Universities are facing backlash from students who have transitioned to online courses as a result of the coronavirus pandemic and are facing federal class action lawsuits filed by students seeking reimbursement of tuition all across the country. Suing under theories of breach of contract and unjust enrichment, these lawsuits allege that the lack of access to in-person instruction, campus facilities and equipment, student activities, networking opportunities, and other services for which students have paid warrant a partial refund of tuition payments and fees.
To defend against these claims, universities and colleges will need to establish that they are continuing to deliver on the promises made to their students and that students are still receiving their benefit of the bargain under the challenging circumstances of the pandemic. These types of cases typically turn on what a university promised students on its website and in promotional materials prior to enrollment. Specific promises about objectively discernible aspects of an education may be actionable, whereas lawsuits targeting the "quality" of an education typically will be dismissed. While courts undoubtedly will give universities and colleges some leeway to strike the right balance while adjusting to the real health threats of COVID-19, prior cases have made clear that schools must deliver on promises made about specific aspects of educational programs advertised to students.
In the face of this wave of lawsuits, here are some practical considerations for universities and colleges aiming to insulate themselves from litigation:
- Well-Drafted Promotional Materials. The language on school websites and in marketing materials is key to the defense against such claims.
- Coordinated and Consistent Messaging to Students. School administrators should develop coordinated, clear, and consistent communications in response to student complaints about remote learning and tuition reimbursement.
- Understand the Implications of Class Action Discovery. Institutions need a detailed understanding of the scope and practicalities associated with discovery in class action litigation to avoid being caught on the back foot if a suit is filed.
- Take Stock of Existing Documents. Record-keeping practices can have expensive consequences for a school stuck in class action litigation.
- Evaluate the Differences Between Program Offerings. Plaintiffs may seek to exploit similarities and/or differences in a school's program offerings to further their case.
Class action litigation presents costly downside risk to colleges and universities, and the challenges facing schools now are unprecedented. It is more important than ever that universities and colleges take proactive steps to decrease the likelihood of lawsuits based on representations made to students and to fortify their defense against student grievances that might arise from the ongoing crisis. Venable is actively monitoring these issues affecting higher education and is working with clients to evaluate and respond to other emerging business, legal, and operational challenges resulting from the pandemic. We invite you to visit Venable's COVID-19 Resource Center at Venable.com/COVID-19 to explore our extensive collection of analysis, webinars, and other relevant insights. Thank you for tuning in and stay safe.