The third judge – Ketanji Brown Jackson – seemed more hostile to the students’ claims and less inclined to allow any aspect of the cases to proceed.
The lawsuits allege that the shift to online learning deprived students of the in-person on-campus education they purchased under an implied contract that DC courts found existed between the universities and their students.
A federal district court judge dismissed the cases against American and GW last year, but another judge has allowed a similar case against Catholic University to proceed.
“The market was for an on-campus education and the major benefits that come with it,” said Daniel Kurowski, a student attorney suing GW.
Millett noted that universities really had no choice but to close their campuses due to public health orders issued by DC Mayor Muriel Bowser. “On-campus education was prohibited by the lockdown order,” the Obama appointee said. “Courts will not enforce contractual obligations that are themselves against the law.”
Kurowski conceded that point, but said that principle should not prevent students from being cured for services they claim they did not receive.
A lawyer for UA students, Roy Willey, also said the school was not actually obligated to break the contract because it had options that would not have violated the lockdown order, such as the adding additional prices after the expiry of the order.
“100% tuition was paid for a very specific product and that product was not delivered,” Willey said.
While many have described the impact of the coronavirus pandemic on society as unprecedented,
Willey said the story supports their claim that they expect classes to continue. “The American university operated a 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 both recognize that online classes are worth less than in-person classes by setting lower prices for online programs and offering discounts for virtual learning under terms that have followed the disputed period when the pandemic hit.
“These two universities distinguish before live and online and they charge differently,” he said. “They charge a lot more for regular, live, on-campus arrangements.”
A lawyer for the schools, Alan Schoenfeld, first said on Friday that as long as students get their course credits, they would have no legal right to refunds, even if a university moved to “Reston in a building of rude apartments” or had taught students. “in the broom cupboards.”
However, when Millett asked if the universities could have simply given students credit while suspending classes altogether, the schools’ attorney said that would have led to “a fair and bad-faith involvement.”
Jackson, the only President Joe Biden appointee on the DC Circuit, said the central question in the cases was whether the implied contract between schools and students amounted to a promise to have in-person classes in direct “no matter what”. She said the “heart” of the agreement was about courses and credits, and exactly how they were delivered was secondary.
“They actually didn’t violate because they only promised to do so generally in cases that usually exist,” Jackson said.
But Millett and Edwards disagreed.
Millett, a President Barack Obama appointee, has repeatedly said the central question is not whether universities promise to teach on campus under all circumstances, but who should bear the costs of the deal. partially filled. “The real contract dispute, it seems to me, is what’s going on with those tuition fees,” she said.
“They can’t just shut down for some reason or no reason and say, ‘Oh, we’re going to put it all on Zoom,'” said Edwards, an appointee for President Jimmy Carter. “Everyone assumes it will be a live place with classes, with classrooms, with teachers talking to students, not Zoom.”
Schoenfeld, the schools’ advocate, insisted that students receive the same course content taught by the same professors and earn the same course credit to graduate on time. These claims seemed to infuriate Edwards.
“Are you saying that you have reserved the right to keep all your money for a service that they are not going to render to you?” said the judge. “I just don’t see any support for it. Where does this come from? …if you even make the suggestion, or whisper the suggestion that there is no difference between the education offered by Zoom and in-person instruction on campus [kind], It’s ridiculous. … It’s an absurd idea.
Schoenfeld said he made no such assertion, but merely noted that the exact way to deliver the educational services was not specifically agreed upon. He also pointed to policies allowing the university to make “necessary” changes to classes, instructors and curriculum.
“The idea of the university giving up its discretion to make these kinds of changes in these circumstances is totally implausible,” he said.
The panel made no immediate rulings, which could impact several pending lawsuits in DC Dozens of similar lawsuits have met with mixed results in other courts. In a closely watched case last August, the 3e Circuit Judge Stephanos Bibas rejected the University of Delaware’s offer to dismiss several cases brought by students seeking partial refunds.
“It is true that the school never expressly promised them. But promises do not need to be express to be enforceable,” Bibas wrote. “Through its statements and history of offering in-person classes, the school may have implicitly promised to remain in-person.”
As with other class actions, the outcome of initial motions can effectively resolve many lawsuits. Many universities may decide to forgo protracted litigation and simply offer a settlement to aggrieved students.