The Nebraska Supreme Court has partially revived a lawsuit brought by students against Creighton University over its COVID-19 vaccine mandate, ruling that the students presented plausible claims for breach of an implied contract and conversion. However, the court upheld the dismissal of the students’ claims related to due process violations, negligence, and violations of the Nebraska Consumer Protection Act (NCPA).
The dispute arose when Creighton University, in 2021, mandated that all students receive the COVID-19 vaccine or face unenrollment. Many students, citing religious objections, refused the vaccine after the FDA granted full approval to the Pfizer shot, leading to their administrative withdrawal from the university and holds being placed on their academic records.
Procedural Hurdles and Mootness Dismissed
The case has a complex procedural history, including an earlier appeal that was dismissed for lack of a final order. The current appeal centers on the district court’s decision to dismiss the students’ consolidated operative complaint with prejudice after Creighton filed a motion to dismiss for failure to state a claim.
Creighton argued that the case was moot because it later updated its vaccine policy in 2022 to accommodate religious exemptions, and some students had since returned and graduated. The Supreme Court disagreed, citing established precedent that a suit seeking damages for past harm is not rendered moot merely because the challenged conduct has ceased. The court stressed that allowing defendants to stop unlawful conduct simply to avoid litigation would undermine the legal system.
Implied Contract Claim Moves Forward
The students alleged they had an implied contract with Creighton based on their enrollment and payment of tuition, which obligated the university to educate them. They claimed Creighton breached this agreement by unilaterally imposing the new vaccine requirement without offering new consideration.
Creighton countered that its student handbook disclaimed the formation of any contract and that, even if a contract existed, universities generally have the right to impose such requirements.
The Nebraska Supreme Court found the students’ allegations sufficient to survive dismissal. Relying on prior rulings, the court affirmed that the relationship between a university and its students is often contractual. The court noted that an implied contract can arise from the objective conduct of the parties—here, Creighton offering education and students enrolling and paying tuition. Since the students alleged that Creighton breached this established arrangement by unilaterally altering the terms, the matter required further factual determination by a fact-finder, not dismissal at the pleading stage.
Conversion Claim Revived Over Transcripts
The students also claimed conversion regarding their academic transcripts and credits. When unenrolled, Creighton placed a hold on the accounts of some students who had otherwise paid their bills, preventing them from accessing or transferring their earned credits.
Conversion is defined as any wrongful act of dominion over another’s property that deprives the owner permanently or indefinitely. While Nebraska law is not explicit on student ownership of transcripts, the Supreme Court found the students plausibly alleged they had a personal interest in the credits they earned and paid for. Because Creighton allegedly exercised wrongful control over these records, the court ruled this claim, too, could proceed past the motion to dismiss stage.
Negligence and NCPA Claims Barred by Federal Law
The court was unsympathetic to the students’ claims of negligence and violations of the NCPA, primarily due to the federal Public Readiness and Emergency Preparedness (PREP) Act.
The students argued Creighton was negligent for not following CDC guidelines regarding informed consent before administering the vaccine (a claim relevant to the one student who was vaccinated). The court determined that Creighton qualified as a “covered person” administering a “covered countermeasure” (the COVID-19 vaccine) under the PREP Act, as the university employed physicians to supervise the vaccination program on campus.
Crucially, the court found that the PREP Act preempts state law tort claims, like negligence, when they arise from the administration of a covered countermeasure. Relying on reasoning from other state supreme courts, the Nebraska court held that the federal statute’s exclusive remedy—the Covered Countermeasure Process Fund—applies to such “claims for loss,” which include physical injury or property damage arising from negligence.
Similarly, the students’ claim under the NCPA—which alleges unfair or deceptive business practices related to the vaccine mandate—was also dismissed because it was causally linked to the administration of the covered countermeasure, thus falling under PREP Act preemption.
Denial of Amendment Upheld for Barred Claims
The students also challenged the district court’s denial of their request to amend their complaint. The Supreme Court found that while leave to amend is generally liberally granted, it should be denied if the proposed amendment would be futile. Since the negligence and NCPA claims were legally barred by the PREP Act, amending them would not cure the fundamental defect. Therefore, the denial of leave to amend those specific claims was upheld.
The case is now remanded back to the District Court for Douglas County to allow the breach of implied contract and conversion claims to move forward toward trial or further discovery.