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1.5.2.1 When private postsecondary institutions may be engaged in state action. Before a court will require that a postsecondary institution comply with the individual rights requirements in the federal Constitution, it must first determine that the institution's challenged action is state action.⁴ When suit is filed under 42 U.S.C. § 1983 (Section 1983) (see Sections 3.4 and 4.4.4 of this book), the question is rephrased as whether the challenged action was taken “under color of” state law, an inquiry that is the functional equivalent of the state action inquiry (see, for example, West v. Atkins, 487 U.S. 42 (1988)). Although the state action (or color of law) determination is essentially a matter of distinguishing public institutions from private institutions, and the public parts of an institution from the private parts—or more generally, distinguishing public “actors” from private “actors”—these distinctions do not necessarily depend on traditional notions of public or private. Due to varying patterns of government assistance and involvement, a continuum exists, ranging from the obvious public institution (such as a tax-supported state university) to the obvious private institution (such as a religious seminary). The gray area between these poles is a subject of continuing debate about how much the government must be involved in the affairs of a “private” institution or one of its programs before it will be considered “public” for purposes of the state action doctrine. As the U.S. Supreme Court noted in the landmark case of Burton v. Wilmington Parking Authority, 365 U.S. 715, 722 (1961), “Only by sifting facts and weighing circumstances can the non-obvious involvement of the State in private conduct be attributed its true significance.”

Since the early 1970s, the trend of the U.S. Supreme Court's opinions has been to trim back the state action concept, making it less likely that courts will find state action to exist in particular cases. The leading education case in this line of cases is Rendell-Baker v. Kohn, 457 U.S. 830 (1982). Another leading case, Blum v. Yaretsky, 457 U.S. 991 (1982), was decided the same day as Rendell-Baker and reinforces its narrowing effect on the law.

Rendell-Baker was a suit brought by teachers at a private high school who had been discharged as a result of their opposition to school policies. They sued the school and its director, Kohn, alleging that the discharges violated their federal constitutional rights to free speech and due process. The issue before the Court was whether the private school's discharge of the teachers was “state action” and thus subject to the federal Constitution's individual rights requirements.

The defendant school specialized in education for students who had drug, alcohol, or behavioral problems or other special needs. Nearly all students were referred by local public schools or by the drug rehabilitation division of the state's department of health. The school received funds for student tuition from the local public school systems from which the students came and were reimbursed by the state department of health for services provided to students referred by the department. The school also received funds from other state and federal agencies. Virtually all the school's income, therefore, was derived from government funding. The school was also subject to state regulations on various matters, such as record keeping and student-teacher ratios, and requirements concerning services provided under its contracts with the local school boards and the state health department. Few of these regulations and requirements, however, related to personnel policy.

The teachers argued that the school had sufficient contacts with the state and local governments so that the school's discharge decision should be considered state action. The Court disagreed, holding that neither the government funding nor the government regulation was sufficient to make the school's discharge of the teachers state action. As to the funding, the Court analogized the school's situation to that of a private corporation whose business depends heavily on government contracts to build “roads, bridges, dams, ships, or submarines” for the government, but is not considered to be engaged in state action. And as to the regulation, it did not address personnel matters. Therefore, said the court, state regulation was insufficient to transform a private personnel decision into state action.

The Court also rejected two other arguments of the teachers: that the school was engaged in state action because it performed a “public function” and that the school had a “symbiotic relationship” with—that is, was engaged in a “joint venture” with—government, which constitutes state action under the Court's earlier case of Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) (discussed above). As to the first argument, the Court reasoned in Rendell-Baker that the appropriate inquiry was whether the function performed has been “traditionally the exclusive prerogative of the state” (quoting Jackson v. Metropolitan Edison Co., 419 U.S. at 353). The Court explained that the state never had exclusive jurisdiction over the education of students with special needs and had only recently assumed the responsibility to educate them.

