COVID-19: The Response from Colleges and Universities

Akin Gump Strauss Hauer & Feld LLP

Akin Gump Strauss Hauer & Feld LLP

Colleges and universities across the United States are taking action to protect staff, students and faculty from COVID-19 and prevent further community spread of the illness. Notably, in an effort to reduce population density and increase social distancing, many higher education institutions have made the difficult decision to transition to online learning, cancel in-person classes, restrict study abroad trips and/or require students to vacate campus housing. Not only do these actions present unique logistical and technical challenges, they also have the potential for deleterious social, academic and economic consequences.

Remote Learning

With respect to remote learning, many higher education establishments are well-situated to shift classes from an in-person setting to an online instructional environment. Indeed, some of the technical groundwork already exists for any digital transition because many colleges and universities currently offer online classes or courses with online components. That said, there are still challenges associated with remote learning, including  whether faculty are sufficiently trained for online instruction and whether all students can access necessary technical devices using reliable internet connections. While laptop stations and open Wi-Fi are almost ubiquitous in the higher education setting, school closures will require students to work in new locations. In this circumstance, students who are not able to access adequate technological resources face potential academic shortcomings compared to their peers. Accordingly, many institutions have already put technological support systems in place to ease the transition online for all students.

In addition to this technical concern, there are practical considerations with any move to remote learning. For example, while a virtual classroom operating in real-time may help reproduce the in-person classroom environment and allow for timely discussion, not all students will be participating in the same time zone.

Additionally, for international students who have returned home, virtual learning may require those students to attend class late in the evening and through the night. Such a schedule may negatively impact that student’s ability to learn and participate meaningfully in coursework. Recording classes and/or offering live instruction on a shifting time schedule may mitigate such a disruption in learning.

Finally, any decision to transition to remote learning should be carefully evaluated in the context of the U.S. Department of Education’s recent guidance regarding the requirements for federal financial aid (i.e., Title IV). While that guidance provides flexibility to use online technologies on a temporary basis, it is not without its limits. Decision-makers in academia are encouraged to consult with counsel regarding the application of Title IV rules in connection with any COVID-19 response—including the use of virtual classrooms.

While online education is a sustainable option to educate students through the COVID-19 outbreak and will help minimize any disruption to learning, it is not feasible to move every class online. For instance, classes that have a significant hands-on component and require the use of specialized machines or dangerous chemicals (e.g., life science laboratory courses) may not be compatible in a remote learning environment. Some school programs also involve scientific research that would be significantly disrupted if students and faculty vacate the institution. Colleges and universities must therefore decide whether to continue those courses and programs on-site or simply cancel them.

Suspension of Classes and Programs

Aside from the obvious interruption to learning, the suspension of any class or program (including international study abroad courses) may impact credit hours and a student’s standing for graduation. For soon-to-be graduates, failure to receive credits could highjack graduation plans and, in turn, delay future arrangements such as attending graduate school and entering the workforce. Even at a lower level, the failure to receive course credit may significantly disrupt a student’s academic plan. This is particularly problematic in instances where a student must receive credit in an introductory course before proceeding to higher level course offerings.

Therefore, contingency plans with respect to graduation and academic progression aimed at mitigating the extent of disruption caused by the cancellation of courses and programs will be critical. There is no standard playbook, and students will likely have their own unique needs and challenges. That said, assisting students with alternative accommodations for coursework/credits, promptly providing make-up classes when students return to campus, and ensuring that students on track to graduate this spring receive priority when classes resume are likely sound starting points to any contingency plan.

In the event of a long-term closure, academic institutions may look at past responses to natural disasters, such as Hurricane Katrina, for guidance. During Hurricane Katrina, colleges and universities from around the country temporarily admitted students from schools devastated by the hurricane. If it is not possible for schools in areas hard-hit by COVID-19 to open their doors in the near future, it is possible that students may be able to continue their education by enrolling as provisional students at other institutions not impacted by the virus or to transfer to those schools that have better online learning capabilities. Indeed, recent guidance from the Department of Education provides that institutions may enter into temporary consortium agreements with other educational establishments so students can complete courses at other institutions and still receive credit by their home school. In practice, however, this may not be viable as COVID-19 is not a localized disaster like Hurricane Katrina; there is risk of community spread for all colleges and universities.

Vacating Campus Housing

Finally, as it pertains to campus housing, many students may face significant obstacles finding alternative living situations if asked to leave campus. These include: (i) international students who may face challenges returning to the United States because of visa issues or the recent 30-day travel ban with respect to parts of Europe; (ii) international students who cannot return home to a country due to restrictions on travel in that area; and (iii) students, both domestic and international, who do not have a stable home environment outside of the campus setting. Given the foregoing, some academic institutions have implemented exceptions that could allow students in the above-mentioned situations (or similar circumstances) to remain on campus during this crisis.

In short, while many higher education institutions have previously dealt with weather-related disasters—such hurricanes and snow storms—COVID-19 presents new challenges and has created an unparalleled interruption in education. Many colleges and universities have reached the decision that campus life must be significantly modified in light of the risks presented by COVID-19, and these changes may have far-reaching complications from academic, social and economic standpoints. Decision-makers at colleges and universities should be mindful of these issues and be prepared to make adjustments as warranted to help students continue their education and to accommodate those with unique needs.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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