Should I Stay or Should I Go: Student Housing, Remote Instruction, Campus Policies and COVID-19

In March 2020, as the world scrambled to understand and address myriad public health and economic challenges unfolding from the novel coronavirus labeled COVID-19, higher education was forced into a tailspin. This article examines the legal and policy challenges that result from, among other issues, the congregate housing situations existing for on- and off-campus housing at colleges and universities. The legal issues demonstrate federalism at work and include; at the federal level, regulations and guidance from the White House, the Center for Disease Control (CDC) and the U.S. Department of Education; at the State level from gubernatorial executive orders, state departments of education and state health departments; and at the local government level from mayoral executive orders and local public health offices. Part II discusses the shift to remote instruction in higher education beginning in March 2020. Section A sets forth the regulatory landscape leading to remote instruction, and Section B discusses housing challenges from the Spring 2020 semester that included closing campus housing and sending students home as well as issues related to the departure of students for spring break who received emails once off-campus stating that they could not return to campus to retrieve their belongings for an unknown period of time. The legal issues surrounding the return of fees such as those pre-paid for housing and food services is addressed, and the rise of class action lawsuits is discussed. Part III examines some approaches campuses took for re-opening in the Fall 2020 semester, analyzing COVID-19 testing generally, enforcement of campus policies, student violations, and COVID-19 transmission related to congregate housing. These approaches were influenced by CDC guidance for higher education, state specific re-opening guidance and other business, health, and education regulations applying to higher education. This section also looks at strategies being created and implemented to allow institutions to open/re-open in the Spring of 2021. Part IV concludes with thoughts about the future of higher education as campuses continue to navigate through a COVID and post-COVID landscape