P Jael Dalke v. Central Michigan University ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
KATELYN ZWIKER, Individually and on Behalf of February 10, 2022
All Others Similarly Situated,
Plaintiff-Appellant,
v No. 355128
Court of Claims
LAKE SUPERIOR STATE UNIVERSITY and LC No. 20-000070-MK
LAKE SUPERIOR STATE UNIVERSITY BOARD
OF TRUSTEES,
Defendants-Appellees.
KEVIN HORRIGAN,
Plaintiff-Appellant,
v No. 355377
Court of Claims
EASTERN MICHIGAN UNIVERSITY and LC No. 20-000075-MK
EASTERN MICHIGAN UNIVERSITY BOARD OF
REGENTS,
Defendants-Appellees.
JAEL DALKE,
Plaintiff-Appellant,
v No. 357275
Court of Claims
CENTRAL MICHIGAN UNIVERSITY and LC No. 20-000068-MK
CENTRAL MICHIGAN UNIVERSITY BOARD OF
TRUSTEES,
Defendants-Appellees.
Before: SWARTZLE, P.J., and K. F. KELLY and REDFORD, JJ.
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SWARTZLE, P.J. (concurring in part and dissenting in part).
In these three consolidated appeals, the student plaintiffs allege that they bargained for in-
person instruction when they registered for courses and paid tuition for the winter/spring 2020
semester. The university defendants counter that they promised nothing of the kind. This is not a
dispute about good intentions; rather, this is a dispute about what was promised and what was
received. And what was received lacked much, if any, pedagogical value, according to the student
plaintiffs.
Although my colleagues have provided a well-reasoned, thoughtful opinion affirming
summary disposition on all of the student plaintiffs’ claims, I cannot join the opinion in full. With
respect to the student plaintiffs’ claims apart from those for breach of contract involving tuition, I
join my colleagues in affirming summary disposition. On the remaining tuition-based claims,
however, I part company for the following reasons:
First, the parties’ tuition agreements center on the exchange of educational services for
tuition payments. Described broadly, the student plaintiffs had to pay tuition to the university
defendants, and, in exchange, the university defendants had to offer educational services to the
student plaintiffs. Thus, the question of what constitutes educational services is key here. On this
question, neither the offering of registration nor the granting of credits carries the weight that the
university defendants suggest; these are more accurately characterized as incidences of educational
services rather than the services themselves.
To see this, consider registration. Registration in-and-of itself is not an educational benefit
to a student—no one has ever gotten smarter just by registering for a course. Registration is, rather,
the means by which the student selects the educational services that best fit the student’s needs.
For a university, registration serves to aid with allocating resources and sorting students and
instructors. Although a student’s obligation to pay tuition might be triggered by that student’s
registering for a course, the university does not fulfill its contractual obligation to the student solely
by offering the registration—the university must then follow-up by actually offering the promised
course to that student. Any agreement that purportedly required a student to pay tuition in
exchange for the mere opportunity to register for a course without the subsequent offering of that
course would fail for lack of consideration. See Gen Motors Corp v Dep’t of Treasury, Revenue
Div, 466 Mich 231, 238-239; 644 NW2d 734 (2002); Prentis Family Foundation v Barbara Ann
Karmanos Cancer Institute, 266 Mich App 39, 58; 698 NW2d 900 (2005). Thus, the university
defendants did not fulfill their end of the bargain merely by providing the opportunity for the
student plaintiffs to register for winter/spring 2020 courses.
Similarly, the university defendants did not fulfill their end of the bargain merely by
awarding credits to the student plaintiffs. Although credits are an important component of
educational services, the credits alone are not sufficient to satisfy the provision of such services. I
am not yet cynical enough to conclude that students go to university solely to gather credits for a
diploma; in any event, there is nothing in the record to suggest that this was the case with any of
the student plaintiffs here. Thus, to hold up their end of a valid bargain, the university defendants
had to offer the bargained-for educational services to the student plaintiffs separate and apart from
the offering of registration or the awarding of credits.
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Second, unlike with the room-and-board claims, the university defendants have not pointed
to any force-majeure provisions relevant to the tuition claims. Nor have the university defendants
fully developed impossibility as a defense on appeal,1 though even if they had, the argument would
raise the matter of which party should properly bear the “risk (i.e., the financial burden)” of the
pandemic-related campus closures. Rosado v Barry Univ Inc, 499 F Supp 3d 1152, 1158 (SD Fla,
2020). Discovery in these three cases has been quite limited thus far, however, so I do not want
to stress these points beyond what the current record permits.
