Audrey Wolfson Latourette, Richard Stockton College of New Jersey
Colleges and universities employ a variety of means to afford academic advising to their students, including the use of faculty serving as preceptors and/or a Director and advising staff emanating from a Center of Academic Advising, among others. Whether the institution of higher education utilizes the Banner CAPP Degree Evaluation system, old school methods of advising documents or curriculum sheets, e-mail correspondence, or on-site interviews, the goal essentially remains the same: to provide a structure wherein students can satisfy all academic requisites, maintain the necessary cumulative average, fulfill athletic and scholarship requirements, and graduate in a timely fashion. Irrespective of what approach is adopted, many in the academy evince concern regarding the legal implications of erroneous guidance given a student which hampers their ability to comply with the foregoing objectives. Indeed, students do employ a variety of legal theories, including estoppel,i breach of contract, and negligence, to enforce statements issued by academic advisors or other representatives of the university. Research suggests, however, that barring egregious cases of misrepresentation or gross negligence on the part of the advisor and/or administrators, the academic advisor will generally be held blameless in the event that advising errors are made; and the institution, if a public university or college, will generally be afforded immunity pursuant to the federalii and state constitutions, even where its representative may incur individual liability. The reasons for the general inability of students to secure a resolution in their favor through litigation are threefold in nature: (1) the courts exhibit a long held deference to the expertise, judgment and autonomy of colleges and universities, particularly in the context of academic decision making; (2) the language set forth in many college bulletins make clear both the requirements for graduation and the policy that the ultimate responsibility for course selection and successful completion of degree requirements rests with the student; and (3) the tort of "educational malpractice" in claims brought by students asserting their education was inadequate, or that an academic advisor had been negligent, has not been embraced by the judiciary.
At one time the concept of in loco parentis permitted the university or college to exercise somewhat unfettered discretion and authority with respect to its students.iii Although now generally abandoned with regard to college students, the deference courts exhibit remains, and courts are reluctant to intrude upon "the broad discretion vested in the institutions with respect to the student-university relationship."iv Thus, for example, in the case of Napolitano v. Trustees of Princeton University,v wherein a student deemed guilty of plagiarism sued premised on, among other grounds, the university's violation of its implied contract with the student, the court did enforce the requirements mandated for such hearings as articulated in the university bulletin. But, significantly, the court, although personally deeming Princeton's judgment harsh, (the university deferred the student's graduation for one year, and notified all law schools to which she had applied, of its plagiarism adjudication) concurred with the ultimate plagiarism finding and punishment imposed.vi Further, when the matter at hand involves an academic decision, rather than one made in a disciplinary context, courts reflect a lesser degree of judicial scrutiny, in part fueled by a recognition of the courts' limited expertise in this arenavii. In short, barring evidence of arbitrary and capricious behavior on the part of institutions of higher education, as long as the state institution affords the student due process under the 14th Amendment, and the private institution engages in fair dealing with its students premised on breach of an implied contract, the rule of judicial nonintervention respecting academic affairs will apply.viii
Many student handbooks contain language specifically designating that the party deemed responsible for making the appropriate course selection is the student. Richard Stockton College of New Jersey, for example, while advocating students use the resources of both the Center for Academic Advising and the student's assigned faculty preceptor, particularly notes: "Each student assumes the responsibility for meeting the requirements of his or her academic program at Stockton."ix When a college bulletin unambiguously sets forth requirements, such as "a student must attain a C or better in a particular course or courses in order to graduate," courts will not relieve students of the responsibility for knowing this requirement, notwithstanding the fact that his or her advisor may not have warned of the consequences of failure to attain such grades. In the case of Wilson v. Illinois Benedictine College,x for example, a student sued for estoppel (i.e., arguing the college should be estopped from denying him permission to graduate) and breach of contract when his anticipated graduation date was deferred due to his failure to attain a C or better in two required economics courses. His advisor, with whom he had met, had never informed him that the D grades he had earned in the courses would pose a hindrance to graduation. The advisor stated that he was unaware the student had two D's, but the advisor's own office records reflected the facts pertaining to the student's grades accurately. Nonetheless, the court held that since the college bulletin unambiguously stated a student had to achieve a C or better in these courses, it was not deemed reasonable for the student to have relied on a lack of warning issued by the advisorxi. Further, while the bulletin "recommends" that students meet with their advisors once a semester, the court held "that does not create any obligation to so meet. More accurately, that provision is more in the nature of an unenforceable expression of intention, hope or desire," which did not create a contractual promise upon which the student could rely.xii Similarly, in Abrams v. Illinois College of Podiatric Medicine,xiii where a college representative had advised the student, who was ultimately dismissed for poor academic performance, that he would be assisted with his studies and need not worry about his substandard performance, and where the student was advised he would receive "periodic information with respect to his progress," the court construed such language as creating an "unenforceable expression of intention, hope or desire," rather than a binding oral contract.xiv Thus, the purportedly contractual promises upon which the student sued were deemed too vague and indefinite to sustain his case.
