On Tuesday, a case progressed within the Kentucky Court of Appeals between students and six public universities — including Western Kentucky University — alleging the universities owe students for not providing agreed-upon instruction and services due to the COVID pandemic.

The court heard oral arguments Tuesday following WKU’s March 15, 2024, appeal against a ruling by the Franklin Circuit Court that had denied universities’ consolidated attempt to dismiss the cases, Brandon Condiff et al v. WKU being the local lawsuit. Because the cases are consolidated, they are being separately briefed but argued together, according to the plaintiffs’ law firm Regard Law Group PLLC. The firm is seeking student refunds equaling at least 40% of approximately $107 million in tuition and $4 million in fees from WKU — roughly $44 million in damages, according to the firm’s attorney Andre Regard.

Regard Law Group PLLC filed the first of the lawsuits, against University of Kentucky, in June 2020, where the judge had ruled in favor of the plaintiffs, Regard said, with litigation being ongoing. Theirs is the lead firm overseeing cases against all eight public universities, he added.

The case’s outcome may also affect public universities’ responses to similar situations involving campus closures and remote learning, Regard confirmed.

“(The university) limited access to in-classroom instruction and to auxiliary services that students paid for — which students prepaid for, because you have to pay when you start the semester — and they should refund a portion of that to the students because they didn’t provide what the students contracted for,” Regard said. “That’s the basic premise of all (the) cases.”

WKU stated that it typically “does not comment on matters involving ongoing litigation.”

Regard said that the university argues it essentially has no contractual obligation to provide students anything — that because there’s no written contract, there can be no breach.

“The Complaint in this case fails to identify any such contract,” WKU’s motion to dismiss states. “Instead, Plaintiffs rely on a variety of separate informational documents, none of which purports to be a contract. Moreover, the documents do not express or otherwise evidence the promises that the Complaint attributes to them: promises of uninterrupted on-campus instruction or of unfettered access to facilities or in-person services.”

WKU also raised a new defense in House Bill 6, passed in the 2024 state budget bill legislation — which provides immunity to universities concerning tuition collected that arises from their responses to the COVID 19 pandemic, Regard said.

The plaintiffs argue that this is an immunity provision, meaning it must be passed independently of the budget bill, Regard said. They also argue it’s special legislation that is unconstitutional because it’s buried deep into legislative language — taking away students’ vested right to adequate notice and other proper procedures.

Three judges will aim to render, in 60-75 days, an opinion to uphold, reverse or vacate the decision, according to KY Court of Appeals Clerk Kate Morgan.

A denial of Western’s appeal would give WKU 30 days to file a motion for a discretionary review with the Kentucky Supreme Court, which has indefinite time to rule on such a motion, Morgan said.