Judge tosses student lawsuit against Boston University over shift to online classes in 2020; cites the doctrine of impossibility

A federal judge earlier this month dismissed a lawsuit by six Boston University students over what they claimed was the inferior education they got after the school shifted to online classes as the pandemic erupted in the spring of 2020, in part because there was no way that BU could have foreseen a global pandemic would effectively shut down the entire state.

The case contrasts with a similar lawsuit by Emerson College students, in which that school agreed to pay $2.1 million to affected students.

In his ruling - which the students have appealed - US District Court Judge Richard Stearns determined that even if the BU students did have what amounted to a contract for in-person classes and access to school facilities, a March, 2020 order by Gov. Baker making in-person gatherings illegal made it impossible for BU to fulfill every last term of that agreement, and that BU cannot be held responsible for something so extraordinary it could not have foreseen it happening. He cited a 2021 ruling by the Massachusetts Appeals Court - involving a Nantucket real-estate sale affected by the Covid-19 pandemic:

The doctrine of impossibility - often referred to, perhaps more accurately, as the doctrine of impracticability – excuses performance of a contract where (1) an event occurring after the execution of the contract makes the contract’s performance impossible or impracticable; (2) nonoccurrence of the event was a basic assumption on which the contract was made; and (3) the party who seeks to have his or her performance excused did not cause the event.

In BU's case, this means that even if it wanted to disregard public-health recommendations against in-person gatherings, BU couldn't, because it would have been breaking the law.

As plaintiffs admit, Governor Baker’s emergency orders rendered continued performance of the alleged contract illegal, not just unsafe. It is not clear that an absolute obligation to perform could ever exist under such circumstances. ... But assuming that it could, none of the statements cited by plaintiffs can plausibly be construed to promise continued performance even where such performance becomes illegal. Thus, under the circumstances, no jury could find that students reasonably believed that BU “undertook an absolute obligation to perform” according to the terms of the alleged contract and assumed the risk should continued performance become unlawful.

To get to that point, Stearns first had to rule that the analysis of the students' main witness, Hal Singer on the diminished value of an online education, could not be presented to a jury.

Singer used a technique, known as "choice-based conjoint analysis" of a national survey of college-aged people who could have attended BU had they applied, based on questions what they saw as the value of various things students got for their tuition and fees:

CBC Analysis is typically used to inform a seller's pricing strategy by determining what consumers would be willing to pay (or not to pay) for a specific feature of a particular product. A simple example would be the value a consumer would assign to the inclusion of air conditioning or a pair of Styrofoam dice in a new car. CBC Analysis is not normally used to compare consumer valuations of wholly differentiated product choices, say a new car as opposed to a mountain bike. Thus, in this context, CBC Analysis may be appropriate to measure the value that a prospective student would give to a course in coding included in her tuition charge. It would not, however, be useful to ask her to assign a comparative value to a tuition package that came with a free ocean cruise, which in essence is the way Dr. Singer framed the questions.

And so, Stearns agreed with BU to dismiss the case. The students have filed an appeal with the First Circuit Court of Appeals in Boston.