By Chris Villani

Law360 (October 8, 2020, 3:17 PM EDT) -- Harvard University asked a federal judge to toss a suit by students seeking tuition reimbursement since the school switched to remote learning during the COVID-19 pandemic, arguing it had the discretion to switch formats amid an unprecedented crisis.

In a motion filed late Wednesday, the nation's oldest university said it never expressly promised students in-person learning under any circumstances. Harvard said that while the students' frustration is understandable and shared by the school, they have no legal footing to sue.

"Harvard has always retained authority to modify its academic programs to adapt to unforeseeable circumstances — whether severe weather events, acts of terrorism, or public health crises," the school argued, "and it must be able to do so without fear of being subjected to litigation over the changes it makes to its academic offerings."

Harvard noted that nearly all states, including Massachusetts, reject suits by students who claim their education was substandard.

"Indeed, if plaintiffs were permitted to proceed on this theory, every decision that a student believes has negatively impacted her education could be the subject of a lawsuit," the motion states.

Harvard also argued the suit alleges the Ivy League school reneged on a guarantee that it never actually made in the first place.

"Harvard never made a promise, contractual or otherwise, to provide an in-person education under all circumstances," the document states.

The proposed class action was filed in May by three students who were enrolled in the spring semester and had to leave campus when the pandemic took hold and schools abruptly closed their physical doors. The students claim Harvard should refund tuition for in-person classes that were forced online due to the COVID-19 threat. Similar suits have been filed against colleges and universities nationwide.

Harvard argued Wednesday that all of the students had the option to take a leave of absence and get some of their money back. Even with that option available, one of the plaintiffs opted to re-enroll for the fall semester, which is also being conducted with remote learning, the school said.

Harvard said Wednesday it has "dedicated substantial resources to ensuring that its remote instruction is accessible and high-quality," and is "working toward the day when every member of its community can return to campus safely."

An attorney for the students, Steve Berman of Hagens Berman Sobol Shapiro LLP, told Law360 Thursday he expected Harvard "to fight this case and fight against reimbursement for those paying tuition and fees at Harvard during its closure of campus and subpar online learning experience."

"We look forward to the court's thoughtful consideration and to continuing this case on behalf of those we represent," Berman said. "Also, most courts have denied these motions in other cases."

A Harvard representative declined to comment.

Massachusetts was among the hardest hit states in the early days of the pandemic. COVID-19 case counts have ticked upward in the fall as some schools and colleges have resumed in-person education in some form or another in the higher education hotbed of Boston.

The same legal team from Bursor & Fisher PA and Pastor Law Office LLP that is bringing the suit against Harvard filed a similar complaint against Northeastern University. The Northeastern and Harvard cases, as well as one targeting Boston University, allege students were short-changed when the pandemic ended the on-campus experience.

Harvard classes have been online-only since March 13. The complaint claims "the online learning options being offered to Harvard students are subpar in practically every aspect, from the lack of facilities, materials and access to faculty."

The students are represented by Daniel J. Kurowski, Kristie A. LaSalle, Steve W. Berman and Whitney K. Siehl of Hagens Berman Sobol Shapiro LLP, Frederick J. Klorczyk III and Alec M. Leslie of Bursor & Fisher PA and David Pastor of Pastor Law Office LLP.

Harvard is represented by Anton Metlitsky, Jennifer B Sokoler and Matthew Powers of O'Melveny & Myers LLP and by Rebecca M. O'Brien and Victoria L. Steinberg of Todd & Weld LLP.

The case is Student A v. Harvard University, case number 1:20-cv-10968, in the U.S. District Court for the District of Massachusetts.

--Editing by Rebecca Flanagan.

Update: This story has been updated to include a comment for the plaintiffs' counsel.

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