When online instruction is breach of contract

The pandemic is forcing less than a quarter of the nation’s 5,000 colleges and universities to offer in-person instruction.  In response, some parents are suing for breach of contract (“As Colleges Move Classes Online, Families Rebel Against the Cost,” The New York Times, Aug. 15).

I’m not a lawyer, but I think they have a case.  They paid for face-to-face instruction, but are not getting what they signed up for.  They at least deserve tuition rebates, increased financial aid and reduced fees. But instead, they are getting nothing. Rather than do what is right, several institutions have moved for dismissal.  Worse yet, some have even increased prices, arguing that if not they will have to lay off faculty.

This is an unprecedented period in higher education in this country.  I’ve written before that a bachelor’s degree is no blanket guarantee of a well-paying job.  Perhaps more and more high school students and their parents will begin to rethink their plans in light of the new realities.

(To post a comment, click on the title of this blog.)

2 Replies to “When online instruction is breach of contract”

  1. Each case will turn on the specific facts in that case.

    It’s likely that the courts will in most cases view covid as an event that neither party (student or college) contemplated at the time the parties entered the contract and will conclude that neither party assumed the risk of such an unanticipated event. That would make the contract voidable at the option of either party. So, the student could withdraw and the college would have to return the tuition. Or, the college could shut down and return the tuition. If the college does not shut down but instead offers virtual instruction, then the student would have the option of accepting the virtual instruction and paying tuition or withdrawing.

    Perhaps it helps to view the college as a merchant selling a service and the student as a customer buying a service under a multi-year contract. Covid is a significant enough unanticipated event that the customer cannot compel the seller to continue providing the original service. Likewise, covid is a significant enough unanticipated event that the seller cannot compel the customer to continue buying the original service. At that point, the seller and the customer are pretty much starting out on a new contract — the seller offers a service (the original service or some variation on it) and the buyer either agrees to the seller’s terms or the buyer walks.

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