are discussed in Chapter 4 of this book. Even colleges controlled by religious organizations may be subject to breach of contract claims. For example, the Supreme Court of New Jersey ruled, in McKelvy v. Diocese of Camden, 800 A.2d 840 (N.J. 2002), that a former seminarian could sue the Diocese of Camden, New Jersey, for breach of contract. The plaintiff alleged that he had been sexually harassed while a student at the seminary; he sued for reimbursement of his tuition and loans, and for compensatory damages. Despite the argument by the diocese that such a lawsuit violated the First Amendment's free exercise clause, the state court ruled unanimously that the case could proceed.
Although students attempting to assert claims for educational malpractice are finding their tort claims dismissed, their contract claims sometimes survive summary judgment or dismissal, as long as the contract claim is not an attempt to state a claim for educational malpractice. See Metcalf v. University of North Carolina at Chapel Hill, 798 S.E.2d 442 (N.C. Ct. App. 2017) (upholding finding that trial court lacked subject matter jurisdiction where plaintiffs reframed what were actually educational malpractice claims—which are not recognized in North Carolina—as claims of breach of contract, breach of fiduciary duty, fraud, and unfair and deceptive trade practices).
For example, in Swartley v. Hoffner, 734 A.2d 915 (Pa. Super. Ct. 1999), appeal denied, 747 A.2d 902 (Pa. 1999), a doctoral student who was denied a degree brought a breach of contract claim against Lehigh University and her dissertation committee members, claiming that they had failed to carry out their duties as required by university policies. The court ruled that “the relationship between a private educational institution and an enrolled student is contractual in nature; therefore, a student can bring a cause of action against said institution for breach of contract where the institution ignores or violates portions of the written contract” (734 A.2d at 919). But the court nevertheless affirmed the trial court's award of summary judgment to the defendants, finding no evidence that university policies required dissertation committee members to give the student a passing grade once her dissertation defense had been scheduled. But not all courts will allow breach of contract claims to proceed in these circumstances. In Gally v. Columbia University, 22 F. Supp. 2d 199 (S.D.N.Y. 1998), a trial judge dismissed the student's contract claim, ruling that it was a disguised attempt to state a claim for educational malpractice.
The variety of contract and agency law principles that may bear on contract liability makes the area a complex one, calling for frequent involvement of legal counsel. The postsecondary institution's main concern in managing liability should be the delineation of the contracting authority of each of its agents. By carefully defining such authority and by repudiating any unauthorized contracts of which they become aware, postsecondary administrators can protect the institution from unwanted liability. Although protection may also be found in other defenses to contract actions, such as sovereign immunity, advance planning of authority is the surest way to limit contract liability and the fairest to the parties with whom the institution's agents may deal.
Section 3.4. Institutional Liability for Violating Federal Constitutional Rights (Section 1983 Liability)
3.4.1 Overview. The tort and contract liabilities of postsecondary institutions discussed above are based in state law and, for the most part, are relatively well settled. The institution's federal constitutional rights liability, in contrast, is primarily a matter of federal law, which has undergone a complex evolutionary development. The key statute governing the enforcement of constitutional rights,7 commonly known as Section 1983 and codified at 42 U.S.C. § 1983, reads in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Section 1983's coverage is limited in two major ways. First, it imposes liability only for actions carried out “under color of” state law, custom, or usage. Under this language the statute applies only to actions attributable to the state, in much the same way that, under the state action doctrine (see Section 1.5.2 of this book), the U.S. Constitution applies only to actions attributable to the state. While public institutions clearly meet this statutory test, private postsecondary institutions cannot be subjected to Section 1983 liability unless the action complained of was so connected with the state that it can be said to have been done under color of state law, custom, or usage.
Second, Section 1983 imposes liability only on a “person”—a term not defined in the statute. Thus, Section 1983's application to postsecondary education also depends on whether the particular institution or system being sued is considered to be a person, as the courts construe that term. Although private institutions would usually meet this test because they are corporations, which are considered to be legal persons under state law, most private institutions would be excluded from Section 1983 anyway under the “color of law” test. Thus, the crucial coverage issue under Section 1983 is one that primarily concerns public institutions: whether a public postsecondary institution is a person for purposes of Section 1983 and thus subject to civil rights liability under that statute.
A related issue, which also helps shape a public institution's liability for violations of federal constitutional rights, is the extent to which Article III and the Eleventh Amendment of the U.S. Constitution immunize public institutions from suit. While the “person” issue is a matter of statutory interpretation, the immunity issue is a matter of constitutional interpretation. In general, if a lawsuit is against the state itself or against a state official or employee sued in his or her “official capacity,” and the plaintiff seeks money damages that would come from the state treasury,8 Eleventh Amendment immunity from federal court suit will apply. As discussed below, in Section 1983 litigation, the immunity issue usually parallels the person issue, and the courts have used Eleventh Amendment immunity law as a backdrop against which to fashion and apply a definition of “person” under Section 1983.
In a series of cases beginning in 1978, the U.S. Supreme Court dramatically expanded the potential Section 1983 liability of various government entities. As a result of these cases, it became clear that any political subdivision of a state may be sued under this statute; that such political subdivisions may not assert a qualified immunity from liability based on the reasonableness or good faith of their actions; that the officers and employees of political subdivisions, as well as officers and employees of state agencies, may sometimes be sued under Section 1983; and that Section 1983 plaintiffs may not be required to resort to state administrative forums before seeking redress in court.
The first, and key, case in this series is the U.S. Supreme Court's decision in Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978). Overruling prior precedents that had held the contrary, the Court decided that local government units, such as school boards and municipal corporations, are “persons” under Section 1983 and thus subject to liability for violating constitutional rights protected by that statute. Since the definition of “person” is central to Section 1983's applicability, the question is whether the Court's definition in Monell is broad enough to encompass postsecondary institutions: Are some public postsecondary institutions sufficiently like local government units that they will be considered “persons” subject to Section 1983 liability?
The answer depends not only on a close analysis of Monell but also on an analysis of the particular institution's organization and structure under state law. Locally based institutions, such as community colleges established as an arm
