COVID-19 Higher Ed Litigation: The Educational Malpractice Doctrine Bars Students’ Online Learning Claims
Colleges and universities across the country fittingly closed their campuses in March to protect students, faculty, and staff amid the spread of coronavirus disease, COVID-19. Many of these schools promptly shifted to online instruction. Even so, some plaintiffs’ attorneys have sought to capitalize on the pandemic by recruiting students to file a spate of class action lawsuits against the institutions. A key allegation in most of these copycat complaints is that students are entitled to a partial refund of tuition under a breach of contract theory because online instruction is inherently inferior to in-person instruction. But, as we explain in detail below, the doctrine of educational malpractice bars most claims that attack the quality of educational services. We also discuss how states have defined the nature of the student-university relationship and describe the students’ breach of contract-related allegations that are founded on the schools’ move to remote learning.
Defining the Student-University Relationship
There is typically no formal enrollment agreement between students and a university that would create an express contract governing the entire student-university relationship. Over the years, courts have analyzed the nature of the student-university relationship under many different legal doctrines. The most pervasive and enduring theory is that the relationship is contractual.1 But courts have rejected a rigid application of contract law in this area. As one court put it, “hornbook rules cannot be applied mechanically where the ‘principal’ is an educational institution,” and “the courts have quite properly exercised the utmost restraint in applying traditional legal rules to disputes within the academic community.”2
The patchwork of holdings in this area effectively recognizes an implied contract between the students and institutions. While the terms of such contracts are rarely delineated, it is generally accepted in the jurisdictions that have adopted the implied contract theory that “catalogs, bulletins, circulars, and regulations of the university made available to the student become part of the contract.”3 However, some recent decisions reject the implied contract theory altogether, holding that “university handbooks, bulletins, guidelines, codes of conduct, manuals, and the like are not independently enforceable contracts.”4
Ultimately, whether or not a jurisdiction recognizes an implied contract between matriculating students and an institution, as well as how the courts apply the theory, varies from state to state.
A Claim for Educational Malpractice Is Not Cognizable
An overwhelming majority of states have adopted the educational malpractice doctrine.5 This doctrine bars a claim in either tort or contract that “raises questions about the reasonableness” of a school’s conduct in “providing educational services” or a claim that “requires an analysis of the quality of education.”6 Students have brought educational malpractice cases under a tort theory. They have alleged that institutions breached their duty of care by providing “inadequate, substandard, or ineffective” educational services or otherwise challenged the “soundness of the method of teaching that ha[d] been adopted by an educational institution.”7
Courts have identified several policy concerns when rejecting claims for educational malpractice. First, there is a lack of a clear standard of care by which to evaluate a school, as theories of education are not uniform, and “different but acceptable scientific methods of academic training [make] it unfeasible to formulate a standard by which to judge the conduct of those delivering the services.”8 Second, inherent uncertainties exist in educational malpractice cases about the cause and nature of damages.9 Third, allowing these cases to proceed presents the potential for “a flood of litigation against schools” given that “education is a service rendered on an immensely greater scale than other professional services.”10 And, lastly, schools “must be allowed the flexibility to manage themselves and correct their own mistakes,” and it is not the role of courts “to micromanage a university’s daily operations.”11
As more and more courts refused to recognize the tort of educational malpractice, students have attempted to repackage their claims as contract claims. But courts have rebuffed these attempts, holding that “the policy concerns that preclude a cause of action for educational malpractice apply with equal force to bar a breach of contract claim attacking the general quality of an education”;12 where “the essence of the complaint is that the school breached its agreement by failing to provide an effective education, the court is again asked to evaluate the course of instruction” and is “similarly called upon to review the soundness of the method of teaching that has been adopted by an educational institution.”13
Courts will generally entertain a breach of contract claim regarding the provision of educational services in only two situations. The first situation is when “the educational program failed in some fundamental respect, as by not offering any of the courses necessary to obtain certification in a particular field.”14 The second situation is when an “educational institution failed to fulfill a specific contractual promise.”15 In the latter case, plaintiffs “must do more than simply allege that the education was not good enough”; they “must point to an identifiable contractual promise that the defendant failed to honor.”16 Generally speaking, “bald assertions and conclusory allegations claiming that the University’s rules or procedures were not followed, do not state a valid claim.”17
It is now settled law in a majority of states that a contract claim against a school that rests on inadequate instruction is not cognizable unless it satisfies one of the two exceptions described here.
