Appeals court could revive suits seeking tuition refunds over Covid closures

A third judge, Ketanji Brown Jackson, seemed more hostile to the students’ allegations and less likely to allow any aspect of the cases to proceed.

The lawsuits allege that the move to online learning deprived students of the personalized on-campus education they purchased under a tacit contract that the capital’s courts ruled existed between the universities and their students.

A federal district court judge dismissed the cases against American and JW last year, but another judge allowed a similar case against the Catholic University to proceed.

“The deal was about on-campus education and the underlying benefits that go with it,” said Daniel Korowsky, a lawyer for the students suing GW.

Millett noted that universities have no choice but to close their campuses due to public health orders issued by D.C. Mayor Muriel Bowser. “Campus education was prohibited by the closure order,” the Obama appointee said. “The courts will not enforce contractual obligations that are in conflict with the law.”

Korovsky acknowledged this point but said that this principle should not prevent students from becoming full for services they claim they have not received.

Roy Wylie, an attorney for the American University students, said the school was not actually forced to breach the contract because it had options that would not have violated the closure order — such as dealing with additional classes after the order expired.

“Education premiums have been paid at 100 per cent for a very specific product and that product has not been delivered,” Wylie said.

While many have described the pandemic’s impact on society as unprecedented, Wylie said history supports their claim that they expect classes to continue. “The American University was running a campus during the Spanish flu pandemic, during the polio pandemic, during the H1N1 pandemic and more,” Willey told the judges.

Korovsky also argued that both AU and GW recognize online classes as less valuable than in-person classes by setting lower prices for online programs and by offering discounts for virtual learning on terms that followed the contested period when the pandemic broke out.

“Both universities differentiate between live and online broadcasts, and charge different fees,” he said. “They charge a lot more for regular, live and on-campus arrangements.”

The schools’ attorney, Alan Schoenfeld, initially said Friday that as long as students received course credits, they would have no legal claim to a refund, even if a university moved to “reston in some total apartment block” or tutored students “in broom lockers.” “

However, when Millett asked if universities could simply give credits to students while the semester was suspended altogether, the school’s attorney said it would have led to a “fair impression of bad faith.”

A central question in the cases is whether the tacit contract between schools and students lives up to the promise of live, personal classrooms “no matter what,” Jackson, the sole appointee of President Joe Biden at DC Circuit, said. She said the “core” of the deal was for denominations and credits, and the exact way this was delivered was secondary.

“They didn’t actually break it because they promised only to do it as a general matter in the context of things that normally exist,” Jackson said.

But Millett and Edwards disagreed.

Millett has repeatedly said that the central issue is not whether universities promise to teach on-campus in all circumstances, but who should bear the costs of a deal that is only partially fulfilled. “It seems to me that the real contractual disagreement is what happens to those tuition fees,” she said.

“They can’t shut down for any reason or no reason and say, ‘Oh, we’re going to put everything on Zoom,'” said Edwards, appointed by former President Jimmy Carter. Not Zoom.”

Schoenfeld, the schools’ attorney, insisted that students received the same course content taught by the same professors and earned the same course credit for graduating on time. These allegations seem to infuriate Edwards.

“Are you saying you reserved the right to keep all your money for a service they wouldn’t do to you?” The judge said. “I just don’t see any support for that. Where does this come from? … If you’re making a suggestion, or whisper in a suggestion that there is no difference between education provided by Zoom and in-person education on campus [kind], This is ridiculous. …that’s a ridiculous idea.”

Schoenefeld said he made no such claim, but only indicated that the exact way educational services would be delivered had not been specifically agreed upon. He cited policies that allow the university to make “necessary” changes to classes, teachers and programs.
“The idea of ​​the university compromising its discretion to make these kind of changes under these circumstances is completely implausible,” he said.

The commission did not issue any immediate ruling, which could affect many of the pending lawsuits in the capital. Dozens of similar lawsuits have met with mixed results in other courts. In one closely watched case last August, Third Circuit Judge Stefanos Peppas rejected the University of Delaware’s bid to have several cases brought by students seeking to recover part of the money.

“It is true that the school never explicitly promised them. Promises do not have to be expressed to be actionable,” Bibas wrote. “Through its statements and history of delivering classes in person, the school may have secured a promise to remain in person.”

As with other class action cases, the outcome of the initial motions may lead to the effective resolution of many claims. Many universities may decide to forgo lengthy litigation and offer a settlement to aggrieved students.

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