United States Court of Appeals

For the First Circuit

No. 23-1385

JULIA DUTRA, individually and on behalf of all others similarly 

situated; GABRIELLA DUBE, individually and on behalf of all 

others similarly situated; SHAKURA COX, individually and on 

behalf of all others similarly situated; VALAAUINA SILULU, 

individually and on behalf of all others similarly situated; 

NATALIE SILULU, individually and on behalf of all others 

similarly situated; OLIVIA BORNSTEIN, individually and on behalf 

of all others similarly situated; VENUS TRAN, individually and 

on behalf of all others similarly situated,

Plaintiffs, Appellants,

v.

TRUSTEES OF BOSTON UNIVERSITY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Gelpí, Lynch, and Howard,

Circuit Judges.

Kathryn Lee Boyd, with whom Michael K. Eggenberger, Kristen 

L. Nelson, Hecht Partners LLP, Blake G. Abbott, Eric M. Poulin, 

Paul Doolittle, Roy T. Willey, Poulin Willey Anastopoulo, LLC, 

Patrick F. Madden, E. Michelle Drake, Berger Montague PC, Daniel 

J. Kurowski, Steve W. Berman, Whitney K. Siehl, Rachel A. Downey, 

Hagens Berman Sobol Shapiro LLP, Harold L. Lichten, Lichten & 

Liss-Riordan, P.C., Joseph I. Marchese, L. Timothy Fisher, Sarah 
N. Westcot, Bursor & Fisher, P.A., Michael C. Forrest, and Forrest, 

LaMothe, Mazoe, McCullough, Yasi & Yasi, were on brief, for 

appellants. 

Kathleen M. Sullivan, with whom Alex H. Loomis, Crystal 

Nix-Hines, Shon Morgan, Marina Lev, and Quinn Emanuel Urquhart & 

Sullivan, LLP, were on brief, for appellee.

March 13, 2024
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GELPÍ, Circuit Judge. This appeal requires us to analyze 

whether the Due Process Clause of the United States Constitution 

is violated by the retroactive application to this case of Section 

80 ("Law 80"), signed into law on August 9, 2023, by Massachusetts 

Governor Maura Healey through the state's 2024 Fiscal Year budget. 

This appeal arises out of breach of contract claims filed 

against Boston University ("BU") by Olivia Bornstein, Shakura Cox, 

Gabriella Dube, Julia Dutra, Natalie Silulu, and Venus Tran 

(collectively, "Plaintiffs") for the remote instruction they 

received during the Spring 2020 semester. Plaintiffs alleged that 

BU committed a breach by transitioning to fully remote classes and 

services which they did not reasonably expect. Plaintiffs also 

alleged that BU was unjustly enriched by the transition. 

Lengthy discovery and motion practice ensued, then 

summary judgment was entered below in favor of BU on the merits. 

In re Bos. Univ. COVID-19 Refund Litig., No. 20-10827, 2023 WL 

2838379 (D. Mass. Apr. 7, 2023). Plaintiffs timely appealed, and 

soon thereafter, Law 80 was enacted. Law 80 is material to the 

instant case because it bars actions for damages and equitable 

monetary relief against higher education institutions for acts or 

omissions in response to the emergency of COVID-19 and orders 

ceasing in-person gatherings during the Spring 2020 academic 

semester, subject to four provisions. 2023 Mass. Acts, ch. 28, 

§ 80(b). As its retroactive application does not violate due 
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process, Law 80 bars this action. So holding, we affirm the 

district court's judgment below on this alternate ground.1

I. BACKGROUND

A. Relevant Facts

On March 10, 2020, during the height of the COVID-19 

pandemic, former Massachusetts Governor Charlie Baker limited 

gatherings to no more than ten people within the state. Weeks 

later, Governor Baker issued an order further limiting gatherings 

and requiring businesses that do not provide essential services to 

close their physical facilities in order to reduce the transmission 

of the virus. In response, BU, like other higher education 

institutions, replaced in-person classes with remote instruction 

on March 16, 2020. Providing fully remote instruction required BU 

to significantly improve its IT infrastructure and technical 

resources, resulting in BU incurring an additional $52 million in 

expenses for the Spring 2020 semester. Alongside remote 

instruction, students were provided with remote access to tutors, 

counselors, health care, and other services that were previously 

provided on campus. 

