Looking Forward About Looking Backward

Hogan v. Southern Methodist University presented, inter alia, the question whether Texas’s Pandemic Liability Protection Act – enacted in 2021 – bars a student’s complaint about SMU moving to an all-virtual learning environment in 2020.

The student argued that this backward-looking application of the law violated the Texas Constitution’s prohibition of “retroactive” laws — a unique feature of that instrument that, like the “open courts” provision, has no counterpart in the U.S. Constitution. SMU, supported by the Texas AG, argued otherwise.

The Fifth Circuit certified this issue to the Texas Supreme Court, noting its importance and the dearth of caselaw on the point to date. No. 20-10433 (July 20, 2023).