NSHE counsel seeks narrow retroactive immunity for spring 2020 tuition and fees claims

Jimmy Martinez, chief general counsel for the Nevada System of Higher Education (NSHE), told the Assembly Judiciary Committee that Senate Bill 406 would grant limited, retroactive contract immunity for claims arising from tuition and fees paid during the spring 2020 semester when institutions shifted to remote instruction in response to COVID-19 emergency orders.

Martinez said the bill is narrowly drawn. It would apply only to money-damages claims arising from tuition and fees paid for the spring 2020 semester, only for actions reasonably related to compliance with declarations of emergency and government directives, only where institutions acted in good faith, and only for claims that were not final on enactment. Martinez said the immunity would also sunset after five years.

"What this bill does is it provides immunity for compliance with the governmental orders," Martinez told the committee. He and NSHE representatives emphasized what the bill would not do: it would not provide immunity for physical harms or torts, not cover vaccine decisions, and not shield equitable remedies.

Patricia Charlton, Chancellor of NSHE, told members that typical spring semesters end in May and that certain hands-on programs (such as allied health) required additional scheduling and summer coordination. She said some in-person instruction resumed in summer 2020 for essential programs subject to public-health measures.

Committee members questioned retroactivity, constitutional scrutiny and the litigation posture. Martinez said the retroactive language would apply to pending claims that were not final and cited favorable outcomes in other jurisdictions, including First Circuit decisions and state-level bills such as Massachusetts as persuasive precedent. He also cited General Motors Corp. v. Romein as instructive on retroactive legislation. Martinez said the primary public-policy goals were protecting the state treasury, ensuring sustainability of higher-education operations, and encouraging future compliance with public-health directives.

Opponents pressed accountability and narrowness of the proposal. Jim Degraffenreid, representing the Nevada Republican Party, argued the bill was simultaneously portrayed as narrow and as protecting large liabilities, and said citizens must retain a right to redress. Kimberly Fergus, who spoke in opposition, said the bill would amount to a "retroactive shield for bad decisions made during [the] COVID 19 pandemic" and urged members to reject it.

Martinez said NSHE has one pending case in Nevada and that other nationwide class actions have involved similar claims. He said students had access to institutional refund processes and that many institutions offered administrative remedies during the spring 2020 transition.

Why it matters: SB406 would limit financial exposure for state higher-education institutions arising from the emergency shift to remote instruction in spring 2020. Supporters say the narrow retroactivity and sunset provision address constitutional concern and protect taxpayer funds; opponents say immunity would deny students and families an avenue for redress and could set a precedent for broad retroactive immunities.

Ending: The committee closed the hearing after testimony and questions; members will consider the measure in subsequent sessions and work groups.