ERIC Identifier: ED284524
Publication Date: 1987-00-00
Author: Hendrickson, Robert M. - Gibbs, Annette
Association for the Study of Higher Education.|ERIC
Clearinghouse on Higher Education Washington DC.
The College, the Constitution, and the Consumer Student. ERIC
At one time, the relationship between student and college was largely
taken for granted or subsumed under a nonspecific notion of in loco parentis in
which the college was the principle determiner of the educational environment.
Since 1960, however, this relationship has changed, and today these multifaceted
relationships, described as fiduciary, contractual, and constitutional, take the
form of rights defined by the Constitution or by the student as consumer.
Litigation involving the constitutional relationship has moved from an
emphasis on individual rights in the 1960s and 1970s to First Amendment rights
of association and freedom of religion as they affect student organizations in
the late 1970s and 1980s. Another first Amendment issue--commercial speech--has
also been defined during the last several years. Issues involving contractual
and fiduciary relationships have been litigated as torts based on negligence,
breach of contract, or educational malpractice. The novel consumer litigation
lies in the area of educational malpractice, and adequate litigation exists to
plot some future directions and trends. Consumer protection has become more
important than in the past, and colleges find themselves struggling to design
policies that are both consumer focused and preserve past policies appropriate
for their primary mission.
WHAT RIGHTS DO STUDENT ORGANIZATIONS HAVE ON CAMPUS?
Administrators of public colleges and universities are bound by the First and
Fourteenth Amendments to ensure that rights and privileges are extended to all
student groups equally and fairly. Administrators of private colleges, while not
bound legally by constitutional considerations, may find less conflict
acknowledging rights and freedoms required of public colleges by the
Constitution, particularly at this time, when American society places a great
deal of importance on those rights.
While speech-related activities of student organizations are constitutionally
protected, they are still subject to some regulation as a result of the special
characteristics of the school environment. In balancing the constitutional
rights of students and the prerogatives of the institution, administrators must
--Freedom of speech is guaranteed, but behavior is subject to regulation.
--Behavior that interferes with or disrupts the normal activities of the
institution or the rights of others is subject to regulation. --Regulation of
time, place, and manner is lawful for maintaining the proper educational
environment of college or university. --Once some groups or organizations have
been recognized by the institution, all groups must be accorded such status,
provided they meet the same lawful procedural and substantive requirements.
--Religious speech must be treated as secular speech as it relates to
recognition of student organizations and policies regarding the use of
WHAT ISSUES SURROUND THE COLLECTION ALLOCATION OF MANDATORY STUDENT ACTIVITY
Major legal challenges to mandatory student fees have alleged that certain
uses of the fees violate students' constitutionally protected rights to freedom
of religion or freedom to associate, speak, and express themselves. In both
areas, the courts have deferred to administrative discretion, balancing the
interests of colleges and universities in the use of the fees against students'
First Amendment rights.
College administrators should thus structure fee systems to ensure the
presence of as many of the following characteristics as possible:
--The group receiving funds is an institutionally dependent, on-campus
organization. --The primary purpose or activity of the group receiving funds is
educational--not political--and the group permits expression of a wide range of
views. --The funding mechanism is one to which all on-campus groups have equal
access. --The fee system allows a maximum amount of discussion, approval, or
objection by students at the outset, before fees are ever exacted. --The
institutional student activity fee must support a broad forum of ideas and
activities, while not promoting or hindering expression of any particular view.
It is unlikely that the lack of any one of these characteristics will make a
mandatory fee system stand or fall. However, in the absence of clear direction
from the courts on the issue and a controlling Supreme Court decision,
implementation of a fee system with as many of these guidelines as possible is
likely to be the best course for avoiding legitimate disruptive student dissent
and costly, time-consuming litigation.
WHAT RIGHTS DO VENDORS HAVE ON CAMPUS?
The First Amendment's freedom of speech is not absolute. To ensure the
implementation of free expression, the Supreme Court has determined that
restrictions regarding time, place, and manner of individual expression must
satisfy four requirements: They must (1) be content neutral and (2) narrowly
drawn, (3) serve a significant govermental interest, and (4) leave open
alternative channels of communication. Commercial solicitation, as a form of
commercial speech, is afforded less than the full array of constitutional
safeguards for free speech.
The courts have ruled further that:
--Administrators may ban group commercial solicitation in students' residence
hall rooms. --College officials are well advised to prevent the use of residence
hall rooms as merchandising marts by commercial vendors. --A one-on-one
demonstration and/or sale in a student's private room may be allowed if the
student invites the solicitor. --Institutions should provide some means for
allowing commercial speech, information, and expression, including newspapers,
mail, radio stations, and telephone, for example. --Colleges and universities
may prohibit any misleading or unlawful commercial activity.
WHAT IS THE STATUS OF EDUCATIONAL MALPRACTICE?
The current disposition of the courts is not to encroach on some areas of the
fiduciary relationship--specifically academic decision making, which includes,
for the moment, educational malpractice. The courts refuse to recognize
educational malpractice as a tort, because to do so would conflict with public
policy. This disposition is consistent with the new case law on academic
Several policy considerations seem appropriate.
--The process for peer review and evaluation by department heads and
supervisory administrators should be reviewed to ensure that incompetence and
poor performance are not swept under the rug. --Institutions should ensure that
diagnostic procedures meet the practices and procedures accepted by
professionals in the field when such standards are available. --Review should be
built into the process of awarding grades and certifying skills to protect
against arbitrary and capricious decisions and, at the same time, to protect the
academic integrity of the faculty evaluation process. --Catalogs, bulletins, and
other publications should be reviewed to ensure that they do not make guarantees
beyond the institution's capabilities.
(This digest was derived from THE COLLEGE, THE CONSTITUTION, AND THE CONSUMER
STUDENT: IMPLICATIONS FOR POLICY AND PRACTICE by Robert M. Hendrickson and
FOR MORE INFORMATION
AMERICAN FUTURE SYSTEMS V. PENNSYLVANIA STATE UNIVERSITY, 553 F. Supp. 1268
(M.D. Pa. 1982); 568 F. Supp. 666 (M.D. Pa. 1983); revised, 752 F.2d 854 (3rd
Cir. 1984); cert. denied, Johnson v. Pennsylvania State University, 105 S.Ct.
GAY STUDENT SERVICES V. TEXAS A&M UNIVERSITY, 737 F.2d 1317 (5th Cir.
1984); rehearing denied, 105 S.Ct. 1860 (1985).
Hendrickson, Robert M. and Annette Gibbs. THE COLLEGE, THE CONSTITUTION, AND
THE CONSUMER STUDENT: IMPLICATIONS FOR POLICY AND PRACTICE. ASHE-ERIC Higher
Education Report No. 7, l986. ED 280 429.
Nordin, Virginia D. "The Contract to Educate: Toward a More Workable Theory
of the Student-Institutional Relationship." JOURNAL OF COLLEGE AND UNIVERSITY
LAW 8 (1982): 141-181.
SWIDRYK V. ST. MICHAEL'S MEDICAL CENTER, 493 A.2d 641 (N.J. Super. Ct. Law
VEED V. SCHWARTZKOPF, 353 F. Supp. 149 (D. Neb. 1973); AFF'D MEM., 478 F.2d
1407 (8th Cir. 1973); cert. denied, 414 U.S. 1135 (1974).