University promises: Can they be trusted?

(This blog was written by Grant Bloomdahl, FIRE’s 2018 legal intern)

Jonathan Swift once likened promises to pie crust, providing imagery for what is common knowledge: Promises are frequently broken.

The promises universities and colleges make to their students and recruits are unfortunately no different. Institutions of higher learning often break their promises when the moment is convenient for them, when the burden is too great, when facing a lawsuit, or simply when political needs are better served by forgetting about promises they made to their own students.   

FIRE has long maintained that universities and colleges should be held to promises they make to students, particularly in the realm of free speech. Institutions should be held accountable because they have great comparative power over the student, and the right to speak and express one’s self is important to society and even more important in education. When a university says it will uphold your rights, provide due process, and encourage free speech on campus, it should be held to those claims because the students rely on them when deciding what school to attend. And more prosaically but just as importantly, students are paying enormous amounts of money to schools in the understanding that the school has reciprocal obligations towards them and will live up to their own representations, as we would rightfully expect from anyone offering to sell an expensive product or service.

For example, Fordham University makes a number of promises to its students regarding academic freedom and free expression. In its Mission Statement, Fordham proclaims that it “guarantees the freedom of inquiry required by rigorous thinking and the quest for truth.” The school’s “Demonstration Policy,” part of the Student Handbook, states, “Each member of the University has a right to freely express his or her positions and to work for their acceptance whether he/she assents to or dissents from existing situations in the University or society.” Under the “Bias-Related Incidents” section of the Student Handbook, the school notes: “The expression of controversial ideas and differing views is a vital part of University discourse.”

Yet in November 2016, Fordham refused to recognize a newly-formed student group, Students for Justice in Palestine (SJP), despite promises the university made to its own students that freedom of speech, organization, and expression are important and will be protected (FIRE sent a letter to Fordham on January 25, 2017, and again on January 27, 2017, urging the university to adhere to its own promises of free speech and expression). Fordham’s refusal to recognize SJP hinders the student group in a number of ways: The group cannot receive university funding, is greatly frustrated in the ability to invite speakers and distribute literature, and cannot readily promote its own activities. The refusal also punishes Fordham’s own students by muzzling a source of information and ideas. Fordham has claimed, in support of its decision to refuse recognition, that the group’s ideas and speech could lead to “polarization” on campus.

Representatives of the student group are currently suing Fordham University because Fordham failed to recognize the student group despite the university’s promises. New York law allows parties to challenge the decisions of a private college or university when those decisions depart from institutional policy. The state’s law will uphold Fordham’s decision only if it is rationally based on the evidence and the institution adhered to its own rules and guidelines. FIRE’s position in this matter is that Fordham’s decision was not in adherence with its own promises of free speech, but a court has yet to determine whether Fordham violated the law.

While New York law generally acknowledges an implied contract between students and universities, and thus institutions in the state can be held to their promises, other states’ law varies with respect to this question. Some states have opted to strictly hold colleges and universities to promises made to their students, while other states have essentially given a pass to schools that make wild and untruthful claims to their students and recruits. Two recent cases, one from New Mexico and another from Pennsylvania, highlight some differences in how states treat these promises.

In Avalos v. Board of Regents of New Mexico State University, a group of former nursing students sued a public New Mexico college after that college’s nursing program lost its accreditation while they were enrolled. 406 P.3d 551 (N.M. App. 2017). The students essentially claimed that an offer letter and student handbook formed a contractual promise between them and the college. A New Mexico appeals court, however, disagreed and dismissed the lawsuit. The court held that the documents did not form a “valid written contract” to provide an accredited nursing program to the students because the handbook and acknowledgement form lacked specific language to give rise to a contract for continued nursing accreditation. Furthermore, the court also noted that in the past it has found student handbooks to be merely advisory, and that even though there is a contractual relationship between the university and student, the university is not therefore bound to honor every provision of the handbook. New Mexico, it seems, treats handbooks as merely aspirational and thus allows universities and colleges to break promises to their students with few consequences.

Pennsylvania, unlike New Mexico, treats contracts between students and a university like any other contract between two parties. In Doe v. Trustees of the University of Pennsylvania, a former student sued a university to challenge the school’s disciplinary procedure that determined he had violated the university’s sexual violence policies. 270 F. Supp. 3d 799 (E.D. Pa. 2017). In the lawsuit, the student claimed not only that the procedures were unfair, but also that the university failed to adhere to the procedures it specifically promised to the student. Furthermore, the student claimed, the university did not carry out its promise to conduct a thorough investigation. Although the court here dismissed a majority of the lawsuit after determining that most of the procedures the student claimed he faced were in line with the university’s own “Disciplinary Procedures,” it nonetheless allowed some claims to continue on the grounds the university had failed to conduct a thorough and unbiased investigation as it had promised it would.

While Swift was admittedly correct to say promises are frequently broken, the promises universities and colleges make to their students are nonetheless important because students make life-altering educational choices based on them. Not only that, these institutions are supposed to provide a foundation of free thought, ideas, and expression that make our country a source of knowledge and an exchange of information. Put bluntly: The nation as a whole suffers when universities and colleges need not adhere to their own promises, especially in the realm of free speech. These promises carry weight, and should not be so easily cast aside so as to satisfy convenience at best, and popular political opinion at worst.

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