Andreea Gociman v. Loyola University of Chicago ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1304
ANDREEA GOCIMAN, et al.,
Plaintiffs-Appellants,
v.
LOYOLA UNIVERSITY OF CHICAGO,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:20-cv-03116 — Robert W. Gettleman, Judge.
____________________
ARGUED DECEMBER 7, 2021 — DECIDED JULY 25, 2022
____________________
Before ROVNER, ST. EVE, and JACKSON-AKIWUMI, Circuit
Judges.
JACKSON-AKIWUMI, Circuit Judge. Simon Pfeifer, Isabel Bo-
tello, and Kari Whalen are undergraduate students who paid
tuition and fees to attend Loyola University of Chicago’s on-
campus program during the Spring 2020 semester. After Loy-
ola suspended all in-person instruction, curtailed access to
campus facilities, and moved all instruction online in re-
sponse to the COVID-19 pandemic, the students brought a
2 No. 21-1304
putative class action suit against Loyola for breach of contract
and unjust enrichment. The students alleged that they do not
challenge Loyola’s wisdom in shutting down its campus, but
the decision deprived them of in-person instruction and ac-
cess to on-campus facilities that Loyola promised them in ex-
change for tuition and fees. The students sought a refund of
tuition and fees for the portion of the semester that took place
remotely. The district court granted Loyola’s motion to dis-
miss for failure to state a claim, and the students appealed.
At the outset, we note that the present case is one of many
around the country. During the height of the COVID-19 pan-
demic, several colleges and universities closed their campuses
and transitioned to remote education. Many institutions de-
clined to issue refunds after doing so. This prompted some
students and parents to turn to the courts for help. Given the
challenges presented by the novel pandemic, universities
may have contractual defenses. But those defenses are not be-
fore this court today. Nor is the issue of damages.
In the present appeal, our task is a narrow one: we look at
the students’ complaint and ask whether the students pled
enough to withstand dismissal for failure to state a claim. Be-
cause we conclude that the students’ complaint states a claim
for breach of an implied contract under Illinois law, and be-
cause the plaintiffs are entitled leave to amend to save their
alternative claim for unjust enrichment, we vacate in part and
remand for further proceedings. 1
1 The suit initially involved parent-plaintiffs Andreea Gociman and Jo-
seph Hickey, both of whom the district court dismissed from the suit for
lack of standing. The parents appealed the judgment yet do not challenge
No. 21-1304 3
I. Background
On an appeal from a ruling on a motion to dismiss, we ac-
cept all well-pled facts alleged in the complaint as true and
draw all reasonable inferences in the students’ favor. Crescent
Plaza Hotel Owner, L.P. v. Zurich Am. Ins. Co., 20 F.4th 303, 307
(7th Cir. 2021) (citation omitted). We also consider any docu-
ments attached and integral to the complaint as part of the
students’ allegations. Phillips v. Prudential Ins. Co. of Am., 714
F.3d 1017, 1019–20 (7th Cir. 2013) (quoting Geinosky v. City of
Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012)).
Loyola University is a private, not-for-profit university in
Chicago that offers students the option to enroll in a tradi-
tional on-campus educational experience or an online pro-
gram. Most of Loyola’s programs are offered on-campus. Stu-
dents enrolled in the traditional on-campus program have ac-
cess to 80 undergraduate majors and over 140 graduate, pro-
fessional, and graduate-level certificate programs across 11
colleges and schools. Ordinarily, the on-campus program
takes place in-person; students have in-person instruction
and access to campus facilities, events, and resources.
Loyola’s catalog provides its course listings for the aca-
demic year. Relevant here, the 2019–2020 catalog indicates
that several lectures, labs, or discussions will take place “[i]n
person.” It also specifies room requirements for each course,
with many courses taking place at on-campus sites. For exam-
ple, some course descriptions represent that a class will be
their dismissal. We therefore affirm in part the district court’s ruling as to
the parents.
4 No. 21-1304
held in the “General Classroom,” “Seminar,” or “Lab” located
on campus.
To enroll in courses, students use an online registration
portal. On the registration portal, students choose classes by
subject matter, instructor, meeting time and day, campus, lo-
cation, and mode of instruction. The registration portal indi-
cates whether a course has a service-learning or other in-per-
son requirement. After choosing classes, students must sign a
disclaimer indicating that they accept financial responsibility
to pay for the courses in which they enrolled.
During the Spring 2020 semester, full-time students who
registered for classes in Loyola’s on-campus program paid
$22,065 in tuition per semester, or between $1,050–$1,838 per
credit hour. Students also paid mandatory fees such as a “Stu-
dent Development Fee” of $419 per semester in exchange for
access to multiple on-campus programs, services, and events;
a “Technology Fee” of $125 per semester which funds com-
puter labs, software, and technology support; and a “CTA U-
Pass Fee” of $155 per semester which affords students unlim-
ited riding on Chicago buses and trains. Students also paid a
variety of other mandatory fees.
By contrast, students enrolled in Loyola’s online program
paid $693 per credit hour for tuition, and students registered
for seven or more hours paid $92 for the Student Develop-
ment Fee and $78 for the Technology Fee. Online students
were not required to pay a CTA U-Pass Fee.
Loyola offers only a fraction of its overall academic offer-
ings online. The online program includes seven adult degree
completion programs, 21 graduate programs, and 18 certifi-
cate programs. According to its website, “[a]n online course
No. 21-1304 5
at Loyola University Chicago is one that requires no face-to-
face meetings on campus; all course activities [are] conducted
via the internet.”
Loyola’s Spring 2020 semester began on January 13, 2020.
As usual, students enrolled in the on-campus program re-
ceived in-person instruction and access to on-campus facili-
ties. However, midway through the semester, on March 9,
2020, Illinois Governor J.B. Pritzker issued a disaster procla-
mation concerning the rising number of COVID-19 cases in
Illinois. Two days later, the World Health Organization de-
clared COVID-19 a global pandemic. In response, Loyola
closed its residence halls and campus buildings, canceled on-
campus student events, and announced that all “in-person,
face-to-face classes” were suspended. By the end of March,
Loyola completely closed its physical campuses and in-per-
son resources to students and transitioned to remote instruc-
tion. Loyola issued a $183 credit to full-time students who
paid the Student Development Fee and canceled this fee for
the Fall 2020 semester when remote instruction continued.
