Montana State University is the flagship campus in Bozeman. (Photo provided by MSU.)
Anthony Cordero couldn’t go to the library last year at Montana State University in Bozeman, and he had to take his courses online. But Cordero, enrolled at MSU last spring, wasn’t offered a partial refund for the tuition and fees he paid when the flagship shut down in-person classes and activities after the pandemic hit.
Earlier this year, Cordero filed a possible class action lawsuit against MSU asking for reimbursement on behalf of himself and other students, and it’s one of some 300 similar claims that arose against universities after COVID-19 threw traditional classroom learning out the window, according to Inside Higher Ed.
“Most of the courts have allowed the claims to go forward, including the court in the case of University of Washington,” said Steve Berman, managing partner at Hagens Berman, a law firm that has filed such lawsuits, in an email. “The basic claim is there was a contract express or implied that education would be on campus, and the school breached that (agreement).”
The May 6 legal analysis by Inside Higher Ed notes judges have dismissed many cases, but “dozens of other courts” have allowed lawsuits to go to trial, and a couple of colleges have settled to the tune of millions.
In Montana, an amended complaint names MSU President Waded Cruzado as a defendant in addition to the university, the original defendant. This week, MSU had not yet responded to the lawsuit in court, and in an email, an MSU spokesperson said the campus does not comment on pending litigation.
In an email, Adrian Miller, a lawyer representing Cordero, said interest is high in the case, which the plaintiff hopes will be certified as a class action lawsuit. She declined to estimate a number, but Miller, with Sullivan Miller Law in Billings, said numerous people have reached out to the legal team about their rights and the nature of the lawsuit.
“I cannot disclose the nature of those communications for attorney-client ethics rules, but at this stage, it is safe to say that there are many people that feel wronged in having paid the full amount of tuition and full amount of fees,” Miller said.
She said the team is confident the court will grant class action status so all students at MSU can be involved; the lawsuit estimates some 15,000 undergraduates at MSU. It lists tuition at MSU for an average semester at $3,685 for a Montana undergraduate student, and $13,700 for an out-of-state student, including mandatory fees.
In response to a question about whether students from other Montana University System campuses might be part of the class, Miller said the plaintiff wants to help as many people as possible: “Our goal and the goal of Mr. Cordero is to help as many students recover under Montana law for the services they paid for but did not receive.”
Not all students feel wronged by the flagship, though. In a statement, Norris Blossom, president of the Associated Students of Montana State University, said last year was unusual for both students and faculty.
“We were in a global pandemic, which certainly restricted the university in some methods of traditional education,” said Blossom, who noted the statement was personal and not on behalf of ASMSU. “However, MSU did as good of a job as possible given the circumstances and resource limitations. The course of action taken illustrates MSU’s commitment to prioritizing student health.”
A judge in Florida noted the same unusual circumstance a pandemic creates, according to a story posted on www.law.com in October. The story noted judges were refusing to dismiss most of the breach of contract claims.
“This case is novel in the sense that there is no legal precedent involving a pandemic’s impact on a school’s promise to provide in-person learning when doing so would be unsafe and/or against government mandates,” wrote Judge James Moody of the U.S. District Court for the Middle District of Florida in one case. “And so, like the ripple in a pond after one throws a stone, the legal system is now feeling COVID-19’s havoc with the current wave of class action lawsuits that seek tuition reimbursement related to forced online tutelage.”
The Montana lawsuit doesn’t contest that MSU continued to provide an education for students or wanted to keep them safe. However, it does argue the cost of offering online courses is “significantly lower” than the overhead needed for providing classes and services in person on campus, and it argues the result is unfair: “MSU has been unjustly enriched by plaintiff’s payment of tuition and fees.”
“This is sort of like you purchase a first-class ticket to fly across the country, and the flight books up, and the airline forces you to sit in economy,” Miller said in the email. “Sure, you got to fly across the country, but you didn’t get what you paid for — because you were crammed in some small seat in the back of a plane with no leg room. Wouldn’t you want a refund in the difference between your $500 first class ticket and your $75 super saver economy ticket? That’s what we are asking for here.”
The recent legal analysis on Inside Higher Ed noted it could be difficult to prove that the quality of education a student received was lower, so tuition reimbursements may be a hard battle to win. The story also said plaintiffs arguing a breach of contract will need to show evidence a campus explicitly promised courses in person.
In its breach of contract argument, the complaint from Cordero points to language on MSU’s website, catalogs and other materials available “promising in-person instruction, campus facilities, services and resources,” and it notes those items became part of the agreement between the student and university. Yet the lawsuit said from March 23 to August 17, 2020, MSU held no in person classes.
“In MSU’s ‘Welcome to MSU’ age, the school promises that ‘Students learn through hands-on research and creative experiences, engage with community and service learning projects and make discoveries with the guidance of expert professors,’” stated the lawsuit in one of many such examples.
The lawsuit requests Cordero and other members of the class receive damages including but not limited to tuition refunds and fee refunds. “The online classes provided by MSU are objectively different from and less valuable than the on-campus classes for which the parties entered into an implied contract,” the lawsuit said.
Miller said the team hopes the court will quickly grant the case class action status, and she said the rules of civil procedure call for courts to rule on that portion of a case fairly early in the process.
“However, the exact timing will depend on how defendants answer the complaint,” she said in the email. “If they file a motion to dismiss, then the court will likely rule on that motion first. As we’ve seen in motions in other cases across the country, including U. of Michigan, Ohio State, Brigham Young, and Indiana, these motions to dismiss are usually denied. But we expect MSU to raise their defenses first.”
Michael Tompkins of Leeds Brown Law also is representing Cordero, and Miller said she and Tompkins went to law school together. She said her firm understands Montana law, and Leeds Brown is “one of the top law firms advocating for students across the country as they seek tuition and fee refunds.”
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