“The Duke bulletin is not a valid contract.”
Of Duke’s hundreds of pages of filings in the lacrosse case civil suit, that sentence is perhaps the most striking. Duke’s official publications and website tell students that they will not be harassed on the basis of race, class, or gender; and that professors will treat all Duke students with respect, as fellow members of the academic community. But, as Duke’s attorneys have made clear, the University believes it has no legal obligation to actually enforce these admirable provisions. (I have found nothing in Duke’s admissions material communicating this message to prospective Duke parents.)
Duke, of course, has implemented both the student bulletin and the faculty handbook on many occasions. (Just ask the hundreds, if not thousands, of students who have gotten caught up in University disciplinary proceedings.) The lacrosse case, however, provides a perfect illustration of when University administrators will refuse to enforce both documents: if race/class/gender activists among the faculty decide to target select groups of undergraduates to advance their pedagogical or ideological agendas, Duke considers itself under no obligation to uphold its own policies to protect its own students.
Duke’s attorneys based their assertion on a 1991 case, Love v. Duke University, which involved a Hispanic graduate student named John Love. In 1984, Duke kicked him out of its biochemistry graduate program after Love failed to complete all five of his spring semester classes. In 1986, the program readmitted him—and he promptly flunked out again. Incredibly, Love then sued, claiming discrimination on the basis of ethnicity.
Love added a breach of contract claim, noting that between the 1983 and 1986 versions of its student bulletin, Duke had shortened the length of time before which biochem students needed to take their preliminary exams. Love claimed that he should have been granted the longer period available in the 1983 bulletin. At least in the description of the case, there seemed to be no reason to believe that the extra time would have made any difference for Love. Indeed, Duke gave Love nine months beyond the deadline to pass his preliminary exams, and he failed to do so.
Love’s allegations were pathetically weak. Judge Richard C. Erwin noted that he had presented no evidence—beyond the fact of his ethnicity—to prove his claim of discrimination. Most of Erwin’s decision discussed Love’s discrimination claim, but, almost as an aside, the district judge also addressed the breach of contract issue. Erwin noted that Love’s argument made little sense: because the student had been kicked out, Duke had the right to condition Love’s readmittance on his following the 1986 bulletin. In any case, Erwin noted that even wording in Love’s brief seemed to concede that the student was subject to the 1986 bulletin’s terms.
Having dispensed with Love’s argument, Erwin could have concluded his opinion. Instead, he asserted,
The court is of the opinion that no contract existed between Love and Duke University. Particularly, the academic bulletin is not a binding contract . . . As previously stated, this court finds that a binding contract did not exist between plaintiff Love and defendant Duke University. This finding is based on Love’s claim that the University Bulletin created a binding contract between Love and the university . . . Since the court finds that the University Bulletin was not a binding contract between Love and defendant Duke, the defendant's motion for summary judgment on the state law contract claim is granted.
Judge Erwin did not cite a single case to explain why he decided that “the academic bulletin is not a binding contract.” He offered no description of how he reached this decision, and didn’t present a single argument on behalf of his opinion. Erwin simply made the assertion as if no credible alternative existed.
Anyone whose sole exposure to higher education law came from Love would be stunned to discover passages such as those below:
From a 1972 case, Zumbrun v. University of Southern California:
The basic legal relation between a student and a private university or college is contractual in nature. The catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant become a part of the contract. (Carr v. St. John's Unversity, New York (1962) 17 App.Div.2d 632, 633 [231 N.Y.S.2d 410, 413], affd. 12 N.Y.2d 802 [235 N.Y.S.2d 834]; Anthony v. Syracuse University (1928) 224 App.Div. 487, 489-490 [231 N.Y.S. 435, 438-439]; Goldstein v. New York University (1902) 76 App.Div. 80, 82-83 [78 N.Y.S. 739, 740]; People ex rel. Cecil v. Bellevue Hospital Medical College (1891) 60 Hun 107 [14 N.Y.S. 490], affd. 128 N.Y. 621 [28 N.E. 253]; John B. Stetson University v. Hunt (1925) 88 Fla. 510, 517 [102 So. 637, 640]; University of Miami v. Militana (Fla.App. 1966) 184 So.2d 701, 703-704; Barker v. Trustees of Bryn Mawr College (1923) 278 Pa. 121, 122 [122 A. 220, 221]; Greene v. Howard University (D.C. Dist. Col. 1967) 271 F.Supp. 609, 613; see Dixon v. Alabama State Board of Education (5th Cir. 1961) 294 F.2d 150, 157, cert. den. 368 U.S. 930 [7 L.Ed.2d 193, 82 S.Ct. 368]; Searle v. Regents of the University of California (1972) 23 Cal.App.3d 448, 452 [100 Cal.Rptr. 194].)
