Catalogs as Contracts - Law and Higher Education
The courts have constantly refined the relationship between institutions of higher learning and their students since the nascence of American higher education. As societal expectations have evolved, new demands have been placed on colleges and universities by their primary constituency, students, for less paternalism and more accountability for services rendered. This dynamic relationship can be characterized by a judicial evolution from a time during which universities stood in loco parentis, or in the place of the parent, to the current contractual perspective, one in which students represent consumers, and universities act as providers. This entry examines the contractual relationship between students and educational institutions, particularly as embodied in college and university publications, before reviewing the most important cases addressing this relationship.
The Institution–Student Contract
Over time, courts have considered institutional publications that describe policies or procedures as the bases of agreements between students and institutions. Courts have made use of any number of official college and university publications such as catalogs, bulletins, and course syllabi, a topic over which there is an amazing dearth of litigation, as well as oral communications by faculty members, deans, and advisors, in order to assess the mutually obligatory relationship between institutions and students. In fact, a 1972 study noted that provisions of the student–institution contract could be uncovered in statements from documents, including applications, catalogs, bulletins, and formal policy statements.
Scholars have noted that, in their basic form, contracts between students and institutions of higher learning are established by the oral and written representations made by the parties from the point of application and throughout students’ tenure at colleges and universities. These representations can be included in such publications as application forms, brochures, catalogs, and course descriptions as well as in oral representations. Although courts have addressed numerous types of university publications such as applications, housing contracts, and even oral statements with varying degrees of scrutiny, the primary document examined is the college or university catalog.
While contract law is applicable to both the public and private sector, the majority of cases concerning representations in college catalogs have emanated from the private sector, because their students are typically precluded from the protection of constitutional due process. For this reason, these students must rely heavily on representations made in institutional catalogs or other publications as bases for definitions of their relationships with institutions.
Some scholars posit that the breadth of contract theory precludes uniform application to higher education because of the multifaceted nature of college and university operations. Courts adhere closely to contract theory in some areas and apply it more liberally in others. For example, legal scholars have pointed out that in academic and disciplinary actions, courts tend to defer to institutions while simultaneously regarding the relationship between student and institution as contractual. Some critics interpret this dichotomy as precluding adequate protection for students, because it permits institutions to base their obligations to students on assertions made in collegiate literature. Others have suggested that because materials such as catalogs and bulletins are not drafted to be contracts, they are vague and amended with ease at the will of institutional decision makers. Still others assert that although catalogs may describe the mutual expectations of institutions and students, they do not capture the entire relationship or adequately reflect the totality of students’ expectations.
Insofar as catalogs and bulletins are used to communicate important information to students about institutions and their policies, they can be used as recruiting tools to attract new students. As such, catalogs include disclaimers of obligations while indicating that students, by following delineated sequences of events, can enjoy continuing relationships with the institutions leading to the conferral of degrees. Some scholars maintain that students and institutions do not enter into arm’slength agreements, meaning that the parties are not in objective, disinterested relationships, because not all potential students have the wherewithal to attend colleges or universities of their choice. Some of these scholars also recognize that students are unable to negotiate the terms indicated in institutional bulletins or catalogs.
As reflected by the fact that disputes over the status of catalogs as contracts did not emerge until the 1970s, it all but goes without saying that this is a relatively recent legal development. In Babcock v. New Orleans Baptist Theological Seminary (1989), an appellate court in Louisiana affirmed that because a university catalog was part of the contract between a student and the institution, the seminary was bound to follow its own regulations. The plaintiff, who was a student in the master of divinity program and an ordained minister, was dismissed from the seminary for separating from his wife and considering divorce. Officials based their action on a university policy that directed students who separated from or divorced their spouses to withdraw. The plaintiff, arguing that he and his wife were not separated, obtained an injunction preventing the seminary from dismissing him subject to provisions in the institution’s student handbook. While the case was pending, the student completed his degree. However, because seminary officials refused to award the student his degree, he filed suit.
On appeal, the court found that this dispute turned on the seminary’s role as an educational institution, not a church, and that by delineating a policy regarding divorce and describing due process procedures in its catalog, the institution departed the arena of religious doctrine and entered the realm of contract. The court concluded, through the application of contract principles, that the student was entitled to receive his degree in spite of the seminary’s disciplinary actions. The court ruled that because the dispute involved contractual interpretation, rather than First Amendment religious issues, and did not involve matters of faith, custom, or the appointment (or removal) of ministers, the court had the authority to act. More specifically, the court decided that by placing the divorce and separation policy in the student handbook along with a description of applicable due process procedures, university officials removed the dispute from the realm of religious controversy, making it a matter of contractual application.
The precise language of university publications can also be construed in favor of students when institutions do not follow their own published procedures. Tax-supported institutions are bound constitutionally to abide by provisions concerning due process rights in disciplinary matters. While private institutions are permitted more freedom, courts look to the explicit language of institutional publications, regardless of whether a college or university is public or private, in addressing whether their actions were arbitrary or violated a contract between themselves and their students.
