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Written By: Cecile G. Nicolson
Editor-in-Chief, American Journal of Trial Advocacy
January of 2020 started with hopeful visions for the beginning of a new decade. College and graduate students across the country returned to campuses for a new semester, thinking little of the novel coronavirus. However, as the virus rapidly spread, schools began creating plans for online learning. In March, colleges and universities sent students home and switched to online classes in an attempt to slow the spread of COVID-19. Not only was online learning a new approach for many students, but it was also unclear how long classes were going to be online. Some schools hoped on-campus instruction would resume later in the spring while others went ahead and closed for the duration of the semester.[i] As students packed up their dorm rooms, many wondered what would happen to the room and boarding fees they paid. As a result, numerous students and parents have filed class action lawsuits seeking refunds of tuition and/or fees for the Spring 2020 semester.[ii] This article reviews numerous breach of contract claims brought by students across the country.
I. Do parents of students have standing?
Many of these lawsuits include parents and students as plaintiffs, but do both have standing? The short answer is no—parents of adult children do not have standing for an injury their adult child allegedly suffered from a college or university they attend. As a general rule, in order to have standing a “plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”[iii] It was first believed that students would lack standing if their parents paid their tuition,[iv] but many courts have ruled that it is the parents who lack standing in the suits because the parents cannot allege a concrete injury in fact.[v]
In Salerno v. Florida Southern College,[vi]a student and her mother brought suit against Florida Southern College for breach of contract, among other claims. The court held the student plaintiff’s mother lacked standing.[vii] It reasoned that there was no contractual relationship between the mother and the school; thus, the mother could not have suffered an injury from a breach of contract.[viii] Moreover, the court noted any agreement for the mother to provide tuition was an agreement between mother and child, not mother and school.[ix] In a similar case, the Central District of California explained a parent did not have standing simply because they paid tuition.[x] It explained that the student was the one who would receive benefits from a school, not the parent of the student.[xi] Even though the parent might receive a derivative benefit from the services a school provides, a parent cannot assert an injury sufficient to obtain standing from a derivative benefit.[xii] The students are the ones who receive benefits of room and board, not the parents.[xiii] As a result, parent plaintiffs have been dismissed from these lawsuits.
II. Constitutional bars to tuition refund suits
Even if a plaintiff has standing, a public university might be protected from suit under the doctrine of sovereign immunity. Inherent in the 11th amendment, sovereign immunity protects states and state agents from suits in contract or tort unless the state waives such protection.[xiv] Courts in both California and Maryland have held that state university systems successfully raised sovereign immunity defenses to protect the schools from COVID-19 tuition refund lawsuits.[xv] In Brandmeyer, the plaintiffs argued there is an exception to sovereign immunity when a plaintiff is seeking injunctive relief to stop an ongoing violation by a state official.[xvi] The court agreed, but explained that the exception does not apply when a plaintiff is seeking money damages.[xvii] In this case, the court suggested that the plaintiffs were improperly and unsuccessfully trying to disguise their monetary claims as claims for injunctive relief.[xviii] As such, the 11th amendment exception was not applicable and sovereign immunity still applied.
Some plaintiffs have also unsuccessfully asserted Takings Clause violations. The Fifth Amendment Takings Clause prohibits the government, including state governments, from taking private property without just compensation.[xix] In these cases, students alleged their respective schools’ failures to provide tuition or fee refunds when transitioning to online classes constituted a government taking as protected by the Takings Clause.[xx] In California and Maryland, the courts explained a tuition refund was not a constitutionally protected property right except in very limited circumstances, such as erroneous fees.[xxi] In fact, the Maryland court noted the plaintiffs did not provide any “authority supporting their contention that any fee paid to the government for a service may form the basis of a takings claim if a citizen later believes they have not received the service they paid for.”[xxii] In both states, the courts ruled the plaintiffs did not successfully allege Takings Clause violations.
