Chong v. Northeastern University

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CIVIL ACTION NO. 20-10844-RGS MANNY CHONG, THANE GALLO, and ALL OTHERS SIMILARLY SITUATED v. NORTHEASTERN UNIVERSITY CIVIL ACTION NO. 20-10946-RGS

MANISHA BAHRANI, DUNCAN LEGGET, and

ALL OTHERS SIMILARLY SITUATED v. NORTHEASTERN UNIVERSITY MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS

May 10, 2021 STEARNS, D.J.

Plaintiffs Manny Chong and Thane Gallo and plaintiffs Manisha Bahrani and Duncan Legget brought putative class actions (civil actions 20- 10844 and 20-10946, respectively)1 against Northeastern University,

BACKGROUND Students at Northeastern register for classes through an online portal called myNortheastern. At the beginning of each academic schoolyear, Northeastern blocks students’ access to the myNortheastern portal pending the completion of certain enrollment tasks, one of which is called: “Complete Student Handbook and Code of Conduct Requirement.” To complete this task (and enable access to myNortheastern), a student must click on a “Take Action” button, which loads the following screen (the Portal Block Screen) on the student’s device:

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Student Handbook and Code of Student Conduct Listed below are links for the Student Handbook and the Code of Student Conduct, which includes a link to the Academic Integrity policy, and applies to all enrolled students on and off campus. Those who violate the Code are subject to sanctions as determined by the Office of Student Conduct and Conflict Resolution. The University community expects all members to hold themselves accountable, individually and collectively, and requires adherence to the standards tet forth by the Code The list of academic regulations, the Code of Student Conduct, and the Academic Integrity Policy may be found iin student handbooks. All students are responsible for knowing the content of their respective handbooks, Physical copies of the Undergraduate Handbook are available at the Information Desk in the Curry Student Center and the Library Reserve Desk * Graduate HandStok ® Code of Student Conduct School of Law students should contact the Office of Academic and Student Affairs for their Student Handbook By selecting the ACCEPT button below you acknowledge you have been notified of the availability of the Student Handbook Northeastern's Code of Student Conduct, and the Academic Imegrity Policy, have read them, understand their meaning and agree to abide by the policies set forth This is a required action to regain access to myNortheastern services Def.’s Statement of Undisputed Material Facts (Def.’s SOF) (Dkt # 67) 20, 60; Pls.’ Counterstatement of Facts and Resp. to Def.’s Statement of Undisputed Material Facts (Pls.’ SOF) (Dkt # 75-1) 1 20, 60. Students must click the “Accept” button on the Portal Block Screen to remove the block to myNortheastern. The text immediately above that button states that, “[bly selecting the ACCEPT button below you acknowledge you have been notified of the availability of the Student Handbook, Northeastern’s Code of Student Conduct, and the Academic Integrity Policy, have read them, understand their meaning and agree to abide by the policies set forth.” Def.’s SOF 1 21, 61; Pls.’ SOF □ 21, 61. Plaintiffs concede that they clicked the Accept button on the Portal Block Screen prior to enrolling for classes in the Spring semester of 2020.2

The Portal Block Screen contains a hyperlink to the “Undergraduate Student Handbook.” Clicking on this hyperlink would bring a student to a page entitled “Code of Student Conduct,” which is reproduced below: ortheastern University Office of Student Conduct and Conjlict Resolution Code of Student Conduct Cees The purpose of the Code of Student Conduct is fo set forth the University’s expectations of behavior that promote the Office Hours safety and wellare of the Northeastem University community. The University seeks fo provide a supportive environment Secs Tega □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ tea (nn

Witter hours avaiable by The Gode of Student Gonduct apponiment~ iain asia sans Osioel Suis es ds Uisae Onaael soptestesd egkains ctaension aiaraaee Unversity students af al kevels of study, in all colleges and programs, locally or abroad who are enrolled a! Nertheastem Emad University, 23 well as all student groups and organizations. [email protected] The Gade of Student Gonduct apes on Campus a5 Wel a5 Of campus. The University sets guidelines for the Serene merit ae chasm cae ralationship oa the Siocsaiba Sonicn Wine Renae ™ Se ee members of the University community. Stuchent behavier ocouning off campus in wioltton of the Code. or local, stare, federal, or host country laws and thal could affect the educational mission of the University or its relationship with the surrounding community may suiyect students to discipline as noted in the Code of Student Conduct.