Loyola also provided a partial refund for room and board. But
Loyola did not refund tuition or other mandatory fees such as
the Technology Fee.
A putative class action followed. Simon Pfeifer, Isabel Bo-
tello, and Kari Whalen are students who paid tuition for Loy-
ola’s on-campus program during the Spring 2020 semester.
They brought suit on behalf of themselves and others simi-
larly situated against Loyola for breach of contract, or in the
alternative, unjust enrichment. In their amended class action
6 No. 21-1304
complaint, 2 the students allege that Loyola’s transition to re-
mote instruction breached the university’s contractual obliga-
tion to provide in-person instruction and on-campus services
they were promised in exchange for paying tuition and fees.
They contend that this contractual promise is set out in Loy-
ola’s course catalog, registration portal, and other publica-
tions. They also contend that Loyola’s online program, which
is “worth less” than Loyola’s on-campus program, and Loy-
ola’s pre-pandemic practice of providing in-person face-to-
face instruction and on-campus services, also evince this con-
tractual promise. The students make clear that they do not
question Loyola’s professional judgment in dealing with
COVID-19, but they do not believe they should “bear the en-
tirety of the costs of the pandemic.” Noting that they were
“dissatisfied with the education and services that they re-
ceived—or, rather, did not receive,” the students sought dam-
ages representing the difference in value between in-person
classes and access to facilities, and the online education they
received.
Loyola moved to dismiss the complaint under Rule
12(b)(6) for failure to state a claim. The district court granted
the motion. The district court held that the students’ claim for
breach of contract failed for two reasons: one, it was barred
by the educational malpractice doctrine, and two, the stu-
dents failed to allege a specific contractual promise for in-per-
son instruction. The district court found that none of the ma-
terials the students cited established a contractual obligation
to provide an in-person educational experience, and it de-
clined to infer this promise based on the difference in tuition
2All references to the complaint are to the students’ amended class action
complaint.
No. 21-1304 7
and fees between Loyola’s on-campus and online programs.
The district court also dismissed the students’ unjust enrich-
ment claim because the students incorporated by reference
the existence of a contract between the parties. Additionally,
the district court reasoned that even if the students had not
incorporated the contract allegations, the students’ unjust en-
richment claim failed because the breach of contract claim
failed. Concluding that further amendment would be futile,
the district court denied the students leave to amend, and dis-
missed the case with prejudice. The students timely appealed.
Since then, several district courts within this circuit have
dismissed similar lawsuits brought by students at other Illi-
nois universities. See, e.g., Oyoque v. DePaul Univ., 520 F. Supp.
3d 1058 (N.D. Ill. 2021); Miller v. Lewis Univ., 533 F. Supp. 3d
678 (N.D. Ill. 2021); Polley v. Northwestern Univ., No. 20 C 4798,
2021 WL 4192076 (N.D. Ill. Sept. 15, 2021); Delisle v. McKendree
Univ., No. 20-CV-1073, 2021 WL 4402474 (S.D. Ill. Sept. 27,
2021), appeal docketed, No. 21-2988 (7th Cir. Oct. 27, 2021);
Buschauer v. Columbia Coll. Chi., No. 20 C 3394, 2022 WL
103695 (N.D. Ill. Jan. 10, 2022), appeal docketed, No. 22-1228 (7th
Cir. Feb. 11, 2022); Hernandez v. Ill. Inst. of Tech., No. 20-cv-
3010, 2022 WL 952524 (N.D. Ill. Mar. 30, 2022), appeal docketed,
No. 22-1741 (7th Cir. Apr. 29, 2022). 3
3 We also note that after oral argument in this matter, our court decided
Thiele v. Bd. of Trs. of Ill. State Univ., 35 F.4th 1064 (7th Cir. 2022). In that
case, two students alleged that they paid a state university a mandatory
fee for on-campus access, which they did not receive when the campus
closed during the pandemic. The students brought a suit under 42 U.S.C.
§ 1983 alleging that the university’s failure to refund the fee violated the
Fifth Amendment’s Takings Clause and the Fourteenth Amendment’s
Due Process Clause. The students also raised state law breach of contract,
unjust enrichment, and conversion claims. The district court dismissed the
8 No. 21-1304
On the other hand, several district courts, including one in
this circuit, have allowed similar suits to proceed. See, e.g.,
Ninivaggi v. Univ. of Del., 555 F. Supp. 3d 44, 51–52 (D. Del.
2021) (Bibas, J., sitting by designation) (denying motion to dis-
miss on breach of contract and unjust enrichment claims but
granting on conversion claims); Fiore v. Univ. of Tampa, No. 20-
CV-3744, 2021 WL 4925562, at *13, *18–20 (S.D.N.Y. Oct. 20,
2021) (collecting cases); Doe v. Univ., No. 20-1264, 2020 WL
7634159, at *2–3 (C.D. Ill. Dec. 22, 2020) (collecting cases).
Recently, the D.C. Circuit issued a ruling on a motion to
dismiss in a similar action filed by students seeking refunds
from two District of Columbia universities that transitioned
to online learning during the COVID-19 pandemic. Shaffer v.
George Washington Univ., 27 F.4th 754 (D.C. Cir. 2022). Apply-
ing District of Columbia law, the D.C. Circuit reversed, in
part, the district court’s dismissal and held that the students
sufficiently pled breach of contract, and in the alternative, un-
just enrichment against the universities as to tuition and
some, but not all, fees. Id. at 766–69. 4
constitutional claims, leaving the court without federal question jurisdic-
tion. In the absence of diverse parties, the district court declined to exercise
supplemental jurisdiction over the students’ state law claims. We af-
firmed, noting that the question of whether the students have a contract
claim is for the Illinois Court of Claims, which has exclusive jurisdiction
over contract suits against public bodies. See id. at 1067 (citing 705 ILCS
505/8(b)). Such jurisdictional issues are not present in the instant case. Di-
versity jurisdiction exists in this case because at least one member of the
putative class is a citizen of a different state than Loyola, the proposed
class exceeds 100 members, and the amount in controversy exceeds
$5,000,000. 28 U.S.C. § 1332(d).