Plaintiffs were full-time students enrolled for 

in-person classes during the Spring 2020 semester. For the Spring 

1 We are free to "affirm a judgment on a legal ground not 

relied upon in the district court." Sierra Club v. Wagner, 555 

F.3d 21, 26 (1st Cir. 2009) (citing Plymouth Sav. Bank v. IRS, 187 

F.3d 203, 209-10 (1st Cir. 1999)).
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2020 semester and before BU's compliance with the Governor's 

mandate, students had been provided with the option of registering 

for online or in-person courses. At that time, BU provided 

registrants with the times and locations of where the Spring 2020 

on-campus classes would be held. Plaintiffs each paid tuition, 

and once BU transitioned to completely remote instruction, BU did 

not alter the costs of tuition, maintaining the same annual tuition 

rate as charged for in-person classes. Plaintiffs also paid BU 

certain mandatory fees for sports passes and other services such 

as health and wellness, community, and student services. Both the 

tuition and the fees went towards BU's general revenue to cover 

all expenses, including services and resources. After BU 

transitioned to fully remote learning, students continued their 

Spring 2020 semester with the same professors for the same classes 

and received academic credit as they would have had the instruction 

been in person. BU also continued to provide students with remote 

access to tutors, counselors, health care providers, and other 

services that were offered on campus. 

B. Legal Proceedings

On April 29, 2020, Plaintiffs filed suit against BU 

alleging that it had promised to provide in-person classes and 

services thereby committing a breach of contract when it did not 

do so (in compliance with the Governor's mandates) during the 

COVID-19 pandemic. In the alternative, Plaintiffs sought damages 
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for the unjust enrichment BU allegedly received for providing 

remote instruction in place of in-person classes. After extended 

discovery and a series of motions, Plaintiffs and BU filed 

cross-motions for summary judgment. Plaintiffs also moved for 

class certification and BU moved to exclude testimony from 

Plaintiffs' expert witness for damages under Daubert. Daubert v. 

Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). The district court 

granted BU's motions to exclude testimony and for summary judgment. 

In re Bos. Univ. COVID-19 Refund Litig., 2023 WL 2838379, at *4. 

The district court reasoned that BU was entitled to 

impossibility as a defense for the breach of contract claims 

because continued performance of the contract was illegal under 

the COVID-19 emergency orders. Id. at *3. As for the expert's 

testimony, the district court determined that the expert witness 

should be excluded subject to Federal Rule of Evidence 703 because 

the expert's analysis did not measure the type of damages claimed, 

resulting in a lack of genuine dispute of material fact as to 

restitution damages. Id. at *2-3. In entering judgment for BU, 

the district court denied Plaintiffs' motions for class 

certification and summary judgment as moot. Id. at *4.

Plaintiffs timely appealed arguing that the district 

court erred by excluding their expert witness's testimony, 

granting summary judgment for BU, and denying their motions for 

class certification and summary judgment. In response, BU defends 
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the district court's rulings based on this Court's holding as to 

unjust enrichment in Burt v. Board of Trustees of the University 

of Rhode Island, 84 F.4th 42, 58-59 (1st Cir. 2023), and 

alternatively, urges this Court to find that Law 80 bars this 

action. As to subsection 80(b), Plaintiffs counter that 

retroactive application of Law 80 to bar their case would violate 

the Due Process Clauses of the United States and Massachusetts 

Constitutions and the Contracts Clause of the United States 

Constitution. 