III. It is unclear whether the transition to online classes constitutes a breach of contract.
In their complaints, students alleged that their schools breached agreements to provide students with a quality, in-person learning environment. However, numerous states recognize the educational malpractice doctrine. The doctrine essentially provides a bar to claims challenging the quality of education a student receives. As a result, courts will not judge the adequacy or value of a student’s education.[xxiii] In California, a court dismissed a complaint alleging the plaintiff’s education was no longer worth what she paid because “the resolution of [p]laintiffs’ claims would require the Court to make judgments about the quality and value of the education,” and “are the type of educational malpractice claims that California courts, and courts throughout the country, have rejected.”[xxiv]
On the other side of the country, Florida Southern College’s motion to dismiss a similar claim was denied.[xxv] While the plaintiff’s complaint did not allege an express contractual provision providing for in-person instruction, the court held that the plaintiff did adequately plead the existence of an implied contract providing for in-person curriculum.[xxvi] However, the court stressed that it would not hear arguments related to education malpractice because “it is not a court’s place to opine on that matter.”[xxvii]
Additionally, a New York court clarified that some breach of contract claims are successful if a school breaches a contract to provide a specific service, but an educational malpractice claim is not a breach of a specific service.[xxviii] Likewise, Fordham University won its motion to dismiss because the plaintiffs did not allege a breach of a specific service.[xxix] In that case, the plaintiffs alleged Fordham breached its contract to provide an in-person education.[xxx] The court ruled, however, that Fordham had not specifically contracted to provide an in-person learning environment.[xxxi] Although the course catalog provided students were expected to attend class in person, the court explained those statements did not constitute a “specific promise on Fordham’s part to provide certain specified services.” Another New York court ruled differently.
In Bergeron v. Rochester Institute of Technology,[xxxii] the court denied Rochester Institute of Technology’s (RIT) motion to dismiss Bergeron’s breach of contract claim. In denying RIT’s motion to dismiss, the court explained that the complaint provided support for numerous specific services RIT provided for its in-person students that were not provided to its online students.[xxxiii] Likewise, in-person students were not allowed to take online classes before COVID-19.[xxxiv] Additionally, the court noted the price difference between RIT’s online and in-person curriculum’s, explaining in-person students paid a premium price to obtain the full benefits of RIT’s services.[xxxv] The court held the plaintiffs sufficiently specified these services as those which RIT contracted to provide.[xxxvi] In ruling on motions to dismiss, courts have reiterated the evidentiary limits of 12(b)(6) motions. As most litigation is still in its early stages, plaintiffs will continue to face hurdles. And, as students have been embracing online classes for nearly a year, colleges and universities are sure to be amending tuition and fee policies.
[i] Mike Baker, Anemona Hartocollis & Karen Weise, First U.S. Colleges Close Classrooms as Virus Spreads. More Could Follow., N.Y. Times (Mar. 11, 2020), https://www.nytimes.com/2020/03/06/us/coronavirus-college-campus-closings.html.
[ii] See generally Hassan v. Fordham Univ., No. 20-CV-3265 (KMW), 2021 WL 293255 (S.D.N.Y. Jan. 28, 2021) (granting Fordham University’s motion to dismiss plaintiff’s suit seeking reimbursement for fees and tuition); Salerno v. Fla. S. Coll., No. 8:20-CV-1494-30SPF, 2020 WL 5583522 (M.D. Fla. Sept. 16, 2020) (holding plaintiff did sufficiently state a claim for which relief could be granted).
[iii] Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016).
[iv] See Peter Hayes, Empty Dorm Rooms Spawn Dozens of Suits That Will Be Tough to Win, BL (June 4, 2020), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/litigation/BNA%20000001725b95d931abfe7b9dc08f0001?bna_news_filter=litigation&bc=W1siU2VhcmNoICYgQnJvd3NlIiwiaHR0cHM6Ly93d3cuYmxvb21iZXJnbGF3LmNvbS9wcm9kdWN0L2JsYXcvc2VhcmNoL3Jlc3VsdHMvYjIyNGE2NTM5ZTIwODhiMDQzNDViOTI5ZTQzMjY2NmQiXV0–db7331d8625df969f7d8f6da5a75b2b61fb7ce37&criteria_id=b224a6539e2088b04345b929e432666d (arguing students would lack standing if they did not pay tuition).