4 We also note the recent Sixth Circuit decision in Dean v. Chamberlain Uni-
versity, LCC, No. 21-3821, 2022 WL 2168812 (6th Cir. June 16, 2022)
No. 21-1304 9
Against this backdrop, we now consider the students’
breach of contract and unjust enrichment claims.
II. Legal Standard
We review the grant of a motion to dismiss for failure to
state a claim de novo. Bradley Hotel Corp. v. Aspen Specialty Ins.
Co., 19 F.4th 1002, 1005 (7th Cir. 2021) (citation omitted). To
survive a motion to dismiss, a plaintiff must plead “only
enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
claim is plausible on its face when “the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ash-
croft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). In eval-
uating the sufficiency of the complaint, we consider docu-
ments integral to the complaint that might aid in determining
whether a plaintiff is entitled to relief. Phillips, 714 F.3d at 1020
(citation omitted). The bar to survive a motion to dismiss is
not high. Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir.
2010). “[A] well-pleaded complaint may proceed even if it
strikes a savvy judge [that] ‘recovery is very remote and un-
likely.’” Twombly, 550 U.S. at 556.
upholding the dismissal of a student’s breach of contract and unjust en-
richment claims. Unlike the case before us, Dean involved an express con-
tract with a disclaimer that rebutted any inference that the university
promised in-person education under all circumstances. See id. at *3 (dis-
tinguishing Dean from cases in which no express contract existed and
courts “defined the terms of a student and university’s contract by visiting
the college or university’s catalog, handbook, and/or other guidelines sup-
plied to the students”). As discussed below, this case does not involve an
express contract and the existence of a disclaimer is disputed.
10 No. 21-1304
At the motion to dismiss stage, we accept all well-pled
facts alleged in the complaint as true and draw all reasonable
inferences in plaintiffs’ favor. Crescent Plaza, 20 F.4th at 307
(citation omitted). “Dismissal is proper ‘only if it is clear that
no relief could be granted under any set of facts that could be
proved consistent with the allegations.’” Voelker v. Porsche
Cars N. Am., Inc., 353 F.3d 516, 521 (7th Cir. 2003) (quoting
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
III. Discussion
A. Educational Malpractice
We first consider whether, as Loyola contends and the dis-
trict court concluded, the students’ contract and unjust en-
richment claims are, at their core, claims for educational mal-
practice. In Illinois, educational malpractice claims are not
cognizable. Waugh v. Morgan Stanley & Co., 2012 IL App (1st)
102653, ¶ 47 (citation omitted). A plaintiff raises an educa-
tional malpractice claim if a plaintiff asks a court to evaluate
the course of instruction or the soundness of a method of
teaching that has been adopted by an educational institution.
Id. ¶ 38. Stated succinctly, “if a claim requires an analysis of
the quality of education,” it is an educational malpractice
claim. Id. ¶ 28 (citations omitted). Given the many policy con-
cerns that counsel against allowing educational malpractice
claims, see Ross v. Creighton Univ., 957 F.2d 410, 414 (7th Cir.
1992), courts will not second-guess the professional judgment
of a university in academic matters, regardless of how a claim
is packaged. Id. at 416.
Thus, to maintain a breach of contract claim against a uni-
versity, a plaintiff must do more than simply allege that the
education was not good enough. Id. at 416–17. Rather, a
No. 21-1304 11
plaintiff must “point to an identifiable contractual promise
that the defendant failed to honor.” Id. at 417. We have sug-
gested that if a university took tuition money and then pro-
vided no education at all, or “promised a set number of hours
of instruction and then failed to deliver,” a breach of contract
action may exist. Id. (citation omitted). In those instances, a
ruling would not require inquiry into the quality of the edu-
cation, but “an objective assessment of whether the institution
made a good faith effort to perform its promise.” Id.We conclude that the students’ claims are not educational
malpractice claims. While the students pled that they were
“dissatisfied” with the educational services they received
during the pandemic and that the online program was “worth
less” than an in-person educational experience, we do not
read this as an attack on the quality of the remote education
the students received. Instead, these allegations speak to the
existence of a purported implied contract and the nature of
the students’ damages from the university’s alleged breach of
contract. Here, the students do more than allege that the re-
mote education was not good enough. Rather, the students
point to an identifiable contractual promise that the univer-
sity failed to honor—the promise to provide in-person classes
and access to on-campus facilities and resources.
Loyola contends that evaluating the students’ claims re-
quires an analysis of the nature and quality of the education
experience the students expected and the “substitute” educa-
tion the students received. Loyola also contends that evaluat-
ing the students’ claims requires an analysis of the reasona-
bleness of the university’s decision to transition to remote
learning during the pandemic. We disagree. Deciding
whether the university contractually promised to provide
12 No. 21-1304
students an in-person educational experience, and whether
the university breached that promise, does not require a court
to evaluate the reasonableness of the university’s conduct in
providing remote educational services during the pandemic,
or second-guess the professional judgment of the university.
Neither does it require a court to decide whether the students
received the same level of instruction through online classes,
nor analyze the nature and quality of the educational experi-
ence the students received. Fundamentally, the students raise
a classic breach of contract claim—that is, whether the univer-
sity promised, but failed to deliver, an in-person educational
experience. Because the students do not challenge the quality
of the remote education, their claims are not barred by the ed-
ucational malpractice doctrine.
B. Breach of Contract
We next consider whether the students sufficiently pled
breach of contract. To establish a breach of contract in Illinois,
a plaintiff must prove: (1) the existence of a valid and enforce-
able contract; (2) substantial performance by the plaintiff; (3)
a breach by the defendant; and (4) damages. Babbitt Muns.,
Inc. v. Health Care Serv. Corp., 2016 IL App (1st) 152662, ¶ 27.