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Def.’s SOF { 25; Pls.’ SOF 4 25. From this page, the student could click on “9019-2020 Student Handbook” to obtain a PDF version of the

2 Because Gallo, Chong, and Legget were enrolled at Northeastern for the Fall semester of 2019, their Portal Block for the 2019-2020 academic school year appeared in August of 2019. Because Bahrani began at Northeastern in the Spring semester of 2020, however, her Portal Block did not appear until late December of 2019. undergraduate student handbook. The following text appears on page 69 of that document:

DELIVERY OF SERVICES Northeastern University assumes no liability for the delay or failure in providing educational or other services, programs, or facilities due to causes beyond its reasonable control. Causes include, without limitation, power failure, fire, strikes by University employees or others, damage by natural elements, and acts of public authorities. The University will, however, exert reasonable efforts, when it judges them to be appropriate, to provide comparable services, facilities, or performance; but its inability or failure to do so shall not subject the University to liability.

Northeastern University reserves the sole right to promulgate and change rules and regulations, policies, and procedures and to make changes of any nature in its program; calendar; admissions policies, procedures, and standards; degree requirements; fees; written materials, including, but not limited to, this handbook; and academic schedule whenever necessary or desirable, including, without limitation, changes in course content and class schedule, the cancellation of scheduled classes and other academic activities, and the substitution of alternatives for scheduled classes and other academic activities. In any such case, the University will give whatever notice is reasonably practical.

Def.’s SOF ¶ 29; Pls.’ SOF ¶ 29; see also Ex. A to Easterbrook Aff. (Dkt #67- 14) at 69.

The Portal Block Screen also contains a hyperlink to the “Graduate Handbook.” Clicking on this hyperlink would bring a student to a page . “ . ” . . . entitled “General Regulations,” which was included in the 2019-2020 Graduate Student Catalog. The page is reproduced below:

PAUL Seatrat pats hialen ae) Crs Me a □□ Undergraduate ; GENERAL REGULATIONS follene of Professional Studies neers This inanaechived copy of cee 2079-2020 cacalog. To access the mom recent vergion ofthe cacslog. sleare visit Graduate Rap. Catalogs MoeTeR eo, General Adminaion and Transfer reda Review coe panera! reguiasions chan follow an vel ag all cher reguladions o limkavend included throughout ta catalog. information for Drvering Stuckencs Your succens at Mortheagtem depends. in part on underttending your rights end fulfilling your responsibilities. College Capers ees ee Legal Rights and Responsibilities

Pruuzdurca Sepdute Sorools Academie Grievance Procedure for Disabled Students dcncernkc Colanders lc is shee policy of Northaadtecn University to comedy wh al Gers governing access by and Sscrimination agaonat disabled

: cee SUcETEE. Accordingly, any student who beiever that there har been aviolacion of theme laws if encouraged to dincurs th ne ee mater wih the director of the Dizabiicy Resource Canter and other parsons identified Gy the director, or with the directar of Duan cee Canam the Office of Irazicutional Diversity anc Equality to resolve the matter in a prompt and equ table manner. If such discussions donot nepoive Coe matter, the sudent may then initiaoe a grievance by taking the steps outined belor Couper ative [education Feral Ceareinunstone ancl Fealeoae! 1. All grievances mace by stucents on che bagis of being disabled are congidered ax being mace the presicent of the Policies on Other Ceara. urtnb tity.

Gadsatn Requests 3. In the coe of a grevance. the mudent sould cise the objecten wah the indivicum rezpocsble for she office or Cerpaiy Feber anioeyal Diss mre Separtment where the objection was initially raised. Privacy Act (FLAY ~

3. if mot satisfied. the student should discuss the objection withthe dean of the college or director under which the Huser Right-to-tincey Act Separtment falls ee 4. if the grievance ig not satfactorily resolved, the mudent should complete a grievance form and fle writen request for a Polithes and a formal hearing with the Grievance Commitee for Disabled Students. The reques should be Ved with the vice presicent for mudenc afaire. Upon receipe of awricnen requert fora formal Rearing. the grokvanice comemites (including re one faculty mamber from the stunts college. one faculty member met from the suadents collage. one rapresencative a sens Dal of Acadernic Rights from the Disability Resource Center, a representacive from the Office of Inectautional Diversity and Equality, thevice oo cea presigent for stucent affairs or a cecignee. ane another adminiggrater nos from stycent afar) must held a hearing

Feugy atic wouhin (anee calendar weed. Tie grievance comimicnes mat allow a full and fair oppertunity for ine presentation of College of Arts, Mecha and Design @vicence relevant to the reapomis) for the hearing request atc must recder a cecision in writing to the requeming muden: within one weed of the comeiugion of the hearing. The director of the Offices of Inmizucional Diversity and Divnore MickGm School of Business □□ 7 pain fee eect ja sara

