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The Indiana attorney general wants the Indiana Supreme Court to weigh in on a lawsuit that seeks punitive damages for COVID-related college campus closures.

The class-action lawsuit against Ball State University was filed by a student at the school last year. The legal challenge claims Ball State has refused to reimburse students for tuition and fees that were paid for in-person classes and services.

An Indiana law enacted in 2021 鈥� which prohibits such class-action complaints against state universities 鈥� also sought to derail the lawsuit. But last month, three appeals court judges ruled the case should move forward.

Now, Attorney General Todd Rokita鈥檚 office is turning to the Indiana Supreme Court to overturn that decision, arguing the General Assembly acted within its authority to limit the lawsuits.

Student seeks damages for remote-only classes

College student Keller Mellowitz was enrolled at Ball State for the spring 2020 semester when the university 鈥渟ent students home, cancelled in-person classes and closed campus facilities as a result of COVID-19,鈥� according to court filings.

He filed a class action complaint against Ball State and its board of trustees in Marion County Superior Court in May 2020, accusing them of 鈥渂reach of contract and unjust enrichment鈥� over decisions to cancel in-person classes and close campus facilities due to the pandemic.

Specifically, Mellowitz cites Ball State鈥檚 retention of tuition and 鈥渘umerous鈥� fees, including those for student services, university technology, student recreation, student health, and student transportation.

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The lawsuit estimated as many as 20,000 Ball State students were due some sort of reimbursement.

A Ball State spokesperson said in 2020 鈥� early on in the pandemic 鈥� that the university had decided not to refund tuition because of how quickly and efficiently the school transitioned to remote learning. University officials also emphasized that students were able to effectively complete their coursework, despite the switch to alternative teaching methods.

Ball State received just over $77.5 million in federal pandemic relief, . About $27.7 million was distributed to students via emergency grants.

After the lawsuit was filed, however, the Indiana General Assembly retroactively banning class-action lawsuits against state postsecondary educational institutions under COVID-related circumstances.

A Marion County judge then ordered Mellowitz to file an amended complaint to eliminate his 鈥渃lass allegations.鈥�

Mellowitz appealed that ruling. Three appeals court judges reversed the Marion County judge鈥檚 ruling in October, maintaining the new law providing class action protection to state schools in conflict with a long-standing Indiana trial rule.

In a 3-0 decision, the justices concluded the General Assembly lacked the authority to pass the class-action bar.

State鈥檚 attorneys push back

The case has since returned to the Marion County Superior Court, but attorneys for Ball State and the attorney general鈥檚 office last week filed petitions to transfer the case to the Indiana Supreme Court.

Ball State鈥檚 counsel pointed to an issued by Gov. Eric Holcomb in March 2020 which made it unlawful for all universities in Indiana to offer in-person classes. The university complied with the order and made 鈥減rudent and necessary decisions to protect public health and safety,鈥� the lawyers said.

Further, Ball State鈥檚 attorneys assert that the state鈥檚 class-action bar 鈥渞epresents one rational way for the legislature to protect Indiana鈥檚 higher educational institutions and governmental entities from potentially enormous costs, burdens, and uncapped liability associated with pandemic-related lawsuits,鈥� while still allowing students who believe the change in their mode of instruction warrants a lawsuit to pursue one.

There will also be 鈥渟ignificant consequences for public fiscal interests鈥� if the case is allowed to move forward as a putative class action 鈥� rather than a single-plaintiff case 鈥� Ball State鈥檚 lawyers continued.

Court documents filed by Rokita鈥檚 office additionally maintained the 鈥渋nvalidation of a state statute is an important question of law鈥� that should be decided by the Indiana Supreme Court.

鈥淭he Indiana Constitution vests the General Assembly with the authority to pass substantive laws related to what it believes is in the overall wellbeing of society,鈥� the state鈥檚 lawyers wrote in their petition.

鈥淏y foreclosing class-action suits, the General Assembly sought to reduce the pressure on institutions to settle rather than face existential liability threats arising from their compliance with the Governor鈥檚 COVID-19 executive orders.鈥�

Counsel at the attorney general鈥檚 office further said the General Assembly鈥檚 decision to limit class action lawsuits was likely out of concern 鈥渢hat educational institutions could face immense settlement pressures that class actions often bring.鈥� 

The attorney general鈥檚 office did not reply to a request for comment.

Amicus briefs supporting the petitions to transfer the case to the Indiana Supreme Court have been filed by Indiana University, Purdue University, University of Notre Dame and Independent Colleges of Indiana, an association representing Indiana鈥檚 30 private colleges and universities.

Another supportive brief was filed by the Indiana Legal Foundation, which advocates for Hoosier businesses, including the Indiana Chamber of Commerce and Indiana University Health. Businesses were given some legal immunity related to COVID-19 in the same law. 

The Indiana Supreme Court has not yet made a decision about whether to take on the case.

Other legal actions still pending

The lawsuit is not the first COVID-related filing against Indiana post secondary institutions, however.

Similar breach-of-contract lawsuits brought by students against Indiana University and Purdue University are also moving forward after the Indiana Court of Appeals motions to dismiss the cases in March.

The complaints allege the schools did not provide in-person instruction, services, activities, housing and meals when all in-person classes were moved online 鈥� and campus facilities were closed 鈥� in the middle of the spring 2020 semester.

The students are seeking prorated refunds of tuition, student fees, and room and board fees as damages.

The universities sought to overturn the Appeals Court鈥檚 ruling. Indiana Supreme Court justices in September declined to hear the appeal.

Earlier this year, a federal appeals court allowed Indiana University to keep in place its COVID-19 vaccination requirement for students after multiple other students separately sued the university, arguing that such vaccine requirements violate their rights to 鈥渂odily autonomy.鈥�

The 7th Circuit Court of Appeals, in Chicago, declared the lawsuit moot, however, given that seven of the eight students who sued the school were granted religious exemptions and another had withdrawn as a student.

is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Indiana Capital Chronicle maintains editorial independence. Contact Editor Niki Kelly for questions: [email protected]. Follow Indiana Capital Chronicle on and .

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