C. Law 80

Law 80 grants higher education institutions in 

Massachusetts immunity for monetary relief claims as specified by 

the text infra. Subsections 80(b) and (d) limit the scope of Law 

80. Subsection 80(d) states that Law 80 is applicable "to claims 

commenced on or after March 10, 2020, for which a judgment has not 

become final before the effective date of this section and which 

were based on acts or omissions that occurred during the spring 

2020 academic term." 2023 Mass. Acts, ch. 28, § 80(d). Subsection 

80(b) states:

(b) Notwithstanding any general or 

special law to the contrary, except as 

provided in subsection (c), an institution of 

higher education shall be immune from civil 

liability for any damages or equitable 

monetary relief alleged to have been sustained

due to an act or omission of an institution of 

higher education if: 
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(i) the claim arises out of or in 

connection with tuition or fees paid to 

the institution of higher education for 

the spring academic term of 2020; 

(ii) the claim alleges losses or 

damages arising from an act or omission 

by the institution of higher education 

during or in response to the COVID-19 

emergency; 

(iii) the alleged act or omission of 

the institution of higher education was 

reasonably related to protecting public 

health and safety interests in response 

to the COVID-19 emergency, in compliance 

with federal, state or local guidance, 

including, but not limited to: (A) 

transition to online or otherwise remote 

instruction; (B) pause or modification to 

instruction and ancillary student 

activities and services available 

through the institution of higher 

education; or (C) closure of, or 

modification to, operations of on-campus 

facilities of the institution of higher 

education; and 

(iv) the institution of higher 

education offered online and otherwise 

remote learning options that allowed 

students to complete the coursework in 

the spring academic term of 2020.

Id. § 80(b). 

II. DISCUSSION

A. Standard of Review

Because the retroactive application of Law 80 is a 

question of law, our review is de novo. Kenyon v. Cedeno-Rivera, 

47 F.4th 12, 20 (1st Cir. 2022) (citing Hannon v. City of Newton, 

744 F.3d 759, 765 (1st Cir. 2014)). The parties do not dispute 
- 9 -

that subsection 80(b) is intended to be retroactive. Therefore, 

our analysis centers on whether this is constitutionally 

permissible. Leibovich v. Antonellis, 574 N.E.2d 978, 984 (Mass. 

1991). Plaintiffs do not contend that BU does not satisfy

subsection 80(b)'s four requirements or that BU has acted in bad 

faith.

B. Law 80's Retroactivity

The legal analysis of whether retroactive statutes 

violate the Due Process Clause of the United States Constitution 

is that also followed as to the Massachusetts Constitution. 

Nantucket Conservation Found., Inc. v. Russell Mgmt., Inc., 402 

N.E.2d 501, 503 (Mass. 1980); Am. Mfrs. Mut. Ins. Co. v. Comm'r of 

Ins., 372 N.E.2d 520, 525 (Mass. 1978) ("[T]hese various 

contentions 'amount to much the same thing.'" (citation omitted)). 

Hence, only a single analysis is needed. Retroactive legislation 

must satisfy the due process test: "a legitimate legislative 

purpose furthered by rational means." Gen. Motors Corp. v. Romein, 

503 U.S. 181, 191 (1992) (citing Pension Benefit Guar. Corp. v. 

R.A. Gray & Co., 467 U.S. 717, 730 (1984)); see also Landgraf v. 

USI Film Prods., 511 U.S. 244, 267-68 (1994) (stating that 

"[r]etroactivity provisions often serve entirely benign and 

legitimate purposes").2 As to any Contract Clause claim, "[w]e 

2 Although we are not bound by the SJC's interpretation of 

the federal Due Process Clause, both parties brief the due process 
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need not deal with a constitutional prohibition against impairing 

the obligation of contracts, because the due process clause of the 

federal constitution provides essentially the same restraint so 

far as retrospectivity is concerned." Fornaris v. Ridge Tool Co., 

423 F.2d 563, 566-67 (1st Cir. 1970), rev'd on other grounds, 400 

U.S. 41 (1970). The burden rests on the challenger "to establish 

that the legislature has acted in an arbitrary and irrational way." 