A contract can be either express or implied-in-fact. See BMO
Harris Bank, N.A. v. Porter, 2018 IL App (1st) 171308, ¶ 51–52;
Marcatante v. City of Chicago, Ill., 657 F.3d 433, 440 (7th Cir.
2011) (citation omitted). An implied-in-fact contract must con-
tain all the elements of an express contract, but unlike an ex-
press contract or other contracts, its terms are inferred from
the conduct of the parties. Marcatante, 657 F.3d at 440 (citation
omitted). An implied-in-fact contract “is one in which a con-
tractual duty is imposed by a promissory expression which
may be inferred from the facts and circumstances and the
No. 21-1304 13
expressions [on] the part of the promisor which show an in-
tention to be bound.” Id. (quoting Estate of Jesmer v. Rohlev, 609
N.E.2d 816, 820 (Ill. App. Ct. 1993)); see also Matthews v. Chi-
cago Transit Auth., 2016 IL 117638, ¶ 93 (citations omitted).
In the educational context, courts recognize that a contrac-
tual relationship exists between a college or university and its
students. See, e.g., DiPerna v. Chicago Sch. of Pro. Psychology,
893 F.3d 1001, 1006 (7th Cir. 2018) (quoting Raethz v. Aurora
Univ., 805 N.E.2d 696, 699 (Ill. App. Ct. 2004)); Ross, 957 F.2d
at 416 (collecting cases). Because “a formal university-student
contract is rarely employed … ‘the general nature and terms
of the agreement are usually implied.’” Ross, 957 F.2d at 417(citation omitted). As such, the school’s catalogs, bulletins, cir-
culars, regulations, and other publications, and customs be-
come part of the contract. Id. at 416; see also Raethz, 805 N.E.2d
at 699; Gray v. Mundelein Coll., 695 N.E.2d 1379, 1386 (Ill. App.
Ct. 1998). 5
5 The dissent posits that Illinois courts divide implied contracts in the uni-
versity-student context into what the dissent calls “specific promise” and
“fundamental promise” contracts. According to the dissent, only “funda-
mental promise” contracts may be implied by the parties’ conduct or ac-
tions. But none of the cases the dissent cites treat the supposed distinction
between “specific” and “fundamental” promises as a doctrinal point that
inherently limits a student’s ability to allege past conduct or practice when
seeking to enforce an identifiable contractual promise. See, e.g., Doe v. Co-
lumbia Coll. Chi., 933 F.3d 849, 858 (7th Cir. 2019) (no mention of this sup-
posed distinction or pleading restraint); Bosch v. NorthShore Univ. Health
Sys., 2019 IL App (1st) 190070, ¶¶ 36–41 (same); Brody v. Finch Univ. of
Health Scis./The Chi. Med. Sch., 698 N.E.2d 257, 265–66 (1998) (same); Miller
v. MacMurray Coll., 2011 IL App (4th) 100988-U, ¶ 45 (Ill. App. Ct. Oct. 5,
2011) (unpublished) (same). Illinois courts have not limited school
14 No. 21-1304
To plausibly state a breach of contract claim, it is not
enough for a student to merely state that an implied contract
existed and was breached. As stated previously, a student
must point to an identifiable contractual promise that the de-
fendant failed to honor. Ross, 957 F.2d at 417; see Bissessur v.
Ind. Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir. 2009). That is,
“the student’s complaint must be specific about the source of
the implied contract, the exact promises the university made
to the student, and the promises the student made in return.”
Charleston v. Bd. of Trs. of the Univ. of Ill. at Chi., 741 F.3d 769,
773 (7th Cir. 2013) (citation omitted).
Here, the students allege that, in exchange for tuition and
fees, Loyola promised in-person instruction and access to on-
campus facilities and services. The students point to Loyola’s
catalogs, registration portal, pre-pandemic practice, and dif-
ferent charges for Loyola’s online versus on-campus pro-
grams as sources for the contract, whether express or implied.
Contrary to the students’ position, these sources do not con-
stitute an express contract for Loyola to provide in-person ed-
ucational services. But we agree with the students that, taken
as a whole, these sources are sufficient to show an implied
contract to provide in-person instruction and access to Loy-
ola’s campus in exchange for tuition and certain mandatory
fees.
1. Tuition
At the motion to dismiss stage, the students allege suffi-
cient facts to plausibly state a claim that Loyola breached an
implied contract to provide the students in-person instruction
contract cases in the way the dissent characterizes, and we are not in a
position to rewrite Illinois law.
No. 21-1304 15
in exchange for tuition. To begin, Loyola’s 2019–2020 catalog
indicates that many courses will take place in-person and
identifies specific rooms located on campus.
Loyola argues that the catalog is not a contract because it
warns that it is “published for informational purposes” and
contains an express reservation of rights. This disclaimer pro-
vides that Loyola reserves the right to “change, at any time,
without notice … curriculum, course structure and content …
notwithstanding any information set forth in the catalog.” But
the parties dispute whether this reservation of rights was in-
cluded in the 2019–2020 catalog. Such a factual dispute is bet-
ter resolved in the district court, after the motion-to-dismiss
stage. At that juncture, the district court can also consider
whether the reservation of rights, which does not expressly
refer to emergencies or other force majeure events, reasonably
applies to the pandemic. See Shaffer, 27 F.4th at 764–65 (noting
that a similar reservation of rights cannot be viewed by a rea-
sonable person as allocating the entire financial consequences
of the pandemic change to online classes to the students); but
see Dean v. Chamberlain Univ., LLC, No. 21-3821, 2022 WL
2168812, at *2–3 (6th Cir. June 16, 2022) (concluding that uni-
versity did not promise in-person teaching and clinical expe-
rience under all circumstances because reservation specifi-
cally addressed “natural occurrences or other circumstances
beyond [the school’s] control”). At this stage of the case how-
ever, the possibility of a generic disclaimer does not overcome
a reasonable inference that the course catalog implies in-per-
son instruction.
