By Bill Wichert

Law360 (August 5, 2020, 8:28 PM EDT ) Seton Hall University has asked a New Jersey federal court to toss a graduate's proposed class action alleging the school provided "subpar" instruction after switching to all-remote learning during the spring 2020 semester due to the COVID-19 pandemic, saying such "educational malpractice" claims are barred under Garden State law.

Plaintiff Samuel Schoening "creatively" pled claims of breach of contract, unjust enrichment and conversion, but they are each based on the quality of the education that was provided and he can't sue Seton Hall over that issue, the university told the court Monday in seeking to dismiss the suit.

"Consistent with the principles of academic freedom, courts in New Jersey (and around the country) will not entertain claims that seek to second guess academic judgments about curriculum, course placement, or the quality of the education a school provides," the school argued in a brief.

Seton Hall pointed to a New Jersey state court's 1985 opinion in Swidryk v. Saint Michael's Medical Center , saying that decision "emphasized that courts 'have unalteringly eschewed' sitting in review of the day-to-day implementation of policies by educators."

The Swidryk court noted in part that "there is no feasible way to formulate a standard of care to judge the delivery of an education given the various acceptable methods employed to teach and train students," the university said.

The allegations in Schoening's complaint also "impermissibly require this court to delve into the educational processes of an institution of higher education and assess such day-to-day educational matters" such as the quality of "'face to face interaction with professors, mentors, and peers,'" and "'hands on learning and experimentation,'" Seton Hall said.

If such claims were permissible, higher education institutions would face "a flood of litigation," the university said.

"Among other things, a student could pursue claims for a refund based on the particular teaching style of a professor, the career advice received from a mentor, the quality of the student activities and intramural sports that were offered, the quality of laboratory or hands on instruction, or simply the failure of a student to become independent, mature or even make new friends," according to the university.

Schoening, who lives in Lake Ozark, Missouri, launched the suit May 5, less than two weeks before graduating with a Bachelor of Science in diplomacy and international relations, court documents state.

Since the university ceased in-person instruction in March — around the time when Gov. Phil Murphy ordered such institutions to stop in-person classes — Schoening claimed in his complaint that the "online learning options" offered by the school have been "subpar in practically every aspect, from the lack of facilities, materials, and access to faculty."

Schoening said he and other students did not get the experiences they paid for, and were entitled to a refund of the prorated share of tuition and fees for the services Seton Hall failed to provide. During the previous school year, undergraduate tuition at Seton Hall was $20,730 per semester, in addition to certain mandatory fees, the complaint said.

In trying to sink the complaint, Seton Hall argued Monday that the university never promised to provide in-person instruction. Instead, the school's policies "permit the modification of academic programs, course content, and course schedules," the university said.

The school also said Schoening is not entitled to a refund, noting that he graduated and received a degree after finishing the semester.

"Any request for a refund after the semester is completed is contrary to Seton Hall's policy, particularly given that the transition to wholly remote instruction enabled plaintiff to obtain his diploma without any delay," Seton Hall said.

Throughout the outbreak, "Seton Hall continued to serve its students by transitioning to virtual learning, offering remote students services and activities, and providing relief funds for those in need," the university added.

"Seton Hall must not be penalized for taking necessary steps to protect the health and safety of the members of its community, complying with a government order, and ensuring the spring 2020 semester was not lost," the university said.

Counsel for the parties did not immediately respond to requests for comment Wednesday.

Schoening is represented by Joseph I. Marchese, Philip L. Fraietta and Sarah N. Westcot of Bursor & Fisher PA.

Seton Hall is represented by Angelo A. Stio III and Michael E. Baughman of Troutman Pepper.

The case is Samuel Schoening v. Seton Hall University, case number 2:20-cv-05566, in the U.S. District Court for the District of New Jersey.

--Editing by Abbie Sarfo.

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