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976). 

"A legislative enactment carries with it a presumption 

of constitutionality, and the challenging party must demonstrate 

beyond a reasonable doubt that there are no 'conceivable grounds' 

which could support its validity." Leibovich, 574 N.E.2d at 984 

(quoting Zeller v. Cantu, 478 N.E.2d 930, 934 (Mass. 1985)); see 

also E. Enters. v. Apfel, 524 U.S. 498, 524 (1998) (reaffirming 

the principle that "legislative Acts adjusting the burdens and 

benefits of economic life come to the Court with a presumption of 

constitutionality" (quoting Usery, 428 U.S. at 15)); City of Boston

v. Keene Corp., 547 N.E.2d 328, 331 (Mass. 1989); Am. Mfrs. Mut. 

Ins. Co., 372 N.E.2d at 525 (citing Mass. Port Auth. v. Treasurer 

issue using the SJC's three-part test. We accordingly assume, 

without deciding, that this test reflects federal due process 

principles. See Vaello-Carmona v. Siemens Med. Sols. USA, Inc., 

781 F.3d 1, 6 (1st Cir. 2015) ("assuming, without deciding, that 

a legal standard applies where 'both parties agree that the 

standard . . . was correct'" (quoting Ji v. Bose Corp., 626 F.3d 

116, 129 (1st Cir. 2010))).
- 11 -

& Receiver Gen., 227 N.E.2d 902, 906-07 (Mass. 1967)). "Only those 

statutes which, on a balancing of opposing considerations, are 

deemed to be unreasonable, are held to be unconstitutional." Am.

Mfrs. Mut. Ins. Co., 372 N.E.2d at 525; Usery, 428 U.S. at 14-20. 

"The equitable criteria as to reasonableness in this context [has] 

been established by the United States Supreme Court." Am. Mfrs. 

Mut. Ins. Co., 372 N.E.2d at 526. Our inquiry rests on "whether 

the statute falls within the legislative power to enact," Keene 

Corp., 547 N.E.2d at 331, even if the law may seem "unwise, 

improvident, or out of harmony with a particular school of 

thought," Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 

488 (1955). 

In evaluating the reasonableness of a retroactive 

statute, the parties agree that we should weigh three factors: 

(1) the nature of the public interest which explicitly or may have 

motivated the Legislature to enact the retroactive statute; 

(2) the nature of the rights affected retroactively and the 

reasonableness of any reliance expectations on those rights; and 

(3) the extent or scope of the statutory effect or impact, 

including whether the statute is appropriate and narrowly 

tailored. Leibovich, 574 N.E.2d at 984; Bird Anderson v. BNY 

Mellon, N.A., 974 N.E.2d 21, 32 (Mass. 2012). With these axioms 

in mind, we weigh subsection 80(b)'s retroactive application to 

this case under the three factors.
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1. Nature of the Public Interest

Courts "defer to legislative judgment as to the 

necessity and reasonableness of a particular measure" which "is 

customary in reviewing economic and social regulation." U.S. Tr.

Co. of N.Y. v. New Jersey, 431 U.S. 1, 22-23 (1977) (citing E. 

N.Y. Sav. Bank v. Hahn, 326 U.S. 230, 233 (1945)). We will find 

a statute valid and reasonable when the statute is intended to 

benefit the public rather than reduce the state's own contractual 

obligations. Am. Mfrs. Mut. Ins. Co., 372 N.E.2d at 527; U.S. Tr.

