The Pew Charitable Trusts

06/02/2020 | News release | Distributed by Public on 06/01/2020 23:22

College Students Want Their Money Back. It'll Be Tough to Get It.

In an emailed statement, Drexel's Niki Gianakaris, director of media relations, said the university's 'top priority is the health and safety of all members of its community during this unprecedented time.'

'Despite the disruption caused by the COVID-19 pandemic, students continue to have access to Drexel's broad spectrum of academic offerings and support, building on the University's long-standing tradition of innovation and creativity in the classroom and remote environments,' she said. 'The university is aware of the court filing and has no further comment on the pending litigation.'

Tuition a Sticking Point

Many other colleges and universities have returned pro-rated room and board payments to students no longer using university housing and meal plans. But tuition has become a sticking point, since most schools are continuing to educate students through distance learning.

Attorneys for the plaintiffs argue there is more to on-campus learning than what can be transmitted over a video. They cite lab experiments for science majors and on-stage performances for theater and dance majors, among others.

Some attorneys and students have speculated that universities with billions in endowment are in a better position to forgive tuition payments than other schools that rely on tuition to fund the day-to-day education they provide. But high-endowment schools argue that those monies are tightly regulated by agreements with donors and legal restraints and can be used only for certain purposes.

Public universities may find additional protection in laws that make it harder to sue states. The California Tort Claims Act, for example, limits the types of accidents and injuries for which the state can be liable.

Many suits also are being filed against governors and states themselves over the COVID-19 crisis, including businesses that allege they are being hurt by orders to stay closed. In one recent action, a state Court of Claims judge in Michigan ruled Gov. Gretchen Whitmer, a Democrat, was within her constitutional rights to issue executive orders in response to the pandemic, including closing businesses.

In some of the college cases, plaintiffs have focused on their loss of the 'city as a classroom' experience, touted by many schools that see their cities as extensions of their campuses.

One of the highest-profile cases is the suit against New York University, partially because the school showcases its presence in the large, vibrant city as an asset, and partially because New York has been among the areas most affected by the virus.

Christina Rynasko of Palm Beach, Florida, whose daughter Emily studies musical theater at NYU, sued the school for a partial refund of tuition, fees, and room and board. '[O]nline classes are particularly ineffective and inadequate for musical theater majors, who cannot participate in required performances, receive in-person feedback/critique, or partake in the facilities necessary to perform,' the suit said.

In an email to Stateline, NYU spokesman John Beckman said the suit is 'unwarranted and ill-advised. The reality is that in the face of an unprecedented, world-altering pandemic … faculty continue to teach, and continue to be fully paid; students continue to have class with their faculty; student work is evaluated; academic credit is appropriately awarded; and students will graduate.'

Hands-on Learning

But whistleblower and class-action expert attorney Brian Mahaney said there are grounds for these suits, especially when they involve programs that require hands-on learning like cooking classes, physical education or physical therapy, to name a few.

'You can't say you are going to learn to play the piano by watching a video,' he said. 'It's not the same quality of education.'

While his firm has not yet filed any suits, Mahaney has heard from parents of a handful of students who want to take action, including parents whose children have gone to the same schools that they attended.

'They say, 'I paid for my son to get the same education I got, and now we are paying and he's sleeping till 4 in the afternoon and taking a couple of classes [online] and that's not the same.' The quality of the education is not the same,' Mahaney said. 'I feel badly for the kids who are taking on debt to finance this.'

Mahaney is best known for bringing a whistleblower claim against Bank of America for fraudulent housing loans ahead of the Great Recession. It resulted in a $17 billion settlement, one of the largest in U.S. history.

Lynn Pasquerella, president of the Association of American Colleges and Universities, which advocates for liberal education, said the lawsuits could have a lasting impact, especially as the schools look toward a safe reopening.

'College and university leaders are doing the best they can to ensure safety of students, faculty and staff as we plan to reopen,' she said in a phone interview. 'Leaders are facing enormous uncertainty about COVID-19 standards of care. Even though they have engaged in reasonable decision-making, it's that uncertainty that will have an impact.'

She called on Congress to protect higher education institutions 'against the economic threat of lawsuits at this moment of maximum economic vulnerability.'

Atlanta attorney Derin Dickerson, an expert in class action and higher education law at the Alston & Bird firm, said it is unfortunate that plaintiffs firms are 'using these claims against colleges and universities that are doing the best they can to ensure the health and safety of students.'

He said plaintiffs are going to have a tough time showing that paying tuition constitutes an actual contract with the school. 'You have to show there's a contract, that it was breached, and you suffered damages,' he said.

And he says arguments that online education is cheaper may not hold in this instance because colleges had to ramp up technology quickly, and they are still paying their tenured professors to teach, rather than hiring professors for lower pay to helm online courses.

A study by Boston Consulting Group and Arizona State University found online classes saved colleges between $12 and $66 a credit hour, but mostly because the classes were taught by adjuncts and teaching assistants who are paid less than tenured professors.

'In reality, class actions are primarily driven by law firms,' he said. 'These class-action law firms walk away with a lot of money.'