As to the teachers' second argument, the Court concluded simply that “the school's fiscal relationship with the state is not different from that of many contractors performing services for the government. No symbiotic relationship such as existed in Burton exists here.”

Having rejected all the teachers' arguments, the Court, by a 7-2 vote, concluded that the school's discharge decisions did not constitute state action. It therefore affirmed the lower court's dismissal of the teachers' lawsuit.

In the years preceding Rendell-Baker, courts and commentators had dissected the state action concept in various ways. At the core, however, three main approaches to making state action determinations had emerged: the “nexus” approach, the “symbiotic relationship” approach, and the “public function” approach. The first approach, nexus, focuses on the state's involvement in the particular action being challenged and whether there is a sufficient “nexus” between that action and the state. According to the foundational case for this approach, Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), “the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the [private] entity so that the action of the latter may be fairly treated as that of the State itself” (419 U.S. at 351 (1974)). Generally, courts will find such a nexus only when the state has compelled or directed, or fostered or encouraged, the challenged action.

The second approach, usually called the “symbiotic relationship” or “joint venturer” approach, has a broader focus than the nexus approach, encompassing the full range of contacts between the state and the private entity. According to the foundational case for this approach, Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), the inquiry is whether “the State has so far insinuated itself into a position of interdependence with [the institution] that it must be recognized as a joint participant in the challenged activity” (365 U.S. at 725). When the state is so substantially involved in the whole of the private entity's activities, it is not necessary to prove that the state was specifically involved in (or had a “nexus” with) the particular activity challenged in the lawsuit.

The third approach, “public function,” focuses on the particular function being performed by the private entity. The Court has very narrowly defined the type of function that will give rise to a state action finding. It is not sufficient that the private entity provides services to the public, or that the services are considered essential, or that government also provides such services. Rather, according to the Jackson case (above), the function must be one that is “traditionally exclusively reserved to the State…[and] traditionally associated with sovereignty” (419 U.S. at 352–53) in order to support a state action finding.

In Rendell-Baker, the Court considered all three of these approaches, specifically finding that the high school's termination of the teachers did not constitute state action under any of the approaches. In its analysis, as set out above, the Court first rejected a nexus argument; then rejected a public function argument; and finally rejected a symbiotic relationship argument. The Court narrowly defined all three approaches, consistent with other cases it had decided since the early 1970s. Lower courts following Rendell-Baker and other cases in this line have continued to recognize the same three approaches, but only two of them—the nexus approach and the symbiotic relationship approach—have had meaningful application to postsecondary education. The other approach, public function, has essentially dropped out of the picture in light of the Court's sweeping declaration that education programs cannot meet the restrictive definition of public function in the Jackson case.⁵ Various lower court cases subsequent to Rendell-Baker illustrate the application of the nexus and symbiotic relationship approaches to higher education, and also illustrate how Rendell-Baker, Blum v. Yaretsky (Rendell-Baker's companion case [see above]), and other Supreme Court cases such as Jackson v. Metropolitan Edison (see above) have served to insulate postsecondary institutions from state action findings and the resultant application of federal constitutional constraints to their activities. The following cases are instructive examples.

In Albert v. Carovano, 824 F.2d 1333, modified on rehearing, 839 F.2d 871 (2d Cir. 1987), panel opinion vacated, 851 F.2d 561 (2d Cir. 1988) (en banc), a federal appellate court, after protracted litigation, refused to extend the state action doctrine to the disciplinary actions of Hamilton College, a private institution. The suit was brought by students whom the college had disciplined under authority of its policy guide on freedom of expression and maintenance of public order. The college had promulgated this guide in compliance with the New York Education Law, Section 6450 (the Henderson Act), which requires colleges to adopt rules for maintaining public order on campus and file them with the state. The trial court dismissed the students' complaint on the grounds that they could not prove that the college's disciplinary action was state action. After an appellate court panel reversed, the full appellate court affirmed the pertinent part of the trial court's dismissal. The court (en banc) concluded:

