of New York/College at Old Westbury, 427 F. Supp. 850 (E.D.N.Y. 1977), a student sought to enjoin the college from suspending him or taking any further disciplinary action against him. The student had been disciplined by the judicial review committee, acting under the college's “Code of Community Conduct.” After the college president learned of the disciplinary action, he rejected it and imposed more severe penalties on the student. The president purported to act under the “Rules of Public Order” adopted by the Board of Trustees of the State University of New York rather than under the college Code. The court found that the president had violated the Rules, and it enjoined enforcement of his decision:
[E]ven if we assume the President had power to belatedly invoke the Rules, it is clear that he did not properly exercise that power, since he did not follow the requirements of the Rules themselves. The charges he made against the plaintiff were included in the same document which set forth the plaintiff's suspension and the terms for his possible readmission. Contrary to the Rules, the President did not convene the Hearing Committee, did not give notice of any hearing, and received no report from the Hearing Committee. There is no authority in either the Rules or the Code for substituting the hearing before the Code's Judicial Review Committee for the one required to be held before the Rules' hearing committee…
Of course, not every deviation from a university's regulations constitutes a deprivation of due process… But where, as here, an offending student has been formally charged under the college's disciplinary code, has been subjected to a hearing, has been officially sentenced, and has commenced compliance with that sentence, it is a denial of due process of law for the chief administrative officer to step in, conduct his own in camera review of the student's record, and impose a different punishment without complying with any of the procedures which have been formally established for the college. Here the President simply brushed aside the college's formal regulations and procedures and, without specific authority, imposed a punishment of greater severity than determined by the hearing panel, a result directly contrary to the Code's appeal provisions [427 F. Supp. at 858].
For both public and private institutions, an unauthorized act violating institutional regulations may also be invalidated as a breach of an express or implied contract with students or the faculty. Lyons v. Salve Regina College, 422 F. Supp. 1354 (D.R.I. 1976), reversed, 565 F.2d 200 (1st Cir. 1977), involved a student who had received an F grade in a required nursing course because she had been absent from several classes and clinical sessions. After the student appealed the grade under the college's published “Grade Appeal Process,” the grade appeal committee voted that the student receive an Incomplete rather than an F. Characterizing the committee's action as a recommendation rather than a final decision, the associate dean overruled the committee, and the student was dismissed from the nursing program.
The parties agreed that the Grade Appeal Process was part of the terms of a contract between them. Though the grade appeal committee's determination was termed a “recommendation” in the college's publications, the lower court found that, as the parties understood the process, the recommendation was to be binding on the associate dean. The associate dean's overruling of the committee was therefore unauthorized and constituted a breach of contract. The lower court ordered the college to change the student's grade to an Incomplete and reinstate her in the nursing program. The appellate court reversed but did not disavow the contract theory of authority. Instead, it found that the committee's determination was not intended to be binding on the associate dean and that the dean therefore had not exceeded his authority in overruling the committee.
Authority questions are also central to a determination of various questions concerning liability for harm to third parties. The institution's tort liability may depend on whether the officer or employee committing the tort was acting within the scope of his or her authority. The institution's contract liability may depend on whether the officer or employee entering the contract was authorized to do so. And, under the estoppel doctrine, both the institution and the individual may be liable where the institution or individual had apparent authority to act.
3.1.2 Trustee authority. The law regarding the authority of boards of trustees may vary from state to state and, within each state, will vary depending on whether the college is public or private. In public institutions, the authority of trustees (or in some states, regents or visitors or curators) is defined and limited by the state statutes, and sometimes constitutional provisions, that create trustee boards for individual institutions. Such laws generally confer power on the board itself as an entity separate from its individual members. Individual trustees generally have authority to act only on behalf of the board, pursuant to some board bylaw, resolution, or other delegation of authority from the board. Other state laws, such as conflict-of-interest laws or ethics codes, may place obligations on individual board members as well as on the board itself. In private colleges, trustee authority typically emanates from the college's charter or articles of incorporation, but state regulatory or licensing laws may limit or dictate trustee action under certain circumstances.
Section 3.2. Institutional Tort Liability
3.2.1 Overview. Several common law doctrines provide remedies to individuals who are injured through the action (or, on occasion, the inaction) of others. Colleges and universities are subject to common law liability as well as to statutory liability. (See Section 2.1 for a general discussion of the sources of liability for colleges and universities.) Although the college is usually named as a defendant when common law claims are brought, claims may also be brought against faculty and staff in their personal capacities.
The most frequent source of potential common law liability is tort law, which requires a college or university and its agents to refrain from injuring any individual to which the college owes a duty. Negligence or defamation claims may be brought against the institution itself or against faculty or staff (or, occasionally, against students). And contract law is increasingly being used by employees, students, and others to seek redress from the institution for alleged wrongdoing.
A tort is broadly defined as a civil wrong, other than a breach of contract, for which the courts will allow a remedy. A tort claim involves a claim that the institution, or its agents, owed a duty to one or more individuals to behave according to a defined standard of care, that the duty was breached, and that the breach of that duty was the cause of the injury.
While there is a broad range of actions that may expose an institution to tort liability, and any act fitting this definition may be considered a tort, there are certain classic torts for which the essential elements of the plaintiff's prima facie case and the defendant's acceptable defenses are already established. The two classic torts that most frequently arise in the setting of postsecondary education are negligence and defamation, both of which are discussed in this section; but other tort theories, such as common law fraud, are also appearing in lawsuits against colleges and universities.
A college or university is not subject to liability for every tortious act of its trustees, employees, or other agents. But the institution will generally be liable, lacking immunity or some other recognized defense, for tortious acts committed within the scope of the actor's employment or otherwise authorized by the institution or subject to its control. For example, if a student, employee, or other “invitee” (an individual who is entitled or permitted to be on college property) is injured as a result of a careless or wrongful act of a college employee, the college may be liable for that injury, just as any landlord or business owner would be under similar circumstances (see, for example, Lombard v. Fireman's Fund Insurance Co., 302 So.2d 394 (La. Ct. App. 1974)) (university was liable to student injured when she fell in hallway of classroom building because janitors had applied excessive oil to floor, rendering it slippery; the duty to keep the premises in a safe condition was breached). A similar duty may exist in classroom, residence
