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Law360 (December 3, 2020, 1:55 PM EST ) Northeastern University on Thursday sought to duck a suit brought by students seeking reimbursement for classes shifted online due to the COVID-19 pandemic, telling a judge it never promised in-person classes under any circumstances.
The school is one of several facing proposed class action suits over the move to fully remote learning during the spring, when coronavirus cases first surged. The Boston school's lawyer, John Shope of Foley Hoag LLP, told U.S. District Judge Richard G. Stearns that the Financial Responsibility Agreement between the university and its students was never meant to incorporate every aspect of the class registration process.
To interpret the contract that way would lead to some absurd results, he said, such as arguing a breach of the agreement if Northeastern changed a class from 2 p.m. to 8 a.m.
"I can imagine a lot of students, and this was true for me at that age, would say 'I don't want to get up that early in the morning, I am going to fail if I have to get up that early,'" Shope said.
He said the same logic could be applied to cases where the location of a class changed, forcing a student to walk across campus in the dead of winter, or if the professor was different than the one a student expected when she registered for the class.
"When I signed up, this was going to be taught by Professor Smith and now it's Professor Jones, everyone knows how boring he is and I am going to fall asleep," Shope said, quoting an imaginary student. "Logic and experience would suggest these are not contractual."
But the students' attorney, W. Clifton Holmes of The Holmes Law Group Ltd., argued the potential for far-fetched results occurs by interpreting the agreement the way Northeastern wanted. The school could, he said, change a class from calculus to woodworking without breaching the agreement.
"They are saying educational services are words they can define at a time of their choosing, in any way they choose," Holmes said.
The suit, filed in May, is brought by Northeastern undergraduate and graduate students who claim they lost out on valuable in-person instruction and the use of the school's facilities when the pandemic forced everything online.
"It's called the semester schedule, not the two weeks schedule or the one month schedule," Holmes said Thursday. "Reasonable students would infer when there is a classroom format for that course, they would understand that would be for the entire semester, not just one day or two or three."
Judge Stearns wondered how the value of in-person learning might be different from remote learning, should the students establish a breach of contract. Holmes cited Princeton University, The George Washington University and Georgetown University, each of which lowered tuition by 10% for the fall semester after sending students home in the spring.
Some frustrated Northeastern students said they hoped for a 50% discount, and discovery and expert testimony would likely produce a damages assessment somewhere between those two numbers, Holmes argued.
Holmes also said Northeastern has not hesitated to turn to litigation when students fall short on their promise to pay the full price owed for their education.
"They have very vigorously gone to the courts when they have fallen behind on tuition," he said.
Judge Stearns took the motion to dismiss under advisement.
Northeastern's Cambridge, Massachusetts, neighbor, Harvard University, is facing a similar suit brought by disgruntled students seeking a refund for online learning. In October, those students pushed back against Harvard's dismissal bid, arguing that while the decision to shift to an online-only learning format during the health crisis is understandable, the failure to reimburse tuition to students who expected the in-person Harvard experience is not.
A hearing on that motion has yet to be scheduled.
The Northeastern students are represented by Gary M. Klinger and Gary E. Mason of Mason Lietz & Klinger LLP, by W. Clifton Holmes of The Holmes Law Group Ltd. and by Douglas F. Hartman of Hartman Law PC.
Northeastern University is represented by Daniel J. Cloherty, Rebecca M. O'Brien and Victoria L. Steinberg of Todd & Weld LLP and by John A. Shope and Rachel C. Hutchinson of Foley Hoag LLP.
The case is Chong et al. v. Northeastern University, case number 1:20-cv-10844, in the U.S. District Court for the District of Massachusetts.
--Editing by Alyssa Miller.
For a reprint of this article, please contact reprints@law360.com.
