THE AMORPHOUS STUDENT-UNIVERSITY CONTRACT: ORIGINS, DEVELOPMENT, AND THE NEED FOR STATE OVERSIGHT.

• Author: Mchale, Sam

INTRODUCTION 223 I. HISTORY OF THE STUDENT-UNIVERSITY RELATIONSHIP & ASCENSION OF THE CONTRACT-LAW MODEL 226 II. CHANGING CIRCUMSTANCES & CALL FOR REFORM 231 III. AN ALTERNATIVE PROPOSAL IN ADMINISTRATIVE OVERSIGHT 238 CONCLUSION 243 INTRODUCTION

Let's make a deal. You pay me $200,000 for a four-year experience with no guarantee you will enjoy it or profit from it. During those four years, you are bound by the rules I write--and I may change them unilaterally and without notice. This deal must be accepted as is; there shall be no negotiating terms. If you don't make this deal, you will likely be consigned to minimum wage work. Should you challenge in court any action I take, a judge will apply existing case law that instructs him or her to defer to my specialized judgment and my interpretation of the agreement. Do we have a deal?

As this Comment will demonstrate, those are roughly the terms that govern students' relationships with their universities, though it is doubtful that American high school students understand this reality as they search for the college of their dreams. One might argue this lack of understanding is of no consequence: perhaps few students who ultimately attend college ever seriously consider not attending college. After all, universities are seen as playing an absolutely critical role in modern society: they "educate our young people and create the skilled workforce that we need to compete with other countries"; they "train future doctors, nurses, teachers, engineers, and scientists"; they "build the technology and develop the business leaders that will create a better tomorrow"; they "lead the way in searching for cures to cancer" and other diseases; and they "play a key role in expanding opportunity and reducing income inequality for those who have been left out and left behind for too long." (1) Indeed, as of 2014, the earnings of a college graduate were over sixty percent higher than those of a worker who attained only a high school diploma. (2) And perhaps most significantly, higher education is thought to operate as a "multiplier, enhancing the enjoyment of all individual rights and freedoms." (3) Can any institution which provides so many benefits not just to its students but to society at large--can any institution so revered--actually give students a raw deal?

While universities in general provide a net benefit for society, they--like any institution--have at times abused their power. In the disciplinary context, universities have suspended or expelled students for, among other things, eating their meals in a forbidden place, (4) smoking cigarettes, (5) engaging in premarital sex, (6) improperly using legal knowledge acquired in law school, (7) making unpatriotic statements, (8) espousing atheistic views, (9) joining forbidden secret societies, (10) exhibiting a lack of good manners, (11) disclosing pedophiliac urges, (12) and protesting racial segregation. (13) Outside the disciplinary context, some universities have quadrupled tuition over a three-year period with no notice prior to enrollment, (14) deceived students into taking out private loans that were more expensive than advertised, (15) charged increasingly large fees on top of tuition in an apparent attempt to obscure the rising cost of college, (16) grossly misrepresented job placement rates, (17) and shut down unexpectedly and left thousands of students with significant student loan debt and no degrees. (18) Historically, little recourse has existed for students subjected to such treatment. Students who attend public universities may bring a constitutional challenge and try to state a claim that meets the high burden required to show deficiency in process under the Due Process Clause. (19) However, because private universities are not always considered state actors bound by the same restrictions of the United States Constitution, students at private universities often must utilize other causes of action to challenge their treatment: most commonly, their claims are framed as contractual disputes alleging breach of contract or breach of the implied covenant of good faith and fair dealing. (20) The assertion of such contractual rights is seen as imposing on private universities by way of the common law the same or similar requirements as are imposed on public universities by the Due Process Clause. (21)

This Comment argues that the increasing complexity and heightened significance of the student-university relationship demands a more effective adjudicatory mechanism for student-university disputes than the old contract-law model. In light of the rapid increase in the cost and importance of a college education, Congress should condition the receipt of federally guaranteed student loans, as well as other financing provided under the Higher Education Act, upon the provision of satisfactory state administrative oversight. If states are enlisted to help the federal government protect students' constitutional rights, universities may be less likely to engage in arbitrary and highly detrimental action.

This Comment aims to examine how contracts came to be the dominant cause of action for students to sue their universities and to propose a new model of state oversight that would more appropriately strike a balance between the rights and interests of students and their universities. Part I examines the historical precedent that led to the development of the current contract-law model; Part II explores the rapid evolution in the dynamics of the student-university relationship and argues that the contract-law model no longer serves as a reasonable check on university power; and Part III argues that state administrative oversight would relieve courts of the burden of dealing with lawsuits in which they cannot reasonably provide relief while also better protecting the rights of students.

1. HISTORY OF THE STUDENT-UNIVERSITY RELATIONSHIP & ASCENSION OF THE CONTRACT-LAW MODEL

   The student-university relationship has evolved in tandem with the system of higher education, both of which have come a long way from their roots in early American history. Higher education in the American colonies began as a mostly private enterprise, often sponsored by the church. (22) In the colonial era, universities were also chartered by the British Crown and by the colonies; after the Revolution, the state and the federal government chartered their own universities. (23) By the middle of the nineteenth century, this patchwork of colleges offering training in the classics began to appear inadequate to meet the needs of an evolving nation. Amidst struggles to assimilate unprecedented numbers of immigrants into a rapidly industrializing economic landscape, calls for a revolution in higher education rang out.

   The loudest of those voices to call out for modernization was Charles Eliot, the President of Harvard University. In 1869, with the Civil War past and the project of nation-building back at the center of American life, Eliot published an article in The Atlantic calling for a "New Education" that was to be more practical: A father today, he wrote, "will not believe that the same methods which trained some boys well for the life of fifty or one hundred years ago are applicable to his son" because "the kind of man which he wants his son to make did not exist in all the world fifty years ago." (24) Many clamored for a more vocationally-focused education, one designed to prepare students for the realities of the emerging American economy. (25) In response, Eliot proposed a system of education based upon "the pure and applied sciences, the living European languages, and mathematics" rather than upon the dead classical languages that had previously been emphasized. (26) This, he believed, would ultimately make students "good engineers, manufacturers, architects, chemists, merchants, teachers of science, or directors of mines and industrial works." (27)

   Even as Eliot worked to transform and modernize the curricula at Harvard and its peer institutions, most colleges in the nineteenth century continued to entertain relatively modest and transactional relationships with their students. To enroll at the University of Michigan, for instance, one had only to present a certificate of good character and pay tuition; to graduate and receive a degree, one had only to attend "certain courses of lectures through two terms of six months each." (28) Indeed, until the middle of the nineteenth century, the major universities had no standardized written examinations for admission, nor did they require prior knowledge of anything other than Greek, Latin, and arithmetic in order to matriculate. (29)

   It was during this period of modernization that the student-university relationship was shoehorned into the contract-law model. At its core, this was a logical development, since "the elements of a traditional contract are present in the implied contract between a college and a student...." (30) The student's submission of an application may be seen as an offer; the student's admission may be seen as acceptance by the university; and the payment of a deposit or tuition may be seen as valuable consideration. (31) Further, the relationship between a student and a university was often expressly stated in a written, albeit sparse, enrollment contract. Resembling a money-for-services agreement, the mutual promises between a university and a student naturally seemed to fit into a contract-law model. (32)

   The relatively unsophisticated, transactional student-university relationship of the nineteenth century thus provided the foundation for the contract-law model. Unsurprisingly, then, most early suits between students and their universities were filed by universities to recover unpaid tuition or by students for a tuition refund or to compel conferral of a degree. (33) Outside of such disputes over tuition payments, which naturally brought to mind notions of contract law...