By Brian Dowling

Law360 (June 23, 2021, 6:21 PM EDT) -- Suffolk University can't hide behind the principle of academic freedom to escape a pair of suits by students seeking partial tuition refunds after the pandemic shifted classes online, a Massachusetts federal judge said Wednesday.

U.S. District Judge William G. Young said his decision was in line with at least eight others involving efforts to recover tuition money under Massachusetts law due to the pandemic. In those cases, the courts rejected the argument that contract claims are just "creatively labeled" educational malpractice claims that impinge on the schools' academic freedom.

The students behind the two putative class actions — Julia Durbeck in one case, and Mary Ann Foti and Anna Francesca Foti in the other — never claimed Suffolk provided a substandard education in the Spring 2020 semester, the judge said.

"Plaintiffs allege that Suffolk promised one thing — an in-person experience for the entire Spring 2020 semester — but delivered another," Judge Young said.

Although the claims themselves appear to avoid offending the public policy goals of having courts step in to weigh the quality of the education offered, Judge Young said determining damages could stray into that territory, as Suffolk had warned. 

Suffolk contended that if plaintiffs want to be paid the difference between the fair-market rate for online education, which they received, and the in-person rate that they paid, it necessarily involves subjective value judgments that raise the specter of educational malpractice.

Judge Young said that might be so, but it isn't enough to dismiss the case now.

Pandemic aside, Suffolk offered a completely online degree track at reduced rates, according to the suits. Judge Young indicated that if those rates were used to benchmark the value of the plaintiffs' remote education, then the task of determining damages "might require only basic arithmetic rather than subjective determinations of educational quality."

The proposed class actions were filed in May 2020 and August 2020, both claiming Suffolk violated its contracts with students by moving to remote learning while retaining their tuitions, which were prepaid on the understanding that the education would be in-person and on campus. The Durbeck case seeks to represent Suffolk's 9,000 enrolled students.

In arguments over the university's dismissal motion, Durbeck's counsel Roy T. Willey IV of the Anastopoulo Law Firm LLC told Young he and the judge "would reasonably expect a refund for the difference between a prime rib and hamburger," if the richer cut was what was ordered.

Willey told Law360 in a statement Wednesday he and his client are "thankful that Judge Young saw through Suffolk's attempts to force its students to bear the full financial brunt of the pandemic, while itself benefiting from millions in CARES Act funding."

"It is remarkable that an institution that has been offering on-campus, in-person education and services for more than a century would take the position that it had never promised its current students the very on-campus, in-person education and services it has built its reputation on," Willey said. "We look forward to continuing to seek justice for the students and their families impacted by the pandemic."

Representatives for Suffolk and the Fotis were not immediately available for comment on Wednesday. 

Durbeck is represented by Roy T. Willey IV and Eric M. Poulin of the Anastopoulo Law Firm LLC and Richard E. Levine.

The Fotis are represented by David Pastor of Pastor Law Office LLP. 

Suffolk University is represented by Kathleen M. Sullivan, Shon Morgan, Crystal Nix-Hines, Marina Lev, Harvey Wolkoff and Phillip Syers of Quinn Emanuel Urquhart & Sullivan LLP.

The cases are Durbeck v. Suffolk University, case number 1:20-cv-10985, and Foti v. Suffolk University, case number 1:20-cv-11581, in the U.S. District Court for the District of Massachusetts.

--Editing by Janice Carter Brown.

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