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April 15, 2020

Distance Learning and Higher Education: Stemming the Tide of COVID-19 Liability

Confronted with the COVID-19 pandemic, colleges and universities across the country have adapted to the crisis and implemented radical changes to their curriculums in an effort to protect their students, faculty, and staff while continuing to uphold their educational purpose. Nearly all institutions have adopted “distance learning” as the means to continue to serve students through the current semester, with many students returning home after spring break rather than risk the close quarters of the classroom. The landscape has shifted from merely recalling students studying abroad in select countries to rethinking and reimagining education and person-to-person interaction.

Guidance provided to institutions of higher education continues to change. The Department of Education recently issued another guidance document, acknowledging that social distancing may be required for a longer period of time than previously anticipated. To provide flexibility to colleges and universities, the department is allowing broad latitude in the use of distance-learning modalities, including suspending the requirement for the typical department approval process as well as providing similar flexibility for accrediting agencies to waive distance-education review requirements.

Universities and colleges may also enter into consortium agreements with other Title IV institutions so students can complete courses at other institutions but allow their home institution to award credit. The department’s guidance also addresses other means of student accommodation, federal student aid program information, and the return of Title IV funds and reporting requirements. In addition, the department created a website that collects information and resources for schools and school personnel, including institutions of higher education.

Despite the best efforts of colleges and universities to protect their student populations by implementing a distance-learning approach, potential liability has arisen for these institutions for adhering to the guidance of national, state, and local officials. Plaintiffs’ class action attorneys have filed lawsuits on behalf of students who ostensibly believe distance learning is not rising to the level of in-class, in-person, on-campus interactions.

Rickenbacker v. Drexel University, Case No. 2:20-cv-1358-BHH and Dixon v. University of Miami, Case No. 2:20-cv-1348-BHH were both filed in the US District Court for the District of South Carolina on April 8 by the same law firm. These putative class action lawsuits seek a refund of tuition fees and other costs for the 2020 spring semester and allege the plaintiffs paid for services—on-campus experience, access to university facilities, participation in extracurricular activities, and a hands-on learning experience, among others—that were not received by the class members.

Another lawsuit filed on April 13, Student A v. Liberty University, Inc. d/b/a Liberty University, Case No. 6:20-cv-00023-NKM makes a point of not criticizing the move to “online learning” but seeks a similar return of fees paid for on-campus activities to Liberty University, which has kept its campus “open” during the pandemic but has effectively shuttered or limited in-person, on-campus interactions.

Colleges and universities may face similar lawsuits from disappointed students and should proceed with deliberate, documented decision making to mitigate those risks. Adherence to the laws, guidelines, and recommendations of national, state, and local authorities remains the best course of practice. Colleges and universities should continue to document their decisions and ensure these decisions align with institutional policies in place or enact emergency policies if needed.

If you have any questions regarding the content of this alert, please contact Gabrielle Figueroa, associate, at gfigueroa@barclaydamon.com; David Burch, partner, at dburch@barclaydamon.com; or another member of the firm’s Higher Education Team.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. You can reach our COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.

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