Law vs. Ethics #1: Harvard Screws Over Its Students, But It’s All Legal, So There

Harvard welsome

Two rueful thoughts before I begin:

  • One of my college graduating class’s big reunions is next year. Harvard always does an amazing job of throwing a party (having a bank account larger than the treasuries of some countries let you do that , I have many friends and room mates I yearn to see again, and I haven’t been back home to Boston in 17 years. But I’ll be damned if I’ll honor Harvard with my presence. It has been an ethics disgrace consistently for several years, and I am ashamed of my association with the institution, as well as my family’s association (my father and sister graduated from the college, and my mother worked there for over 20 years, culminating in her becoming an assistant dean.)
  • I could really enlighten NPR’s listeners about the difference between law and ethics in this case, if I hadn’t been blackballed for daring to explain how accusations of sexual harassment against public figures like Donald Trump were not necessarily fair even if they were sincere. Oh, well—NPR can bite me.

With that introduction, be it known that in the case of Barkhordar et al v. President and Fellows of Harvard College,  Harvard University won a dismissal today of a lawsuit by students over its decision not to partially refund tuition when it evicted students from dorms and moved classes online early in the Wuhan virus pandemic. U.S. District Judge Indira Talwani held that the three students leading the proposed class action failed to show that Harvard had contractually promised them in-person instruction and access to on-campus facilities during the spring 2020 semester. She then offered the rationalization that “spring 2020 was not a normal time.” This, readers here will immediately recognize, is Rationalization #28, The Revolutionary’s Excuse or “These are not ordinary times” on the Ethics Alarms Rationalization List.

The lawsuit was brought by law student Abraham Barkhordar and two master’s degree candidates, Ella Wechsler-Matthaei in education and Sarah Zelasky in public health, on behalf of students in Harvard’s 12 degree-granting schools. Many colleges and universities with ridiculously high tuition have been sued by students over the refusal to grant  tuition refunds. Tuition for Harvard full-time students in the 2021-2022 academic year is $67,720 at the law school, $64,998 for a master of public health, and $51,904 for a college degree. Basic common sense and logic dictates that nobody should pay such a sums for remote instruction over, yecchh, Zoom, without being able to enhance one’s education  with the other aspects of the college experience Harvard crows about—the associations and contacts with “the best of the best,” extensive and well-funded extra-curricular activities, one-on-one in person discussions with renowned professors, access to the second largest library system in the nation, and more.

The ruling is probably right on the law, but so what? Harvard, the richest university in the world with money to burn, could have and should have established an exemplary ethical standard by refunding a significant part of the tuition money to all students because those students did not get what they paid for and had a right to expect, regardless of what Harvard was contractually bound to deliver. That’s what ethics is, in great part: doing the right thing even when you don’t have to.

Harvard choosing ethics over narrowly interpreted contractual obligations would have also put pressure on other elite institutions to do the same. Why would we expect this university to suddenly care about being fair and ethical, however, after the evidence of recent years?


11 thoughts on “Law vs. Ethics #1: Harvard Screws Over Its Students, But It’s All Legal, So There

  1. I bet one of the fellows at Harvard (echoes of Eddie Haskell telling Mrs. Cleaver that his penny loafers were what “all the fellows at Princeton” were wearing are ringing in my ears) posited in the fellows meeting that if Harvard did refund part of tuition, schools that couldn’t afford to would have to do it so it would thus be unfair and “not good for [the university] business.”

    • When Virginia (wrongly) denied credit for one of my CLE seminars after I had given it, I gave refunds or free seminars to all teh attendees. i couldn’t afford that, but it was the ethical thing to do. My reaction to the schools with less money than Harvard is “Tough.”

      • Oh, I’m sure the fellow didn’t really mean it. He’s like the family members in a Jane Austin finding reasons all sorts of creative reasons not the help poor, bereft relatives.

      • You did the right thing, Jack, and I’m proud of you for that. That was a fine choice you made. And your choice was ethical. I would have liked to have seen Harvard voluntarily offer a partial refund, before waiting to see if someone would sue them. And they would have been applauded for doing so.

        • You and me both, Chip. Harvard taking the lead on this would have been an ethical use of the school’s prestige, and even though it has money to burn, would have pushed other institutions to do the same.

  2. I did some research for a piece I wrote in December: assuming a 6% rate of return on investment of the endowment, Harvard receives about once and a half the total cost of attendance (including tuition, fees, room and board, etc.) per student from endowment income. And, of course, they’d still have over $5,000,000,000 left even if they lost a little money this year.
    By contrast, my employer, with over half as many students and about 1/500 of the endowment, receives a little over the cost of one credit hour per student, and that’s tuition only. So whereas Harvard could afford to be munificent if they chose to be, we couldn’t. Meanwhile, faculty are working dozens of unremunerated hours learning new technologies, revising (often radically revising) syllabi for online instruction, etc.
    One thing the pandemic has done is to reveal what a cash cow room and board are for universities. And that means that when that major income source is taken away, it either must be made up somewhere or the university operates very far into the red. Raising tuition would be the logical if amoral solution. No one I know of is doing that. Holding the line is another story.
    As a state university, we have relied (reasonably, at least up to a point) on state support to keep the quality of the education as high, and the cost of attendance as low, as possible. But at the moment we need state funding the most, it’s being slashed.
    Government at all levels has paid little attention to education, especially higher education, in its various recovery packages: less money in direct funding, no increases in Pell and similar programs. This active complacency, as it were, cuts across all political distinctions: both the Biden and Trump administrations have been disastrous in this respect, and state governments in red and blue states alike have followed suit.
    Universities of all descriptions have lost mountains of money over the last 15 months. I certainly agree that in-person instruction is better than the online stuff in manifold ways, and that the Harvards of the world (my undergrad degree is from Dartmouth; same story) ought to be cognizant of that reality. But lowering tuition by many institutions would put them out of business, creating not merely educational turmoil, but a fair amount of added economic stress, as well.
    So pragmatically, only the elite schools can do what you suggest is the only ethical solution. So where does that leave the rest of us? Should we close 90% of the nation’s colleges and universities?

    • They do what they can, no? Give discounts on future years’ tuition. Sell some assets. Cut some administrative positions. The students bear the burden no matter what. The universities have an ethical obligation to do what they can.

      • I was pleased that my school refunded the portion of room and board without being asked by the students or being sued. It was a devastating hit, but the school did it anyway. I was a little disappointed that no one noticed. Other nearby schools were sued over the issue, but were lauded in the press for their ‘COVID Response”. The few schools that did the right thing were not mentioned, making many think that all schools refused to refund. Maybe that is why so many schools don’t do the right thing. There is a price for doing the right thing and there is seemingly no penalty for not doing the right thing.

  3. I heard a news bit on the radio similar to this. Students who did receive a refund from schools may face tax consequences since the monies may have been tax-deferred to fund the schooling.

    Be prepared for nasty looks if you point out that tax law violations are what they’re trying to pin on Trump, or that universal healthcare funding has to come from somewhere…

    • The refund would have to be in excess of the payments to a 529 plan to be subject to tax issues. I would guess that most families do not over fund kids education in 529 or even fund them to anything close to the exact penny because schools have had price increases well above the CPI.

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