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Sunday, May 17, 2020

Online education on trial?

This op-ed describes a lawsuit against George Washington by the lawyer/parent of a GW student, alleging breach of contract because the claim that the school continues to deliver quality education regardless of formate is "demonstrably false."

When we went underground in March, there was some discussion of whether schools could succeed with a force majeure defense. The op-ed raised a different question for me: Will resolution of this claim require a court or jury to decide whether online education is comparable to in-person education and how comparable must it be? And will a court be willing (or willing to allow a jury) to resolve that policy question as a factual matter?

Posted by Howard Wasserman on May 17, 2020 at 05:44 PM in Civil Procedure, Howard Wasserman, Life of Law Schools, Teaching Law | Permalink


You can't compare the quality of online education to in-person education. Kids need an every minute teachers attention.

Posted by: Bruno Araujo | May 29, 2020 7:03:04 AM

This piece, based in part on my research about a related but somewhat different legal issue, concluded that colleges and universities could very well be held liable to students who were not able to remain in their dormitories. Many universities have now provided partial refunds. SEE:

Coronavirus-Related Dorm Evictions Likely to Spur Class-action Lawsuits, Law Professor Warns

A more detailed legal analysis,including a brief discussion of force majeure, is included in:

Colleges Could Be Sued Over Coronavirus Dormitory Evictions;
Settling Law Suits Might Be Better Than Risking Class Action Verdicts

Many contracts apparently have a standard cause which permits them to expel students from dormitories if there is a force majeure. but that may not help unless this legal term is expressly defined to include a pandemic, as, for example, Stanford's does.

Otherwise, such a boiler-plate provision may not help, because force majeure usually refers only to unforeseeable circumstances that prevent (or at least make it very difficult for) a party to a contract from fulfilling its commitment. Examples might include hurricanes, tornadoes, floods, or earthquakes which make dormitory buildings clearly uninhabitable.

But, putting aside whether the current coronavirus pandemic was truly unforeseeable - since it arguably should have been known for months to professors of public health, epidemiology, etc,. - the current situation does not necessary require students to leave dormitories.

Indeed, the very fact that apartment buildings largely occupied by students, single-room-occupancy buildings, buildings housing senior citizens (who are at far greater risk than young healthy students), assisted care residential buildings, and even nursing homes have not forced their tenants to leave proves that such evictions aren't really necessary, and might not even be desirable.

Universities might also seek to rely upon the doctrine of contract frustration, but that applies only when a contract is incapable of being performed due to an unforeseen event, which seemingly does not apply here. Even if it did, the doctrine would not absolve the university of all liability because the complex law of restitution would then apply.

The legal doctrine of commercial impracticability may excuse performance, but only where its non-occurrence was assumed by both parties - which does not seem to be the situation here regarding students and their schools.

Posted by: LawProf John Banzhaf | May 18, 2020 7:07:30 PM

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