It’s now been more than a year since most students across the United States started a wild experiment with remote learning. Students abruptly found themselves saying goodbye to their friends and professors, heading home to explore the limits of technology, and discovering just how many hours they could spend in front of their computers every day. More than a year into the pandemic, many students remain trapped in an online learning environment. While the switch to remote learning may well have been necessitated by public health, it’s fair to say that students didn’t exactly have the learning experience they were bargaining for. While K-12 students at public schools don’t have to pay to access their education, students at institutions of higher education often pay thousands of dollars per semester. In the spring of 2020, they continued to pay, but the educational experience dramatically changed.
Disgruntled by what they saw as an unfair bargain with little upside, some students took a step that seems to come very naturally to Americans: they sued.
As of last summer, over 150 class action lawsuits had been filed against American universities. Harvard itself is one of the institutions which has been sued by its students. Across the board, students have alleged that universities breached contracts with their learners and received unjust enrichment for maintaining tuition at pre-Covid-19 levels despite the fact that services provided to students had disappeared.
This blog post will briefly examine some of the higher-education related pieces of litigation that have been brought to court so far.
Reasonable expectations, reasonable efforts?
The lawsuit currently being pursued against Boston University is illustrative of the types of claims that plaintiffs are bringing against higher education institutions. Plaintiffs brought suit alleging that they had a contractual right to in-person instruction, which Boston University failed to provide. In re Boston Univ. Covid-19 Refund Litig., 2021 U.S. Dist. LEXIS 4651, __ F. Supp. 3d __, 2021 WL 66443. The university, in turn, responded that there was no legal basis guaranteeing students in-person instruction at all.
The court responded skeptically to the school’s response and rejected Boston University’s motion to dismiss, noting that “When interpreting contracts between students and their academic institutions, under Massachusetts law courts employ the standard of reasonable expectation — what meaning the party making the manifestation, the university, should reasonably expect the other party to give it.” Id., internal citations omitted. It’s probably fair to say that prior to March 2020, it would be an almost universal expectation among students that, unless they had enrolled in an online class, they were paying for in-person instruction. Indeed, universities themselves shared these expectations.
The court also rejected a motion to dismiss the plaintiffs’ claims that they had paid for, and were denied, access to on-campus facilities. While noting that Boston University did have a very broad interpretation of the services it provided to students rather than an itemized list, the court also found that BU had at several points described specific services it offered to students, all of which were curtailed or ended by the coronavirus.
An unjust enrichment claim requires that a plaintiff “show (1) ‘she conferred a benefit upon the defendant,’ (2) ‘the defendant accepted the benefit,’ and (3) ‘the defendant’s retention of the benefit would be inequitable without payment for its value.'” Reed v. Zipcar, Inc., 883 F. Supp. 2d 329, 334 (D. Mass. 2012) (cited in Boston University). The first two are not particularly in dispute: students conferred the benefit of their tuition dollars on their universities, which happily took the money. It’s a tough bargain for many students even at the best of times, with student debt levels having sky-rocketed over the past few decades even as many college graduates struggled to secure long-term employment requiring a bachelor’s degree. But it wasn’t until the coronavirus arrived that this exchange began to seem so inequitable as to possibly merit a lawsuit. After all, college students living in the pre-coronavirus era were perhaps aware that they weren’t just paying for college: they were paying for the college experience, and all that it entailed.
So far, the court in Boston University has also failed to dismiss claims for unjust enrichment. The court notes that it “cannot say, as a matter of law, that no reasonable juror taking these allegations as true could determine that BU’s failure to refund tuition and fees was unjust under the circumstances.” Id. This therefore remains an open question, both in Boston and elsewhere.
Rhodes v. Embry-Riddle Aeronautical University
Courts in Florida have treated the issue similarly, though with somewhat distinct reasoning. The university in this case had attempted to avoid the contract breach claims using the academic deference doctrine, which grants universities a large amount of autonomy. However, as the court noted, academic freedom does not entitle a university to breach contracts; the plaintiff’s qualms do not have to do with academics, but rather with the provision of services. Rhodes v. Embry-Riddle Aeronautical Univ., Inc., 2021 U.S. Dist. LEXIS 8047, 2021 WL 140708.
The court in this case also noted that it would not be necessary for a plaintiff to prove that the services he had received were inferior to in-person instruction. It would be enough if the plaintiff could prove that he was given something other than what he had signed up for. If that’s the standard, it’s certainly a low bar for plaintiffs to clear. Of course, this doesn’t settle the question of what appropriate damages would be—but it does show that, for at least some courts, in-person instruction and Zoom are not interchangeable as a matter of law.
Who should pay?
Universities didn’t want to close their doors, and they certainly did not want their students to suffer. Nevertheless, many students did experience online instruction as a form of harm, and markedly inferior to the in-person instruction for which they had contracted. And, as the Embry-Riddle court notes, “The question is not whether [the university] was justified in closing its campus due to an unforeseen pandemic. Rather, the question is where that risk (i.e., the financial burden) should be contractually allocated. That is what this lawsuit is about.” Id, citing Rosado v. Barry Univ. Inc., No. 1:20-CV-21813, 2020 U.S. Dist. LEXIS 204355, 2020 WL 6438684, at *4 (S.D. Fla. Oct. 30, 2020).
It’s possible that the coronavirus will have long-term benefits for the higher education industry. Fewer students are electing to enter college now, perhaps calculating that the reduced value of their online education isn’t worth the high price-tag. No school has been immune: even Harvard College saw its enrollment drop by about 20%. But another set of institutions has been more notably affected: community colleges, which have long opened their doors to non-traditional and lower-income students. Students weighing the cost of tuition and the reduced value of a virtual education might decide to enroll at a name-brand institution like Harvard anyway. For lower-income students planning to enroll at institutions close to home, the trade-off is much less clear. Additionally, the tolls of working and learning from home make enrolling in college logistically more difficult than ever. Community college provides an avenue for people to change careers and get a fresh start in life—but people who are struggling economically or trying to educate their children from home will have a more difficult time keeping up with academic coursework.
By contrast, for-profit institutions have actually managed to increase their enrollment. For-profit colleges are seen by many as predatory, and often leave students with high debt burdens that they have difficulty paying off. It remains to be seen whether these trends are a blip or if the coronavirus has set in motion something that will take years to unravel.
It seems at least possible that colleges will take actions to get skyrocketing tuition under control. But, in the meantime, universities are suffering as students stay away, and students are struggling with the burdens of online learning. As has often happened with the coronavirus, it seems like a problem with many losers and few winners.