Lawsuits Won't Get College Students a $55,000 Refund

(Bloomberg Opinion) -- Students displeased with remote learning have filed hundreds of lawsuits seeking tuition refunds from their colleges and universities. The defendants are mostly winning, and we should all be worried about how. As plaintiff after plaintiff argues that the schools have breached contracts requiring in-person classes, networking opportunities, and all the benefits of the bright, cheery campuses pictured in recruiting materials, the schools have behaved like fly-by-night used car dealers, blaming their hapless customers for not reading the fine print more carefully.

I recognize that higher education is financially strapped, and that widespread tuition refunds would contribute to the deep carmine color decorating many a bottom line. (Many schools have already refunded room-and-board payments.) But the schools should ponder the long-term consequences of pursuing what amounts to an argument that the campus experience is worthless.

Consider Crawford v. President and Directors of Georgetown, decided the first week in May. Students sued Georgetown University and American University in federal court in Washington, D.C., making the same claims as plaintiffs across the country: by shutting down the campuses and moving to remote instruction, their schools broke the promises they made to induce the students to enroll. The court dismissed the complaint. Even if the students “understood themselves to have purchased a contractual right to an on-campus education, including in-person instruction,” they were mistaken. No contract was created by statements in the universities’ catalogs or websites or other “promotional materials.”

How can this be? Because advertising and promotion are almost never held to constitute offers that can result in contracts. The only explicit agreement is that the schools will award degrees in return for satisfactory completion of course work. (In case you are wondering, the courts have held that parents, even if they pay the tuition, have no standing to sue.)

Even in the promotional materials themselves, a close reading of the fine print discloses that the schools reserve the right to make changes without notice in the courses and offerings. The Crawford court conceded that this clause might not allow a college to cancel all classes arbitrarily, but added that the defendants never “promised away their discretion to make reasonable modifications in response to radically changed circumstances.”

The radically changed circumstance is the pandemic. The schools had to make swift decisions on how best to continue instruction to deal with the emergency, and the trial judge, like judges across the country, noted that courts are ill-suited to second-guess the decisions of academic authorities on how best to continue their pedagogical mission in the midst of a swift-moving crisis.

In another recent case, one of the plaintiffs tried to get around this difficulty by pointing out that she had enrolled in one course described as involving “fieldwork,” another that promised “clinical hours,” and a third that included “role-play.” The court shrugged. Such language did not amount to a promise of classroom teaching because “experiential learning is not synonymous with in-person learning.”

Maybe all of this is true, and students are indeed expecting more than the schools are promising. And I’m second to no one in insisting that the courts should create incentives for parties to read contracts. Indeed, as a contracts professor, I find it easy to understand why the great bulk of tuition suits have been dismissed. The reasoning is almost unimpeachable.

Almost.

The trouble is, as one professor has put it, that this is a little like scraping together the money for a first-class fare and then being forced to ride in coach. As I’m always at pains to point out to my students, when large numbers of your customers so completely misunderstand the terms of their agreements, you’d do well to consider the possibility that you’re doing something to mislead them.

Even if you don’t mean to.

And people get misled a lot. There’s a vast literature – by professors at universities! – about why consumers shouldn’t be bound by details hidden in the boilerplate of contracts for bank loans or used cars. College students, not a few of them below the age of majority, are at least as worthy of our sympathy as mortgage borrowers and car buyers, most of whom are well along in adulthood.

Last summer, most students wanted to be back on campus in the fall, pandemic or no. We could put this down to the reckless invincibility of youth or to the desire to get out from under parents’ roofs and back to the party. But I think we should take the students seriously. If they’re adult enough to sign their own contracts, they’re adult enough to know their own interests. As I’ve noted before in this space, research aplenty supports the superiority of in-person instruction. If academics don’t believe this, we’re in the wrong business.

I’m not saying that those universities that opted for remote learning should have defied public health authorities and insisted that everybody return to the classroom. Nor am I saying that the judges are wrong to dismiss the lawsuits. I’m saying that universities themselves, morally if not legally, surely endorse the claim that the classroom is special. And if the classroom is special, then the intangible benefits of in-person instruction are necessarily priced into the tuition.

Maybe courts can’t force colleges and universities to discount the price of their services. But it’s strange and sad to see the schools winning their cases by arguing that all the costs of their temporary inability to provide those special intangible benefits should fall on the customers who’ve paid for them.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”

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