A federal judge has expelled an attempt by a group of students to sue DePaul University for forcing them to go online for classes during the COVID-19 pandemic, while refusing to refund the tuition and fees the students said they paid to participate in life and attend classes on campus.
The decision, delivered May 7 by U.S. District Judge Matthew F. Kennelly, marked the second, and final time, the court had rejected the students’ lawsuit.
Last June, attorney Carl V. Malmstrom of the firm of Wolf Haldenstein Adler Freeman & Herz, and others with the Chicago firm, and the firm of Bursor & Fisher, of Walnut Creek, Calif., filed a class action complaint in Chicago federal court against DePaul.
Carl Malmstrom
| Wolf Haldenstein
The suit was filed on behalf of named plaintiffs Alhix Oyoque, Enrique Chavez and Emma Sheikh. They sought to expand the action to include potentially 22,000 DePaul students.
In the complaint, the plaintiffs asked the court to order DePaul to refund a portion of tuition and fees they had paid for the 2020 school year, with the expectation that the school year would be completed with in-person learning and other on-campus activities.
However, the students said they were abruptly forced off campus, and made to attend online classes, beginning March 11, 2020, with the onset of the COVID-19 pandemic in Chicago.
The complaint accused DePaul of violating its contract with the students, by failing to provide in-person classes and instruction, and failing to provide the “campus experience” promised by DePaul’s marketing materials, academic catalog and student handbook, among other materials.
The lawsuit was similar to a spate of others filed against colleges and universities in Chicago and elsewhere in the wake of in-person learning restrictions and campus shutdowns imposed in response to the COVID pandemic.
To date, such lawsuits have met with similar fates, with judges finding in favor of the schools.
Judge Kennelly dismissed the lawsuit in February, saying at the time he found the students had no legal claim against the Catholic university. In that ruling, he found DePaul’s promotional materials and other materials provided to students didn’t establish the terms of any contract to be violated.
“… The parties agree that a contractual relationship existed between the plaintiffs and the University,” Kennelly wrote in February. “However, DePaul argues that plaintiffs have not sufficiently alleged that the University had a specific contractual obligation to provide an in-person education. The Court agrees.
“Though the plaintiffs cite often to DePaul's academic catalog, that document does not contain any promises that classes will be held in-person or even on campus.”
At that time, Kennelly dismissed the case without prejudice, allowing the students to amend their complaint and try again to press their case.
But in his May 7 ruling, Kennelly said the students had presented nothing that would alter his previous findings.
He said the new complaint again points unavailingly to “citations to DePaul’s marketing materials,” which “are not ‘concrete promises that could comprise part of a contract between student and university.’
“Instead, the statements are unenforceable expectations,” the judge wrote.
Further, he said the plaintiffs can’t base their lawsuit on statements contained in DePaul’s academic catalog and other university publications.
“Even if viewed in the light most favorable to the plaintiffs, the newly cited language is either aspirational, intended simply to inform students of resources and amenities available to them, or a combination of both,” Kennelly wrote.
He dismissed their lawsuit with prejudice, meaning the plaintiffs can’t refile their complaint. They still would be able to appeal.
DePaul has been represented by attorneys Daniel M. Blouin and Jaime R. Simon, of the firm of Winston & Strawn LLP, of Chicago.