NO CLEAR ANSWER AS TO ASU LIABILITY FOR HOUSING
L
ROBERT MANN COLLEGE TIMES
ate last summer, as some 10,000 or more ASU students made their way onto campus and into their on-campus housing, they couldn’t have foreseen where they would be just eight months later. Classes have moved online, food service is takeout only and the usually bustling campuses are nearly void of any students. All because of COVID-19. The majority of students who started the year living on campus have moved elsewhere—either back home, in with friends or family, or into off-campus apartments. Some students claim ASU either required students to leave housing if they could or strongly encouraged them to leave. ASU, however, is disclaiming any responsibility for partial housing refunds, which can total thousands of dollars per student. From a legal perspective, it is not at all clear that ASU can simply disclaim any liability and refuse any financial accommodation to the students. The 2019-2020 University Housing Agreement is silent on this precise predicament. No one could have envisioned last summer where the world would be now. However, the agreement does provide some possible legal liability on the part of ASU. The agreement is a contract. As such, ASU and its housing students enter promises that each party has to keep. They also allocate responsibilities and risks. In addition to any express terms in the agreement, the parties also must act in good faith in performing consistent with the agreement’s terms. ASU is refusing refunds, basically because it claims that the students have simply decided not to return to campus. Thus, this reasoning goes, it is
the student who voluntarily canceled the agreement and is therefore responsible for all payments due for the entire term of the agreement. But the reality is not so simple. One of the agreement’s express terms states in part: “University Housing reserves the right to … cancel … room assignments at any time due to … safety, health, or administrative reasons.” Isn’t that more likely what has happened here? In a March 16 press release, ASU advised those living in on-campus housing as follows: “University housing will remain open for those who must stay, and essential services will continue to be provided to students who remain with us on campus.” This pronouncement came in the same statement advising that classes were moving online. Certainly, an argument can be made that ASU made clear its intention to cancel the agreement, allowing housing to remain open only to the students who “must stay” in on-campus housing. Moreover, the agreement requires those living on campus to be active students. Certainly, the primary, if not
only, reason for the existence of on-campus housing is on-campus education. Once ASU went online, the purpose of on-campus living was largely removed for most students. ASU’s housing FAQ webpage states: “All first-year freshmen are expected to live on campus.” Many benefits are listed for living on campus, including “convenience to academic buildings.” On-campus housing and on-campus learning are a package deal when you live in university housing. With the on-campus learning, there is no need for on-campus housing. Arizona’s universities were of course ordered closed. But that still does not eliminate the fact that the purpose for on-campus living no longer exists. There also are safety issues. ASU promises its students in its housing system a “place where safety and security are top priorities…” By aggressively trying to encourage students not to return to campus housing, ASU apparently is acknowledging that it was unable to provide a safe environment to its
VOICES
IS THERE A CASE?
10,000-plus students should they all have returned to campus. ASU has, as of the date of this writing, refused mass refunds. The university has not, however, completely closed the door on the discussion. As with the trying times everyone finds themselves in, things change fast. There still is certainly hope that ASU will reconsider its refusal and try to find some appropriate compromise that recognizes the financial and other sacrifices facing its students and their families. CT Robert Mann is senior counsel at Radix Law. The company focuses on providing general legal counsel, including legal advice on capital formation, mergers and acquisitions, litigation strategy and intellectual property. You can find more information at radixlaw.com.
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