[A]ppellants' theory of state action suffers from a fatal flaw. That theory assumes that either Section 6450 or the rules Hamilton filed pursuant to that statute constitute “a rule of conduct imposed by the state” [citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937–39 (1982)]. Yet nothing in either the legislation or those rules required that these appellants be suspended for occupying Buttrick Hall. Moreover, it is undisputed that the state's role under the Henderson Act has been merely to keep on file rules submitted by colleges and universities. The state has never sought to compel schools to enforce these rules and has never even inquired about such enforcement [851 F.2d at 568].

Finding that the state had not undertaken to regulate the disciplinary policies of private colleges in the state, and that the administrators of Hamilton College did not believe that the Henderson Act required them to take particular disciplinary actions, the court refused to find state action.

In a decision involving a student sexual misconduct conduct proceeding, Doe v. University of Denver, 2018 WL 1304530 (D. Colo. March 13, 2018), the court considered whether a private university's enforcement of Title IX requirements sufficed to constitute state action. The plaintiff argued that the requirement that institutions must comply with Title IX standards as a condition of receiving federal funds made the university a state actor for purposes of the disciplinary hearing. The court concluded that such a rationale would prove “untenable” by potentially turning any private entity complying with a federal rule or law into a state actor. While the U.S. Court of Appeals for the Tenth Circuit had not provided guidance on whether Title IX compliance in a student disciplinary proceeding could constitute state action as to a private university, the court noted that other courts had ruled that it did not.

In an earlier case, Smith v. Duquesne University, 612 F. Supp. 72 (W.D. Pa. 1985), affirmed without opinion, 787 F.2d 583 (3d Cir. 1986), a graduate student challenged his expulsion on due process and equal protection grounds, asserting that Duquesne's action constituted state action. The court used both the symbiotic relationship and the nexus approaches to determine that Duquesne was not a state actor. Regarding the former, the court distinguished Duquesne's relationship with the state of Pennsylvania from that of Temple University and the University of Pittsburgh, which were determined to be state actors in Krynicky v. University of Pittsburgh and Schier v. Temple University, 742 F.2d 94 (3d Cir. 1984). There was no statutory relationship between the state and the university, the state did not review the university's expenditures, and the university was not required to submit the types of financial reports to the state that state-related institutions, such as Temple and Pitt, were required to submit. Thus the state's relationship with Duquesne was “so tenuous as to lead to no other conclusion but that Duquesne is a private institution and not a state actor” (612 F. Supp. at 77–78).

Regarding the latter approach (the nexus test), the court determined that the state could not “be deemed responsible for the specific act” complained of by the plaintiff. The court characterized the expulsion decision as “an academic judgment made by a purely private institution according to its official university policy” (612 F. Supp. At 78), a decision in which the government had played no part. (See also Urso v. Bradley University, 2018 WL 1547101 (C.D. Ill. March 29, 2018) [rejecting claims of state action by a nursing student, including the argument that the private university was a state actor because it received state funding].)

While Rendell-Baker and later lower court cases suggest that colleges will usually win state action cases, these cases do not create an impenetrable protective barrier for ostensibly private postsecondary institutions. In particular, there may be situations in which government is directly involved in some challenged activity—in contrast to the absence of government involvement in the actions challenged in Rendell-Baker and the lower court cases above. Such involvement may supply the “nexus” that was missing in these cases. In Doe v. Gonzaga University, 24 P.3d 390 (Wash. 2001), for example, the court upheld a jury verdict that a private university and its teacher certification specialist were engaged in action “under color of state law” (that is, state action) when completing state certification forms for students applying to be certified as teachers. The private institution and the state certification office, said the court, were cooperating in “joint action” regarding the certification process.⁶ Moreover, there may be situations, unlike Rendell-Baker and the cases above, in which government officials by virtue of their offices sit on, or nominate others for, an institution's board of trustees. Such involvement, perhaps in combination with other “contacts” between the state and the institution, may create a “symbiotic relationship” that constitutes state action, as the court held in Krynicky v. University of Pittsburgh and Schier v. Temple University, above.