Eouadlity if comnipeance Officer for Section S04 of the Ranabentabon act of 7573, Khoury Cofege of Computer Sceences Colege of Engineering Grievance Procedure—Sexual Harassment —— No@mployed, pens dupevitory personnel of fecuey memder shall execcite hig or her reqpongio ities of aushority in such School of Law famines ad to make subiesion fo “seaual advances. requests for pexual fawors. or other verbal or prytical CONE □□ ofa Cetiege of Profesalona! fuuxtes ficual qatute” at an eeplicit or imalicit tem of condition of evaluation. amoloyment admittion. advancement, of reward aa within the university, Melter rhall ary amply. agent fupervinory parzonmal, or faculty mamoer mace tbmignen po or alee aa repecien of such conduct the base for employment or academic decisions afecting any employee of ucent Neither shal College off Sera idemes ond any eMioyvee. apent uoervinory Gersonnel or faculty member conduct hime or harnef with repoect to verbal or ohyaical behardor of dence! rature Where duct Conduct hag the purpose or affect of unreasonably interfering wih an individual's Faculty work or academic performance or creating an incimidating, hostile. or offensive wore or darmroom environment Abpetc i Though semua! Paragsmenct will not be colerated, th universiny recognines chat itis difficult to regulate emocional Course Gesoriprions hLtionships beteeen consenting adults. Howeve-, confenhual elaDonship may Se sunpect in instances In which one of the individuals hag authority over the ome. Therefore, no faculty or eniployes involred romansically or meeually with a Catalog Archives Soucent may deach or supervise that person ether indnsdually or ag part of a group in amy activity connected to Thaw univarnigy. ? . ’ ° * Def.’s SOF {| 66; see also Pls.’ SOF { 66 (disputing paragraph 66 on other

. . . . é grounds). As stated in the navigation menu on this page, “General

. . . “ . . . □ Regulations” is a subsection under the heading “University-Wide Academic Policies and Procedures.” If a student moved to the “General Information” subsection of the separate “Appendix,” the following text would appear:

Delivery of Services. Northeastern University assumes no liability for delay or failure to provide educational or other services or facilities due to causes beyond its reasonable control. Causes include, without limitation, power failure, fire, strikes by university employees or others, damage by natural elements, and acts of public authorities. The university will, however, exert reasonable efforts, when it judges them to be appropriate, to provide comparable services, facilities, or performance; but its inability or failure to do so shall not subject the university to liability.

Northeastern University reserves the sole right to promulgate and change rules and regulations and to make changes of any nature in its program; calendar; admissions policies, procedures, and standards; degree requirements; fees; and academic schedule whenever necessary or desirable, including, without limitation, changes in course content and class schedule, the cancellation of scheduled classes and other academic activities, and the substitution of alternatives for scheduled classes and other academic activities. In any such case, the university will give whatever notice is reasonably practical.

Def.’s SOF ¶ 52; Pls.’ SOF ¶ 52; see also Ex. B to Andrade Aff. (Dkt # 67-3) at 520.

DISCUSSION Summary judgment is appropriate when, based upon the pleadings, affidavits, and depositions, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “To succeed, the moving party must show that there is an absence of evidence to support the nonmoving party’s position.” Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990). “‘[T]he mere existence of a scintilla of evidence’ is insufficient to defeat a properly supported motion for summary judgment.” Torres v. E.I. Dupont De Nemours & Co., 219 F.3d 13, 18 (1st Cir. 2000), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

Northeastern argues that the delivery of services language within its Undergraduate Student Handbook and Graduate Catalog “bar[s] [p]laintiffs’ contract claims.”3 Def.’s Mem. (Dkt # 66) at 14. But the argument is premised on a student’s having entered a binding contract with the university by clicking on the Portal Block Screen, a proposition that plaintiffs reject. The court accordingly will turn first to whether the delivery of services language has contractual force.

As the world of commerce has undergone a digital revolution, a body of law has grown up around the phenomenon of the electronic or digitalized contract formed online without any of the personal interaction or bargaining with which common-law contracts traditionally were formed. The Massachusetts courts, for their part, have come to assess the enforceability of an online contract by using “a reasonableness standard, focusing on whether the contract provisions at issue ‘were reasonably communicated and accepted.’” Kauders v. Uber Techs., Inc., 486 Mass. 557, 571-572 (2021), quoting Ajemian v. Yahoo!, Inc., 83 Mass. App. Ct. 565, 574 (2013). As applied to the delivery of services provision set out in the student handbooks, the court must make the determination (1) that a student was given fair notice that he or she was entering a binding contract by clicking the Accept button on the Portal Block Screen and (2) that he or she reasonably communicated an acceptance of the delivery of services reservation.

