Judge greenlights COVID shutdown class-action suit against university

A federal judge is allowing to proceed a class-action suit by University of Delaware students against the school for abruptly moving their classes online early in the COVID-19 pandemic, setting a worrisome precedent for other colleges that took similar measures.

The suit seeks damages and restitution from the school.

3rd U.S. Circuit Court of Appeals Judge Stephanos Bibas, sitting by designation as a trial judge, knocked down every argument by the university, including that the plaintiffs don't have standing and a class is not "ascertainable."

The plaintiffs are claiming breach of implied contract and unjust enrichment.

The students argue that "what they got was worth less than what they paid for" in tuition when in-person classes were banned, Bibas wrote in a Friday ruling. They seek to certify a class of all undergraduates who paid tuition in the spring 2020 semester: at least 9,000 out of 17,000 total students. (Bibas says the university took in $160 million that semester.)

The university clearly caused "injury in fact" by "moving classes online. And I could redress that injury by awarding damages or ordering restitution," Bibas wrote. The class can be certified because "enrollment and payment are verifiable facts," and the university can track who paid "some amount of tuition" that semester.

It's not credible for the university to claim "it is impossible to know who actually paid tuition" because the sought class excludes students with "full rides," and even students who "paid with money from outside sources ... were parties to a contract" it allegedly broke, he said.

A similar class-action suit against Brigham Young University was recently dismissed because the sought class was too broad to be ascertainable, Bibas wrote.

Beyond "judicial economy," Bibas approved the class because the plaintiffs are "students or recent college grads who likely lack the money to carry on this litigation alone" and many are "likely scattering across the country" having already graduated.

Perhaps most importantly, the university is wrong that the litigation involves "individualized inquiries about the students," the judge wrote.

They all have "indisputably common" questions: "If there was a contract for in-person classes, did U. Delaware breach it by going online? Was U. Delaware’s performance impossible?"

It is "false" for the university to claim the plaintiffs didn't pay tuition just because they didn't all front the money themselves, according to Bibas. It is sufficient to pay "through either loans or cash from their parents."

It's also irrelevant to the claims that the university never explicitly promised in-person classes, or that lead plaintiff Hannah Russo "left campus after someone tested positive for COVID there," since she testified she would have come back for in-person classes, the ruling says.

The university doesn't explain why the students' claims are "atypical" due to their out-of-state status and differing amounts of CARES Act money they received, Bibas wrote. "The class naturally includes only students who attended in person" and full- or part-time status "does not affect the school’s liability."

It is simply wrong that "no plaintiff could ever be typical because liability must be determined on a student-by-student basis," the judge said.

"Since its founding, U. Delaware had always held classes in person for all students" except for those in "separate online programs," according to Bibas.

The students could show that all in-person enrolled students attended classes for the first half of the semester: "Such major actions are enough to show an implied contractual term," whereas the university emphasized "minor individualized questions" that "would not move the needle."

Bibas said he anticipates "looking at evidence of how U. Delaware advertised itself and whether students were attending classes in person before the pandemic" to "decide whether holding classes in person was part of the parties’ bargain."

Unjust enrichment may depend on the implied contract claim, the judge said. Since the university will likely argue "holding in-person classes was impossible," the students who paid tuition may have a claim for restitution as the parties "whose performance is more advanced" in the contract.

"If U. Delaware got a greater benefit than the students, then it was probably unjust for the school to keep the students’ money," but "if an online education in spring 2020 was worth full tuition, then there was no net enrichment," Bibas wrote. Any individualized questions, such as how much tuition each student paid, are "readily resolved."

He was bemused by the school's argument that the value of education is different for every student. "U. Delaware protests that some students got better grades in spring 2020 than any other semester," but the "fair market value" of their education wouldn't differ based on their grades for either in-person or online classes, Bibas wrote.

"Nor does it vary by how many clubs the student joins, how often the student uses the career services office, or how many times the student ends up in the university health center. These services are available to all students for the same fixed price," the ruling says.