The Students Challenge the Value of Online Educational Services
The class action complaints at issue are barebones and parrot each other. The plaintiffs are students who paid tuition and other fees for the spring 2020 academic semester or quarter or parents who paid those amounts on their children’s behalf. They allege that, in return for the payments, the institutions agreed to provide “in-person instruction.”18 These allegations are mostly cursory, as the students fail to identify any catalogs, bulletins, circulars, or handbooks in which the institutions stated that they would exclusively instruct courses in-person.19 On the contrary, institutions often advise students in their catalogs or bulletins that “programs are subject to modification at any time” and that “[t]he content of a course or program may be altered.”20
Still, as mentioned above, the students allege that the institutions breached a contractual duty to provide their in-person instruction by closing campuses and “transitioning to online classes.”21 In particular, they allege that the “online learning options being offered to … students are subpar in practically every aspect,”22 and “the level and quality of instruction an educator can provide through an online format is lower than the level and quality of instruction that can be provided in person.”23 The students seek as economic damages “the difference between the value of the [remote] learning which is being provided versus the value of the live in-person instruction”24 or, said another way, “the pro-rated portion of any [in-person] education services not provided.”25
The Educational Malpractice Doctrine Bars the Students’ Contract Claims
The students’ contact claims fall squarely within those that courts dismiss under the educational malpractice doctrine. The students do not allege, nor could they, that the schools failed to offer degree courses by moving to online instruction.26 Nor do they adequately identify a specific contractual promise that the schools failed to honor.27 Although the students allege that they “entered into contracts” with the institutions by which the schools “would provide live in-person instruction,”28 as noted above, the students do not identify university catalogs, bulletins, or circulars where the schools made those promises. Plus, as also noted above, many institutions will be able to point to documents in which they reserved their right to alter the manner of instruction. Courts routinely dismiss lawsuits against universities where students fail to “specify the source of the contractual promises allegedly breached” by the schools.29
In sum, when stripped of their conclusory allegations, the upshot of the students’ contract claims is that the schools breached a purported contractual duty by providing “inadequate, substandard, or ineffective” educational services.30 And these claims are not cognizable.
Conclusion
Schools defending one of the class actions discussed here should early on (1) determine how the applicable state’s law has defined the student-university relationship and (2) identify whether any catalogs, bulletins, or circulars preserved the schools’ right to modify the manner and format of course instruction. This information could be critical in defeating the students’ online instruction-related contract claims at the pleading stage under the educational malpractice doctrine.
The students’ complaints are deficient for additional reasons that we do not discuss above. For example, the students have failed to adequately plead that they are entitled to pro rata refunds for housing costs, meal plans, and other fees under a breach of contract or unjust enrichment theory. Also, some students filed cases in courts that lack personal jurisdiction over the university or that at the least constitute an improper venue. Even if some of the students’ claims survive the pleading stages, institutions will have numerous grounds on which they might successfully show that the remaining claims are not suitable for classwide treatment.
At the early stages, colleges and universities facing these lawsuits should seek advice from counsel who are experienced in defending class action lawsuits to assist them in considering these issues.
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1 E.g., Neel v. Ind. Univ. Bd. of Trustees, 435 N.E.2d 607, 610 (Ind. Ct. App. 1982); Sifuna v. S. Coll. of Tenn., Inc., No. 17-5660, 2018 WL 3005814, at *2 (6th Cir. Apr. 5, 2018).