Northeastern cannot surmount the first consideration.4 The Portal Block Screen provides that “[b]y selecting the ACCEPT button below you

Second, even if the language on the Portal Block Screen could be said to give a student some reason to anticipate the formation of a formal contract, the contents of the handbooks themselves negate any such understanding. The handbooks expressly disclaim any intent to form a mutual (or unilateral) contract of an enforceable nature, a familiar echo of the typical disclaimers found in employee handbooks.5 See Jackson v. Action for Boston Cmty. Dev., Inc, 403 Mass. 8, 14-15 (1988); see also Ex. A to Easterbrook Aff.; Ex. B to Andrade Aff. at 520. The delivery of services language at issue in this case, moreover, is buried at the end of the document assembly. Cf. Dixon v. Michael Kors Retail, Inc., 468 F. Supp. 3d 409, 412

Northeastern alternatively argues that, even if the delivery of services language is not contractual, it nonetheless weighs heavily against any reasonable expectation of in-person instruction or access to on-campus facilities in the face of a pandemic or other force majeure.6 Def.’s Reply at 3-6. The court finds merit in this contention. Plaintiffs do not dispute that they clicked the Accept button on the Portal Block Screen prior to the start of the Spring semester of 2020, and the website is clear that, in doing so, they “acknowledged” having “been notified of the availability of the Student Handbook, Northeastern’s Code of Student Conduct, and the Academic Integrity Policy,” having “read them,” and having “underst[ood] their meaning.”7 Def.’s SOF ¶¶ 21, 61; Pls.’ SOF ¶¶ 21, 61.

Plaintiffs’ late-blooming contention that they did not read the handbooks is unacceptable for reasons other than litigation opportunism. It has long been the rule, and for an important purpose, that a person who signs an acknowledgement that he or she has read and understands the provisions of a document will be held to their word, however strenuously they may later profess ignorance of the contents of that document. See Spritz v. Lishner, 355 Mass. 162, 164 (1969). If the rule were otherwise, the value of an acknowledgement as a tool of commerce would collapse into nothing more than an unenforceable statement of a party’s present intent, an undertaking to be freely renounced after the fact at a party’s whim or in service of a tactical advantage.

The delivery of services provision in Northeastern’s handbooks is unambiguous: it unequivocally reserves the right of the University to “make changes of any nature in its programs . . . and academic schedule” – “including, without limitation, changes in course content and class schedule, the cancellation of scheduled classes and other academic activities, and the substitution of alternatives for scheduled classes and other academic activities” – “whenever necessary or desirable.” Def.’s SOF ¶¶ 29, 52; Pls.’ Academic Integrity Policy,” even if they do not actually reproduce the text of these policies).

SOF ¶¶ 29, 52. It also expressly disclaims liability for any “delay or failure to provide educational or other services or facilities due to causes beyond its reasonable control.” Id. Given the clarity of this language, the court does not believe that any reasonable student who professed to have read it (as these plaintiffs did) could have expected that registering for in-person classes and executing the Student Financial Responsibility Agreement would give him or her a contractual right to receive in-person instruction and/or unrestricted access to on-campus facilities and resources.8 Other courts agree. See Burt v. Bd. of Trs. of Univ. of Rhode Island, 2021 WL 825398, at *5 (D.R.I. Mar. 4, 2021) (dismissing a class action for a tuition refund because, even if statements in the university’s catalog “could be interpreted as contractual promises” to supply in-person instruction, “all four universities explicitly reserved the right to unilaterally alter the administration of their academic offerings”); cf. Lindner v. Occidental Coll., 2020 WL 7350212, at *8 (C.D. Cal. Dec. 11, 2020) (dismissing a class action for a tuition refund where, inter alia, the university’s catalog “reserve[d] the right to change fees, modify its services, or change its program should economic conditions or national

ORDER For the foregoing reasons, the motion for summary judgment is ALLOWED. The clerk will enter judgment in Northeastern’s favor on all claims in civil actions 20-10844 and 20-10946 and close both cases.

SO ORDERED. /s/ Richard G. Stearns _____ UNITED STATES DISTRICT JUDGE