Colleges could be sued over coronavirus dormitory evictions

coronavirus dormitory evictionsJamesDeMers / Pixabay

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

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Students Get Evicted From Their Dormitory Rooms

WASHINGTON, D.C. (March 16, 2020) - Many colleges and universities have evicted students, often on very short notice, from their dormitory rooms due to concerns over the coronavirus, even where there have been no reported or even suspected cases on the campus, and even though the CDC apparently has not recommended it.  As a result, they are being denied convenient on-campus housing for which they have already paid, as well as - in many cases - meals to which they are also entitled under a related college pre-paid meal plan.

Regardless of whether the decision in each university's situation was a wise one for the school to make, colleges and universities are opening themselves up to law suits for the dorm-room rent and pre-paid food for which students have already paid, and/or for the damages which students have suffered and will suffer as a result, suggests public interest law professor John Banzhaf.

Although some students seem pleased with the decision to close dormitories, especially where they live nearby and it is easy and inexpensive for them to return home, many others are apparently very upset and could serve as very willing plaintiffs in a class action law suit by all students from a given college forced to very abruptly abandon rooms for which they had already paid to be able to occupy until the normal end of the school term, says Banzhaf.

Those upset and therefore most likely to be willing to sue include many poor and minority students for whom the costs would be prohibitive, students from other countries who can't return home because they might not be able to return to the U.S., students in whose homes grandparents and other elderly or sickly persons at high risk reside, students whose homes do not have the high-bandwidth WiFi often needed to participate in on-line classes and to do necessary research, students with major disabilities, students who have employment upon which they rely in the vicinity of the college, and many others.

Colleges May Have To Rely On Legal Defenses

Unless the dormitory contract specifically and expressly authorizes the college to arbitrarily evict students prematurely in a situation such as this, colleges would have to rely upon potential legal defenses which are not at all clear, and possibly also contend with state and local laws designed to protect tenants which may establish time limits, require hearings and/or specific eviction proceedings, etc., notes Banzhaf.

In any event, faced with students who may suffer major financial and other hardships, as well as serious disruptions of their lives, balanced against large educational corporation which often have huge endowments, and pay administrators and professors hundreds of thousands - or even millions - of dollars a year, juries are likely to be much more sympathetic to the student plaintiffs than to the very rich educational corporations which are the defendants, predicts Banzhaf.

Some - but apparently only a small percentage of - schools may have a strong defense to legal liability under these circumstances because their dormitory lease agreements seemingly expressly authorize them to close prematurely under situations such as this.

Essential Housing?

For example, Pepperdine's authorizes a "temporary suspension of housing services" in the event of an emergency "or other exigency" - which might cover the current situation.

Others, such as Harvard, have no similar provisions, which may be one reason why Harvard will prorate room and board costs.

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.

Dormitory Evictions Are Not Necessary

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, argues Banzhaf.

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.

Conclusion

Likewise, the doctrine of frustration of purpose - which may apply when a sudden event fundamentally changes the nature of the agreement, and makes one party's performance worthless to the other party - seemingly does not apply since students, even if in-person classes are cancelled and all instruction will be over the Internet, may still have a strong interest in remaining in their dorm rooms;  e.g. because they are gainfully employed in the vicinity, they enjoy access to high-bandwidth WiFi for on-line instruction and research, they cannot safety and reliability return to foreign countries, they have major disabilities, they are relying upon food provided by the school, they want easy access to fellow students for help with projects, homework, and studying in general, and for many other reasons.

So, like many other contracts and commercial arrangements which will be tested - and litigated about - because of the current pandemic, colleges and universities and their agreements to provide pre-paid housing and meals to students will likely involve difficult and novel issues, says Banzhaf.

But given the gross inequalities of bargaining power, growing public antipathy if not anger towards universities - with their multi-million dollar endowments, sky-high pricing. seemingly exorbitant salaries, etc. - and the major burdens sudden evictions will impose on many studying there, student plaintiffs in class action law suits are likely to engender more sympathy from juries than most other plaintiffs, suggests Banzhaf.

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About the Author

JOHN F. BANZHAF
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D. Professor of Public Interest Law George Washington University Law School, FAMRI Dr. William Cahan Distinguished Professor, Fellow, World Technology Network, Founder, Action on Smoking and Health (ASH) 2000 H Street, NW, Wash, DC 20052, USA (202) 994-7229 // (703) 527-8418 http://banzhaf.net/ jbanzhaf@law.gwu.edu

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