FIRE is pleased to announce the publication of legal scholarship authored by former Justice Robert H. Jackson Legal Fellow Andrew Kloster. Andrew’s article, "Student and Professorial Causes of Action Against Non-University Actors" (PDF), was published in the Spring 2013 issue of the George Mason University Civil Rights Law Journal.
In the article, Andrew argues that when student and faculty rights are endangered as a result of third-party action—for example, the mandates announced in the April 4, 2011, "Dear Colleague" letter issued by the Department of Education’s Office for Civil Rights—new means of redress should be explored beyond traditional contract law. Andrew writes:
This Article makes three assertions. First, while courts have increasingly looked to contract law to vindicate the rights of students against universities and colleges, traditional contract law sometimes provides inadequate protections in situations where rights are adversely affected by third-party action. Second, the rise of administrative oversight by the Department of Education and by other third party governmental actors limits the universe of contracts that can be formed and is constantly changing the student-university relationship. This oversight is so pervasive that adverse administrative decisions of even private universities could possibly be characterized as "state action" for the purposes of a direct constitutional lawsuit. Third, students, professors, and rights advocates should look to other novel remedies, particularly those available under the Administrative Procedure Act, when seeking to challenge ED and third-party rulemaking and adjudication that can fairly be considered "agency action."
Andrew is currently a Legal Fellow at the Heritage Foundation. We wish him all the best in his new position, and we miss his analysis here on The Torch.