the law of contracts in college and university admission

SACAC – April 2013 1

The Law of Contracts in College and University

AdmissionForrest M. Stuart

Associate Vice PresidentOffice of Financial Aid

Furman University


Individual issues and cases should be discussed with your institution’s legal counsel.

The purpose of this session is NOT to give qualified legal advice, but to stimulate thinking about your own practices and your own publications, statements, and the like.

Disclaimers: a.k.a CYA


19th Century and half of the 20th Century◦ Higher education seen as a “unique enterprise that

could regulate itself through reliance on tradition and consensual agreement” (Kaplin & Lee, 2007, p. 16)

◦ Faculties and administrators seen as experts who did not need intrusion by the legal system

◦ Deference in dealing with students given to academic institutions

◦ Students viewed as having little, if any, constitutional rights at colleges and universities in loco parentis

Evolution of law in higher education


Latter half of 20th Century◦ Changes in student body composition, increases in the numbers

and types of institutions, civil rights and students rights movements, and calls for accountability from the public led to more federal and state influence and regulation.

◦ New legal requirements led to new impeti to sue institutions. Kaplin and Lee (2007)

In short, by the end of the twentieth century, higher education no longer enjoyed much of the judicial and legislative deference it once knew. Virtually every area of the law now applies to institutions of higher education, and keeping up with this vast body of continually evolving law is a great challenge for administrators, faculty, students, and scholars of higher education. (p. 17)

Evolution of law in higher education


A college asks an alumnus to represent the institution at a college fair. A student walks up to the alumnus and mentions that he has a 1350 on the SAT. The alumnus engages the student in conversation, and he says to the student, “you will have no problem being admitted with that kind of test score.” The student applies for admission and is subsequently denied admission. The reason for the denial of admission is the student’s high school GPA is a 2.35 with very few AP courses on his transcript. The student, of course, is upset, as are his parents.

Is the alumus considered an agent of the college?◦ If the answer is “yes”, did the alumnus act with apparent authority (or within his scope of

authority)?

Was an oral contract formed (and is it enforceable?) when the alumnus made the statement “you will have no problem being admitted with that kind of test score” and the student subsequently applied to the college based on that statement?

◦ FYI, the admission material is vague and mentions no “cut off” scores, GPAs, etc. as absolutes.

Hypothetical


Contractual in nature◦ Steinberg v. Chicago Medical School (1976)

Robert Steinberg received a Chicago Medical School catalog and subsequently applied for admission for the academic year 1974-75.

Steinberg paid a $ 15 application fee. Steinberg was rejected Steinberg filed a class-action suit against Chicago

Medical School for breach of contract (but not to be admitted). Claimed that the medical school used admission criteria

other than that which was stated in the catalog - specifically that ability to contribute monetarily was used as a criterion

Student – Institution Relationship


Steinberg asserted that “the school was duty bound under the terms of the contract to evaluate his application according to its stated standards…”

The court ruled that Steinberg and the school entered into a contract and that the school bound itself to the use of explicit admission credentials as stated in the bulletin.

Student – Institution Relationship (cont.)


Chicago Medical School Catalog statement on evaluation for admission:◦ “Students are selected on the basis of

scholarship, character, and motivation without regard to race, creed, or sex. The student's potential for the study and practice of medicine will be evaluated on the basis of academic achievement, Medical College Admission Test results, personal appraisals by a pre-professional advisory committee or individual instructors, and the personal interview, if requested by the Committee on Admissions."

Student – Institution Relationship (cont.)


“…an agreement between competent parties, upon a consideration sufficient in law, to do or not to do a particular thing” (Steinberg v. Chicago, 1976, p. 4).

“The contract is a promise or set of promises, the breach of which the law gives remedy, the performance of which the law recognizes the duty” (Miles, 1997, p. 92).

Contract Definition…


Both parties must have legal capacity to contract◦ Legal age (varies by state)◦ Competency

Consideration must be given◦ Money (application fee; tuition paid)◦ A return promise

Mutual assent◦ Shown by offer and acceptance

Contract Formation (Miles, 1997)


“Basic contract law requires an offer and an acceptance based on mutual understandings” (p. 18).

◦ Offer – “…institution’s general offer to admit applicants with certain credentials to its particular programs” (p. 18).

◦ Acceptance – “… the applicant’s assertion that he or she has those credentials and thus should be admitted” (p. 18).

◦ Consideration – the application fee and/or the promise to be considered for admission using the stated criteria

Key concept to Contract Law (Bunting, 1989)


Credentials are not specifically defined Process (not policy) indicates the

credentials may be waived Academic programs/offerings are changed

Note: These can surface in both oral and written contracts

When do problems arise? (Bunting, 1989)


Contract between the school and the applicant◦ Admission materials describing the admission

process and inviting the student to apply (the offer)◦ Student applies (the acceptance)◦ Student pays application fee or submits application

for a return promise to be evaluated based on admission materials (consideration)

Contract between the school and the matriculant◦ College Catalogue is the main contract◦ Can include any other documents produced by the

institution and disseminated to students.

Two Admission Contracts (Miles, 1997)


Grove v. Ohio State University College of Veterinary Medicine (1976)◦ Dean and a faculty member promised a vet school

prospect that he would be admitted to the vet school the following year.

◦ Student was denied admission due to undergraduate grades and test scores.

