Another COVID Case: McKendree University

Having learned from the work of Max Schanzenbach (below left) and Kim Yuracko, What Is the University-Student Contract, which we blogged about last week, it is interesting to look at new COVID cases through the lens they provide.  The Seventh Circuit’s decision in Delisle v. McKendree University provides an opportunity to do so.

The court references decisions involving Loyola and the Illinois Institute of Technology.  In both cases, the court recognized that “a university’s course catalogs, class registration system, and pre-pandemic practices—can suffice under Illinois law to allege the existence of an implied contract between a university and its students for in-person instruction and extracurricular activities.” 

Under Illinois law, students have an enforceable contractual relationship with their universities, even if the contract is implied through conduct.  Such claims are distinct from educational malpractice claims, which Illinois does not recognize.  Universities may breach their contractual obligations to students by offering only on-line learning when they have promised an in-person experience.  Cost differentials in tuition for online courses versus in-person courses is probative, but not dispositive.

Readers may recall that Professors Schanzenbach (left) and Yuracko (right) argue that the human capital model provides the best understanding of the contract between the universities and their students.  Under this model, universities offer students the opportunity to “acquire knowledge and complex skills in a residential environment.”   in Delisle, the complaint provided screenshots from McKendree’s website on which the following language could be found:

As a Bearcat, you’ll join a vibrant community, make valuable connections, and serve others in the world around you. You’ll develop strong leadership skills, learn from expert faculty, and attain the personalized education you deserve.

The inclusive spirit and tight community ensure fun and exciting things to do on campus, including athletic events, campus organizations, fine arts events, worship services, and much more! The opportunity to interact outside the classroom is greatly appreciated by our students, faculty and staff.

The plaintiffs’ allegations seem consistent with the human capital model.  In addition, the university boasted separate graduate, undergraduate, and online programs.  However, the complaint does not allege a price differential between online and in-person educational programs at McKendree.

None of this suffices to create an express agreement, but the Seventh Circuit found that this language, coupled with the university’s past pattern of practice, suffices to create an allegation of an implied agreement.  While the allegations of an implied contract were not as compelling as in other cases, they sufficed to survive summary judgment.  Plaintiffs’ unjust enrichment was properly dismissed because the complaint incorporated allegations of a contract into that claim, which is not permitted under Illinois law.  However, that is a pleading error that plaintiffs should be permitted to fix through an amended complaint.  

As Professors Schwanzenbach and Yuracko note, successfully alleging a contract is only the first step in the litigation.  The university may have a valid defense, and the plaintiffs will have the burden of proving damages.  But having survived the first step, the settlement value of their claim is greatly enhanced.