[v] See Salerno, 2020 WL 5583522, at *4; Lindner v. Occidental Coll., No. CV 20-8481-JFW(RAOX), 2020 WL 7350212, at *5-6 (C.D. Cal. Dec. 11, 2020).
[vi] No. 8:20-CV-1494-30SPF, 2020 WL 5583522, at *4 (M.D. Fla. Sept. 16, 2020).
[vii] Salerno,2020 WL 5583522, at *1.
[viii] Id. at *3-4.
[ix] Id. at *4.
[x] Lindner, 2020 WL 7350212, at *6.
[xi] Id. at *6
[xii] Id. at *6.
[xiii] See id. at *6.
[xiv] See Peter Hayes, Empty Dorm Rooms Spawn Dozens of Suits That Will Be Tough to Win, BL (June 4, 2020), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/litigation/BNA%20000001725b95d931abfe7b9dc08f0001?bna_news_filter=litigation&bc=W1siU2VhcmNoICYgQnJvd3NlIiwiaHR0cHM6Ly93d3cuYmxvb21iZXJnbGF3LmNvbS9wcm9kdWN0L2JsYXcvc2VhcmNoL3Jlc3VsdHMvYjIyNGE2NTM5ZTIwODhiMDQzNDViOTI5ZTQzMjY2NmQiXV0–db7331d8625df969f7d8f6da5a75b2b61fb7ce37&criteria_id=b224a6539e2088b04345b929e432666d.
[xv] See Student “A” v. Hogan, No. CV CCB-20-1434, 2021 WL 119083, at *3 (D. Md. Jan. 13, 2021) (holding the Board of Regents did not waive sovereign immunity protection by sending students tuition bills); Brandmeyer v. Regents of Univ. of Cal., No. 20-CV-02886-SK, 2020 WL 6816788, at *4-7 (N.D. Cal. Nov. 10, 2020) (holding the Regents of the University of California and the president of the Regents were protected by sovereign immunity and the injunctive relief exception to sovereign immunity was not applicable in this case).
[xvi] Brandmeyer, 2020 WL 6816788, at *6.
[xix] U.S. Const. amend. V.
[xx] Student “A”, 2021 WL 119083, at *5; Miller v. Bd. of Trustees of the Cal. State Univ., No. 2:20-CV-03833-SVW-SK, 2021 WL 358376, at *5-6 (C.D. Cal. Jan. 13, 2021).
[xxi] Student “A”, 2021 WL 119083, at *5; Miller, 2021 WL 358376, at *5-6.
[xxii] Student “A”, 2021 WL 119083, at *5.
[xxiii] Lindner v. Occidental Coll., No. CV 20-8481-JFW(RAOX), 2020 WL 7350212, at *7 (C.D. Cal. Dec. 11, 2020).
[xxiv] Id. at *7.
[xxv] Salerno v. Fla. S. College, No. 8:20-CV-1494-30SPF, 2020 WL 5583522, at *5 (M.D. Fla. Sept. 16, 2020).
[xxviii] Hassan v. Fordham Univ., No. 20-CV-3265 (KMW), 2021 WL 293255, at *3 (S.D.N.Y. Jan. 28, 2021).
[xxxii] No. 20-CV-6283 (CJS), 2020 WL 7486682, at *8 (W.D.N.Y. Dec. 18, 2020)
[xxxiii] Bergeron v. Rochester Inst. of Tech., No. 20-CV-6283 (CJS), 2020 WL 7486682, at *1-2 (W.D.N.Y. Dec. 18, 2020).
[xxxiv] Id. at *1.