An illustrative area in which state action questions have arisen in relation to private colleges and universities involves actions by campus police forces. In a case involving the University of Pennsylvania, a federal district court considered whether the university's campus police officers constituted state actors (Fleck v. University of Pennsylvania, 995 F. Supp. 2d 390 (E.D. Pa. 2014)). Having determined that state law “endowe[d] the Penn Police Department with the plenary authority of a municipal police department” in areas on and near campus under its patrol authority, the court determined that the university's police offers qualified as state actors. In contrast, in Faiaz v. Colgate University, 64 F. Supp. 3d 336 (N.D.N.Y. 2014), the court rejected the argument that campus safety officers at a private university could be deemed to be acting under color of state law on the basis that at least one of the officers in question worked part-time at a local police department and because of cooperation between the campus safety department and the local police department. In distinguishing a previous case involving Cornell University police, Yaun v. Tops Market, 2012 WL 4491106 (N.D.N.Y September 28, 2012), the court said that the campus safety officers at Colgate were not “similarly deputized” under state law (Faiaz, 64 F. Supp. 3d at 351). (For an additional case, one in which university police officers were found to be state actors, see Boyle v. Torres, 756 F. Supp. 2d 983 (N. Dist. Ill. 2010).) (For more on campus police departments, see Section 7.6.1.)

In the years since Rendell-Baker, the U.S. Supreme Court has, of course, also considered various other state action cases. One of its major decisions was in another education case, Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001). Brentwood is particularly important because the Court advanced a new test—a fourth approach—for determining when a private entity may be found to be a state actor. The defendant Association, a private nonprofit membership organization composed of public and private high schools, regulated interscholastic sports throughout the state. Brentwood Academy, a private parochial high school and a member of the Association, had mailed athletic information to the homes of prospective student athletes. The Association's board of control, composed primarily of public school district officials and Tennessee State Board of Education officials, determined that the mailing violated the Association's recruitment rules; it therefore placed Brentwood on probation. Brentwood claimed that this action violated its equal protection and free speech rights under the federal Constitution. As a predicate to its constitutional claims, Brentwood argued that, because of the significant involvement of state officials and public school officials in the Association's operations, the Association was engaged in state action when it enforced its rules.

By a 5-4 vote, the U.S. Supreme Court agreed that the Association was engaged in state action. But the Court did not rely on Rendell-Baker or on any of the three analytical approaches sketched above. Instead, Justice Souter, writing for the majority, articulated a “pervasive entwinement” test under which a private entity will be found to be engaged in state action when “the relevant facts show pervasive entwinement to the point of largely overlapping identity” between the state and the private entity (531 U.S. at 303). The majority grounded this entwinement theory in Evans v. Newton, 382 U.S. 296 (1966), where the Court had “treated a nominally private entity as a state actor…when it is ‘entwined with governmental policies,’ or when government is ‘entwined in [its] management or control’” (531 U.S. at 296, quoting Evans, 382 U.S. at 299, 301). Following this approach, the Court held that “[t]he nominally private character of the Association is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings…” (531 U.S. at 298).

