By Celeste Bott

Law360 (August 17, 2020, 4:57 PM EDT ) Loyola University Chicago has urged an Illinois federal judge to toss a proposed class action seeking to recover tuition and fees after COVID-19-related school closures, saying the suit is at its core an impermissible educational malpractice action repackaged as breach-of-contract claims.

Seeking dismissal with prejudice, the university said on Friday that it had no other choice to shift to remote learning during the global pandemic, calling it "the only workable solution to an unprecedented crisis." The school said named plaintiff Andreea Gociman, whose son is an undergraduate student at Loyola, lacks standing to bring her claims at all, because she's not a party to any contract with Loyola.

"Plaintiff does not dispute the wisdom or the undeniable necessity of Loyola's decision. Nor does she dispute that throughout the spring semester, her son continued to receive instruction in the courses he selected, from the same renowned faculty, and continued to earn credits towards his degree," Loyola said. "Instead, plaintiff complains that for part of one semester, her son did not have the on campus experience she had hoped for him. Plaintiff's disappointment is understandable, but not legally cognizable."

Illinois doesn't recognize the tort of educational malpractice, because it requires "improper judicial interference in academic affairs and second-guessing the professional judgment of educators and administrators making difficult educational determinations," the university said. Because Gociman contends the quality of her son's instruction was diminished because of the move to online learning, it would require an analysis of the quality of education, a hallmark of an educational malpractice claim, Loyola argued.

"Though brought under the auspices of contract, plaintiff's claims require more than an objective assessment of whether Loyola acted in good faith and instead involve a subjective inquiry into the students' academic experiences that is outside the province of the judiciary," it said.

Gociman also can't point to any agreement that would require the university to refund any mandatory fees for unused services during a semester, Loyola said. The fees for which she is seeking reimbursement — including a technology fee and a student development fee — are structured as flat fees paid by students whether they use the services at issue or not, the school said.

Similarly, she can't identify any specific agreement that requires Loyola to provide exclusively in-person, on-campus instruction, the university said.

"Indeed, no such documents exist. The law is clear: absent a specific, enforceable promise, a breach of contract claim against a university necessarily fails," Loyola said. "Plaintiff's claim appears to be based on her subjective expectations for her son, rather than a specific and enforceable promise by the university."

The private, Jesuit university hasn't held in-person classes since March 12, and students were forced into online classes that are merely a "shadow" of the in-person instruction students and families paid for, Gociman said in her May lawsuit. But they haven't been reimbursed for any tuition or mandatory fees despite an influx of funds the university reportedly received through the Coronavirus Aid, Relief and Economic Security Act, she said.

The result is an "enormous windfall" to the university, Gociman claims, allowing Loyola to profit and leaving students and families to bear the financial brunt of the coronavirus pandemic.

Suing for breach of contract, restitution based on quasi-contract and conversion, Gociman seeks to represent all persons who paid tuition and mandatory fees and other costs to Loyola for an in-person class or classes to be conducted during the spring 2020 semester and who didn't receive the "in-person education for which they paid."

Representatives of the parties did not immediately respond to requests for comment.

Gociman is represented by Elizabeth A. Fegan of Fegan Scott LLC and Shanon J. Carson, Ellen T. Noteware and E. Michelle Drake of Berger Montague.

Loyola is represented by Kirsten A. Milton, Julia S. Wolf and Monica Hersh Khetarpal of Jackson Lewis PC.

The case is Gociman v. Loyola University Chicago, case number 1:20-cv-03116, in the U.S. District Court for the Northern District of Illinois.

--Editing by Nicole Bleier.

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