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The following selection is excerpted from ������ýapp�ٷ�’s Guide to Due Process and Campus Justice.

Public universities, as an arm of the government, are constrained by the Constitution in setting rules and disciplining students. Private colleges and universities are free, by contrast, to set their own rules and to formulate their own disciplinary procedures within very wide guidelines and boundaries established by state laws. A student is free to take or not to take such procedures into account when deciding to attend such an institution. Once private institutions publish disciplinary rules, however, they are then obligated by principles of contract law to follow them in good faith, even if not always to the strict letter.

Private universities generally must follow their established procedures

Private universities are not legally required to promise fair procedures to their students. However, nearly all universities have student handbooks and manuals that set out rules and standards for their student judicial systems. Courts in many states have held that these rules and standards form a contract of sorts, and that universities must live up to them in at least a general way.

The legal requirement that universities actually give students the rights they promise stems from a variety of doctrines, above all from the law of contracts. The basic principle of contract law is also one that lies at the heart of morality: People have to live up to their reciprocal promises. If one party agrees to a contract and doesn’t honor it, a court can force that party to do so and can award monetary damages to the other party. If you agree to attend a university and pay tuition and fees, and you do so relying upon the rules and regulations that the university tells you it has established, then a deal of sorts has been struck, roughly like a legal contract. In the same way you must pay your tuition, the university must deliver the due process protections it promises you in its policies.

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Courts have often held that the representations universities make in their student handbooks about the disciplinary process are promises that they must keep. However, courts do not enforce these promises as strictly as other kinds of contracts. For example, courts typically have not awarded students monetary damages when colleges simply fail to follow their disciplinary rules. In addition, they tend to give universities leeway if they have followed their rules in a general way, even if not to the letter. The consensus of the courts is that the relationship between a student and a university has, as one judge put it, a “strong, albeit flexible, contractual flavor,” and that the promises made in handbooks have to be “substantially observed.”

Some states follow an ancient “common law” doctrine — not embodied in any statute, but followed by courts on the basis of longstanding practice and precedent — that binds private organizations to treat their members with at least a minimal level of fairness and decency. This doctrine reinforces the contract law rules requiring universities to follow their own procedures.

Even though courts have not held that universities must adhere exactly to their rules, you can sometimes use the mere threat of a lawsuit to force your university to follow its own rules more closely. Colleges and universities fear lawsuits, especially when they are coupled with the prospect of bad publicity or when they are very likely in the wrong. If you make it clear that you know your rights, your university is less likely to place itself in a gray area of possible breach of contract by straying too far from its promises.

You also can use the fact that your university itself set the terms of its student handbook to your advantage. When a contract, or a contract-like agreement, is formulated by what the law terms the “stronger party,” and the “weaker party” does not have an opportunity to negotiate specific terms, courts will lean in favor of the weaker party (here, the student) in resolving any ambiguities in the contract. Under this standard — applied to higher education, for example, in the U.S. District Court for the District of Columbia case of  (1977) — courts will interpret rules in a student handbook with whatever meaning the university should reasonably expect students to give them.

Breach of contract lawsuits

If you sue your university for breach of contract in a jurisdiction with precedents favorable to student rights, the court will review the student handbook and the record of your trial to see if the university failed to meet your reasonable expectations and therefore violated its contract with you.

Courts have generally held that colleges don’t have to fulfill every obligation established in their own policies in exactly the way a student wants. Rather, a college needs only to “substantially” satisfy the conditions set out in its student handbook. So it’s difficult to win a suit if the university can argue plausibly that it honored its promises in some general way. For example, in the Massachusetts Supreme Judicial Court case of  (2000), a student sued Brandeis University for, among other things, failing to produce a summary report of his disciplinary hearing, as promised by the student handbook. Brandeis had summarized the five-hour hearing in a mere twelve lines of text. The Massachusetts Supreme Judicial Court ruled that although it would be better to have issued a more complete summary, Brandeis’s published procedures never had stated precisely how detailed a summary it would produce. Therefore, the court held, the twelve-line summary did not break the university’s promise to the student. As you might conclude, courts do not always reach decisions that most ordinary citizens would find fair. (Even in Schaer, the university lost in the intermediate appellate court and won by only a single vote in the Supreme Judicial Court.)

