By Hailey Konnath

Law360 (March 1, 2021, 10:26 PM EST) -- A New York federal judge has whittled down a pair of proposed class actions demanding tuition and fee reimbursements from Columbia University and Pace University in the wake of coronavirus-spurred closures, ruling Friday the students can only pursue claims that identify specific contractual promises their schools allegedly broke.

The New York schools closed their campuses, constructively evicted students and transitioned all classes online at the beginning of the pandemic, the students claim, and they then refused to provide adequate reimbursement for tuition, fees and other costs for services they stopped providing as the world battles the pandemic.

Both private universities have argued that the cases should be tossed entirely, with Columbia moving to dismiss and Pace requesting judgment on the pleadings.

U.S. District Judge Jesse M. Furman granted in part and denied in part their requests Friday, pointing to New York law governing the relationship between educational institutions and their students as well as the decision of other courts in similar cases.

"To the extent that the students plausibly allege that their university violated specific contractual promises for particular services or access to facilities, their claims survive," Judge Furman said. "[T]o the extent that they fail to identify such promises, their claims must be and are dismissed."

Specifically, he held that the students' qualms with Columbia's shift to online instruction don't pass muster. The students haven't pointed to any specific promise made by Columbia to provide exclusively in-person instruction, according to the order, and references to the school's "on-campus experience" in its marketing materials aren't enough to support a claim.

However, the instructional format claim against Pace survives because that university did allegedly promise on its website that on-campus courses would be "taught with only traditional in-person, on-campus class meetings," Judge Furman held. Although this interpretation of the statement could be subject to challenge, the students have plausibly alleged that Pace breached a promise when it moved its classes online, the judge added.

The Columbia students have also sufficiently alleged that the university breached a contract to provide access to certain campus facilities and activities in exchange for mandatory student fees, Judge Furman said.

Claims that Pace breached its contractual obligation to provide the benefits associated with some student fees, like access to campus facilities and activities can also proceed, the judge said.

But claims stemming from moving out of Pace's residential halls must be dismissed because the student in that suit hasn't alleged that she wanted to continue living on campus during the pandemic, Judge Furman said. Rather, she appeared to have voluntarily left her dormitory, he said.

The students' unjust enrichment claims are also "easily dismissed" because they are duplicative of the contract claims, he held.

The students sued Columbia and Pace in April 2020 amid an onslaught of similar litigation over tuition and fees paid during the pandemic's onset. So far, the suits have seen a mixed reception in the courts, Judge Furman said in Friday's order. Those cases that identify specific services or facility access that was promised in exchange for tuition and fees have fared the best, he noted.

In the present cases, students Chris Riotta, Lisa Guerra and Alexandra Taylor-Gutt, along with an unnamed student, are suing Columbia's board of trustees, while Xaviera Marbury is the named plaintiff in the Pace action.

"While closing campus and transitioning to online classes was the right thing for [Columbia] to do, this decision deprived plaintiff and the other members of the class from recognizing the benefits of in-person instruction, access to campus facilities, student activities and other benefits and services in exchange for which they had already paid fees and tuition," the Columbia students said.

Meanwhile, Marbury pointed to Pace University's estimated $182 million endowment and the federal government's coronavirus aid, while claiming she was only reimbursed for roughly 20% of her housing payments.

"This refund is arbitrary and inadequate given that plaintiff and other members of the on-campus housing class have been and will be deprived of roughly 50% of the on-campus housing time for which they have already bargained and paid," according to her suit.

The cases haven't been formally consolidated, but Judge Furman said he addressed both universities' motions to dismiss together because they raise similar issues.

Columbia declined to comment, and representatives with Pace and counsel for the students didn't immediately return requests for comment Monday.

The students in both cases are represented by Edward Toptani of Toptani Law PLLC and Eric M. Poulin and Roy T. Willey of Anastopoulo Law Firm LLC. Marbury is also represented by John M. Bradham and Peter B. Katzman of Morea Schwartz Bradham Friedman & Brown LLP.

Columbia's trustees are represented by Roberta A. Kaplan, Gabrielle E. Tenzer, Joshua Matz and David Shieh of Kaplan Hecker & Fink LLP.

Counsel information for Pace University wasn't immediately available Monday. 

The cases are In re: Columbia Tuition Refund Action, case number 1:20-cv-03208, and Xaviera Marbury v. Pace University, case number 1:20-cv-03210, in the U.S. District Court for the Southern District of New York.

--Editing by Breda Lund.

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