Loyola’s online registration portal likewise supports a rea-
sonable inference of in-person instruction. When students
register for on-campus classes through the online registration
16 No. 21-1304
portal, they are provided with details about the course’s cam-
pus location and whether a course has an in-person require-
ment. 6
In addition to Loyola’s course catalog and registration
portal, Loyola’s pre-pandemic practice supports a reasonable
inference that in-person instruction, along with access to on-
campus facilities, is a norm for students enrolled in the tradi-
tional on-campus program. Prior to March 2020, Loyola pro-
vided students in-person instruction and access to on-campus
facilities. Students received in-person instruction until the
pandemic interrupted this norm. 7
6 The dissent writes that “in the context of class registration, it would be
odd to treat every aspect of a class description as an enforceable contrac-
tual promise” and notes that individual courses may be canceled or
moved to a different classroom based on under-enrollment or an incapac-
itated professor. To be clear, we are not saying that every sentence in the
catalog or registration portal creates an independent promise. Only that
the frequent references to in-person instruction found in both the catalog
and registration portal are enough for the court to make the reasonable
inference—at the pleading stage—that students were promised in-person
instruction. The dissent notes that the registration period may be “unpre-
dictable,” but whether this allows a university to change all courses from
in-person to remote instruction is an issue better sorted out at the merits
stage. See Bosch, 2019 IL App (1st) 190070, ¶ 45 (citations omitted) (noting
that “most of the case law in Illinois that upheld academic decisions
c[o]me[s] after some measure of discovery and evidence, rendered at trial
or at least summary judgment”).
7 The dissent raises a “minor point” that facts regarding Loyola’s pre-pan-
demic practice are absent from the complaint and attached documents.
Post 8 at n. 5. But the students specifically allege that they received on-
campus services before March 2020. See R.17 at ¶ 22 (“Like many tradition-
ally residential colleges and universities across the United States, for the
2019-2020 school year, Loyola offered the vast majority of its programs on-
campus…); see also id. at ¶¶33–37. Based on the allegations in the
No. 21-1304 17
Finally, students enrolled in the traditional on-campus
program paid higher tuition and fees than students enrolled
in Loyola’s online program. A reasonable inference is that the
higher tuition and fees are based, at least in part, on access to
in-person instruction and on-campus facilities and resources.
Loyola argues that any inference based on the disparate
tuition and fees is “baseless” given the distinct nature of each
program. But this argument misses the point. Whether the
higher tuition and fees for the on-campus program, in con-
junction with all the facts and circumstances, creates an im-
plied contract is a merits question to be decided first by the
district court. At the motion to dismiss stage for failure to state
a claim, we test the sufficiency of the complaint, not the merits
of the case. Weiler v. Household Fin. Corp., 101 F.3d 519, 524 n.1
(7th Cir. 1996). This requires the court to accept the facts as
true and draw all reasonable inferences in the students’ favor.
Applying this standard, the students plausibly allege an im-
plied promise by Loyola to provide in-person instruction that
the students paid tuition for but failed to receive.
2. Fees
Applying the motion to dismiss standard, the students
also plausibly allege that Loyola breached its obligation to
provide them access to campus in exchange for the students’
payment of fees. The students allege that they were required
to pay certain fees to access on-campus facilities. Specifically,
the students point to the Student Development Fee, Technol-
ogy Fee, and CTA U-Pass Fee.
complaint, we can reasonably infer that Loyola provided on-campus ser-
vices prior to the Spring 2020 semester. See Crescent Plaza, 20 F.4th at 307.
18 No. 21-1304
The students paid $419 per semester for a Student Devel-
opment Fee, which allows students to access multiple pro-
grams and services including the Wellness Center, athletic
center, shuttle bus, and student events. Based on these allega-
tions, we reasonably infer that the students paid this fee in
part to access on-campus facilities. This inference is further
supported by the students’ allegation that Loyola issued a
$183 credit to full-time students who paid the Student Devel-
opment Fee for the Spring 2020 semester, and later canceled
the fee for the Fall 2020 semester when remote education con-
tinued. The students have therefore sufficiently pled breach
of contract as to the Student Development Fee.
In addition to the Student Development Fee, the students
paid $125 per semester for the Technology Fee, which funds
computer labs, software, and technology support. Loyola ar-
gues that the students failed to state a claim as to this fee be-
cause the students received technology support even as the
school transitioned to remote learning. Again, this argument
speaks to the merits and not the sufficiency of the complaint.
To the extent the students paid the Technology Fee to access
on-campus facilities such as computer labs, which is a reason-
able inference, the students pled enough to survive a motion
to dismiss as to the Technology Fee.
The students also paid a CTA U-Pass Fee in exchange for
unlimited rides aboard Chicago buses and trains. The stu-
dents do not allege, however, that they paid this fee to access
on-campus facilities. They also do not allege that the univer-
sity prevented them from continuing to receive unlimited
rides on Chicago buses and trains. In the absence of such alle-
gations, the students have not stated a breach of contract
claim as to this fee.
No. 21-1304 19
In sum, the students have sufficiently pled a breach of con-
tract claim as to the Student Development Fee and Technol-
ogy Fee, but not the CTA U-Pass Fee. 8
C. Unjust Enrichment
Having concluded that the students adequately pled a
breach of contract claim, we now consider whether the stu-
dents sufficiently pled unjust enrichment in the alternative.
To state a claim for unjust enrichment under Illinois law, a
plaintiff must allege that “the defendant has unjustly retained
a benefit to the plaintiff’s detriment and that [the] defendant’s
retention of the benefit violates the fundamental principles of
justice, equity, and good conscience.” Hatcher v. Hatcher, 2020
IL App (3d) 180096, ¶ 15 (citation omitted). Unjust enrichment
is an equitable remedy. Guinn v. Hoskins Chevrolet, 836 N.E.2d
681, 704 (Ill. Ct. App. 2005) (citation omitted). “‘Because it is
an equitable remedy, unjust enrichment is only available
when there is no adequate remedy at law.’” Id. (citation omit-
ted). Therefore, when a contract governs the relationship be-
tween two parties, “‘unjust enrichment has no application.’”
