Zoom School Lawsuits: Colleges are being sued over Covid-era online classes
Covid litigation is back with a vengeance and U.S. colleges and universities might be in trouble. Last week, the U.S. Court of Appeals for the District of Columbia Circuit reinstated a pair of lawsuits alleging that American University and George Washington University, by switching to online classes when infection fears were at their height, breached their contracts with students.
Though I’ve been skeptical of the student’s claims in the past, I’ve come around to the view that they have a point.
After most institutions of higher learning moved to remote learning early in the pandemic, lawsuits were filed across the country by students seeking refunds of tuition and fees. The great majority of those cases have been dismissed, as these two initially were, because the contract between the students and the colleges — all those pages one signs before enrolling — made no promise that instruction would be in person.
According to the D.C. Circuit, however, even in the absence of an explicit promise by the schools, the contract might have been made against a background understanding that tuition payments purchase not simply instruction but an on-campus experience. This understanding in turn would be sufficient to create what scholars nowadays call a default rule — a provision to be read into the contract unless a party negotiates to get rid of it.
By offering a discount, say.
Was there a background understanding when the students enrolled that classes would be held on campus? Sure looks that way. As Judge Harry Edwards points out in his excellent opinion, the materials used by the defendants themselves to recruit students are replete with references to both classroom instruction and the wider campus experience. Makes sense: Schools
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