The entwinement identified by the Court was of two types: “entwinement…from the bottom up” and “entwinement from the top down” (531 U.S. at 300). The former focused on the relationship between the public school members of the Association (the bottom) and the Association itself; the latter focused on the relationship between the State Board of Education (the top) and the Association. As for “entwinement…up,” 84 percent of the Association's members are public schools, and the Association is “overwhelmingly composed of public school officials who select representatives…, who in turn adopt and enforce the rules that make the system work” (531 U.S. at 299). “There would be no recognizable Association, legal or tangible, without the public school officials, who do not merely control but overwhelmingly perform all but the purely ministerial acts by which the Association exists and functions in practical terms” (531 U.S. at 300). As for “entwinement…down,” Tennessee State Board of Education members “are assigned ex officio to serve as members” of the Association's two governing boards (531 U.S. at 300). In addition, the Association's paid employees “are treated as state employees to the extent of being eligible for membership in the state retirement system” (531 U.S. at 300). The Court concluded that “[t]he entwinement down from the State Board is…unmistakable, just as the entwinement up from the member public schools is overwhelming.” Entwinement “to the degree shown here” required that the Association be “charged with a public character” as a state actor, and that its adoption and enforcement of athletics rules be “judged by constitutional standards” (531 U.S. at 302).

The most obvious application of Brentwood is to situations where state action issues arise with respect to an association of postsecondary institutions rather than an individual institution. But the Brentwood entwinement approach would also be pertinent in situations in which a state system of higher education is bringing a formerly private institution into the system, and an “entwinement up” analysis might be used to determine whether the private institution would become a state actor for purposes of the federal Constitution. Similarly, the entwinement approach might be useful in circumstances in which a postsecondary institution has created a captive organization, or affiliated with another organization outside the university, and the question is whether the captive or the affiliate would be considered a state actor.

1.5.2.2 When students, employees, and others may be engaged in state action. In addition to all the cases above, in which the question is whether a postsecondary institution was engaged in state action, there have also been cases on whether a particular student, employee, student organization, or affiliated entity—at a private or a public institution—was engaged in state action, as well as cases on whether a private individual or organization that cooperates with a public institution for some particular purpose was engaged in state action. While the cases focusing on the institution, as discussed in Section 1.5.2.1 above, are primarily of interest to ostensibly private institutions, the state action cases focusing on individuals and organizations can be pertinent to public institutions as well as private.

In a case involving both students and an employee (a dean), Leeds v. Meltz, 898 F. Supp. 146 (E.D.N.Y. 1995), affirmed, 85 F.3d 51 (2d Cir. 1996), Leeds, a graduate of the City University of New York (CUNY) School of Law (a public law school) submitted an advertisement for printing in the law school's newspaper. The student editors rejected the advertisement because they believed it could subject them to a defamation lawsuit. Leeds sued the student editors and the acting dean of the law school, asserting that the rejection of his advertisement violated his free speech rights. The federal district court, relying on Rendell-Baker v. Kohn, held that neither the student editors nor the dean were engaged in state action. Law school employees exercised little or no control over the publications or activities of the editors. Although the student paper was funded in part with mandatory student activity fees, this did not make the student editors' actions attributable to the CUNY administration or to the state. (For other student newspaper cases on this point, see Section 10.3.3 of this book.) The court granted the defendants' motion to dismiss, stating that the plaintiff's allegations failed to support any plausible inference of state action. The appellate court affirmed the district court's dismissal of the case, emphasizing that the CUNY administration had issued a memo prior to the litigation disclaiming any right to control student publications, even those financed through student activity fees.

In another case involving students, Mentavlos v. Anderson, 249 F.3d 301 (4th Cir. 2001), the court considered whether two cadets at the Citadel, a state military college, were engaged in state action when they disciplined a first-year (or “fourth-class”) cadet. The first-year cadet, a female who subsequently withdrew from the college, alleged that the two male, upper-class cadets had sexually harassed, insulted, and assaulted her using their authority under the “Fourth-Class System,” as described in the school's Cadet Regulations (the Blue Book), and thereby violated her right to equal protection under the Fourteenth Amendment. The regulations granted upper-class students limited authority to correct and report violations of school rules by first-year students. While hazing and discrimination based on gender as means of punishment for rules violations were expressly prohibited, punishments meted out by upper-class cadets might include mild verbal abuse or assignment to complete undesirable maintenance tasks. Ultimately, authority for observing the Citadel's rules rested with the college administration, not the upper-class cadets.

