Did colleges breach an implied contract right in denying classroom instruction during COVID?

When COVID-19 shut down the world in spring 2020, colleges and universities began on-line instruction. Students the sued these institutions for breach of contract, claiming the remote instruction, instead of the in-person instruction, denied them their money's worth, or that the remote instruction was not consistent with promises made by the college when the students paid their tuition. These cases have been kicking around for a few years now. The Second Circuit now determines that the State Court of Appeals needs to issue a definitive ruling on these issues, and that is where this case is now going.

The case is Beck v. Manhattan College, issued on April 29. Our issue: can the students bring an implied contract claim in these circumstances? Surely online instruction is not the same as classroom instruction. The problem is the cases are all over the place on this issue.

The Second Circuit, for example, held in Rynasko v. Albany College of Pharmacy, 633 F.3d 81 (2d Cir. 2021), that when the college markets itself as a great place to learn on campus and promotes the benefits of in-person instruction, the college is creating an implied contract that the students will enjoy those benefits. Of course, the worldwide pandemic made those benefits impossible. But the state courts have ruled differently. The Second and Fourth Departments have held in COVID-19 cases that a similar breach of contract claim cannot lie, as the college's advertisements and representations about the benefits of on-campus instruction were too vague to create an implied contract right. The Fourth Department has even said that Rynasko was wrongly decided. 

The Second Circuit has authority to certify a state law issue to the New York Court of Appeals for a definitive ruling on the issue. When the State Court of Appeals resolves the disputed legal issue, the case returns to the Second Circuit to apply the new ruling to the facts of the federal case. That will happen here. 

In certifying the case for New York's highest court, the Court of Appeals notes, "the New York Court of Appeals has not yet resolved whether New York law requires a specific promise to provide exclusively in-person learning as a prerequisite to the formation of an implied contract between a university and its students with respect to tuition payments. The Second Circuit (Sullivan, Nathan and Kahn) further states that New York has an important interest "in determining the allocation of losses arising from the COVID-19 pandemic between a student and a university and in more broadly setting forth guidance for whether and when courts should find an implied contract between students and universities."