One of the consequences of increasing and outlandish costs of higher education is that students, along with parents and others cutting tuition checks or taking out new loans, are more likely to challenge adverse disciplinary or academic decisions.

In a lot of respects, this makes perfect sense. Much of higher education functions as any other big business—focused largely on profitability, finances, and competition for tuition dollars. As tuition costs have gone from “sensible” to “acceptable” to “way too high” to “OMG soul crushing,” students (and parents, etc.) spending tens of thousands of dollars annually have come to have more definite, quid pro quo expectations than prior generations. Those expectations, sensibly enough, are like those of consumers in other settings–starting with getting something like what they paid for.

So, what exactly are we paying for? For many years, courts including those in Connecticut and New York have recognized that a relationship between a student, on one hand, and a university, trade school, or for-profit school, diploma mill, etc., on the other hand, includes contractual aspects. That is, in exchange for tuition payments, a student has at least some enforceable contract rights that the school do what it promised to do.

A specific promise or representation by the school is more likely to create an enforceable contractual obligation. An obvious example is when a school fails in “some fundamental respect” pertaining to the basics of why a student pays tuition:  course offerings, accreditation, etc. On the other hand, “Come to Penn State and we’ll win a national football championship” is non-enforceable, marketing puff. (Alas.)

A second category, which surprises many students and parents, involves an institution’s breach of written promises. Many of the enforceable promises that students may need to invoke in a bad situation are contained in documents they never read:  the dense (unreadable) handbooks, academic or disciplinary codes, course requirements, and bulletins, among others. Contractual obligations may also arise from verbal statements.

For instance, if a disciplinary code creates a procedure for hearing, determinations and appeals related to disciplinary matters, the school cannot ignore that process and impose discipline based upon ad hoc rules that violate the written code provided to the student. If it does, a court could determine the school breached a contractual obligation to the student. Generally speaking, the same can be said for other policies and rules created by the school, although most students pursuing this will need to address broad disclaimers and reservations of rights to modify policies and procedures as they see fit.

Certain other types of disputes in the higher education setting can be more difficult to pursue. “Academic” decisions – e.g., test scores or academic dismissals–can implicate the concept of “academic freedom,” which courts ordinarily avoid second-guessing. This is because these decisions “require an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decision making,” as Justice William Rehnquist put it in a 1978 US Supreme Court ruling involving a medical student whom we should probably be happy was not able to become a doctor.

Courts also recognize this logic has limits. If an academic determination is arbitrary or lacks a “discernible rational basis,” it could be attacked in court. Most often, though, a school’s academic determinations are legally defensible (even if not “fair”), since students unhappy with them cannot meet the “exacting standard” generally articulated by courts in order to sustain challenges to academic decisions.

So-called “educational malpractice” (“I didn’t really learn anything”) claims are most often unsuccessful, as well. An infamous example involved a “student athlete” at Creighton University who received an athletic scholarship, then kept up a D-average over a four-year period with the help of courses like “Marksmanship” and “Theory of Basketball.” He then left Creighton, only to realize—oddly enough—that he had not gained what he (anyone) considered a “college education.” And he was probably right, but even on those facts, his avenue for recovery against Creighton was narrowed by a federal appeals court. Most courts have rejected educational malpractice claims.

There are two important points about all of this. The first is that it is focused on post-secondary education (i.e., not K-12).   The K-12 setting involves many, far different considerations. The second is that many lawyers believe the law has not kept up with the higher education’s evolution as a very big, and very profitable business that can victimize unwitting consumers. Deferring to “academic freedom” made more sense when the one-year cost of tuition did not approximate the cost of a nice-ish SUV.

Eventually, some gaps may be filled by legislation or new approaches by courts. For the foreseeable future, the best approach for students is caveat emptor–buyer beware. There is no return policy, the law is not necessarily on students’ side, universities know both of these things, and students should proceed accordingly.

Bill Lalor is a Wilton attorney with offices in Connecticut and New York City. He can be reached via email.

The opinions expressed are solely those of the author(s). This content is provided as background and does not constitute legal advice.

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