Cases & Developments

Opinion and order reversing and remanding the denial of Defendant’s Motion to Dismiss. Plaintiff, a student who was enrolled at Florida International University (FIU) in 2020, on behalf of a putative class, brought contract and unjust enrichment claims against the Board of Trustees after FIU ceased in-person instruction and closed campus facilities due to the coronavirus pandemic. FIU sought dismissal, claiming that sovereign immunity barred the action since plaintiff did not produce an express, written contract. The appellate court cited to binding precedent in the jurisdiction to determine that an express contract could not be derived from student invoices and financial obligation agreements listing the relevant fees or other enabling statutes and unspecified documents. Similarly, an itemized list of paid charges did not amount to an express contract. Without an express contract, plaintiff’s claim could not overcome FIU’s sovereign immunity claim. The court also certified a modified question to the Florida Supreme Court on “whether sovereign immunity bars a breach of contract claim against a state university based on the university’s failure to provide its students with access to on campus services and facilities, notwithstanding the absence of an express, written contract to provide such services and facilities in a specific time, manner, or place[.]” 

Memorandum and order denying Plaintiffs’ Motion for Class Certification. Plaintiffs, two students at Brandeis University during the Spring 2020 semester, on behalf of themselves and a putative class, brought contract, unjust enrichment, and conversion claims against Brandeis after it ceased in-person instruction and closed campus facilities due to the coronavirus pandemic. The district court denied certification of plaintiffs’ proposed class relating to tuition and the class relating to the studio fee charged by the University. In denying certification for the tuition class, the court held that plaintiffs could not establish the actual value of the post-covid education that students received during the Spring 2020 semester and therefore could not satisfy the predominance requirement because plaintiffs’ damages model did not account for (1) the differences between the asynchronous, online courses offered at the graduate school and the online, post-covid courses that were typically offered in real-time and taken by class members, (2) how covid-19 may have affected the value of online education, and (3) the variation in scholarships, grants, and aid provided for different programs. The court denied certification for the studio fee class and held that the existence of damages depends on the individual facts concerning each class member. 

Opinion & Order granting Defendant’s Motion for Summary Judgment.  Plaintiffs, two students at Oregon State University during Winter, Spring, and Fall quarters of 2020, on behalf of themselves and a putative class, brought contract claims against the University after it ceased in-person instruction and closed campus facilities due to the coronavirus epidemic. Assuming that plaintiffs had a valid contract with the University with terms including in-person instruction and access to campus facilities, the court nevertheless granted summary judgment to the University for two reasons. First, the court held that the unforeseeable pandemic and the Governor’s Executive Orders declaring a state of emergency and prohibiting in-person operations rendered performance by the University impossible and thereby discharged the duty to provide in-person instruction and access to campus facilities. Second, the court also held that (1) plaintiffs manifested their assent to modified contractual terms by paying tuition and attending classes for the Spring 2020 quarter, which began days after the Executive Orders and the University’s announcement of the shift to remote instruction, and (2) this modification was supported by new consideration in the form of “the safety benefits of a remote education during a global pandemic as well as an extension of the deadline to withdraw from classes with a full tuition refund.”   

Updated guidance from the Equal Employment Opportunity Commission (EEOC) on COVID-19 and the Americans with Disabilities Act, the Rehabilitation Act, and Other EEO Laws. With the end of the COVID-19 Public Health Emergency, the EEOC updated 30 questions in its Technical Assistance Questions and Answers Guidance including questions on disability-related inquiries; confidentiality of medical information; hiring and onboarding; disability and reasonable accommodation; pandemic-related harassment due to national origin, race, or other protected characteristics; return to work; vaccinations; and the definition of “disability” under the ADA/Rehabilitation Act as it relates to COVID-19 and Long COVID. 

Order and Judgment affirming denial of class certification. Plaintiff, a student at Brigham Young University (BYU) in March 2020, on behalf of himself and a putative class, brought contract and unjust enrichment claims against BYU after it ceased in-person instruction and closed campus facilities due to the coronavirus pandemic. The district court denied certification of plaintiff’s proposed class of “all persons who paid tuition and/or the Mandatory Fees to attend in-person class(es) during the Winter 2020 term/semester affected by COVID-19 at BYU and had their class(es) moved to online only learning.” The Sixth Circuit affirmed, finding no error in the holding that the class was unascertainable because third parties might have paid tuition for many members. Plaintiff, however, contended that the class could be ascertained by looking to the Financial Responsibility Declaration (FRD) students signed upon registration. The court held, however, that because even students who registered only for online classes signed the FRD, it was administratively unfeasible for the court to inquire individually as to who had registered for in-person as opposed to online classes.  

U.S. Department of Education Notice Seeking No-Cost Extension for Higher Education Emergency Relief Fund (HEERF) Funds. The project period for most HEERF grants will end on June 30, 2023, and any unliquidated funds must be returned to the U.S. Treasury. With this Notice of Information Collection Request, the Department invites public comment on its proposed process to permit HEERF grantees to request extension of the project period beyond June 30, 2023, if they “have a thought-out plan for using their remaining HEERF grant funds to address the lingering effects and impacts related to COVID-19.” Though ED sought emergency approval from the Office of Management and Budget (OMB) by May 3, 2023, interested persons may submit comments on or before June 30, 2023.