From a 1992 case, Ross v. Creighton University:
It is held generally in the United States that the “basic legal relation between a student and a private university or college is contractual in nature. The catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant become a part of the contract.” Zumbrun v. University of Southern California, 25 Cal.App.3d 1, 101 Cal.Rptr. 499, 504 (1972) (collecting cases from numerous states). Indeed, there seems to be “no dissent” from this proposition. Wickstrom v. North Idaho College, 111 Idaho 450, 452, 725 P.2d 155, 157 (1986) (quoting Peretti v. Montana, 464 F.Supp. 784, 786 (D.Mont.1979), rev'd on other grounds, 661 F.2d 756 (9th Cir.1981)). As the district court correctly noted, Illinois recognizes that the relationship between a student and an educational institution is, in some of its aspects, contractual. See Steinberg v. Chicago Medical School, 69 Ill.2d 320, 13 Ill.Dec. 699, 371 N.E.2d 634 (1977) (agreement that medical school application would be evaluated according to the criteria described by the medical school in its literature); DeMarco v. University of Health Sciences, 40 Ill.App.3d 474, 352 N.E.2d 356 (1976) (refusal to award M.D. degree for reasons unrelated to academic qualifications constitutes breach of contract).
From a 1998 case, Thornton v. Harvard University:
Courts have held that the basic legal relationship between students and universities is contractual in nature. Mangla v. Brown Univ., 135 F.3d 80, 83, 1998 U.S. App. LEXIS 1598, (1st Cir. 1998); Russell v. Salve Regina College, 938 F.2d 315, 316 (1st Cir. 1991). “The terms of the contract may include statements provided in student manuals and registration materials.” Mangla, 135 F.3d at 83; Lyons v. Salve Regina College, 565 F.2d 200, 202 (1st Cir. 1977), cert. denied, 435 U.S. 971, 56 L. Ed. 2d 62, 98 S. Ct. 1611 (1978). “The proper standard for interpreting the contractual terms is that of 'reasonable expectation -- what meaning the party making the manifestation, the university, should reasonably expect the other party to give it.'“ Mangla, 135 F.3d at 83 (quoting Giles v. Howard Univ., 428 F. Supp. 603, 605 (D.D.C. 1977).
From a 2007 case, Kashari v. California Board of Regents:
The basic legal relationship between a student and a private university is contractual in nature. Courts have recognized that a contractual relationship applies equally to state universities. Indeed, there seems to be almost no dissent from the proposition that the relationship between a public postsecondary educational institution and a student is contractual in nature.
These cases, of course, all come from different states or circuits than Love. Nonetheless, their findings—coupled with the extensive citations—beg the question of why Judge Erwin did not think that “courts have held that the basic legal relationship between students and universities is contractual in nature.”
Courts that have wrestled with the problem in a way that Erwin did not have come to a more nuanced—and intellectually defensible—position. Take, for instance, the Ross v. Creighton University case quoted above. The Ross court noted that the courts “would not recognize all aspects of a university-student relationship as subject to remedy through a contract action,” since “a decision of the school authorities relating to the academic qualification of the students will not be reviewed.... [C]ourts are not qualified to pass an opinion as to the attainments of a student ... and ... courts will not review a decision of the school authorities relating to academic qualifications of the students.”
[As an aside, this standard makes Duke’s decision to settle the Kim Curtis grade retaliation case with a public announcement of a grade change so stunning: for the reason presented above, universities almost never lose grade retaliation cases.]