2 Olsson v. Bd. of Higher Ed., 402 N.E.2d 1150, 1152 (N.Y. 1980).
3 Guidry v. Our Lady of the Lake Nurse Anesthesia Program Through Our Lady of the Lake Coll., 170 So. 3d 209, 213 (La. Ct. App. 2015); see also Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 91 (2d Cir. 2011).
4 Shaw v. Elon Univ., 400 F. Supp. 3d 360, 365 (M.D.N.C. 2019).
5 Telluselle v. Hawaii Pac. Univ., No. CIV. 11-00343, 2012 WL 3800213, at *2 (D. Haw. Aug. 31, 2012), aff’d, 528 F. App’x 739 (9th Cir. 2013).
6 Waugh v. Morgan Stanley and Co., Inc., 966 N.E.2d 540, 549 (Ill. App. Ct. 2012).
7 Soueidan v. St. Louis Univ., 926 F.3d 1029, 1034 (8th Cir. 2019) (quoting Dallas Airmotive, Inc. v. FlightSafety Int’l, Inc., 277 S.W.3d 696, 700 (Mo. Ct. App. 2008)).
8 Ross v. Creighton Univ., 957 F.2d 410, 414 (7th Cir. 1992) (quoting Swidryk v. S. Michael’s Med. Ctr., 493 A.2d 641, 643 (N.J. Super. Ct. Law Div. 1985)).
10 Id. (quoting Ross v. Creighton Univ., 740 F. Supp. 1319, 1329 (N.D. Ill. 1990)).
11 Soueidan, 926 F.3d at 1034-35 (quoting Lucero v. Curators of Univ. of Mo., 400 S.W.3d 1, 8 (Mo. Ct. App. 2013) (internal quotation marks omitted)).
13 Id. (quoting Paladino v. Adelphi Univ., 454 N.Y.S.2d 868, 872 (N.Y. App. Div. 1982)).
14 McNeil v. Yale Univ., No. 3:19-CV-00209, 2020 WL 495061, at *29 (D. Conn. Jan. 30, 2020) (quoting Gupta v. New Britain Gen. Hosp., 687 A.2d 111, 120 (Conn. 1996)).
15 Id. (quoting Gupta, 687 A.2d at 120).
16 Ross, 957 F.2d at 416–17; see also Habitzreuther v. Cornell Univ., No. 5:14-CV-1229, 2015 WL 5023719, at *4 (N.D.N.Y. Aug. 25, 2015); O’Brien v. Pennington Sch., No. CIV.A. 06-2101, 2008 WL 160588, at *7 (E.D. Pa. Jan. 15, 2008); McClean v. Duke Univ., 376 F. Supp. 3d 585, 607 (M.D.N.C. 2019).
17 Chira v. Columbia Univ., 289 F. Supp. 2d 477, 486 (S.D.N.Y. 2003) (internal quotation marks omitted).
18 Compl. ¶ 60, Church v. Purdue Univ., No. 4:20-cv-00025 (N.D. Ind. Apr. 9, 2020), ECF No. 1.
20 E.g., Purdue University, University Catalog (last visited May 6, 2020), http://catalog.purdue.edu/index.php?catoid=10.
21 Compl. ¶ 2, Burnett v. Univ. of North Carolina Sys., No. 1:20-cv-00103 (W.D.N.C. Apr. 27, 2020), ECF No. 1.
22 Compl. ¶ 6, Irizarry v. Long Island Univ., No. 7:20-cv-03160 (S.D.N.Y. Apr. 21, 2020), ECF No. 1.
23 Compl. ¶ 19, Burnett, No. 1:20-cv-00103.
25 Compl. ¶ 43, Irizarry, No. 7:20-cv-03160.
26 E.g., Compl., Church, No. 4:20-cv-00025.
29 McClean, 376 F. Supp. 3d at 607; see also Chira, 289 F. Supp. 2d at 485 (“although [the plaintiff] states there was a contract, he points to no document or conversation that gives rise to a promise which Columbia breached”).
30 Soueidan, 926 F.3d at 1034 (internal quotation marks omitted).