In Fellheimer v. Middlebury College Corp. (1994), a student was suspended from a private college after disciplinary proceedings for the alleged sexual assault of a fellow student. Prior to the hearing, the student was informed that he was being charged with “rape/disrespect for persons.” The student contacted the dean, expressed confusion over the charge, and was told to concentrate on the rape charge. After the hearing, the student received a letter informing him that the university had found him not guilty of rape but guilty of disrespect for persons. The student filed suit for breach of contract, alleging that university officials failed to provide him adequate notice of all of the charges.
The federal trial court in Vermont entered a judgment in favor of the student, noting that the handbook specifically stated that the charges against a student “shall state the nature of the charges with sufficient particularity to permit the accused party to prepare to meet the charges.” Yet, in treating the student’s claim as contractual rather than constitutional, because this was the way in which he presented his case, the court rejected his challenge that the charge “disrespect of persons” as mentioned in the handbook was impermissibly vague such that it did not afford him sufficient preparation to defend himself against such a charge. Consequently, the court reasoned that college officials breached the institution’s contract with the student by failing to provide him with adequate notice of the charges he faced.
The notion of the offer and acceptance of tuition and fees as creating a binding admissions contract was delineated in Steinberg v. Chicago Medical School (1977), a dispute that is considered the benchmark case in the application of contract theory to the admissions process. Here a student applied for admission to medical school and paid the application fee. When the student’s application was rejected, he filed suit, claiming breach of contract. The student’s suit alleged that officials had not evaluated his application according to the criteria stated in the school’s bulletin. Instead, he charged that school officials used nonacademic criteria, namely, his ability or his family’s ability to make substantial financial contributions to the medical school. The Supreme Court of Illinois held that because the publication of the criteria created a contractual relationship between the student and institution, its terms obligated officials at the medical school to evaluate applicants according to the criteria published in its catalog.
The judiciary may favor students in cases where plaintiffs reasonably and justifiably relied on statements made in catalogs concerning course requirements and curricular issues. In the issue addressed in University of Texas Health Science Center at Houston v. Babb (1982), a student enrolled in a nursing program under the terms of the 1979 catalog, according to which students whose grade point averages fell below a 2.0 would be placed on probation, and the grade for courses repeated would be their final grades. In addition, the catalog stated that students would be held to the requirements of the catalog under which they entered the institution. During her studies, the plaintiff received “D” grades in two classes. Then, the 1981 catalog promulgated a new regulation that students who accumulated more than “two D’s” would be terminated from the program.
The student filed suit, contending that she should be subject to the provisions of the catalog under which she entered the institution and should not be bound by the new provision. When a trial court issued an injunction on her behalf, the university sought further review. An appellate court in Texas affirmed in favor of the student. According to the court, the catalog created a binding contract between the student and the institution, even though the university was free to modify its academic standards. Still, the court ruled that in light of the wording of the original catalog, which expressly stated that students would be allowed to progress through their programs under the terms of the catalogs that were in effect at the time of their enrollment, she was entitled to complete her studies.
On occasion, the judiciary has determined that institutional catalogs and bulletins do not constitute binding contractual agreements. In Love v. Duke University (1991), a Hispanic doctoral student whose academic performance was unsatisfactory challenged his subsequent dismissal from the program. The student unsuccessfully filed suit, alleging that he had been removed from the program due to his ethnicity and that officials breached a contractual agreement with him that was clearly specified in the university bulletin.
A federal trial court in North Carolina echoed the familiar sentiment of judicial deference to academia, refusing to find the existence of a contract between the student and the university, particularly because it did not consider the academic bulletin as a binding contract. It is interesting to note, though, that the court ruled in favor of the university on the ground that the student did not perform to the level of the guidelines delineated in the bulletin. While the court refused to treat the agreement as a contract, it looked to the specific language printed in the university publication in rendering its judgment. Put another way, in deciding that the student failed to prove that he was dismissed due to his race, it acknowledged that pursuant to handbook provisions, he was not treated differently from similarly situated students who failed their preliminary examinations in accord with programmatic guidelines, and there was no evidence that university officials acted arbitrarily or capriciously in dismissing him from the program.
The contract theory applicable to higher education has undergone an evolutionary process through which it has become firmly ensconced as a viable legal descriptor of the relationship between institutions of higher learning and students. In its nascent period, contracts existed as simple written agreements through which students pledged to uphold the rules, regulations, and codes of their college or universities. Today, these agreements have developed into legally recognized contracts for goods and services established between two parties. In its contemporary manifestation, contract theory provided students an outlet to seek redress against their colleges and universities that was previously unavailable. Now characterized as consumers, students have certain and precise expectations of collegiate performance and can actively seek judicial relief through contract theory for perceived violations of these expectations.
Kerry Brian Melear
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- Babcock v. New Orleans Baptist Theological Seminary, 554 So. 2d 90 (La. Ct. App. 1989).
- Fellheimer v. Middlebury College Corp., 869 F. Supp. 238 (D. Vt. 1994).
- Love v. Duke University, 776 F. Supp. 1070 (M.D.N.C. 1991).
- Steinberg v. Chicago Medical School, 371 N.E. 2d 634 (Ill. 1977).
- University of Texas Health Science Center at Houston v. Babb, 646 S.W. 2d 502 (Tex. Ct. App. 1982).