Federal Court Gets It Wrong, Rules Promises Made By Private Universities May Be Broken Without Consequence

June 25, 2009

Student Adam Key sued Regent University for promising students free expression on campus and then failing to abide by that promise. A federal district court in Virginia recently rejected Key’s claims, and in the process held that private universities have little legal obligation to abide by their promises.

For students attending private universities that make promises of free expressionthat is, the vast majority of private institutionsthis is a particularly bad decision. Gutting private schools’ obligations to abide by their promises undermines students’ and faculty’s rights of association and free expression. It makes it impossible for students and faculty to knowingly choose the type of private institution they wish to attend. Under such a regime, a student who pays tuition to a theological seminary has no recourse if the institution abruptly abandons all religious instruction. And a student who pays tuition to a college promising a marketplace of ideas has no recourse if the institution suddenly cracks down on speech the administration finds offensive.

Adam Key brought two related claims against Regent. The first claim stated that the student handbooks and official school policies constitute a legally binding contract. Even though most courts recognize this, the court here focused solely on the small print. Regent’s handbooks contained a disclaimer stating that (despite every appearance to the contrary) the handbooks do not create a contract between the university and the student. The court held that this one-sentence clause was sufficient to negate the existence of a contract.

The second claim Key brought was in estoppel. The legal doctrine of promissory estoppel allows judicial enforcement of promises that do not constitute a contract, but nevertheless cause harm to those who rely on the promises made between parties. If such reliance creates an inequitable outcome, the court will issue a remedy. In this case, Key argued that he relied on the promise of free expression in the student handbook, and was harmed by his reliance on that promise when he was expelled from school for speaking his mind. The court dismissed this claim on the basis that "there is simply no evidence in the record that… [Regent University] made any promises."

To be clear, the court did not reach this conclusion because Regent is a religious institution that qualifies its promise of free speech. Instead, it ruled that (1) disclaimers void college handbooks and other materials as contracts, period; and (2) that Regent made no promises in its handbook. These two holdings apply to all private colleges within the court’s jurisdiction, and they precluded the judge from inquiring into the nature of Regent’s handbook and promises or Regent-as-an-institution. So regardless of the qualifications inherent in Regent’s promises of free speechand for the record, we don’t think students can reasonably expect free speech at Regent; there are too many qualifications, including a requirement that students conduct themselves in a "Christ-like" mannerthe court’s holding here affects all private universities in the district, not just Regent.

This is important because even if the disclaimer "this is not a contract" suffices to eliminate the existence of an express contract, many private university handbooks explicitly promise students particular rights and obligations. Students no doubt rely on those promises in deciding to attend the universities they choose instead of other schools. As such, courts like the District Court here make a grievous error in refusing to enforce these promises. Further, the "this is not a contract" clauses thrown in at the end of pages of policies and promises might be deemed unconscionable and thus legally unenforceable. Even if they are not, though, the promises can and should be enforced when students relied on them to their detriment. (Such claims can be enforced either as an implied-in-fact contract or under promissory estoppel.)

Colleges that advertise themselves widely and clearly as a particular type of institutionwhether it be as a marketplace of ideas, a place of religious instruction, or an institution committed to a particular secular moralitybenefit by making those representations. Students pay tuition, faculty agree to teach, and donors give money because the school promises it embodies and enforces certain principles. To allow the school to reap those benefits and then arbitrarily abandon those promises when they find it convenient or advantageous to do so is deeply unjust.