The appellate court affirmed the federal district court's decision that the upper-class students were not state actors and were not engaged in state action. Using the nexus approach,⁷ the court emphasized that the upperclassmen enjoyed only limited disciplinary authority over students, authority that was not analogous to the broad discretionary powers of law enforcement officers. Moreover, the upperclassmen's actions were not authorized by the school and were in violation of the Blue Book rules, violations for which the cadets were disciplined. “Because the cadets' decision to engage in unauthorized harassment of [the plaintiff] was not coerced, compelled, or encouraged by any law, regulation or custom” of the state or the college, there was no “close nexus” between the cadets' action and the state, and the cadets were not state actors when they disciplined the plaintiff.⁸ Although the facts of the Mentavlos case are somewhat unique, involving a military-style discipline system at a military college, the court made clear that its analysis could have some application to honor code systems and other disciplinary systems at other public colleges.

Husain v. Springer, 494 F.3d 108 (2d. Cir. 2007), provides another example of state action issues concerning students. A Student Government Publications Commissioner at a public university impounded copies of an issue of the student newspaper, and certain members of the student senate had supported this action. These students were among the defendants in a First Amendment suit brought by the newspaper editors and other students. (For analysis of the First Amendment issues in Husain, see Section 10.3.3.) The student defendants argued that they had not engaged in state action and therefore should be dismissed from the case. The district court and the appellate court agreed. The college did not compel or require the student defendants to impound the newspaper, nor did the college encourage this action. To the contrary, the college president had overruled the student government's action. Moreover, even if it could be said that college regulations and policies provided authorization for the students to act, “state authorization was insufficient to establish that the student government defendants were state actors in the circumstances presented here.” (For a contrary case, in which a court held student government members to be engaged in state action, see Amidon v. Student Association of the State University of New York at Albany, 399 F. Supp. 2d 136 (N.D.N.Y. 2005).)

The case of Limpuangthip v. United States, 932 A.2d 1137 (D.C. Ct. App. 2007), provides another example of state action issues concerning employees. A private university's search of a student's room had led to the student's conviction on drug charges, and the student argued that the search was state action violating the Fourth Amendment. The search had been conducted by a university administrator accompanied by two university police officers. The administrator was concededly a private actor, not subject to the Fourth Amendment, but the police officers, although employees of the university, were Special Police Officers (SPOs) under District of Columbia law, “authorized to exercise arrest powers broader than that of ordinary citizens and security guards.” The student claimed that this governmental authority of the SPOs present at the search made the search state action. The appellate court agreed that SPOs do become state actors when they invoke their state authority “through manner, word, or deed”—that is, when they act “like…regular police officer[s]” rather than employees of a private entity. But the two SPOs, according to the court, did not act in this manner at the search. The administrator had initiated and conducted the search herself; the SPOs had not influenced the administrator's actions; and their “involvement in the search was peripheral.” Their conduct therefore “does not amount to state action.”

Borrell v. Bloomsburg University, 870 F.3d 154 (3d Cir. 2017), considers when a private entity's relationship with a public institution may subject the private entity to a state action finding. The specific question was a whether a private health care provider that operated a nurse anesthesia program with a public university qualified as a state actor when it expelled a student from the program after she refused the initial request of a supervisor to take a drug test. The court determined that the supervisor's status as a joint employee of the university and the health care provider did not resolve the state actor question. Rather, according to the court, the “pertinent question” was whether the supervisor was wearing his university or private health care employer “hat” in deciding to dismiss the student from the program (870 F.3d at 160). The court said that the student was dismissed from the program on the basis of the health care provider's employee policies and not on a policy of the university. Furthermore, the agreement between the university and the health care provider specified that the health care provider retained discretion “unilaterally” to remove anyone from the program based on its employee policies, which applied to students in the nurse anesthesia program (870 F.3d at 161). Thus, the student was dismissed based on an employment policy over which the university exercised no control based on the collaboration agreement. As such, the court held that neither the health care provider nor the supervisor qualified as state actors. (See also Shapiro v. Columbia Union National Bank & Trust Co. 576 S.W.2d 310 (Mo. 1978) [twice dismissing complaints against a public university as failing to state a cause of action in rejecting arguments that state action was present in the administration of a private scholarship trust fund in relation to the university's role in overseeing the scholarship and the trust].)

