation’s highest court has made clear that a prior court decision is necessary to put a state official on notice that their conduct is “clearly unconstitutional.”
Levitt cited the Supreme Court’s 2015 decision in Horne v. Department of Agriculture as establishing that “taking without just compensation” is unconstitutional. But Judge Kim accused Levitt of using that case to rely on “general principles” rather than specific, on-point case law.
“You’re saying any time a state official or actor is accused of taking property in violation of the Takings Clause, that person cannot claim qualified immunity,” Kim said.
Levitt then cited the First Appellate District’s 2007 decision in Kashmiri v. Regents of the University of California, which found the university system could not raise educational fee prices after students enrolled without warning them the prices were subject to change.
But Kim said that case was about breach of contract, not a constitutional violation.
Arguing for the university, Johnson-McKewan said the plaintiffs cannot claim a violation of the Takings Clause because the fees they paid for on-campus services belong to the university, not the students.
“Their theory is the university doesn’t own those fees until a later point,” Johnson-McKewan said. “Do they have to wait until the end of the academic term to claim those fees?”
Johnson-McKewan also cited the Third Appellate District’s 1982 decision in Erzinger v. Regents of the University of California, in which the court found a policy requiring students to pay a health care services fee that included providing birth control and abortions did not violate a student’s religious freedom rights. In that case, the court also held that “once the university collects mandatory student fees, such funds become university property.”
Levitt argued that case covered a completely separate issue — whether students can “pick and choose” what their campus fees are used for. This case involves paying a fee and receiving no services in return, he said.
“When you pay fees for a specific service that can’t be given and they don’t’ give it back, that’s actually a taking of your property,” Levitt insisted.
After nearly an hour of debate, Kim said she believes University of California officials are entitled to qualified immunity.
“Nothing you have said today has persuaded me to the contrary,” Kim told the plaintiffs’ lawyer.
The judge said the only issue she was still wrestling with is whether to let plaintiffs amend their complaint, suggesting that she thinks any further attempts to prevent the case from being thrown out of federal court could be a waste of time.
“I’m just grappling with the question of whether amendment would be futile or not,” Kim said.
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