Co., 431 U.S. at 23-25. We must also consider "whether [the 

public] interest[s are] reasonably served by the statute." Bird 

Anderson, 974 N.E.2d at 29 (citation omitted). The statute's 

public interests need not be explicitly stated. See Leibovich, 

574 N.E.2d at 984 (upholding a retroactive statute where the 

Legislature "may have been motivated by at least three 

considerations of public interest" (emphasis added)). "That the 

Legislature might have, or arguably should have, come to different 

conclusions or followed a different course is not determinative." 

Am. Mfrs. Mut. Ins. Co., 372 N.E.2d at 527. 

Plaintiffs argue foremost that subsection 80(b) serves 

no public interest, especially not public safety concerns, because 

Law 80 was enacted more than three years after the spring 2020 

semester. Plaintiffs also contend that Law 80 is not a reasonable 

response to COVID-19 because Law 80 was enacted after the risks 
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associated with the pandemic had largely subsided. We disagree 

with Plaintiffs, and in doing so, hold that there are several 

plausible and reasonable public interest motivations undergirding 

Law 80's enactment. 

Subsection 80(b)(iii) states that immunity will extend 

to conduct "reasonably related to protecting public health and 

safety interests in response to the COVID-19 emergency, in 

compliance with federal, state or local guidance." 2023 Mass. 

Acts, ch. 28, § 80(b)(iii). This language specifies that two 

public interests, to wit, protection of public health and safety 

interests and securing compliance with government health orders, 

motivate, at least in part, the Legislature's reasons for enacting 

this statute. Subsection 80(b)(iii)'s language also makes clear 

that not all acts or omissions by higher education institutions 

are immune from liability; instead, the relevant conduct must be 

"reasonably related to . . . public health and safety interests" 

for the institution to be immune from civil liability. Id.; see 

generally Thomas v. Baker, No. 21-1038, 2022 WL 18354179, at *1 

(1st Cir. Aug. 1, 2022) (recognizing that "the COVID-19 pandemic 

has been taking a terrible toll in the United States over an 

extended period of time"). This is further evidenced by the 

exception to Law 80 that higher education institutions will not be 

immune from civil liability for "act[s] or omission[s] . . . that 

w[ere] malicious or in bad faith." 2023 Mass. Acts, ch. 28, 
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§ 80(c). Accordingly, the language in subsection 80(b) 

establishes that a public health and safety motivation in 

connection to COVID-19 underlies the enactment of Law 80.

Next, we find that the Legislature could have concluded 

that there exists a need to correct the disproportionate financial 

impact felt by higher education institutions due to good faith 

compliance with COVID-19 emergency orders. See Am. Mfrs. Mut. 

Ins. Co., 372 N.E.2d at 526, 528 (recognizing "that the concept of 

reasonableness is supported when retroactive legislation is 

enacted to cure a substantial defect which could not easily have 

been perceived at the time of . . . enactment"). BU, like other 

universities in Massachusetts, was required to close its 

facilities to the public to comply with Governor Baker's March 23 

emergency order. Underlying BU's compliance was the need for 

public safety and the reality that large in-person gatherings 

throughout Massachusetts were no longer an option. In re Bos.

Univ. COVID-19 Refund Litig., 2023 WL 2838379, at *3. The 

Legislature could have found that an immunity statute, like Law 

80, would ensure that higher education institutions would not

hesitate to follow prospective emergency public health orders 

meant to protect the safety of students and others. More so, 

securing compliance with these orders was likely to reduce the 

economic and other strains on the state itself as it coped with a 

public health emergency. The Legislature could also have 
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determined that litigation risks and costs accompanying past 

universities' compliance could deter them from future compliance. 

And although the COVID-19 public health emergency officially ended 

in Massachusetts on May 11, 2023, the Legislature could have found 

that the negative financial effects that higher education 

institutions experienced during the Spring 2020 semester were 

ongoing. Cf. Veix v. Sixth Ward Bldg. & Loan Ass'n of Newark, 310 

U.S. 32, 39 (1940) ("The emergency of the depression may have 

caused the 1932 legislation, but the weakness in the financial 

system brought to light by that emergency remains."). 