◦ Court held that The dean’s promise was a contract, especially since he

apparently had the authority to make admission decisions

There were no written documents defining who had the authority to make such decisions.

Oral Contracts (Bunting, 1989)


Elliot v. Duke University (1984)◦ Divinity school applicant alleged that the director

of admission stated that completion of certain courses would enable applicant to enroll as a “regular student.”

◦ Applicant followed through, but was ultimately denied admission.

◦ Applicant sued for breach of contract.◦ NC Court of Appeals indicated such contracts

could exist, but the catalogue explicitly stated that an Admissions Committee would make all admission decisions for divinity school.

Oral Contracts (cont.)


Bunting (1989) stated that these cases:… spell out the importance of taking care in what is said and who says it during the admissions process. They also point to a good escape hatch for problems caused by careless talking: clearly written statements in official literature that specify the criteria and process for admission will go a long way toward muting ill-timed or unfortunate oral statements by administrators. (p. 20)

Summary


Agents of an institution◦ Trustees◦ Administrators◦ Faculty◦ Alumni (in some instances)

Law states that the actions of an agent may bind the institution

Law of agency can enforce contracts

Agency Law


“The key to an institution being held liable for an agent’s actions is that some kind of authority can be implied, as when an officer speaks for the institution, or apparent, as when an academic counselor advises students on degree requirements. The parties do not have to understand that they are setting up an agency relationship for agency to exist” [emphasis added] (Miles, 1997, p. 107).

Agency Law (cont.)


Review all publications, written and electronic.◦ Accuracy◦ Define admission criteria clearly and concisely

Avoid overly vague terminology like satisfactory or acceptable, but also avoid being overly specific. For example, “Some of the credentials that will be considered include x, y, and z ” (Bunting, 1989).

Clearly state who has authority to make the decision to admit applicants.

State that the admission decision is conditioned upon accurate and current information provided by the applicant.

Implications for Admission


Review oral interview process and ensure it is as standardized as possible

◦ Interview checklist◦ Instruct interviewers to state clearly who has the

authority to make admit decisions.◦ Avoid promises of admission.◦ Train alumni representatives on what can and

cannot be stated to a prospective student.

Implications for Admission (cont.)


Review any publications and ensure that there are appropriate disclaimers.

◦ Eiland v. Wolf, 764 S.W.2d. 827 (Tex. Ct. App. 1989).

◦ Easley v. University of Michigan Board of Regents, 627 F. Supp. 580 (E.D. Mich. 1986).

Other suggestions


“Admission is selective, based primarily onprevious academic performance and provenleadership and committed involvement inactivities outside of the classroom. Neitheracademic record nor ability is, in itself, sufficientqualification for admission of any candidate. Theuniversity reserves the right to deny admission toany student who, in the judgment of the AdmissionCommittee, may not benefit from SACAC University’s educational program or whose presence or conduct may be detrimental to the program.”

Sample admission language


SACAC University seeks to enroll intelligent, inquisitive, energetic, and compassionate students who will bring a diversity of talents and backgrounds to our campus. In selecting the class, the Committee on Admissions evaluates thoroughly each applicant’s personal and academic credentials.

Academic Achievement. In evaluating a student’s academic achievement, the Committee on Admissions considers a student’s curriculum, class rank, concentration of talent in the high school, test scores, teacher evaluation, and essays. Most students admitted to SACAC University have taken the most demanding courses available, rank among the top students in their schools, and have done quite well on standardized tests. We could cite the average rank and median test results of our admitted students, but a listing of such numbers is often misinterpreted. Each year, some applicants with high test scores and class rank are not admitted, while some students with less impressive numbers are selected for admission based on their other outstanding academic and personal accomplishments.

Sample admission language (cont.)


A college asks an alumnus to represent the institution at a college fair. A student walks up to the alumnus and mentions that he has a 1350 on the SAT. The alumnus engages the student is conversation, and he says to the student, “you will have no problem being admitted with that kind of test score.” The student applies for admission and is subsequently denied admission. The reason is the student’s high school GPA is a 2.35 with very few AP courses on his transcript. The student, of course, is upset, as are his parents.

Is the alum considered an agent of the college?◦ If the answer is “yes” (which I believe to be the case), did the alumnus act with apparent

authority (or within his scope of authority)?

Was an oral contract formed (and is it enforceable?) when the alumnus made the statement “you will have no problem being admitted with that kind of test score” and the student subsequently applied to the college based on that statement?

◦ FYI, the admission material is vague and mentions no “cut off” scores, GPAs, etc. as absolutes.

Hypothetical


References

Bunting, E. (1989). The admissions process: New legal questions creep up the ivory tower. School Law Bulletin, 20(4), 18-21.

Cherry, R. L., & Geary, J. P. (1992). The college catalog as a contract. Journal of Law & Education, 21(1), 1-32.

Drushal, J. D. (1976). Consumer protection and higher education--Student suits against schools. Ohio State Law Journal, 37, 608-633.

Elliot v. Duke University, 66 N.C. App. 590. (1984).

Grove v. The Ohio State University College of Veterinary Medicine, 424 F. Supp. 377. (1976).

Kaplin, W. A., & Lee, B. A. (2007). The law of higher education, student version (4th ed.). San Francisco: Jossey-Bass Publishers.

Miles, A. (1997). College law (2nd ed.). Northport, AL: SEVGO Press.

Steinberg v. Chicago Medical School, 69 Ill.2d 320. (1996).

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