Brooklyn College Professor KC Johnson, co-author of Until Proven Innocent: Political Correctness and the Shameful Injustice of the Duke Lacrosse Rape Case, has written an informative post on private universities and their legal obligations. He criticizes Duke for claiming, in the civil suit pertaining to Duke’s dismal treatment of the falsely accused Duke lacrosse players, that Duke’s bulletins do not constitute a legally binding contract. In other words, Duke claims that the bulletin, and other official policies and guidelines that it regularly enforces against students and faculty, can be disregarded by the university willy-nilly. As Johnson puts it:
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.)
In so claiming, Duke relies on a 1991 case, Love v. Duke University, No. CA-90-517-1 (M.D.N.C. Sept. 27, 1991). In Love, a federal judge asserted—though it was irrelevant to the outcome of the case—that the Duke bulletin did not constitute a legally binding contract. The judge did not explain the reasoning behind such a finding, and as Johnson points out, the vast majority of courts have found the opposite: namely, that official university policies, as found in bulletins and codes of conduct, constitute legally binding contracts.
This is for good reason: Students, faculty and donors invest a great deal of time and money in private universities, and do so on the expectation that the universities will abide by their stated promises. Johnson addresses Duke’s weak counterargument:
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 v. California Board of Regents], "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.
The argument that academic freedom means that a private university should not have a legal obligation to follow its own policies is surprisingly common. The argument falls apart, though, on the obvious fact that private universities are free to write whatever policies they want, including those upholding academic freedom. Really, what Duke wants is not to defend academic freedom, but to empower itself to act arbitrarily—a development that would ultimately serve to undermine academic freedom.
Duke wants to promise student and faculty rights, but then be free to disregard those rights when it finds it advantageous or convenient to do so. Students and professors at Duke should accordingly fear stating any controversial views as, according to Duke, it is in fact legally free to disregard any promises of free speech or academic freedom. It can reprimand and expel at will.
Johnson links to FIRE’s website to highlight the many examples of private universities violating rights that they promise to uphold. Luckily, the vast majority of courts will hold universities legally responsible for such a bait and switch. Hopefully, the North Carolina federal court will take this opportunity to catch up with the rest of the country. Until then, prospective Duke students, and faculty should be aware: Duke considers its promises to student and faculty regarding their "rights" to be revocable at Duke’s will.