Id. (citation omitted).
At the pleading stage, a party may plead breach of con-
tract and unjust enrichment claims in the alternative. Fed. R.
Civ. P. 8 (a)(3) (pleading must contain “a demand for the relief
8In the amended complaint, the students claim that they paid “a variety
of [additional] mandatory course and supplies fees, and other miscellane-
ous fees.” Further factual development is needed to determine the specific
contractual terms of these fees and whether the students paid these fees to
guarantee them access to on-campus facilities. To the extent the students
paid these other mandatory fees to access on-campus facilities, the stu-
dents may proceed on their claims as to these fees as well.
20 No. 21-1304
sought, which may include relief in the alternative or different
types of relief”), (d)(3) (“[a] party may state as many separate
claims or defenses as it has, regardless of consistency”);
Guinn, 836 N.E.2d at 704. This means that a plaintiff may
plead “‘(1) there is [a] contract, and the defendant is liable for
breach of it; and (2) if there is not [a] contract, then the defend-
ant is liable for unjustly enriching himself at [the plaintiff’s]
expense.’” Mashallah, Inc. v. W. Bend Mut. Ins. Co., 20 F.4th 311,
325 (7th Cir. 2021) (citation omitted). But a party may not in-
corporate by reference allegations of the existence of a con-
tract between the parties in the unjust enrichment count. Id.Further, where the existence of a contract between the par-
ties is undisputed, an unjust enrichment claim will seldom
survive a motion to dismiss. See, e.g., Enger v. Chi. Carriage Cab
Corp., 812 F.3d 565, 571 (7th Cir. 2016) (unjust enrichment in-
applicable where the parties’ relationship governed by im-
plied contract). An unjust enrichment claim may survive a
motion to dismiss when the validity or the scope of the con-
tract is difficult to determine, or if the claim at issue falls out-
side the contract. See, e.g., Util. Audit, Inc. v. Horace Mann Serv.
Corp., 383 F.3d 683, 688–89 (7th Cir. 2004) (citations omitted);
see also Archon Constr. Co., Inc. v. U.S. Shelter, LLC, 2017 IL App
(1s) 153409, ¶ 39; Peddinghaus v. Peddinghaus, 692 N.E.2d 1221,
1225 (Ill. App. Ct. 1998).
Here, in the unjust enrichment count of the complaint, the
students incorporated by reference allegations of the exist-
ence of a contract between the parties. The students subse-
quently explained during briefing on the motion to dismiss
that the incorporation was inadvertent. Unfortunately for the
students, this pleading error prevents their unjust enrichment
claim from going forward.
No. 21-1304 21
Absent this error, the students adequately pled an unjust
enrichment claim in the alternative. The students allege that
they paid tuition for an in-person educational experience,
which the university failed to provide though it retained the
benefit of tuition. Although Loyola argues that the students’
unjust enrichment claim fails because the parties agree that a
valid contract exists and governs the dispute, the parties dis-
agree about whether the contract includes an implied promise
to provide students in-person instruction and access to on-
campus facilities. This disagreement alone is enough for the
students’ unjust enrichment claim to survive a motion to dis-
miss (again, were it not for the students’ pleading error). Until
the validity or the scope of a contract is determined, it is typ-
ically premature to dismiss an unjust enrichment claim.
Generally, plaintiffs are entitled to at least one chance to
amend their complaint to cure an error in response to a dis-
trict court’s dismissal order unless amendment would be fu-
tile or otherwise unwarranted. See Runnion ex rel. Runnion v.
Girl Scouts of Greater Chi, & Nw. Ind., 786 F.3d 510, 519 (7th Cir.
2015) (citations omitted). The district court here concluded
that any amendment would be futile in part because “[e]ven
if plaintiffs had not incorporated the allegations of a contract,
the unjust enrichment claim would still fail because the
breach of contract claim fails.” Given our holding that the stu-
dents’ allegations are sufficient to state a claim for breach of
contract, the district court’s reasoning for denying leave to
amend no longer applies. Accordingly, on remand the district
court should allow the students a chance to amend their un-
just enrichment allegations.
22 No. 21-1304
IV. Conclusion
It bears repeating that this appeal is about whether the stu-
dents have stated a claim for breach of contract and unjust en-
richment. In reaching our decision, we do not speculate on the
validity or applicability of any contractual defense, or dam-
ages.
For the reasons stated above, we AFFIRM IN PART and
VACATE IN PART the district court’s order and REMAND
for further proceedings.
No. 21-1304 23
ST. EVE, Circuit Judge, concurring in part and dissenting in
part.
I agree with the majority that the students do not bring
educational malpractice or unjust enrichment claims. I re-
spectfully part ways with the majority in its assessment of the
viability of the students’ breach of contract claim and would
affirm the judgment of the district court.
I.
The relationship between private colleges and universities
and their students occupies a specialized corner of Illinois
contract law. Express contracts between students and schools
are exceedingly rare. Ross v. Creighton Univ., 957 F.2d 410, 417
(7th Cir. 1992). Nevertheless, Illinois courts have long recog-
nized this relationship to be contractual. Abrams v. Ill. Coll. of
Podiatric Med., 395 N.E.2d 1061, 1065 (Ill. App. Ct. 1979). Con-
sequently, “Illinois law generally recognizes an implied con-
tract between a student and a school.” Bosch v. NorthShore
Univ. Health Sys., 155 N.E.3d 486, 495 (Ill. App. Ct. 2019).1
1 The majority points to a recent opinion by the D.C. Circuit, applying Dis-
trict of Columbia law, in a similar suit finding the students adequately
pled breach of implied contract. Shaffer v. George Washington Univ., 27 F.4th
754 (D.C. Cir. 2022). While Illinois and District of Columbia law are similar
in the most general sense that both recognize “the relationship between a
university and its student is contractual in nature” and “the terms set
down in a university’s bulletin become a part of that contract,” the equiv-
alence ends there. Basch v. George Washington Univ., 370 A.2d 1364, 1366
(D.C. 1977), see also Pride v. Howard Univ., 384 A.2d 31, 35 (D.C. Cir. 1978).
