Bass, Berry & Sims attorney Audrey Anderson shared insight for an article published by Inside Higher Ed outlining the latest decision by a federal appeals court in separate lawsuits brought by students against universities demanding tuition refunds after the schools moved to online instruction during the COVID-19 pandemic. The students allege the universities – specifically lawsuits against American University and George Washington University – violated contractual obligations by not providing in-person education and other on-campus opportunities and should have provided some type of refund. The latest decision by the U.S. Court of Appeals for the D.C. Circuit reversing the district court’s orders dismissing the cases, does not guarantee a refund for the students but provides an opportunity for the plaintiffs to pursue the claims.

In commenting about the ruling, Audrey said, “Where the plaintiff can show that the college or university may have promised them that they would have an in-person educational experience, the courts are going to let them go ahead and try to prove that in court and prove a breach of contract. And that’s what the court here said, that under District of Columbia law, you can have an implied-in-fact contract, one that’s not written but that is implied by the conduct of the parties. And here, the plaintiffs were able to show through materials on the website and through the course of conduct, that there were implied-in-fact contracts that American University and GW [George Washington University] would provide an educational experience in person.”

These cases highlight broader issues for colleges and universities. Audrey cautioned that schools must be careful what they promise students and rethink any language about the school’s promised experience. Audrey added, “I think that most schools have already made changes now to more carefully contract around the possibility that in-person education might not be available for reasons of COVID-19 or other reasons.”

The full article, “Appeals Court Revives COVID Lawsuits,” was published by Inside Higher Ed on March 9 and is available online.