Supporting these motivations for Law 80's enactment are 

the existence of various lawsuits, such as this one, in which 

students allege a breach of contract and demand tuition refunds or 

other monetary relief for substitute online instruction when 

universities had no practical or legal choice but to continue the 

Spring 2020 semester online in compliance with Governor's Baker 

emergency order. See, e.g., Rodrigues v. Bos. Coll., No. 

20-CV-11662, 2024 WL 100912 (D. Mass. Jan. 8, 2024); Omori v. 

Brandeis Univ., No. 20-11021, 2024 WL 150250 (D. Mass. Jan. 11, 

2024); In re Suffolk Univ. Covid Refund Litig., 616 F. Supp. 3d 

115 (D. Mass. 2022); Chong v. Northeastern Univ., 494 F. Supp. 3d 

24 (D. Mass. 2020). "The need for retroactivity, and the 

reasonableness of the legislative response, become most apparent 

when the plaintiff claims a vested right arising out of the very 
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transaction which motivated the Legislature to act." Am. Mfrs. 

Mut. Ins. Co., 372 N.E.2d at 527. This case provides an example 

as to why the Legislature could have "necessitated a legislative 

remedy" to address potential civil liability for higher education 

institutions arising from the Spring 2020 semester transition to 

online instruction. Id. The Legislature is well aware that 

Massachusetts is home to a number of colleges and universities,

and they are vital to the state's economy.

In these circumstances, we conclude that subsection 

80(b) serves reasonable and plausible public interests related to 

public health, safety, future compliance, and economic 

consequences beyond the control of the universities. Compare, 

e.g., id. at 526-27 (holding a statute constitutionally 

retroactive in part because of the "urgent reasons, of emergency 

proportions, for immediate correction" to the broad impact of 

higher insurance rates causing "financial crisis to thousands"), 

with Bird Anderson, 974 N.E.2d at 29 (holding a statute 

unconstitutionally retroactive in part because the public 

interest -- equal treatment of adopted and biological 

descendants -- would disrupt "the planning of multiple generations 

of a family" where there was no evidence of an emergency or "that 

the position of adopted children [had] changed dramatically" to 

support the newly enacted amendment). 
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2. Nature of the Rights Affected Retroactively

"Essentially, the question is . . . how great is the 

change viewed in the light of the reasonable expectations of the 

parties when the contract was entered into." Am. Mfrs. Mut. Ins. 

Co., 372 N.E.2d at 527 (alteration in original) (quoting Fornaris, 

423 F.2d at 567). "Even absent specific legislative authorization, 

application of new statutes passed after the events in suit is 

unquestionably proper in many situations." Landgraf, 511 U.S. at 

273. 

"Legislation adjusting the rights and responsibilities 

of contracting parties must be upon reasonable conditions and of 

a character appropriate to the public purpose justifying its 

adoption." U.S. Tr. Co., 431 U.S. at 22 (citing Hudson Water Co.

v. McCarter, 209 U.S. 349, 445-47 (1908)). "[N]ot every law that 

upsets expectations is invalid; courts have generally compared the 

public interest in the retroactive rule with the private interests 

that are overturned by it." Adams Nursing Home of Williamstown, 

Inc. v. Mathews, 548 F.2d 1077, 1080 (1st Cir. 1977). These 

expectations are to be reconciled with States' ability "to 

safeguard the welfare of their citizens." U.S. Tr. Co., 431 U.S. 

at 21. 

Plaintiffs assert that retroactive application of 

subsection 80(b) impairs their vested implied contractual rights 

for which they would have been able to recover before Law 80's 
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enactment and that they would have acted differently had they known 

Law 80 would be enacted. See Carleton v. Town of Framingham, 640 

N.E.2d 452, 458 (Mass. 1994). BU responds that, at most, 

subsection 80(b) affects only not previously recognized "implied" 

rather than express contract rights and that this Court's decision 

in Burt makes clear that no express contractual rights are at 

issue. Further, BU argues that Plaintiffs cannot show that 

(a) they acted in reasonable reliance on the prior state of law 

and (b) that they would have acted differently had they known Law 

80 would be enacted. 