This brings me to my third and final point. It is useful to conceptualize the provision of
educational services along a spectrum. At one end, there is the traditional, in-person university
course, taught for a full semester by a qualified instructor, with the student earning a grade and
receiving a credit at the conclusion of the course. At the other end, there is nothing—the university
takes the student’s tuition and cancels the course. There is little question that the former would
meet the requirements of educational services, and there is likewise little question that the latter
would not. Analogous to the traditional, in-person course, I would also place in the category of
“educational services” an online/virtual course that was designed, prepared, and marketed to
students as an online option from the outset of the semester. Analogous to the outright cancellation
of the course, I would place in the category of “no educational services” an audio recording of a
textbook, with no further instruction, to be followed by an AI-mediated exam, surely an extreme
form of “asynchronous education.”
Where along this spectrum do the courses that the student plaintiffs took in the
winter/spring 2020 semester fall? The current record appears to show that from the beginning of
the semester until mid-March, the courses fell within the category of actual educational services.
Yet, when governments across the state imposed pandemic-related public and private restrictions,
including lockdowns, the university defendants immediately pivoted from traditional in-person
instruction to what the student plaintiffs have labeled “emergency remote teaching.” Although the
university defendants have resisted the use of this label, I find it useful to differentiate between the
transitioned courses at issue in these appeals from those courses offered by the university
defendants that were marketed to students as online/virtual courses from the very start of the
semester.
Returning to our spectrum outlined above, if the university defendants had simply canceled
courses in mid-March for the remainder of the winter/spring 2020 semester, then I would have
little trouble concluding that the university defendants breached the parties’ tuition agreements.
The student plaintiffs paid tuition for a full semester of educational services, and had they been
provided with half a semester of educational services, this would have constituted only partial
performance by the university defendants, resulting in a breach of the tuition agreements. See
Blazer Foods, Inc v Rest Properties, Inc, 259 Mich App 241, 252 n 7; 673 NW2d 805 (2003). Did
the pivot to emergency remote teaching result in a partial breach analogous to the outright
canceling of courses, or was the emergency remote teaching sufficient under the tuition
1
Only Central Michigan University mentions impossibility in its brief on appeal, and it devotes
one paragraph and footnote to the issue within a broader argument. See Cheesman v Williams,
311 Mich App 147, 161; 874 NW2d 385 (2015).
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agreements? Did the student plaintiffs properly understand their agreements with the university
defendants to include in-person instruction, not emergency remote teaching?
On this nascent record, I cannot say. Frankly, the answer might depend on the particular
course at issue. For example, an in-person course that had met in a large lecture hall with one
instructor and 200 students might very well have immediately transitioned to an online
environment with little or no loss of benefit to the students. But, what about a physical-education
course? How could a student receive any benefit from a weight-training course transitioned
immediately to a virtual environment if that student did not have access to the necessary training
equipment? Or, similarly, what about a dance student or music major? Few apartment buildings
would sanction the robust practicing of an aerial or a marimba in a studio apartment. Or what
about a small acting or public-speaking course? Even with respect to more traditional lecture-
centered courses, there is evidence in the record suggesting that the rapid transition to emergency
remote teaching significantly reduced, if not eliminated altogether, any pedagogical value of the
services. Did the student plaintiffs properly understand that their courses would be taught in-
person, as described by course catalogs when they registered, or was the emergency remote
instruction so clearly deficient as to be, in practical terms, no instruction at all? As a federal district
court remarked in a case involving similar breach-of-contract claims, “This is kind of like
purchasing a Cadillac at full price and receiving an Oldsmobile. Although both are fine vehicles,
surely it is no consolation to the Cadillac buyer that the ‘Olds’ can also go from Point A to Point
B.” Rosado, 499 F Supp 3d at 1158.
The student plaintiffs present their claims as breaches of contract, and not as negligence-
based claims of educational malpractice. As our Supreme Court explained in Page v Klein Tools,
Inc, our courts do not recognize a claim for educational malpractice for a host of reasons, including
a lack of institutional expertise in evaluating educational choices, uncertainties involving
causation, and avoidance of overseeing the day-to-day operation of educational institutions. 461
Mich 703, 712-716; 610 NW2d 900 (2000). I am mindful of the line between contract and tort
here, and it is unclear to me whether the student plaintiffs can ultimately prove their breach-of-
contract claims without crossing that line. But at this early stage of the lawsuits, the student
plaintiffs should be given the opportunity to make their case. See, e.g., Metzner v Quinnipiac
Univ, 528 F Supp 3d 15, 28-31 (D Conn, 2021) (distinguishing similar contractual claims from the
educational-malpractice doctrine and permitting the contractual claims to move forward).
In the end, there is a growing body of evidence, including evidence in this record, that
students of all ages suffered significant educational setbacks during the winter/spring 2020
semester, and possibly beyond. It adds insult to injury for a university student to have to pay full
price for emergency remote teaching when that student allegedly bargained for much different
educational services. As I review the record, there remains a genuine issue of material fact on
plaintiffs’ tuition claims. The parties should have the opportunity for full discovery, followed by
a trial if a question of fact remains.
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For these reasons, I respectfully concur in part with, and dissent in part from, the majority’s
opinion.
/s/ Brock A. Swartzle
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