As colleges and universities re-open their doors for the fall semester, the return of students has been closely followed by a substantial increase in coronavirus cases—and significant public scrutiny.  Administrators are stuck between a rock and a hard place:  Do we remain closed and charge students full tuition for another semester of virtual learning?  Or do we welcome students back to campus and attempt to test as many students as often as possible while imposing social distancing rules?  Many schools have opted for the latter.  The University of North Carolina and the University of Notre Dame, for example, have both gone to online classes-only after a spike in coronavirus cases when they re-opened for the fall.

Administrators have deflected blame, pointing to off-campus parties as the cause of the spike in cases.  However, with colleges and universities already facing class action litigation for charging full tuition despite only offering online classes, they may soon be facing litigation from plaintiffs claiming they reopened without taking proper measures to protect students and staff from the virus.  The plaintiffs may argue that they contracted coronavirus while on campus, that the schools knew of the risk of illness, and that they either ignored it or did not take adequate measures to protect students and staff—such as limiting the number of students on campus, strictly enforcing social distancing measures and the use of PPE, or having in-person classes in the first place.  The plaintiffs will likely seek both compensatory damages as well as punitive damages, likely in the tens of millions of dollars or more.

A college or university facing litigation may have a good argument that it is not liable because of a lack of proximate cause.  COVID-19 is transmitted through droplets in the air.  The plaintiffs could have caught the virus anywhere and from anyone—on or off-campus.  A proximate causation argument may be challenging, however, as colleges and universities isolate themselves from surrounding communities and become more aggressive with testing and contact tracing.

To defend against class certification, a college or university may argue that the case should not be certified as a class action because questions of law or fact predominate over questions common to the class.  In other words, numerous “mini trials” may be necessary to evaluate each proposed class member’s medical history and the cause and extent of each individual plaintiff’s damages.  Courts in some jurisdictions, however, may decide to certify a class action on liability-only and then decide damages later.

At a time when many institutions are feeling the financial pinch, they are facing significant pressure to open and to have students on campus like normal.  They must make the harsh decision whether to remain closed and deal with the financial peril of only offering online classes, or open and face potential litigation.  It is clear, however, that there are no easy decisions when it comes to opening colleges and universities this fall.