The Covid litigation is back with vengeance and US colleges and universities could be in trouble. Last week, the US Court of Appeals for the District of Columbia reinstated a pair of lawsuits alleging that American University and George Washington University, by switching to online classes when contagion concerns were high, , violated their contract with the student.
Although I was skeptical of the students’ claims in the past, I have come to think that they have a point.
After most higher education institutions switched to distance learning in the early part of the pandemic, students filed lawsuits across the country demanding refunds of tuition and fees. Most of those cases were dropped, like these two initially, because the contract between the student and the university – all of which was signed before registration – did not promise that there would be direction. direct lead.
However, according to the DC Circuit, even if the schools didn’t make a clear promise, the contract could have been made on a foundational understanding that tuition payment is not simply an instruction but a experience on campus. This understanding, in turn, would be enough to create what scholars today call the default rule – a provision that must be read in a contract unless one party negotiates to get rid of it.
By offering a discount, say.
Is there basic understanding when students enroll that classes will be held on campus? Definitely looks like that. As Judge Harry Edwards pointed out in his great opinion, the documents used by the defendants themselves to recruit students are full of references to both classroom teaching and classroom experience. larger campus. Makes sense: Schools expand their campuses because they know that potential freshmen are interested.
High school students’ decisions about where to apply are driven by more academics. Yes, the US News and World Report rankings matter. A lot of. But campus experience also influences student choices. Even among selective universities, high ratings for quality of life attract more applications than schools with poorer campus life. The same goes for success in major sports. So we wouldn’t be surprised at all to learn that for every dollar spent on academics, colleges spend about 51 cents on amenities.
In setting budget priorities, schools are responding to need. A 2021 analysis shows that for the average student, around 4.2% of the cost of attending a higher education institution represents the value of face-to-face instruction, while a whopping 8, 1% demonstrates the value of social activities on campus. If these numbers are correct, the move to online learning costs students 12% more than they thought they were buying.
Furthermore, the schools themselves implicitly suggest that the dollar value of an education provided on campus is different from the dollar value of an education delivered remotely. Judge Edwards pointed out that both George Washington and American offer a number of degree programs that don’t require students to reside – and offer substantial tuition discounts for students who choose to take courses remotely. (1) The price discrimination ability of the schools. means that those who prefer face-to-face instruction believe they are getting benefits that distance learners do not; otherwise they won’t pay more. The benefit can’t just be the quality of the instruction, because both groups get the same qualifications. So even schools realize that they are selling a premium product directly to students.
That a higher education institution would even try to deny this understanding is a strange thing. Everyone who’s been to college knows that tuition can buy more than teaching. Networking will be important in later life on campus. I made more friends through my hours at the on-campus newsroom than through classes, labs, and study groups. I honed my mind on coffee nights, playing speed chess and debating radical political arguments. (Game theory I learned the hard way, at the poker table.)
Colleges should embrace this richer understanding of what they have to offer, not run away from it to save a fortune on litigation. Higher education today is being influenced by many aspects. Some critics even consider classroom learning an archaic technology that has outlived its usefulness. Schools should comprehensively protect their value, even if doing so costs money in the short term.
It is true that the pandemic is unpredictable. But as Judge Edwards explained, the fact that no one knew Covid was coming doesn’t give universities the right to “allocate[e] financial risk of such events to the student. “Other businesses should not be allowed to blame the damage caused by the pandemic on customers. Colleges shouldn’t want to.
I can’t predict what will happen when I get to the trial. But Judge Edwards’ point of view made the defendants agree. They stuck with their own advertising – and with a broader tacit understanding of what higher education entails.
For this they should be grateful.
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(1) One might reasonably ask whether much of the price difference between remote and in-person instruction can represent cost. Unless the dog wags its tail, the answer is definitely no. Otherwise, both the college and the students would be better off if the schools closed permanently.
Stephen L. Carter is Bloomberg Opinion columnist. He is a professor of law at Yale University and served as secretary of the United States Supreme Court Thurgood Marshall. His novels include “The Emperor of Ocean Park” and his latest non-fiction book “The Invisible: The Forgotten Story of the Black Female Lawyer Who Takes Down the Most Powerful Bandit” U.S.”
