1. Forrest M. Stuart
Associate Vice President
Office of Financial Aid
Furman University
SACAC – April 2013 1

2.  Individual issues and cases should be
discussed with your institution’s legal
counsel.
 The purpose of this session is NOT to give
qualified legal advice, but to stimulate
thinking about your own practices and your
own publications, statements, and the like.
SACAC – April 2013 2

3.  19th Century and half of the 20th Century
◦ Higher education seen as a “unique enterprise that could
regulate itself through reliance on tradition and
consensual agreement” (Kaplin & Lee, 2007, p. 16)
◦ Faculties and administrators seen as experts who did not
need intrusion by the legal system
◦ Deference in dealing with students given to academic
institutions
◦ Students viewed as having little, if any, constitutional
rights at colleges and universities
 in loco parentis
SACAC – April 2013 3

4.  Latter half of 20th Century
◦ Changes in student body composition, increases in the numbers
and types of institutions, civil rights and students rights
movements, and calls for accountability from the public led to
more federal and state influence and regulation.
◦ New legal requirements led to new impeti to sue institutions.
 Kaplin and Lee (2007)
In short, by the end of the twentieth century, higher education
no longer enjoyed much of the judicial and legislative deference
it once knew. Virtually every area of the law now applies to
institutions of higher education, and keeping up with this vast
body of continually evolving law is a great challenge for
administrators, faculty, students, and scholars of higher
education. (p. 17)
SACAC – April 2013 4

5.  A college asks an alumnus to represent the institution at a college fair. A
student walks up to the alumnus and mentions that he has a 1350 on
the SAT. The alumnus engages the student in conversation, and he says
to the student, “you will have no problem being admitted with that kind
of test score.” The student applies for admission and is subsequently
denied admission. The reason for the denial of admission is the
student’s high school GPA is a 2.35 with very few AP courses on his
transcript. The student, of course, is upset, as are his parents.
 Is the alumus considered an agent of the college?
◦ If the answer is “yes”, did the alumnus act with apparent authority (or within his
scope of authority)?
 Was an oral contract formed (and is it enforceable?) when the alumnus
made the statement “you will have no problem being admitted with that
kind of test score” and the student subsequently applied to the college
based on that statement?
◦ FYI, the admission material is vague and mentions no “cut off” scores, GPAs, etc. as
absolutes.
SACAC – April 2013 5

6.  Contractual in nature
◦ Steinberg v. Chicago Medical School (1976)
 Robert Steinberg received a Chicago Medical School
catalog and subsequently applied for admission for the
academic year 1974-75.
 Steinberg paid a $ 15 application fee.
 Steinberg was rejected
 Steinberg filed a class-action suit against Chicago
Medical School for breach of contract (but not to be
admitted).
 Claimed that the medical school used admission criteria
other than that which was stated in the catalog -
specifically that ability to contribute monetarily was used
as a criterion
SACAC – April 2013 6

7.  Steinberg asserted that “the school was duty
bound under the terms of the contract to
evaluate his application according to its
stated standards…”
 The court ruled that Steinberg and the school
entered into a contract and that the school
bound itself to the use of explicit admission
credentials as stated in the bulletin.
SACAC – April 2013 7

8.  Chicago Medical School Catalog statement on
evaluation for admission:
◦ “Students are selected on the basis of scholarship,
character, and motivation without regard to race,
creed, or sex. The student's potential for the study
and practice of medicine will be evaluated on the
basis of academic achievement, Medical College
Admission Test results, personal appraisals by a
pre-professional advisory committee or individual
instructors, and the personal interview, if requested
by the Committee on Admissions."
SACAC – April 2013 8

9.  “…an agreement between competent parties,
upon a consideration sufficient in law, to do
or not to do a particular thing” (Steinberg v.
Chicago, 1976, p. 4).
 “The contract is a promise or set of promises,
the breach of which the law gives remedy, the
performance of which the law recognizes the
duty” (Miles, 1997, p. 92).
SACAC – April 2013 9

10.  Both parties must have legal capacity to
contract
◦ Legal age (varies by state)
◦ Competency
 Consideration must be given
◦ Money (application fee; tuition paid)
◦ A return promise
 Mutual assent
◦ Shown by offer and acceptance
SACAC – April 2013 10

11.  “Basic contract law requires an offer and an
acceptance based on mutual understandings” (p.
18).
◦ Offer – “…institution’s general offer to admit applicants
with certain credentials to its particular programs” (p.
18).
◦ Acceptance – “… the applicant’s assertion that he or she
has those credentials and thus should be admitted” (p.
18).
◦ Consideration – the application fee and/or the promise
to be considered for admission using the stated criteria
SACAC – April 2013 11

12.  Credentials are not specifically defined
 Process (not policy) indicates the credentials
may be waived
 Academic programs/offerings are changed
 Note: These can surface in both oral and
written contracts
SACAC – April 2013 12

13.  Contract between the school and the applicant
◦ Admission materials describing the admission process
and inviting the student to apply (the offer)
◦ Student applies (the acceptance)
◦ Student pays application fee or submits application for a
return promise to be evaluated based on admission
materials (consideration)
 Contract between the school and the matriculant
◦ College Catalogue is the main contract
◦ Can include any other documents produced by the
institution and disseminated to students.
SACAC – April 2013 13

14.  Grove v. Ohio State University College of
Veterinary Medicine (1976)
◦ Dean and a faculty member promised a vet school
prospect that he would be admitted to the vet
school the following year.
◦ Student was denied admission due to
undergraduate grades and test scores.
◦ Court held that
 The dean’s promise was a contract, especially since he
apparently had the authority to make admission
decisions
 There were no written documents defining who had
the authority to make such decisions.
SACAC – April 2013 14