A case which more strongly emphasizes the lack of liability on the part of an academic advisor who errs is Hendricks v. Clemson University,xv wherein a student who had transferred from a Division II school to play baseball in Clemson's Division I program, and who had to meet certain standards of academic eligibility in order to participate in the sport, was improperly advised by his counselor as to course selection. The academic advisor had not informed the student that fifty percent of his major requirements had to be satisfied prior to his fourth year, and as a consequence the NCAA ruled him ineligible to play ball. The advisor admitted her error, attributed it to stress, and requested a waiver from the NCAA for the student; it was denied. The three causes of action the student unsuccessfully employed in this case included: breach of fiduciary dutyxvi (the court ruled this inapplicable as such duties are reserved for a legal or business relationship); breach of contract (while there existed evidence of a contractual relationship, the court ruled there existed no identifiable, written contractual promise to ensure athletic eligibility); and negligence (the court stated the university was immune unless the agent had committed gross negligence).xvii The court noted that the tort of educational malpractice had not been accepted by the judiciary in terms of the alleged inadequacy of a student's education, as and further noted that it should not be applied to inadequacy of academic advising.xviii Finally, and quite significantly, the court opined there existed no duty to advise properly in this instance; that a lack of standards existed, damages were uncertain, and a ruling for the student would contribute to a flood of litigation in this arena.xix
Courts evince an increased willingness to afford students relief where the students were able to demonstrate that they had relied on numerous assurances issued by responsible parties at the university, or where the college's printed materials were contradictory in nature, or where the university representatives engaged in intentional misrepresentation upon which students relied to their detriment. In Blank v. Board of Higher Education of the City of New York,xx for example, a student in the three plus one program (three years of undergraduate studies coupled with one year of law school would satisfy the requisites for an undergraduate degree) at Brooklyn College was advised by the Office of Counseling, the head of the psychology program, and two psychology professors who supervised independent studies courses that the requisites for the degree could be satisfied with two independent studies taken off campus. All subsequently denied making such promises. Further, the defendants insisted that the student had acted without benefit of the dean's permission, and that requirements mandating independent studies courses be taken in residence should be strictly enforced.xxi The student, after completing the off campus courses, had received an invitation to attend graduation, had attended with his family, and then failed to see his name in the graduation bulletin, and, in fact, was not awarded the degree at the ceremony. In this case the court held the college was estopped from denying the proffered statements, from asserting the courses had to be taken in another manner, and from refusing to tender the degree.xxii The several assurances tendered by the dean's agents performing within the scope of their apparent authority, coupled with bulletins that contradicted each other, or were silent on the topic of whether independent studies had to be taken on campus, were the primary factors underlying the decision. In a somewhat similar fashion, the transfer student in Healy v. Schenectady County Community Collegexxiii had consulted with numerous college officials as to the proper course of study; yet the college claimed he had insufficient credits in his major to graduate. The student claimed he had conferred with the Dean, Director of Admissions, Acting President, Guidance Counselor and Chairman of the Mathematics Department of the college. The court noted that an implied contract exists between a student and a private university, and that "there is no reason why this principle should not apply to a public university or community college."xxiv Thus, the court held an implied contract existed at the public university that if the student complied with the terms stated by the representatives, he would receive his degree; therefore, the college was estopped from denying the acts of its agents, and the court directed the college to grant the student a degree. And finally, in Byrd v. Dr. Horace Lamar (Alabama State University)xxvi where a college intentionally misrepresented the existence and viability of a major the student wished to pursue, both in college catalogs and in representations by the Dean and the Vice President of Academic Affairs, the court ruled the representatives who induced reasonable reliance on the part of the student were not immune from civil liability. In this case, the officials at Alabama State repeatedly assured a student that he would be able to pursue a music media major, as had been represented in the university catalog. Instead, the courses were not offered, or when offered were taught by untrained faculty,xxvii and the equipment necessary to teach such a specialized curriculum was never forthcoming. The court held that while the college as a state institution is afforded immunity pursuant to the state constitution, the state agent who willfully, maliciously, fraudulently or in bad faith advises a student is not provided such protection.xxviii
Given the courts' traditional posture of minimal intervention into the student-university relationship premised on its deference to the university's autonomy and expertise, and the judiciary's rejection of the tort of educational malpractice, as applied to both failure to educate or to advise properly, premised on public policy objections, generally the academic advisor will not be deemed liable for errors in advice tendered, barring gross negligence, fraud or arbitrary and capricious behavior. Case law suggests as well, however, that where repeated assurances by multiple authorities are offered to a student regarding course selection requirements for graduation, or where college catalogs or brochures contain contradictory information respecting such requirements, and a student complies in good faith with such advice, the institution may be bound by those contractual assurances if tendered by its publications and/or its agents acting with apparent authority. In an era of increased competition for a client base among institutions of higher education, and in an era of greater expectations from a consumer-oriented student population, it behooves the college or university to clearly set forth the student's responsibility in all institutional publications, eliminate ambiguities or inconsistencies regarding requirements in said publications, and formally train its advising staff and faculty in the standards and record-keeping attendant to good quality academic advising. Such measures will reflect the institution's bona fide efforts to address the best interests of its students while concomitantly serving to provide a defense to allegations of erroneous advising.
