4.2), students (see Section 7.1.3), government agencies (see Section 11.4.1), and outside parties such as construction firms, suppliers, research sponsors from private industry, and other institutions. These contracts create binding legal arrangements between the contracting parties, enforceable by either party in case of the other's breach. In this sense a contract is a source of law governing a particular subject matter and relationship. When a question arises concerning a subject matter or relationship covered by a contract, the first legal source to consult is usually the contract's terms.
Contracts, especially with faculty members and students, may incorporate some institutional rules and regulations (see Section 1.4.3.1), so that these become part of the contract terms. Contracts are interpreted and enforced according to the common law of contracts (Section 1.4.2.4) and any applicable statute or administrative rule or regulation (Sections 1.4.2.2 and 1.4.2.3). Contracts may also be interpreted with reference to academic custom and usage.
1.4.3.3 Academic custom and usage. By far the most amorphous source of postsecondary education law, academic custom and usage comprises the particular established practices and understandings within particular institutions. Academic custom and usage differs from institutional rules and regulations (Section 1.4.3.1) in that custom and usage is not necessarily a written source of law and, even if written, is far more informal; custom and usage may be found, for instance, in policy statements from speeches, internal memoranda, and other such documentation within the institution.
This source of postsecondary education law, sometimes called “campus common law,” is important in particular institutions because it helps define what the various members of the academic community expect of one another as well as of the institution itself. Whenever the institution has internal decision-making processes, such as a faculty grievance process or a student disciplinary procedure, campus common law can be an important guide for decision making. In this sense, campus common law does not displace formal institutional rules and regulations but supplements them, helping the decision maker and the parties in situations where rules and regulations are ambiguous or do not exist for the particular point at issue.
Academic custom and usage is also important in another, and broader, sense: it can supplement contractual understandings between the institution and its faculty and between the institution and its students. Whenever the terms of such a contractual relationship are unclear, courts may look to academic custom and usage in order to interpret the terms of the contract. In Perry v. Sindermann, 408 U.S. 593 (1972), the U.S. Supreme Court placed its imprimatur on this concept of academic custom and usage when it analyzed a professor's claim that he was entitled to tenure at Odessa College:
The law of contracts in most, if not all, jurisdictions long has employed a process by which agreements, though not formalized in writing, may be “implied” (3 Corbin on Contracts, §§ 561–672A). Explicit contractual provisions may be supplemented by other agreements implied from “the promisor's words and conduct in the light of the surrounding circumstances” (§ 562). And “the meaning of [the promisor's] words and acts is found by relating them to the usage of the past” (§ 562).
A teacher, like the respondent, who has held his position for a number of years might be able to show from the circumstances of this service—and from other relevant facts—that he has a legitimate claim of entitlement to job tenure. Just as this Court has found there to be a “common law of a particular industry or of a particular plant” that may supplement a collective bargaining agreement (United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 579…(1960)), so there may be an unwritten “common law” in a particular university that certain employees shall have the equivalent of tenure [408 U.S. at 602].
Sindermann was a constitutional due process case, and academic custom and usage was relevant to determining whether the professor had a property interest in continued employment that would entitle him to a hearing prior to nonrenewal (see Section 5.7.2). Academic custom and usage is also important in contract cases in which courts, arbitrators, or grievance committees must interpret provisions of the faculty-institution contract (see Sections 5.2 and 5.3) or the student-institution contract (see Section 7.1.3). In Strank v. Mercy Hospital of Johnstown, 117 A.2d 697 (Pa. 1955), a student nurse who had been dismissed from nursing school sought to require the school to award her transfer credits for the two years' work she had successfully completed. The student alleged that she had “oral arrangements with the school at the time she entered, later confirmed in part by writing and carried out by both parties for a period of two years,…[and] that these arrangements and understandings imposed upon defendant the legal duty to give her proper credits for work completed.” When the school argued that the court had no jurisdiction over such a claim, the court responded: “[Courts] have jurisdiction…for the enforcement of obligations whether arising under express contracts, written or oral, or implied contracts, including those in which a duty may have resulted from long recognized and established customs and usages, as in this case, perhaps, between an educational institution and its students” (117 A.2d at 698). Similarly, in Krotkoff v. Goucher College, 585 F.2d 675 (4th Cir. 1978), the court rejected another professor's claim that “national” academic custom and usage protected her from termination of tenure due to financial exigency. The court discussed in its opinion that the professor failed to establish a local understanding of tenure at the college that precluded dismissal of tenured faculty due to financial exigency.
Asserting that academic custom and usage is relevant to a faculty member's contract claim may help the faculty member survive a motion for summary judgment. In Bason v. American University, 414 A.2d 522 (D.C. 1980), a law professor denied tenure asserted that he had a contractual right to be informed of his progress toward tenure, which had not occurred. In this case, the court reversed a trial court's summary judgment ruling for the employer, stating that “resolution of the matter involves not only a consideration of the Faculty Manual, but of the university's ‘customs and practices.’ … The existence of an issue of custom and practice also precludes summary judgment” (414 A.2d at 525). The same court stated, in Howard University v. Best, 547 A.2d 144 (D.C. 1988), “[i]n order for a custom and practice to be binding on the parties to a transaction, it must be proved that the custom is definite, uniform, and well known, and it must be established by ‘clear and satisfactory evidence.’” Plaintiffs are rarely successful, however, in attempting to argue that academic custom and usage supplants written institutional rules or a reasonable or consistent interpretation of institutional policies (see, for example, Brown v. George Washington University, 802 A.2d 382 (D.C. App. 2002)).
The criteria needed to establish academic custom and practice can also apply to and constrain institutional action. In Howard University v. Roberts-Williamson, 37 A.3d 896 (D.C. 2012), a university argued that while it had not provided formal biennial reviews to a faculty member as specified in the faculty handbook, the faculty member had received sufficient feedback regarding her performance. The court rejected this argument, stating that the university failed to establish by “clear and satisfactory” evidence a custom or practice of “accepting something short of an actual biennial evaluation” as called for in the faculty handbook (37 A.3d at 908).
Custom and usage may also sometimes apply to outsiders who are not members of the campus community. A federal appellate court cited a university's unwritten custom of barring all “uninvited” individuals from speaking on the “library lawn” in Gilles v. Blanchard, 477 F.3d 466 (7th Cir. 2007).