1.5.3 Other bases for legal rights in private institutions. The inapplicability of the federal Constitution to private schools does not necessarily mean that students, faculty members, and other members of the private school community have no legal rights assertable against the school. There are other sources for individual rights, and these sources may sometimes resemble those found in the Constitution.

The federal government and, to a lesser extent, state governments have increasingly created statutory rights enforceable against private institutions, particularly in the discrimination area. The federal Title VII prohibition on employment discrimination (42 U.S.C. §§ 2000e et seq., discussed in Section 4.5.2.1), applicable generally to public and private employment relationships, is a prominent example. Other major examples are the Title VI race discrimination law (42 U.S.C. §§ 2000d et seq.) and the Title IX sex discrimination law (20 U.S.C. §§ 1681 et seq.) (see Sections 11.5.2 through 11.5.3 of this book), applicable to institutions receiving federal aid. Such sources provide a large body of nondiscrimination law, which parallels and in some ways is more protective than the equal protection principles derived from the Fourteenth Amendment.

Beyond such statutory rights, several common law theories for protecting individual rights in private postsecondary institutions have been advanced. Most prominent by far is the contract theory, under which students and faculty members are said to have a contractual relationship with the private school. A related claim of breach of fiduciary duty has also been gaining attention in recent years, in particular for student claims (see Section 7.1.3). Under the contract theory, implied contract terms as well as express terms may establish legal rights enforceable in court if the contract is breached. Although the theory is a useful one that is often referred to in the cases (see Sections 5.2.1 and 7.1.3), most courts agree that the contract law of the commercial world cannot be imported wholesale into the academic environment. The theory must thus be applied with sensitivity to academic customs and usages. Moreover, the theory's usefulness is somewhat limited. The “terms” of the “contract” may be difficult to identify, particularly in the case of students. (To what extent, for instance, is the college catalog a source of contract terms?) Some of the terms, once identified, may be too vague or ambiguous to enforce. Or the contract may be so barren of content or so one-sided in favor of the institution that it is an insignificant source of individual rights.

Despite its shortcomings, the contract theory has gained in importance. As it has become clear that most private institutions can escape the tentacles of the state action doctrine, students, faculty, and staff have increasingly had to rely on alternative theories for protecting individual rights. Since the lowering of the age of majority, postsecondary students have had a capacity to contract under state law—a capacity that many previously did not have. In what has become the age of the consumer, students have been encouraged to import consumer rights into postsecondary education. And, in an age of collective negotiation, faculties and staff have often sought to rely on a contract model for ordering employment relationships on campus (see Section 4.3).

In addition to contract principles, some courts have also recognized that private colleges and universities operate under an obligation to demonstrate basic fairness in the treatment of students or to not treat them in an arbitrary or capricious manner. The issue of fundamental fairness apart from contract principles has arisen in recent years in litigation brought by students disciplined for engaging in sexual misconduct that violated provisions of the institutional student conduct code (see Section 11.5.3.4). In an illustrative case, Doe v. Brandeis University, 177 F. Supp. 3d 561 (D. Mass. 2016) (see Section 11.5.3.4 for discussion of claims brought by students accused of sexual misconduct), a federal district court considered whether Brandeis University failed to treat a student with basic fairness in the handling of an allegation of sexual misconduct. The court said that, “Although the relationship between the university and its students is essentially contractual, the university's disciplinary actions may also be reviewed by the courts to determine whether it provided ‘basic fairness’ to the student” (177 F. Supp. 3d at 572). The court stated that the university's “obligation to provide basic fairness in its proceedings is separate from and in addition to its contractual obligations to follow rules” set forth in the student handbook (177 F. Supp. 3d at 601).