Plaintiffs rely, in turn, on two cases which do not aid

them: Campbell v. Boston Housing Authority, 823 N.E.2d 363 (Mass. 

2005), where retroactive application substantially impaired 

contractual obligations, and Bird Anderson, 974 N.E.2d 21, where 

vested interests rendered the statute unconstitutionally 

retroactive.3

3 Plaintiffs also cite three cases which invalidated Florida's 

immunity statute similar to Law 80. See Feretti v. Nova Se. Univ., 

Inc., 586 F. Supp. 3d 1260 (S.D. Fla. 2022); Fiore v. Univ. of 

Tampa, 568 F. Supp. 3d 350 (S.D.N.Y. 2021); Rhodes v. Embry-Riddle 

Aeronautical Univ., Inc., No. 6:20-cv-927, 2022 WL 18492541 (M.D. 

Fla. Nov. 23, 2022). In each of these cases, the district courts 

applied Florida law, which recognizes a "vested rights" approach 

for accrued cause of actions, to strike down Florida's immunity 

statute because it impaired vested contractual rights. Feretti, 

586 F. Supp. 3d at 1269-71; Fiore, 568 F. Supp. 3d at 359-65; 

Rhodes, 2022 WL 18492541, at *3-4. By contrast here, Plaintiffs 

have, at most, an equitable claim for unjust enrichment because 

the doctrine of impossibility rendered the contracts 
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Bird Anderson and Campbell are easily distinguishable 

from this case. Campbell involved statutory amendments that 

insulated solely public employers from "liability resulting from 

the general failure to conduct" necessary health inspections. 823 

N.E.2d at 368-69. The statute's apparent direct motivation was to 

benefit the state as employer, which differentiates Campbell from 

the instant case. When a "State's self-interest is at stake," we 

will apply less "deference to a legislative assessment of 

reasonableness and necessity." U.S. Tr. Co., 431 U.S. at 26. But 

that is not the situation here. Subsection 80(a) defines 

institutions of higher education to include public and nonpublic 

institutions, encompassing all postsecondary institutions that 

satisfy subsection 80(b)'s criteria. 2023 Mass. Acts, ch. 28, 

§ 80(a)-(b). Hence, we do not find the sole State as employer 

self interest that was conspicuous in Campbell to be present here. 

Moreover, the contractual rights substantially impaired in 

Campbell differ from Plaintiffs' alleged implied contract rights

as we explain infra. For these reasons, Plaintiffs' reliance on 

Campbell is unpersuasive.

The affected vested property right interests in Bird 

Anderson likewise differ from the alleged implied contract 

interests that Plaintiffs assert. The substantive vested 

unenforceable. See Burt, 84 F.4th at 57-58. As Florida law does 

not apply here, we see no need to further address these cases.
- 20 -

interests in Bird Anderson derived from irrevocable testamentary 

instruments, and the amended statute, if it were to be held 

constitutionally retroactive, would have substantially altered and 

affected the "dispositional choices of testators, settlors, and 

grantors." 974 N.E.2d at 28; see also Adams Nursing Home, 548 

F.2d at 1080 (noting that retrospective legislation tends to be 

unconstitutional when "vested property rights" are overturned). 

That practical effect combined with the weak underlying public 

interest and infinite duration of the statute resulted in 

unconstitutional retroactivity. Bird Anderson, 974 N.E.2d at 29, 

32. By contrast, the underlying public interest here is stronger, 

and the alleged implied contract interests here are, at most 

implied, not express, contractual rights. "[I]t is basic that the 

State reserves police powers that may in particular predicaments

enable it to alter or abrogate even conventional contractual 

rights." Op. of the Justs., 303 N.E.2d 320, 329 (Mass. 1973).

