In recent weeks, at least 42 putative class action lawsuits have been filed against colleges and universities across the country related to campus shutdowns and the move to online education necessitated by the COVID-19 pandemic. More lawsuits are being filed on a weekly basis. This litigation is a concerning development for higher education already struggling to respond to the pandemic. These lawsuits should also concern independent schools because they are also providing distance learning.

What Is the Basic Claim?

The basic claim alleges that students are not receiving the benefit of their bargain because distance or online learning is inferior to the in-person educational experience they were promised and for which they paid. Plaintiffs point to vast on-campus services, opportunities, and amenities that have been denied, such as collaborative social groups, housing, gyms, recreational programs, and study spaces. Plaintiffs argue that by not providing those services, educational institutions have breached their contractual obligations. The complaints assert breach of contract claims and related state law causes of action such as unjust enrichment and, in some instances, even conversion (i.e., civil theft). Plaintiffs generally seek as damages a refund of the pro rata share of tuition and fees they paid. A subset of cases also claim that reimbursements or credits for payments made for room and board and meal plans have been inadequate.

Tuition v. Fees

There is a distinction between claims seeking tuition refunds and claims seeking a refund of fees. Tuition is paid for educational services, while many colleges and universities separately charge additional fees for other, non-academic services. Some lawsuits recognize that distinction by delineating a “tuition class” and a “fee class.”

With respect to tuition claims, most students are continuing to receive educational instruction. Most schools are continuing courses in virtual classrooms, using the latest technology to best approximate an in-person experience. The breach of contract claim based on a failure to refund tuition may therefore be a difficult claim for plaintiffs to prove, especially when school closures have been mandated by a public health crisis and, in most cases, by government edict.

Plaintiffs must also prove that the quality of distance learning is inferior to on-campus classes. In this regard, at least one lawsuit contends that a university charges significantly lower tuition for online instruction and another argues that academic literature suggests students do not learn as well in an online setting.

The claims for a return of “fees” are unrelated to tuition and present different issues. In recent years, many colleges and universities have responded to student opposition to tuition increases by separating the cost of coursework from that of services and by itemizing service-specific fees. That could be a problem for colleges and universities, as plaintiffs are pointing to specific fees and services that are not being provided during school closings. Fees for the use of gyms or wellness centers are but some examples.

Not all fees are created equal, however, and not all are itemized in such a granular way. Some colleges charge a single student activity fee for all on- and off-campus activities. These fees may include technological support, more of which is being provided while students are off campus. And they may include online social activities that are organized and offered even during the campus shutdown. Moreover, there are a number of fees that, like tuition, relate to services that students have long accessed electronically, such as a career services fee. Thus, despite demanding the return of a litany of fees, plaintiffs in these cases may have difficulty establishing that they are entitled to a pro rata refund of all fees. Colleges and universities can help minimize the risk presented by these lawsuits by ensuring that they are offering, in some form, as many services as possible that were offered before the pandemic, such as career services meetings, counseling, one-on-one meetings with professors, social activities and support, and similar services by video.

Potential Defenses

Most educational institutions are already providing their students with the central benefit for which they bargained: an education. Classes are continuing and students are on track to obtain degrees. Across the country and, indeed, the world, students and their colleges and universities are in the same situation, which suggests that the move to online coursework this semester has not comparatively lessened the value of that education.

These putative class actions fail to recognize the distinction between an online college and the remote coursework being temporarily provided out of necessity to students who enrolled in on-campus coursework. Many schools are offering synchronous e-learning by engaging students in real-time video sessions that are very similar to the classroom setting. That is far different from a prerecorded lecture and arguably has advantages over prerecorded instruction and even traditional in-class learning. And students may be able to obtain the benefits of both worlds by having a synchronous e-learning session recorded so that they can not only ask questions during the presentation but also review the previously recorded classes, which is a benefit they may not have had in a traditional classroom setting.

Moreover, students are impacted by online learning in different ways. Any allegation that the quality of education received by students is so inferior that it breaches their contract with the school may devolve into a series of highly individualized questions. Plaintiffs may therefore have difficulty establishing that their claims can be pursued as a class action.

For example, a chemistry student enrolled in three laboratory classes and a history student enrolled in an independent research class are not affected by the transition to online learning to the same extent. One lawsuit alleges that the representative plaintiff cannot complete his senior engineering project (building an airplane) without access to his school’s facilities. That student’s claim will be atypical of the majority of other students at his school.

Students also attend schools for different reasons and use different resources at the schools. The fact that a university has a world-class gym or offers the opportunity to attend Division I athletic events matters very much to some students and not at all to others. The necessity for individualized proof will be a defense to class treatment in any of these cases.

Colleges and universities may have contractual defenses in their written agreements with students and their parents. Schools should examine, for example, whether contractual documents include disclaimers that reserve the right to close the school in certain circumstances or end various services and programs, particularly in an emergency. Additional defenses such as the impossibility of performance will also be available. Arbitration clauses may provide colleges and universities with the option to insist upon individualized determinations in a less costly and more efficient setting, particularly if they include class action waivers. If a college or university does not have such disclaimers or arbitration provisions in its agreements with students and their parents, it should work with experienced counsel and strongly consider drafting and adopting such provisions in any contractual documents (such as annual student handbooks) before the fall 2020 semester.

Are Independent Schools Next?

These lawsuits should concern independent schools. The same claims may be made against independent schools. Independent schools will want to ensure distance learning is provided on a thoughtful basis, providing students with a rich learning experience close to what would occur in a classroom. Independent schools should watch closely how higher education has responded to the pandemic and adopt some of the best practices already in place at many colleges and universities.

It is not too late to plan for the fall. Planning should include contingencies in the event that schools cannot reopen and redrafting contractual documents. At a minimum, fall enrollment documents should include acknowledgments that the learning experience may be impacted by COVID-19 and that families understand, accept that possibility, and will not be provided tuition refunds due to it.