Significantly, District of Columbia law on educational contracts between
students and universities is comparatively less developed and nuanced,
notably in terms of the distinction between and limitations of “specific
promise” implied contracts and “fundamental promise” implied
24 No. 21-1304
Illinois courts typically acknowledge two types of implied
contract between the student and the school: a “specific prom-
ise” implied contract and a “fundamental promise” implied
contract. 2
“Specific promise” implied contracts compose the over-
whelming majority of educational contract cases in Illinois.
See, e.g., Doe v. Columbia Coll. Chi., 933 F.3d 849, 858 (7th Cir.
2019); Harris v. Adler Sch. of Pro. Psych., 723 N.E.2d 717, 719–
21 (Ill. App. Ct. 1999); Miller v. MacMurray Coll., 2011 IL App
(4th) 100988-U, 2011 WL 10482615, at *7–9 (Ill. App. Ct. Oct. 5,
2011) (unpublished). The “specific promise” forming the basis
of the contractual obligations in this category of cases is con-
tained within the “catalogues, bulletins, circulars, and regula-
tions of the institution made available” to the student. Ross,
957 F.2d at 416. To plead a breach of contract claim based on
a “specific promise” implied contract, the student must iden-
tify the specific source of the purported implied contract and
the precise promise the institution made. Charleston v. Bd. of
Trs. of Univ. of Ill. at Chi., 741 F.3d 769, 773 (7th Cir. 2013); see
also, e.g., Miller, 2011 WL 10482615, at *7 (unpublished).
By contrast, the university’s obligations arising out of
“fundamental promise” implied contracts, Bosch, 155 N.E.3d
at 495–97, are independent of written materials and, instead,
are “conveyed by implication from the parties’ conduct or
contracts. The Shaffer v. George Washington Univ. opinion offers little in the
way of analytical guidance to our case applying Illinois law.
2 The majority contends Illinois law does not distinguish educational con-
tracts in this way, relying upon the absence of caselaw specifically identi-
fying the distinction. Simply because a distinction has not been given a
unique name or deliberately classified does not mean the distinction does
not exist.
No. 21-1224 25
actions” Brody v. Finch Univ. Health Scis./The Chi. Med. Sch., 698
N.E.2d 257, 265 (Ill. App. Ct. 1998). To survive dismissal on
such a claim, the student need not cite any written materials
at all. Bosch, 155 N.E.3d at 497. “Fundamental promise” im-
plied contracts, however, account for a vanishingly rare sub-
set of educational contract cases under Illinois law and are ap-
plied exceedingly narrowly. To this point, Illinois courts have
limited this category to disputes involving matriculation and
graduation. See Brody, 698 N.E.2d at 265–67 (finding historical
practice created a “fundamental promise” implied contract to
admit students who satisfied certain criteria to medical
school); Bosch, 155 N.E.3d at 495–97 (“[T]he very foundation
of the fundamental implied promise in a private school con-
tract is that, if a student satisfactorily performs the course-
work, she will get her degree.”). There is apparently no prec-
edent—certainly, neither the parties nor the majority have
identified any—extending this narrow category to other as-
pects of the interaction between universities and their stu-
dents. Relevant here, there is no indication Illinois courts
would recognize this type of implied contract as to educa-
tional modality absent an express guarantee in a university
publication.
The majority appears to blend a “specific promise” im-
plied contract and a “fundamental promise” implied contract
to in-person instruction in order to reach its holding. Regard-
less, the students have not adequately pled either, and the dis-
trict court properly dismissed their breach of contract claim.
II.
The obligations arising from a “specific promise” implied
educational contract are rooted in the written materials pub-
lished and distributed by the university. Ross, 957 F.2d at 416–
26 No. 21-1304
17. The majority leans heavily upon “reasonable inferences”
derived from the language and content of various publica-
tions cited by the students. While plaintiffs are certainly enti-
tled to the benefit of reasonable inferences from alleged facts
on a motion to dismiss as a general matter, such inferences
cannot supplement or form the basis of the specific contrac-
tual guarantees from universities to their students under Illi-
nois law. Nor may the majority look to Loyola’s conduct or
past practice to supply the terms of a “specific promise” im-
plied contract. See, e.g., Bosch, 155 N.E.3d at 501 (analyzing, in
the alternative, a breach of a “specific promise” implied con-
tract). Instead, courts must look to the language of the written
materials themselves with contractual obligations limited to
those specific promises supported by “provisions in school
materials … sufficiently definite in character to constitute a
binding promise.” Id. at 500–03. None of the language in any
of the materials cited by the students is sufficiently definite to
constitute a guarantee of in-person instruction or access.
Loyola’s 2019–20 course catalog and online registration
portal indeed contain language suggestive of in-person in-
struction, but nothing definite enough to amount to a contrac-
tual guarantee. Under “Room Requirements,” various
courses listed in the course catalog note, for example, “Lab,”
“General Classroom,” or “Seminar.” Some class descriptions
also note “laboratory” or “in person” elements. The registra-
tion portal also permits students to filter classes by “Mode of
Instruction” and “Location.” None of this language, however,
expressly guarantees students that a given course will take
place in a specific type of classroom or will be conducted in a
particular style. At most, these are informative descriptions
and expressions of prediction or hope regarding class format
which are unenforceable under Illinois law. Abrams, 395
No. 21-1224 27
N.E.2d at 1065 (holding the terms of a “specific promise” im-
plied education contract do not include “unenforceable ex-
pression[s] of intention, hope or desire”); see also Mulvey v.
Carl Sandburg High Sch., 66 N.E.3d 507, 514 (Ill. App. Ct. 2016);
Wilson v. Ill. Benedictine Coll., 445 N.E.2d 901, 940 (Ill. App. Ct.
1983). Indeed, particularly in the context of class registration,
it would be odd to treat every aspect of a class description as
an enforceable contractual promise. Suppose, for example, a
particular class initially slated for a general classroom is se-
verely under-enrolled and moved to a seminar room or ulti-
mately not offered at all that semester. Similarly, the registra-
tion portal permits students to select by instructor, but what
if a professor falls seriously ill between the registration period
and the start of the semester and is unable to teach the course?