"As with laws impairing the obligations of private contracts, an 

impairment may be constitutional if it is reasonable and necessary 

to serve an important public purpose." U.S. Tr. Co., 431 U.S. at

25; see S. Terminal Corp. v. EPA, 504 F.2d 646, 680 (1st Cir. 

1974). Instead of focusing on a "conclusory label" as to the 

Plaintiffs' alleged vested rights, we direct our focus to the 

Plaintiffs' actual and reasonable expectations. See Adams Nursing 

Home, 548 F.2d at 1081. 
- 21 -

Plaintiffs argue that they reasonably expected BU to 

perform its obligations of providing services that were expected 

and paid for -- claiming that on-campus classes and services were 

expected, not remote instruction. Even accepting Plaintiffs' 

arguments that they expected on-campus classes and services when 

they registered and began their Spring 2020 semester before the 

pandemic hit, they ignore key later events. Given that Governor 

Baker had ordered practically all large in-person 

gatherings -- which unquestionably includes university 

campuses -- to cease, Plaintiffs could not reasonably continue to 

have such expectations in light of the state mandated emergency 

measures. As this Court held in Burt, the affirmative defenses of 

impossibility and frustration of purpose resulting from compliance 

with the Governor's orders meant Plaintiffs no longer had any 

reasonable reliance on the performance of illegal contracts.4 See

Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 439-40 (1934)

("And, if state power exists to give temporary relief from the 

enforcement of contracts in the presence of disasters due to 

physical causes such as fire, flood, or earthquake, that power 

4 Even assuming Plaintiffs' never-before-recognized implied 

contract claim would have left open a possible restitution claim, 

any such claims are defeated because BU gave considerable value in 

exchange for its online programs and other services. See SEC v. 

Sanchez-Diaz, 88 F.4th 81, 90 (1st Cir. 2023).
- 22 -

cannot be said to be nonexistent when the urgent public need 

demanding such relief is produced by other and economic causes.").

3. Extent of Law 80 and Balancing of Competing Interests

Finally, we address whether the extent of the impact is 

not excessive. See Carleton, 640 N.E.2d at 458. We weigh the 

"duration of the burden imposed by the retroactive statute and 

'whether the scope of the statute is narrowly drawn to treat the 

problem perceived by the legislature.'" Sliney v. Previte, 41 

N.E.3d 732, 741 (Mass. 2015) (citation omitted); Leibovich, 574 

N.E.2d at 986.

Law 80's application is limited in time. Subsection 

80(d) limits subsection 80(b)'s immunity to "claims commenced on 

or after March 10, 2020, for which a judgment has not become final 

before the effective date of this section." 2023 Mass. Acts, ch. 

28, § 80(d). And its application is confined to suits that 

commence within the specified time frame, "which were based on 

acts or omissions that occurred during the spring 2020 academic 

term." Id. Therefore, we find that the plain language of 

subsection 80(d) narrows subsection 80(b)'s retroactive 

application to further the Legislature's plausible and reasonable 

public interests. Blaisdell, 290 U.S. at 447 ("It is limited to 

the exigency which called it forth."). Subsection 80(b)'s scope 

is not excessive but necessarily constrained to suits arising from 

the Spring 2020 semester. Moreover, subsection 80(c) makes clear 
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that Law 80 provides no immunity to higher education institutions 

for malicious or bad faith conduct. Id. § 80(c). 

Thus, because a balancing of all three factors weighs in 

favor of retroactive application of Law 80 to this case, we find 

that Law 80 does not violate due process. 

III. CONCLUSION

For the foregoing reasons, we affirm the district 

court's grant of summary judgment in favor of BU.5 

5 Given that subsection 80(b)'s constitutional retroactivity 

applies here, we thus see no need to reach the merits of the 

Daubert ruling below.