BENTON - McKendree University of Lebanon argues that because Kelsey Delisle and Riley Ponce put up with virtual instruction in 2020 they can’t claim the school breached their contracts.
McKendree counsel Kyle Seelbach of St. Louis County wrote on June 20 that the school notified students that it would deliver remote instruction.
He wrote that Delisle, Ponce and some or all members of the class they seek to represent “chose to continue their enrollment at McKendree.”
He claimed to the extent students had a contract for instruction and services in person they waived any objection to its modification or they acquiesced in it.
He asserted the argument in an answer to an amended complaint that Richard Cornfeld and Daniel Levy of Edwardsville filed for Delisle and Ponce on June 6.
Cornfeld and Levy originally sued McKendree for Delisle and Kaitlyn Pennington in 2020 at St. Clair County circuit court.
McKendree removed the complaint to U.S. district court, claiming the amount in controversy exceeded the $5 million limit for class actions in state courts.
District Judge Staci Yandle dismissed the complaint in 2021, finding that marketing materials on the school’s website weren’t among terms of its contract with students.
She found McKendree didn’t guarantee the experiences the website offered.
She found provision of instruction in person prior to the virus didn’t imply contractual entitlement to instruction in the same location and manner.
Seventh Circuit appellate judges reversed her last July, finding she might have ruled differently if she had the benefit of their more recent decisions.
This April, Cornfeld and Levy moved to amend the complaint in order to add Ponce.
Yandle granted it on June 6, referred the case to mediation, and set jury trial in two years.
Seelbach’s answer to the amended complaint asserted a variety of defenses in addition to waiver or acquiescence.
Courts don’t recognize claims that require analysis of the quality of education or seek damages for failure to provide education of a certain quality or value, he wrote.
He also wrote that in light of mandates and prevailing medical guidance the provision of instruction and services in person and the ability to allow access became impossible or impracticable.
He wrote that mandates and guidance required residents to stay at home. Once the mandates and guidance were issued, to the extent the parties had a contract for instruction and services in person the contract was rendered meaningless.
He wrote that McKendree could not provide instruction and services in person without violating state or federal law and ignoring the guidance of medical experts.
He claimed Delisle, Ponce and some or all potential class members have not been damaged.
He claimed McKendree’s substantial performance of its duty to provide quality education through remote means barred the claims.
He admitted McKendree has not reimbursed Delisle for tuition or fees and he denied any implication that McKendree should have reimbursed her.
Yandle set a scheduling conference for July 22.