iAs noted in Wilson v. Illinois Benedictine College, 112 Ill. App.3d 932, 445 N.E.2d 901 (1983), "Estoppel refers to reliance by one party on the word or conduct of another so that the party changes his position and subsequently suffers harm." Id. at 939.
iiThe Eleventh Amendment of the United States Constitution affords states sovereign immunity from a variety of lawsuits, such as suits premised on copyright or patent infringement. See Audrey Wolfson Latourette, "Copyright Implications for Online Distance Education, 32 Journal of College and University Law 613, 638, note 106 (2006).
iiiSee Gott v. Berea College, 156 Ky. 376, 161 S.W. 204 (1913) indicating institutions of higher education stand in the position of parents with regard to the physical and moral welfare of the students.
ivSee Audrey Wolfson Latourette and Robert D. King, "Judicial Intervention In The Student-University Relationship: Due Process and Contract Theories," 65 University of Detroit Law Review 199,201 (1988), citing Hamilton v. Regents of the Univ. of California, 293 U.S. 245 (1934).
v453 A. 2d 279 (N.J. Super. 1982).
viId. at 283.
viiLatourette and King, at 201, citing Burke v. Emory University, 177 Ga. App. 30, 31, 338 S.E. 2d 500, 501 (1985).
viiiId. at 202-203.
ixThe Richard Stockton College of NJ Student Handbook, Academic Life, "Academic Advising," available at http://talon.stockton.edu/eyos/page.cfm?siteID=67@pageID=2 (last visited January 28, 2010).
x112 Ill. App.3d 932, 445 N.E.2d 901 (1983).
xiId. at 939.
xiiId. at 940.
xiii77 Ill. App. 3d 471, 395 N.E.2d 1061 (1979).
xiv Id. at 477.
xv353 S.C.449, 578 S.E.2d 711 (2003).
xviAs noted in Hendricks v. Clemson University, 353 S.C.449, 578 S.E.2d 711 (2003), " ' A confidential or fiduciary relationship exists when one imposes a special confidence in another, so that the latter, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one imposing the confidence." Id. at 458. An example of a fiduciary relationship are those shared between an attorney and his or her client
xviiId. at 456-460.
xviiiId. at 457-458 The court noted that the majority of states do not recognize the tort of "educational malpractice" in claims brought by students wherein they assert that their education was inadequate. Educational malpractice claims have been rejected for three primary reasons: " (1) the lack of a satisfactory standard of care by which to evaluate educators, (2) the inherent uncertainties of the cause and nature of damages, and (3) the potential flood of litigation against already beleaguered schools." The court stated that although Hendricks was not asserting such a claim of an inadequate education, his claim regarding his academic advisor's negligence should fail for the same reasons. Id. at 457.
xixSpecifically, the court stated "We believe recognizing a duty flowing from advisors to students is not required by any precedent and would be unwise, considering the great potential for embroiling schools in litigation that such recognition would create. Id.at 458. Because the court failed to recognize a duty owed to the student, it did not address the issue of whether the advisor's behavior had risen to the level of gross negligence required by the state's Tort Claims Act. Id.
xx51 Misc. 2d 724, 273 N.Y.S.2d 796 (1966).
xxiId. at 727.
xxiiId. at 730. The court stated it was satisfied that "this ageless and salutary doctrine should be invoked against the administration of Brooklyn College," and quoted ancient precedent wherein Lord Coke had stated, " ' It is called an estoppel because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth' (2 Coke on Littleton, 352a)" citing Phillips v. West Rockaway Land Company, 226 N.Y. 507. Id. at 730-731.
xxiii67 Misc.2d 374, 323 N.Y.S.2d 625 (1971).
xxivId. at 375.
xxvi846 So. 2d 334 (2002).
xxviiAllegedly, one professor for a "basic recording" course did not appear for the first four weeks of class and when he did so, he offered to give Byrd and other students a grade, notwithstanding the fact they had done nothing to earn it. Id. at 338.
xxviiiId. at 342.