Abstract
An overview of the key topics faced by campus administrators with citations to noteworthy cases, statutes, regulations, and additional sources.
Overview
Review recent rulings concerning free speech, breach of contract, and accommodations arising from the COVID‐19 pandemic.
Key rulings
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Florida Southern College transitioned its in‐person classes to an online format in March 2020 due to the pandemic. The plaintiff, an FSC student, filed a suit seeking a partial tuition refund for FSC's alleged breach of contract. She claimed she had a contract with FSC requiring her to pay tuition and fees in exchange for in‐person educational services. The district court judge stated the university's academic catalog could plausibly constitute a contract for in‐person education since it stated that class attendance and participation were “essential college requirements.” Accordingly, the judge allowed the plaintiff's breach‐of‐contract claim to continue. Salerno, et al. v. Florida Southern College, No. 8:20‐cv‐1494‐30 (M.D. Fla. 09/16/20).
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The plaintiff, a University of the Pacific student, filed a suit seeking a partial tuition refund after the university switched to online courses due to the pandemic. The plaintiff claimed UOP breached promises contained on its website and in written publications concerning the “in‐person nature” of its courses. The university filed a motion to dismiss, arguing the plaintiff was attempting to state an “educational malpractice” claim. The district court judge stated the claim didn't involve educational malpractice since ruling on the issues wouldn't require analysis of the quality of instructors and curriculum. The judge refused to dismiss the claim, ruling it was reasonable for the plaintiff to expect his tuition payment entitled him to in‐person learning. Saroya v. University of the Pacific, No. 5:20‐cv‐03196 (N.D. Cal. 11/27/20).
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The facilities operations director at the Indiana University of Pennsylvania sent a university‐wide email blast about an employee's spouse's recent diagnosis of COVID‐19. The president promptly fired the director. In response, the director filed a suit against the president claiming violations of the First Amendment. The district court judge held the plaintiff's email was protected by the First Amendment. The judge explained it wasn't part of the plaintiff's job to alert personnel about contagious diseases. Accordingly, he was speaking as a private citizen about a matter of public concern: the pandemic. The judge refused to dismiss the case. Woolslayer v. Driscoll, No. 20‐573 (W.D. Pa. 10/08/20).
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American University of Health Sciences transitioned to virtual instruction in March 2020 due to the COVID‐19 pandemic. The next month, the university approved the complainant for testing accommodations. The complainant experienced problems accessing her test through the university's new remote testing system, which diminished her time to take the exam. The university denied the complainant's subsequent request to defer the implementation of the testing system and neglected to provide her with alternatives. OCR found that the complainant may not have received extra time on exams due to her technical issues with its online tests. OCR expressed concern that the university didn't engage in an interactive process with the complainant after its transition to virtual learning. The university entered into a resolution agreement. Letter re: American University of Health Sciences (OCR 10/20/20).
WHAT YOU SHOULD KNOW.
A student and a private university have a contractual relationship defined by the language in the university's various publications.
It's reasonable for a student to expect an entitlement to in‐person educational services allegedly promised in the university's publications. A transition to online courses may provide a cause of action for partial tuition refunds.
An employee's speech at a post‐secondary institution has First Amendment protections if they're speaking as a private citizen about a matter of public concern — rather than speaking pursuant to their official duties.
Postsecondary institutions must engage in an interactive process with students concerning accommodations requests arising from transitions to virtual learning, especially the implementation of online testing.