15.  Elliot v. Duke University (1984)
◦ Divinity school applicant alleged that the director of
admission stated that completion of certain courses
would enable applicant to enroll as a “regular
student.”
◦ Applicant followed through, but was ultimately
denied admission.
◦ Applicant sued for breach of contract.
◦ NC Court of Appeals indicated such contracts could
exist, but the catalogue explicitly stated that an
Admissions Committee would make all admission
decisions for divinity school.
SACAC – April 2013 15

16.  Bunting (1989) stated that these cases:
… spell out the importance of taking care
in what is said and who says it during the
admissions process. They also point to a
good escape hatch for problems caused
by careless talking: clearly written
statements in official literature that
specify the criteria and process for
admission will go a long way toward
muting ill-timed or unfortunate oral
statements by administrators. (p. 20)
SACAC – April 2013 16

17.  Agents of an institution
◦ Trustees
◦ Administrators
◦ Faculty
◦ Alumni (in some instances)
 Law states that the actions of an agent may
bind the institution
 Law of agency can enforce contracts
SACAC – April 2013 17

18. “The key to an institution being held liable for
an agent’s actions is that some kind of
authority can be implied, as when an officer
speaks for the institution, or apparent, as when
an academic counselor advises students on
degree requirements. The parties do not have
to understand that they are setting up an
agency relationship for agency to exist”
[emphasis added] (Miles, 1997, p. 107).
SACAC – April 2013 18

19.  Review all publications, written and
electronic.
◦ Accuracy
◦ Define admission criteria clearly and concisely
 Avoid overly vague terminology like satisfactory or
acceptable, but also avoid being overly specific. For
example, “Some of the credentials that will be
considered include x, y, and z ” (Bunting, 1989).
 Clearly state who has authority to make the decision to
admit applicants.
 State that the admission decision is conditioned upon
accurate and current information provided by the
applicant.
SACAC – April 2013 19

20.  Review oral interview process and ensure it is
as standardized as possible
◦ Interview checklist
◦ Instruct interviewers to state clearly who has the
authority to make admit decisions.
◦ Avoid promises of admission.
◦ Train alumni representatives on what can and
cannot be stated to a prospective student.
SACAC – April 2013 20

21.  Review any publications and ensure that there
are appropriate disclaimers.
◦ Eiland v. Wolf, 764 S.W.2d. 827 (Tex. Ct. App.
1989).
◦ Easley v. University of Michigan Board of Regents,
627 F. Supp. 580 (E.D. Mich. 1986).
SACAC – April 2013 21

22. “Admission is selective, based primarily on
previous academic performance and proven
leadership and committed involvement in
activities outside of the classroom. Neither
academic record nor ability is, in itself, sufficient
qualification for admission of any candidate. The
university reserves the right to deny admission to
any student who, in the judgment of the Admission
Committee, may not benefit from SACAC
University’s educational program or whose
presence or conduct may be detrimental to the
program.”
SACAC – April 2013 22

23.  SACAC University seeks to enroll intelligent, inquisitive, energetic, and
compassionate students who will bring a diversity of talents and
backgrounds to our campus. In selecting the class, the Committee on
Admissions evaluates thoroughly each applicant’s personal and academic
credentials.
 Academic Achievement. In evaluating a student’s academic achievement,
the Committee on Admissions considers a student’s curriculum, class rank,
concentration of talent in the high school, test scores, teacher evaluation,
and essays. Most students admitted to SACAC University have taken the
most demanding courses available, rank among the top students in their
schools, and have done quite well on standardized tests. We could cite the
average rank and median test results of our admitted students, but a listing
of such numbers is often misinterpreted. Each year, some applicants with
high test scores and class rank are not admitted, while some students with
less impressive numbers are selected for admission based on their other
outstanding academic and personal accomplishments.
SACAC – April 2013 23

24.  A college asks an alumnus to represent the institution at a college fair. A
student walks up to the alumnus and mentions that he has a 1350 on
the SAT. The alumnus engages the student is conversation, and he says
to the student, “you will have no problem being admitted with that kind
of test score.” The student applies for admission and is subsequently
denied admission. The reason is the student’s high school GPA is a 2.35
with very few AP courses on his transcript. The student, of course, is
upset, as are his parents.
 Is the alum considered an agent of the college?
◦ If the answer is “yes” (which I believe to be the case), did the alumnus act with
apparent authority (or within his scope of authority)?
 Was an oral contract formed (and is it enforceable?) when the alumnus
made the statement “you will have no problem being admitted with that
kind of test score” and the student subsequently applied to the college
based on that statement?
◦ FYI, the admission material is vague and mentions no “cut off” scores, GPAs, etc. as
absolutes.
SACAC – April 2013 24

25. SACAC – April 2013 25
References
Bunting, E. (1989). The admissions process: New legal questions creep up the ivory tower.
School Law Bulletin, 20(4), 18-21.
Cherry, R. L., & Geary, J. P. (1992). The college catalog as a contract. Journal of Law &
Education, 21(1), 1-32.
Drushal, J. D. (1976). Consumer protection and higher education--Student suits against
schools. Ohio State Law Journal, 37, 608-633.
Elliot v. Duke University, 66 N.C. App. 590. (1984).
Grove v. The Ohio State University College of Veterinary Medicine, 424 F. Supp. 377. (1976).
Kaplin, W. A., & Lee, B. A. (2007). The law of higher education, student version (4th ed.). San
Francisco: Jossey-Bass Publishers.
Miles, A. (1997). College law (2nd ed.). Northport, AL: SEVGO Press.
Steinberg v. Chicago Medical School, 69 Ill.2d 320. (1996).