The third judge — Ketanji Brown Jackson — sounded more hostile to the students’ claims and was less likely to allow any aspect of the cases.
The lawsuits allege that the move to online learning deprived students of the in-person, on-campus education they acquired under an implicit contract that DC courts have ruled exists between universities and their students.
A federal district court judge dismissed the cases against American and GW last year, but another judge allowed a similar case against Catholic University to proceed.
“The bargain was on-campus education and the key benefits that came with it,” said Daniel Kurowski, a student attorney who is 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-appointed said. “Courts will not enforce contractual obligations that are themselves unlawful.”
Kurowski conceded the point, but said the principle should not preclude students’ ability to recover for services they allegedly did not receive.
An attorney for the AU students, Roy Willey, also said the school was not actually compelled to breach the contract because it had options that would not have breached the lockdown order – such as adding additional classes after the order expired.
“The 100 percent tuition was paid for a very specific product, and that product wasn’t delivered,” Willey said.
While many have described the pandemic’s impact on society as unprecedented, Willey said history supports their claim that they expected classes to continue. “American University operated a campus during the Spanish influenza 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 courses are worth less than face-to-face classes by setting lower prices for online programs and offering discounts for virtual learning on the terms that followed the disputed period as the pandemic broke out.
“Both universities make a distinction between live and online, and they charge different fees,” he said. “They charge significantly more for the regular live and on-campus arrangements.”
A lawyer for the schools, Alan Schoenfeld, initially said on Friday that as long as students received their coursework, they had no legal right to a refund, even if a university had moved to “Reston at some gross apartment building” or taught students “in broom closets.” .”
However, when Millett questioned whether the universities could have simply awarded credits to students while classes were suspended altogether, the schools’ attorney said it would have resulted in “a fair implication of bad faith.”
Jackson, President Joe Biden’s sole representative on the DC circuit, said the central question in the cases is whether the implied contract between the schools and the students amounts to a promise to teach live “no matter what.” She said the “core” of the deal is for classes and credits, and the exact way that that will be delivered is secondary.
“They actually didn’t break because they promised to do it just as a general matter within the ordinary course of events,” Jackson said.
But Millett and Edwards disagreed.
Millett repeatedly said the key question isn’t whether universities promise to teach on campus under all circumstances, but who should foot the bill if the deal is only partially fulfilled. “The real contract dispute, it seems to me, is what happens to those tuition fees,” she said.
“You can’t just shut down for any reason or no reason and be like, ‘Oh, we’re going to put everything on Zoom,'” said Edwards, an appointee for former President Jimmy Carter. “Everyone assumes it will be a vibrant place with lessons, classrooms and teachers speaking to students – not Zoom.”
Schoenfeld, the schools’ advocate, insisted that students receive the same course content, taught by the same professors, and receive the same coursework in order to graduate on time. These claims seemed to anger Edwards.
“Are you saying you reserved the right to keep all your money for a service they won’t provide you with?” said the judge. “I just don’t see any support for it. Where does it come from? … If you even make the suggestion or whisper the suggestion that there is no difference between the education provided by Zoom and the in-person education on campus [kind], that’s ridiculous. … That is an absurd notion.”
Schönfeld said he makes no such claim, only stating that the precise manner in which the educational services would be delivered was not expressly agreed. He also pointed to policies that allow the university to make “necessary” changes to classes, instructors and programs.
“The idea that under these circumstances the university would negotiate its discretion to make these types of changes is totally implausible,” he said.
The panel did not issue an immediate ruling, which could affect several pending lawsuits in DC. Dozens of similar lawsuits have met mixed results in other courts. In a closely observed case last August 3rd Circuit Judge Stephanos Bibas declined the University of Delaware’s offer to reject several cases brought forward by students requesting a partial refund.
“That’s right, the school never explicitly promised them. But promises don’t have to be explicit to be enforceable,” Bibas wrote. “Through their statements and history of in-person instruction, the school may have implied a promise to remain in-person.”
As with other class action lawsuits, the outcome of the initial filings can effectively resolve many of the lawsuits. Many universities may choose to forego lengthy litigation and simply offer a settlement to the aggrieved students.