Looming Legal Challenges on the Horizon: COVID-19’s Ongoing Influence on American Higher Education

Dr. James “Jim” Castagnera, Esq.
Former Associate Provost and Legal Counsel for Academic Affairs
Rider University (Lawrenceville and Princeton, New Jersey)

Many colleges and universities are flat on their backs because of the COVID-19 pandemic.  The sudden switch from face-to-face instruction to 100% online learning in the space of a weeklong spring break left the heads of faculty, staff and students spinning.  More significantly, institutions faced the legal, financial, and ethical dilemma of how to make their students whole.  Room and board fees were refunded or converted to credits for next year.  Tuition posed a more complex challenge.  Students continued to receive instruction, albeit not via their preferred method.  Faculty continued to be paid their full salaries.  And colleges incurred transition costs, such as beefing up learning platforms like Blackboard and Canvas, while absorbing the upkeep of vacant buildings.

Some students took to social media to complain about being victims of a bait-and-switch policies, despite their schools having no control over the pandemic or the shelter-in-place orders out of the governors’ mansions.  With the flap of their wings, the buzzards were soon circling the prostrate institutions.  Google “student lawsuits over tuition” and ads like this lead the lineup of search results:

[Law firm name] is investigating claims for a possible class action on behalf of students, families and guardians who paid tuition, room and board and other fees for the Spring 2020 academic semester at any education institutions, and who-because of that institution’s response to the Novel Coronavirus Disease 2019 (“COVID-19”) pandemic-lost the benefit of the education for which they paid without having any or all of their tuition, room, board and other fees refunded to them. 

Time was when solicitation of clients was branded “champerty” and condemned by bar associations and ethics boards alike.  Those days are long gone, having given way to billboards and TV commercials and solicitations such as this one.

By the end of May, MarketWatch.com had identified more than 100 such suits already clamoring for attention in our already clogged courts.  

Legal issues being raised in these class actions include:

• Breach of contract: In one such suit, brought against the University of California, the complaint points to marketing materials that emphasize the quality of campus life. (“You’ll find yourself among leaders of all kinds: Peace Corps volunteers, non-profit founders, student-government presidents, scholarship winners, and club organizers.”)
• Consumer rights: Some suits argue that online learning is only a pale shadow of traditional instruction.  This view is being sharply challenged, especially by academics whose institutions — and they are many — already boast robust online programs.

What are the chances of success?  As early as March, some schools anticipated student and parental complaints by offering pro rata tuition and fee refunds in tandem with room and board rebates.  Ultimately, these payments may set the pattern for settlements.  First, however, defendants are likely to try their luck at moving judges to dismiss these actions.  I predict that most such motions will be granted for the following reasons:

• Academic deference: Way back in 1978 in University of Missouri v. Horowitz, the U.S. Supreme Court established the principle of “academic deference.” Since then, countless courts have declined to second guess college administrators and faculty where academic decisions are concerned.
• Act of God: Most contracts contain, among their boilerplate provisions, a force majeure   Where this is the case, both the pandemic (a textbook Act of God) and the subsequent government actions (classic force majeure) made full performance a literal impossibility for colleges required to close their gates.
• Contract interpretation: The basic contract between students (and paying parents) and their universities is “I pay you tuition; you deliver an education.” Legal arguments seeking to insert additional bells and whistles historically have failed. Recall the ill-fated class actions attempted against low-ranked law schools a dozen years ago; not one ever got to a jury.

Meanwhile, some faculty and some faculty unions also have it in for their institutions. 

According to members of the Association for Academic Personnel Administration, a loose affiliation of labor-relations experts, most faculty unions have demanded their right to engage in “effects” bargaining over the relocation of members from their classrooms to their home offices.   While such talks have been both wide-ranging and virtual, “no strike” clauses in collective agreements have forestalled work stoppages.  Anyway, it’s hard to sustain a picket line, when there’s no one around against whom to picket.

Individual faculty suits are more likely to be the order of the day as the fall semester draws nigh.  The most likely causes of action are:

• Disability discrimination: Professors with compromised immune systems, if required to return to brick-and-mortar classrooms, are likely to argue an entitlement to the “reasonable accommodation” of continuing current online teaching. 
• Promotion & tenure: Junior faculty, facing up-or-out decisions, will push back against negative outcomes, contending their opportunities for success were stymied by the sheltering situation and/or that the online evaluation process was fatally flawed.

Anticipating such suits and establishing fair processes and sound documentation protocols are among preventative measures I recommend.  Changes wrought by COVID-19 and the threat of its recurrence have sown anxiety and anger.  The plaintiff’s bar is seeking to take full advantage.  I can offer no silver bullet against these predators.  However, we know what to expect and we can act now to meet the challenges.