We recently highlighted two Boston-based COVID-19 tuition refund class action suits, against Brandeis University and Boston College, and the impact of a provision in the Commonwealth’s Fiscal Year 2024 Budget that grants retroactive immunity from claims arising out of tuition or fees paid for the Spring 2020 term. In both cases, with orders issued just days apart, the U.S. District Court for the District of Massachusetts in Boston found that provision, Section 80(b), was reasonable and narrowly tailored and therefore not unconstitutional. In the Brandeis case, the ruling ended the matter entirely, whereas the case against BC will proceed as to the non-Spring 2020 semesters.
A Refresher on the Boston-Based Cases
In Part 2 of our series, we reviewed the legal backdrop of this wave of class action litigation and explored some common pitfalls in education-based claims, building off of our initial post, which focused on suits against Suffolk University and Boston University. In both, plaintiffs asserted breach of contract and unjust enrichment claims for two types of claims: tuition-based claims and fee-based claims, with fees being monies paid for use of or access to university facilities. In the Suffolk case, plaintiffs argued that the terms of the contract at issue are “as implied or set forth by [Suffolk] through its website, academic catalogs, student handbooks, marketing materials and other circulars, bulletins, and publications.” Durbeck v. Suffolk Univ. In the BU case, plaintiffs identified a contractual right to provide in-person instruction (or tuition refunds should in-person classes become available) “in certain representations made in BU’s course registration materials.” In re Boston U. COVID-19 Refund Litig. Below, we review those cases in more detail, including the specific arguments made by the parties in their fee and tuition-based claims.
Fee-Based Claims
The District of Massachusetts granted Suffolk’s motion for summary judgment as to the fee-based claims, finding no dispute of material fact that “these fees did not mention — in general or specific terms — any connection to an in-person educational experience.” In the BU case, the court referenced findings from a previous ruling in the matter, which allowed the fee-based claims to continue by finding it “significant that the descriptions [provided by BU on its own website for each fee]… also refer to specific activities occurring at specific locations” and that BU had dramatically curtailed or ceased providing these activities after March 22, 2020 (noting, for example, BU’s description that students pay the Sports Pass fee in exchange for “admission to all home events for ice hockey, basketball, lacrosse and soccer”).
Tuition-Based Claims
Unique to the Suffolk case is that the cost of Suffolk’s regularly programmed online courses available for some graduate programs is the same as for its in-person courses in its in-person undergraduate program. Given that undergraduate students — who attended online courses during the pandemic — would still have access to in-person facilities and experiences, the court found that the cost of in-person services was “included in the course price regardless of whether it is delivered online or in-person.” The court noted, however, that the matching cost increased the possibility that a damages calculation would turn into an analysis of the quality of the online education, an assessment that would “run afoul of the educational malpractice bar.” To avoid this, the court permitted the tuition-based claims to proceed to a damages calculation only to the extent that they could demonstrate at trial either (1) that Suffolk has a particular method to calculate the cost difference between its online and in-person programs or (2) that a cost differential exists between the online and in-person versions of their programs. The court cautioned, however, that Plaintiffs were not permitted “to utilize market-value data of sister programs at other institutions to demonstrate this cost difference.”
Plaintiffs in the BU case avoided arguments regarding the quality of online education; instead, they contended that the school made a “binding promise to provide students in-person instruction (or tuition refunds should in-person classes become unavailable), a promise on which students relied in prospectively paying their tuition.” In August 2022, the U.S. District Court in Boston denied BU’s Motion for Summary Judgment as to the plaintiffs’ contract claims, finding that BU had failed to present evidence to preclude a reasonable jury from finding that such a promise existed. Disputes about cost per credit differences between in-person and online courses led the court to find that BU had not demonstrated that Plaintiffs would be unable to prove damages. As in the Suffolk case, the court noted that the adequacy of online learning as a substitute for in-person classes goes to the issue of damages rather than breach.
Status of the Suffolk and BU Refund Cases
The Suffolk case was recently revived after being administratively closed since November 2022 pending the plaintiffs’ petition to appeal the District Court’s denial of plaintiffs’ motion for class certification, which the First Circuit denied on February 17, 2023. Nearly one year later, on February 7, 2024, the District Court granted plaintiffs’ motion to reopen the case based on a summary application by the plaintiffs stating that “[t]he basis for the administrative closing of this case has ended.” With this recent reopening, we expect that the plaintiffs’ remaining individual claims will proceed in the coming months.
As we will discuss in the next installment in this series, the BU case is currently on appeal to the First Circuit, which recently heard oral argument on the plaintiff students’ attempt to revive their claims that were dismissed in their entirety in April 2023.
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