But, the Ross court held, this inclination to avoid involvement in the minutiae of academic matters doesn’t mean that the courts must stand idly by when universities fail to enforce their own promises to students. The plaintiff, wrote Ripple, “must point to an identifiable contractual promise that the defendant failed to honor . . . the essence of the plaintiff's complaint would not be that the institution failed to perform adequately a promised educational service, but rather that it failed to perform that service at all. Ruling on this issue would not require an inquiry into the nuances of educational processes and theories, but rather an objective assessment of whether the institution made a good faith effort to perform on its promise.”
Kashmiri employed a similar analysis. The courts, it held, could not second-guess academic decisions: “The student-university relationship is unique, and it should not be and can not be stuffed into one doctrinal category. Universities are entitled to some leeway in modifying their programs from time to time to exercise their educational responsibility properly. Additionally, courts have often deferred to any challenge based in contract to universities' academic and disciplinary decisions.”
What about the relevance of the bulletin? Kashmiri held, “Whether a given section of the bulletin or catalogue becomes part of the contractual obligations between the students and the university must depend upon general principles of contract construction. Thus, the case law recognizes that, like all obligations imposed pursuant to implied contractual terms, the contractual obligations imposed by the language in catalogues center around what is reasonable. Implied contractual terms ordinarily stand on equal footing with express terms.”
And so, for instance, if Duke brought disciplinary actions against hundreds of students based on the terms of the student bulletin; or if Duke regularly evaluated its professors according to the terms laid down in the faculty handbook, it would be reasonable for students to consider the bulletin and the handbook to be implied contracts.
One other section of Kashmiri spoke directly to an item in the Duke filings. The ruling held, “The University had complete control over what language to use in its catalogues and on its Web sites. It is well established that “[i]n cases of uncertainty not removed by [other] rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.”
Duke’s motion to dismiss admits that University policies might require Duke professors to treat all students with respect as fellow members of the academic community; and not to harass them on basis of race, class, or gender—but, it claims, the University should not held be legally liable for its failure to enforce its own policies against those professors, because the institution’s “policies must be balanced against principles of academic freedom.”
There’s only one problem with this argument: to quote Kashmiri, “The University had complete control over what language to use in its catalogues and on its Web sites,” and nowhere in its catalog or website did Duke mention that an “academic freedom exception” exists to its policies regarding faculty treatment of students. The University can’t really invent such an exception after the fact, to cover up for a group of faculty who decided that they could best advance their own pedagogical and academic interests by targeting their institution’s own students.
Love’s handling of the status of a bulletin was, in short, an intellectually lazy decision that set aside traditional thinking on the nature of contracts in higher education law without bothering to offer a single case or even a single reason to substantiate the opinion.
But even if Love’s opinion on the status of a bulletin was correct, changes in the nature of the academy would highlight the dangerous standard that Judge Erwin applied. In the academy of the 1980s, faculty peer pressure—if nothing else—would have mitigated against or prevented altogether the sort of behavior we saw in the Duke case. Even if a few bad apples—say, someone like Houston Baker—might have misbehaved, enough intellectual diversity existed among the faculty for professors to have stood up and demanded that the administration enforce Duke policies.
In this sort of environment, a “breach of contract” charge would have been far more likely to have focused on exactly the kind of picayune detail at the heart of the Love case (was an exam required within 36 months or 24 months?) than on an issue of fundamental academic importance (can faculty go after their own students if they think that doing so will advance their pedagogical interests?).
The 23 years since Duke expelled John Love, however, has featured an academic revolution. A glance through the homepage of the Foundation for Individual Rights in Education (FIRE) testifies to the war on student rights—ranging from speech codes to the Univ. of Delaware’s Orwellian “diversity” residential affairs program. The composition of the faculty, meanwhile, has changed radically: the triumph of the race/class/gender paradigm in the humanities and (most) social science departments has combined with an obsessive emphasis on “diversity” (except of the intellectual and pedagogical type) to produce a faculty wildly skewed in one direction on key pedagogical and intellectual issues.
As the Duke case spectacularly demonstrated, no one can count on peer pressure to ensure that “activist” faculty members behave according to minimal professional standards. In such an atmosphere, saying that the faculty handbook and student bulletin don’t constitute legally binding documents amounts to saying that the two guides aren’t worth the scraps of paper on which they’re written.
In short, in the contemporary academy, the written requirements of the bulletin or the faculty handbook can provide the only defense against faculty groupthink. Love, in this respect, is not only bad law: it’s disastrous for higher education.