The Law of Higher Education. William A. Kaplin
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 hall, athletics, or other settings—even, on occasion, if the activity is performed off-campus or abroad.
Whether or not a college or university may be held liable for torts committed by student organizations may depend upon whether a supervisory relationship exists between the institution and the organization. Although dated, the case of Mazart v. State, 441 N.Y.S.2d 600 (N.Y. Ct. Cl. 1981) contains a valuable analysis of an institution's liability for the tortious acts of its student organizations. The case concerned a libelous letter to the editor, published by the student newspaper at SUNY Binghamton. The court's opinion noted two possible theories for holding postsecondary institutions liable: (1) that the student organization was acting as an agent of the institution, and this institution, its principal, is vicariously liable for its agents' torts (the respondeat superior doctrine); and (2) that the institution had a legal duty to supervise the student organization, even if it was not acting as the institution's agent, because the institution supported or provided the environment for the organization's operation. In a lengthy analysis, the court refused to apply either theory against the institution, holding that (1) the institution did not exercise sufficient control over the newspaper to establish an agency relationship; and (2) given the relative maturity of college students and the rudimentary need and generally understood procedure for verifying information, the institution had no legal duty to supervise the newspaper's editorial process. (For more contemporary cases that followed Mazart, see McEvaddy v. City University of New York, 633 N.Y.S.2d 4 (N.Y. App. Div. 1995) and Lewis v. St. Cloud State University, 693 N.W.2d 466 (Minn. Ct. App. 2005).)
The second theory articulated in Mazart, the institution's purported “duty to control,” became an issue in a case that, although it did not involve a tort claim, addressed issues similar to those involved in tort actions against colleges. An attempt to hold a university responsible for acts of individual students and a faculty member was rejected by the Supreme Court of Vermont. In Doria v. University of Vermont, 589 A.2d 317 (Vt. 1991), an unsuccessful political candidate sued the University of Vermont under several sections of the state constitution, arguing that the university had a duty to supervise and control its students and faculty members in order to preserve his constitutional right to a fair election. The students had worked as telephone pollers for a faculty member and two newspapers, and, the plaintiff alleged, the questions and the ensuing poll results had given other candidates an unfair advantage.
The court rejected the plaintiff's “duty to control” theory, stating that “requiring defendant to strictly regulate and control the activity involved here, or any other student and faculty activity that might have an impact on the electoral process, would be basically inconsistent with the academic environment” (589 A.2d at 321). The result in Doria is deferential to the activities of faculty members and their students, particularly in matters related to curriculum or faculty research.
Colleges may be able to escape tort liability under various immunity theories. Public colleges may assert sovereign or governmental immunity, while in some states the charitable immunity doctrine protects nonprofit educational organizations. Each theory is discussed below.
Sovereign immunity is a common law doctrine that protects the state as an entity and its agencies from litigation concerning