Court of Appeal may reopen tuition refund claims due to Covid closure

A federal appeals court is likely to reopen lawsuits filed by American University and George Washington University students who were denied on-campus tuition and instead offered online tuition when the coronavirus pandemic hit in early 2020.

However, Friday’s heated debate before the D.C. Circuit Court of Appeals left it unclear whether students will eventually receive a refund of some of the millions of dollars in tuition paid before in-person classes closed in March 2020.

During more than two hours of intense arguing on the issue, two of the three judges on the appeal panel—Patricia Millett and Harry Edwards—seemed to be inclined to allow the class action suits to proceed on grounds of “unjust enrichment.” schools at the expense of students.

The third judge, Ketanji Brown Jackson, sounded more hostile to the students’ claims and less likely to allow any aspect of the case to be heard.

The lawsuits allege that the transition to online learning has denied students the opportunity to receive in-person on-campus tuition, which they purchased under an implied contract that D.C. courts have ruled exists between universities and their students.

Last year, a federal district court judge dismissed the cases against American and GW, but another judge allowed a similar case against Catholic University to be heard.

“The deal was about getting an on-campus education and the core benefits that come with it,” said Daniel Kurowski, an attorney for the students suing GW.

Millett noted that universities really had no choice but to close their campuses due to public health orders issued by D.C. Mayor Muriel Bowser. “On-campus education was prohibited by the lockdown order,” an Obama appointee said. “Courts will not enforce contractual obligations that are in themselves against the law.”

Kurowsky agreed with this, but said the principle should not deprive students of the opportunity to be healed for services they claim they were not receiving.

AU student attorney Roy Wyllie also said the school was not actually forced to breach the contract because it had options that would not violate the lockdown order, such as adding extra classes after the order expired.

“100 percent tuition was paid for a very specific product and that product was not delivered,” Willey said.

While many have described the pandemic’s impact on society as unprecedented, Willie said history backs up their claim that they expected to continue classes. “The American University ran the campus during the Spanish flu pandemic, during the polio pandemic, during the H1N1 pandemic and others,” Willey told the judges.

Kurowski also argued that AU and GW are acknowledging that online classes cost less than face-to-face classes, charging lower prices for online programs and offering virtual learning discounts on terms that followed the controversial period when the pandemic hit.

“Both of these universities distinguish between live and online learning and charge different fees,” he said. “They charge significantly more for regular, live performances and campus events.”

Schools lawyer Alan Schoenfeld initially said on Friday that as long as students receive course credits, they will not have legal rights to a refund, even if the university moved to “Reston in some terrible apartment building” or taught students. “in broom closets.”

However, when Millett asked if universities could simply award students loans by suspending classes entirely, the school’s lawyer said that would result in a “fair consequence of bad faith.”

Jackson, D.C.’s only appointee by President Joe Biden, said a central issue in the cases was whether an implied contract between schools and students amounted to a promise to hold face-to-face classes “no matter what.” She said that the “backbone” of the deal was classes and credits, and the exact way it was delivered was secondary.

“They didn’t really break because they only promised to do it in the way that things usually are,” Jackson said.

But Millett and Edwards disagreed.

Millett has repeatedly stated that the central question is not whether universities promise to teach on campus under any circumstances, but who should bear the cost of the deal being only partially fulfilled. “It seems to me that the real contractual dispute is what happens with this training,” she said.

“They can’t just shut down for any reason or no reason and say, ‘Oh, we’re going to put it all on Zoom,'” said Edwards, who was appointed by former President Jimmy Carter. “Everyone assumes it will be a live place with classrooms, classrooms, teachers talking to students, not Zoom.”

Schoenfeld, the school’s attorney, insisted that students receive the same course content taught by the same professors and receive the same course grades in order to graduate on time. These statements seemed to annoy Edwards.

“Are you saying that you retained the right to leave all your money for a service they are not going to provide you with?” the judge said. “I just don’t see any support for it. Where is it from? … If you even make a suggestion or whisper the suggestion that there is no difference between the education offered by Zoom and face-to-face communication on campus [kind], this is funny. … This is an absurd idea.

Schoenfeld said that he did not make such a statement, but simply noted that the exact way in which educational services were provided was not specifically specified. He also pointed to a policy allowing the university to make “necessary” changes to classes, faculty and programs.
“The idea that the university would bargain on its own to make this sort of change under these circumstances is completely implausible,” he said.

The panel did not issue an immediate decision that could affect several pending lawsuits in the District of Columbia. Dozens of similar lawsuits have been heard in other courts with mixed results. In one carefully observed case last August 3rd Circuit Judge Stefanos Bibas denied the University of Delaware’s application. reject several cases filed by students seeking partial reimbursement.

“True, the school never promised them directly. But promises don’t have to be explicit in order to be kept,” Bibas wrote. “In their statements and history of conducting classes in person, the school may have implied a promise to stay in person.”

As with other class action cases, the outcome of initial motions can effectively resolve many claims. Many universities may decide to drop the lengthy litigation and simply offer the affected students a settlement.

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