However, when your university has obviously failed to live up to its obligations to you, then you have a real chance of winning in court. For example, in the case of  (1994), the U.S. District Court for the District of Vermont cleared the disciplinary record of a Middlebury College student who had been found innocent of rape by the campus court but who was instead found guilty of “disrespect for persons.” The student had never even been notified that he was being charged with that offense. But Middlebury’s handbook not only promised that accused students would be informed of the charges against them, it also promised they would receive notice “with sufficient particularity to permit [them] to prepare to meet the charges.” Middlebury told Fellheimer that he was charged with rape, but he was not told that he was also being charged with “disrespect for persons.” He learned about that second charge only when the university found him guilty of it. The district court noted that Middlebury, a private college not bound by due process requirements, was under no constitutional obligation to tell its students of the charges against them. But as the court observed, Middlebury had nonetheless agreed to do so and to provide a fundamentally fair hearing. By failing to provide notice, it had failed to fulfill its promises in Fellheimer’s case.

Private universities may not be ‘arbitrary and capricious’

Many courts agree with the general proposition that disciplinary procedures at private colleges and universities may not be “arbitrary and capricious.” This protection flows from old common law ideas about how private associations must treat their members. Over the years, our society has learned the value of protecting individuals from the arbitrary acts of other individuals, even in private associations. 

Courts differ, however, on just how unfair a university’s disciplinary process must be before it is unlawful under this principle. Some courts prohibit disciplinary conclusions reached “without any discernable rational basis,” and some bar those “made without substantial evidence” or “contrary to substantial evidence.” The important thing to remember is that even when a private college does not promise fair practices in its student handbook, other legal doctrines beyond contract law are available to place some limit on just how unfairly a college may treat a student.

The arbitrary and capricious rule is an important safeguard because it prevents administrators from establishing truly outrageous disciplinary rules. 

The doctrine prohibiting “arbitrary and capricious” discipline also prevents universities from disciplining students maliciously or dishonestly. A protection from arbitrary punishment is also a protection from discipline meted out with an outrageous or improper purpose.

That’s the good news. The sobering news is that no matter how courts in your jurisdiction define “arbitrary and capricious,” winning a case based on such a claim turns out to be very difficult in practice. While courts may conduct detailed reviews of a student’s claim that a university’s disciplinary procedures are arbitrary and capricious, such claims are generally unsuccessful. Courts tend to harbor broad respect for the self-government of private associations, including private colleges and universities. 

Nevertheless, the arbitrary and capricious rule is an important safeguard, because it prevents administrators from establishing truly outrageous disciplinary rules. Without it, there would be nothing to prohibit a private institution from flipping a coin to determine a student’s guilt or innocence. Besides, the mere presence of a legal doctrine placing some limit on an institution’s power, even where that limit is not clearly drawn, often has the effect of restraining the arrogance of power.

Courts will intervene when discipline at private universities is without any basis in reason whatsoever. For example, in the case of  (1989), the Court of Appeal of Louisiana determined that a religious seminary had decided not to grant a degree to a student in a manner that was “grossly unfair and arbitrary.” As a result, the court ordered the university to award the student the degree.

The student had encountered previous disciplinary problems at the seminary, but had been allowed to complete his coursework and had received notice of his impending graduation. Eleven days before graduation, however, the institution notified the student of its decision not to graduate him under a broad rule allowing it to withhold degrees from those “unfit” to receive them. The institution made this last-minute choice despite the fact that the student had already secured a court order prohibiting the seminary from punishing him further for his earlier difficulties. In reviewing the student’s claim, the court held that because the institution gave no explanation for why the student was suddenly “unfit,” and because the institution’s graduation policy contained “due process infirmities” (for example, it failed to provide for notice and a hearing), the institution’s discipline was “arbitrary and unjust” and could not stand.

Those interested in due process and procedural fairness on campus should check out ������ýapp�ٷ�’s Model Code of Student Conduct — a comprehensive collection of disciplinary policies and procedures designed to protect civil liberties. Its provisions set the gold standard for due process and students’ rights, which we encourage educational institutions to adopt. 

To learn more about your rights, explore ������ýapp�ٷ�’s Guide to Due Process and Campus Justice.