In its second such ruling on the issue, a federal appeals court has reinstated putative class-action litigation filed by Tulane University students seeking partial reimbursement for the COVID-19-related cancellation of their in-person classes.

This is apparently the fourth case in which an appeals court has ruled in students’ favor in similar litigation.

Sylvia Jones and John Ellis had filed suit against the private university in New Orleans, stating they had paid $2,199 per credit hour for in-person classes before they were canceled because of the pandemic, plus additional fees, while online students paid $476 for the equivalent credit hour, according to Tuesday’s ruling by the 5th U.S. Circuit Court of Appeals in New Orleans in Sylvia Jones v. Administrators of the Tulane Educational Fund, et al.; John Ellis v. Tulane University.

The U.S. District Court in New Orleans dismissed the litigation.  In overturning that ruling, the federal appeals court held in a 2-1 opinion that the claim “is not barred as a claim of educational malpractice because the students do not challenge the quality of the education received but the product received.”

The ruling also said, “We reject Tulane’s argument that the breach-of-contract claim is foreclosed by an express agreement between the parties, because the agreement at issue plausibly does not govern refunds in these circumstances.”

The opinion said the students “have not plausibly alleged” that Tulane breached an express contract promising in-person instruction.  “But we hold that the Students have plausibly alleged implied-in-fact promises for in-person instruction and on-campus facilities,” it said, in remanding the case for further proceedings.

The dissenting opinion disagreed with the conclusion the students had plausibly alleged claims, including those for breach of contract and unjust enrichment, but concurred with the ruling on the breach-of-contract claim regarding the student’s prepaid, mandatory fees.

In August, in a ruling comparable to at least two other federal appeals court decisions, the 5th Circuit reinstated putative class-action litigation filed by a university student seeking tuition reimbursement stemming from Waco, Texas-based Baylor University’s COVID-19-related online classes.

Plaintiff attorney Yvette Golan, of the Golan Firm PLLC in Washington, said in a statement: “We are pleased with the Fifth Circuit’s decision, and we look forward to proving our case to the jury."

The university’s attorneys did not respond to a request for comment.