Does College Owe You A Refund?

It’s (mostly) a joke when it’s suggested that a person who says something particularly dumb should call their law school and demand a refund. But for Mark Shaffer, it’s a cause of action.

When my daughter was deciding where to go to college, we were persuaded by George Washington University’s promises of an extraordinary on-campus experience. The school’s recruiting materials tout a dazzling array of opportunities — to engage one-on-one with renowned faculty, join more than 450 clubs and organizations, or explore passions in high-tech labs, vast libraries and state-of-the-art study spaces. The university promises that living at the school opens the door to “world-class” internships, lifelong friendships with neighbors and roommates, and the chance to “become a part of the nation’s capital and make a difference in it every day.” In exchange, GWU expects around $30,000 per semester.

There are two components to the college experience. One is the education. The other is the experience. Whether the claim that his daughter was induced by George Washington University’s college porn seems like a bit of post hoc rationalization. All schools sell themselves as making whites whiter. Puffery isn’t a new concept, and, let’s be real, nobody is so naive as to believe all the hype.

Yet, Shaffer has a very real point as to both: part of what you pay for is the college experience. More importantly, you’re mostly paying for a good education, and despite the efforts to put lipstick on distance learning, it’s not remotely as good as classroom learning.

As college campuses across the country have shut down to slow the spread of the novel coronavirus, most schools, including GWU, have offered only online classes since mid-March. The reason for the shift is not the schools’ fault. But this remote education is nowhere near the caliber of the on-campus experience students were promised. For this reason, I and other GWU parents have requested a partial refund of this semester’s tuition and fees.

Here’s where it gets sticky, given that the law of contract gives rise to a reasonable view that GWU (and, to be fair, every other college) has failed to provide its end of the bargain, an in-person education and educational experience. Of course, they didn’t breach the contract because they’re dishonorable, but for a damn good reason.

Consider the flip side, would Shaffer have wanted, even allowed, his daughter to remain on campus to “enjoy” the benefit of her bargain for an full-blown in-person education? Would his daughter getting infected, ill, maybe worse, in order to GWU to fulfill its obligations under the contract have been the more honorable path to take?

Is the COVID pandemic a force majeure? If so, it would relieve both parties from their contract, meaning that while the college would be freed from its agreement to provide a quality education, Shaffer would similarly be relieved of his duty to pay for an education that wasn’t received.

But the colleges don’t admit that online education is anything but glorious.

The university, for its part, maintains that, because they “continue to deliver quality education, the tuition charged remains the same regardless of format.” As I hope to prove through my case, this is demonstrably false. Many professors are completely new to online teaching, thrust into this challenging format with no preparation. Students’ conversations with teachers are necessarily limited; peer interaction is difficult; study groups are unwieldy. Many of the resources in campus libraries are not available online. Art classes, music classes and all group-discussion classes are of diminished quality. Laboratory work is impossible.

Few outside the campus marketing department would seriously question this. Even if it’s argued that it hasn’t been as bad as it could have been, and profs are trying their best to deliver a decent education, it’s not the same. Or more to the point, it’s not the education agreed upon.

But what about the burden to colleges? Wells College in Aurora, New York, is on the verge of bankruptcy. Colleges have profs to pay and a gaggle of administrators with payments due on their Teslas. They need to keep the revenues flowing to avoid tapping the endowment, even to the point of seeking immunity from liability so they can reopen in the fall and bring students back to their dorm petri dishes. Nobody sends their child to college to die of disease, but then people aren’t going to be as thrilled to pay the outrageous tuition otherwise. Plus room and board are profit centers for colleges.

Of course, GWU and other universities have suffered economically as a result of the coronavirus. But they can hardly claim poverty. GWU has a $1.8 billion endowment. It is one of the largest landowners in the District of Columbia, with real estate assets in the hundreds of millions of dollars. GWU lists its total assets as exceeding $4.7 billion. The university can certainly afford a partial refund of the tuition money that every parent and student paid for the 2020 spring semester.

Not every college relies almost entirely on current revenue for its continued existence, and many have some big bucks squirreled away in investments to generate capital gains for a new building, that high-priced academic, even a rainy day. But is this pandemic that proverbial rainy day?

Perhaps even more important than the accounting is the principle at stake. I work at a construction company. We are trying hard to hold on to our employees even though the covid-19 crisis has slashed our revenue. But we are not expecting our clients to float us by paying for promised services and products that we now cannot deliver. If we built only half a project but still demanded full payment, we’d be sued — as we should be. Instead, we are doing what we can to meet customers’ needs, and, when we cannot, we are providing discounts and refunds. This is the law; this is how business is supposed to be done.

Is a college education the same as putting up a building? Quantifying the value of in-person v. online education isn’t easy, particularly when it wasn’t because one party to the contract deliberately breaching its obligations because it was being a scoundrel, but doing what was best for its students. Then again, breach of contract isn’t about a moral failing, but a business transaction. The reason for the breach may be entirely reasonable, even laudable, but a breach is still a breach. It’s just a matter of who gets to keep the money.