State constitutions have also assumed critical importance as a source of legal rights for individuals to assert against private institutions. The key case is Robins v. PruneYard Shopping Center, 592 P.2d 341 (Cal. 1979), affirmed, PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980). In this case a group of high school students who were distributing political material and soliciting petition signatures had been excluded from a private shopping center. The students sought an injunction in state court to prevent further exclusions.

The California Supreme Court sided with the students, holding that they had a state constitutional right of access to the shopping center to engage in expressive activity. In the U.S. Supreme Court, the shopping center argued that the California court's ruling was inconsistent with an earlier U.S. Supreme Court precedent, Lloyd v. Tanner, 407 U.S. 551 (1972), which held that the First Amendment of the federal Constitution does not guarantee individuals a right to free expression on the premises of a private shopping center. The Court rejected the argument, emphasizing that the state had a “sovereign right to adopt in its own constitution individual liberties more expansive than those conferred by the federal Constitution.” The shopping center also argued that the California court's decision, in denying it the right to exclude others from its premises, violated its property rights under the Fifth and Fourteenth Amendments of the federal Constitution. The Supreme Court rejected this argument as well.

PruneYard has gained significance in educational settings with the New Jersey Supreme Court's decision in State v. Schmid, 423 A.2d 615 (N.J. 1980) (see Section 11.1.2 of this book). The defendant, who was not a student, had been charged with criminal trespass for distributing political material on the Princeton University campus in violation of Princeton regulations. The New Jersey court declined to rely on the federal First Amendment, instead deciding the case on state constitutional grounds. It held that, even without a finding of state action (a prerequisite to applying the federal First Amendment), Princeton had a state constitutional obligation to protect Schmid's expressional rights (N.J. Const. art. I, paras. 6, 18). In justifying its authority to construe the state constitution in this expansive manner, the court relied on PruneYard. A subsequent case involving Muhlenberg College, Pennsylvania v. Tate, 432 A.2d 1382 (Pa. 1981), follows the Schmid reasoning in holding that the Pennsylvania state constitution protected the defendant's rights.

In contrast, a New York court refused to permit a student to rely on the state constitution in a challenge to her expulsion from a summer program for high school students at Cornell. In Stone v. Cornell University, 510 N.Y.S.2d 313 (N.Y. App. Div. 1987), the 16-year-old student was expelled after she admitted smoking marijuana and drinking alcohol while enrolled in the program and living on campus. No hearing was held. The student argued that the lack of a hearing violated her rights under New York's constitution (art. I, § 6). Disagreeing, the court invoked a “state action” doctrine similar to that used for the federal Constitution (see Section 1.5.2) and concluded that there was insufficient state involvement in Cornell's summer program to warrant constitutional due process protections.

Additional problems may arise when rights are asserted against a private religious (rather than a private secular) institution (see generally Sections 1.6.1 and 1.6.2 below). Federal and state statutes may provide exemptions for certain actions of religious institutions (see, for example, Section 4.7). Furthermore, courts may refuse to assert jurisdiction over certain statutory and common law claims against religious institutions, or may refuse to grant certain discovery requests of plaintiffs or to order certain remedies proposed by plaintiffs, out of concern for the institution's establishment and free exercise rights under the First Amendment or parallel state constitutional provisions (see, for example, Section 5.2.4). These types of defenses by religious institutions will not always succeed, however, even when the institution is a seminary. In McKelvey v. Pierce, 800 A.2d 840 (2002), for instance, the New Jersey Supreme Court reversed the lower court's dismissal of various contract and tort claims brought by a former student and seminarian against his diocese and several priests, emphasizing that “[t]he First Amendment does not immunize every legal claim against a religious institution and its members.”