The registration period is inevitably fluid and to some degree
unpredictable. The plain text of the course catalog and regis-
tration porthole simply does not permit the students to extract
a contractual obligation for in-person instruction.
So, too, with the disparity in pricing between Loyola’s tra-
ditional undergraduate programs and its online courses and
the descriptions of same. Different price points tell us next to
nothing about the specific conditions of each program, only
that they do not cost the same. The students append a descrip-
tion of Loyola’s online program, specifically the “Online Def-
initions.” However, while this publication is certainly in-
formative about the contours of various online courses, it is
entirely silent as to the nature of Loyola’s traditional pro-
grams. Only by negative implication—which, as discussed
above, may not form the basis of a specific promise—do the
“Online Definitions” speak to Loyola’s traditional undergrad-
uate courses. Notably absent from any of these materials is a
28 No. 21-1304
specific, written promise that Loyola’s traditional courses will
occur in-person.
The descriptions of the Student Development Fee and the
Technology Fee also fall short. 3 The Student Development Fee
“funds multiple programs and services for students depend-
ing on the term” including “the Wellness Center, Halas mem-
bership, shuttle bus, and 8-ride program” and “a few special
events organized by the students and administrators.” This
language merely describes what the funding is to be used for;
Loyola neither mentions nor guarantees in-person education,
amenity access, or degree of access. Indeed, the “depending
on the term” language underscores the equivocal nature of
the description. Like the course catalog and the registration
portal, the description of the Student Development Fee is bet-
ter understood as an unenforceable description of hope or in-
tention.
Similarly, none of Loyola’s statements regarding the Tech-
nology Fee are sufficiently definite enough to amount to an
enforceable promise. The “Acceptable Use of Electronic Uni-
versity Resources” policy states “[c]omputing, networking,
telephony and information resources at the University … are
available to support students” and Loyola “encourages and
promotes the access and use of these resources.” While re-
sources are “available” and “access and use” “encourage[d],”
Loyola does not specify how they are to be available, ac-
cessed, and used. Indeed, many of the resources funded by
the Technology Fee—such as software and student technol-
ogy support—were presumably available during remote
3 The majority finds, and I agree, that the CTA U-Pass fee does not give
rise to an enforceable contractual guarantee.
No. 21-1224 29
instruction. While the “Acceptable Use of University Com-
puter Labs” policy is slightly more definite in assuring
“[a]ccess and use of public-access facilities” such as “com-
puter centers and computer labs,” this language does not
amount to a guarantee of unfettered access regardless of cir-
cumstance. For example, some or all of Loyola’s computer
labs may not be open 24 hours a day or during holidays, and
this policy language certainly does not obligate Loyola to
grant student access to the computer labs during periods
where they are closed.
None of the written materials the students cite contain a
specific guarantee of in-person education or amenity access
sufficient to maintain an implied contract under Illinois law.
III.
While Illinois courts have not extended “fundamental
promise” implied contracts beyond the realm of matriculation
and graduation to educational modality, the majority would
expand the law in just this way. The majority asserts that,
based on Loyola’s purported history of providing in-person
instruction and access to on-campus facilities 4 and inferences
4 Although a minor point, it bears mentioning this assertion is entirely ab-
sent from the operative pleading or any of the attached and incorporated
documentation. In their appellate reply brief, the students claim, “For
more than 150 years, Loyola provided students in-person, on-campus in-
struction and appurtenant campus benefits.” The portions of the amended
complaint cited by the students, however, do not support this assertion,
either directly or by reasonable inference. At most, the students plead Loy-
ola provided in-person instruction and access to on-campus facilities dur-
ing the 2019–20 academic year up until March 13, 2020. From this, the dis-
sent asks us to infer Loyola always did so. Moreover, the amended com-
plaint is wholly silent as to Loyola’s historical practices under emergent
30 No. 21-1304
gleaned from the written materials cited above, the university
was contractually obligated to provide students an in-person
experience during the first three months of the COVID-19
pandemic. Federal courts sitting in diversity, such as ours,
“must exercise care and caution” when interpreting state law.
Smith v. RecordQuest, LLC, 989 F.3d 513, 517 (7th Cir. 2021).
This is particularly true “when given a choice between an in-
terpretation of state law which reasonably restricts liability[ ]
and one which greatly expands liability,” in which case fed-
eral courts are encouraged to take a restrictive approach to
liability and “choose the narrower and more reasonable path
(at least until the state Supreme Court tells us differently).”
Pisciotta v. Old Nat. Bancorp, 499 F.3d 629, 935–36 (7th Cir.
2007) (quoting Todd v. Societe Bic, S.A., 21 F.3d 1402, 1412 (7th
Cir. 1994) (en banc)) (cleaned up). Adopting the majority’s ap-
proach and permitting “fundamental promise” implied con-
tract claims to proceed outside the limited scope of matricu-
lation and graduation has the potential to create significant
new fronts of liability, even beyond the context of COVID-19
tuition cases to which every private university in Illinois is
vulnerable. It is not difficult to imagine multitudes of campus
conditions and experiences, supported by historical practice,
to which future litigants might seek to apply the majority’s
circumstances, which is salient in determining whether Loyola’s response
to the COVID-19 pandemic departed from its past practice. While it is en-
tirely plausible Loyola did, in fact, provide such services continuously and
for the entirety of its history, at this juncture we are limited to only those
facts alleged in the pleading and those of which we can take judicial no-
tice. We cannot extract a factual assertion about Loyola’s historical prac-
tices, or its practices under adversity, from an assertion about Loyola’s ac-
tions during the approximately six months preceding the COVID-19 pan-
demic.
No. 21-1224 31
approach. It is for the Illinois courts, however, not the federal
bench, to expand (or not) the limits of “fundamental promise”
implied contracts.
* * *
I would affirm the judgment of the district court in dis-
missing both the students’ breach of contract and unjust en-
richment claims with prejudice. I therefore respectfully dis-
sent.