Higher Ed: Expect to see more lawsuits such as these

Nursing students sue over lack of accreditation:

http://chronicle.com/blogs/ticker/mountain-state-u-faces-lawsuits-over-nursing-programs-accreditation/44385?sid=pm&utm_source=pm&utm_medium=en

http://www.register-herald.com/local/x318752107/10-new-MSU-suits-filed

(Yet another example of what happens when greed is allowed through education's door.
http://chronicle.com/article/Mountain-State-U-President/130395/)

Law grads launch class action:

http://abovethelaw.com/2011/10/fifteen-more-law-schools-to-be-hit-with-class-action-lawsuits-over-post-grad-employment-rates/

As higher education joins the consumer economy, plaintiffs abound

Jim Castagnera

Once upon a time, American higher education stood apart, perhaps even above, the American common law. No longer.

At the close of the 21st century’s first decade, no one working in higher education blithely challenges potential plaintiffs with the old saw, “So sue me!”
One school that certainly isn’t doing so is the University of Pennsylvania.  In early October, a related news headline was, “Exec wins $435k in suit over nonexistent Wharton degree.”  The winning plaintiff, Frank Reynolds, was a graduate of Penn’s Executive Master's in Technology Management (EMTM) program.  His 2006 suit claimed the school misrepresented the offering, which was co-sponsored by the Wharton School, and taught by faculty in both the engineering school and Wharton.  After investing a year in what he thought was a dual-degree program, Reynolds learned that Wharton would only award him a certificate and that he would not be deemed an alumnus of Penn’s prestigious business school.
Tenacious dental student
Even less likely to be inviting a lawsuit is the University of Michigan School of Dentistry, against whom expelled student, Alissa Zwick, won a $1.7 million verdict in December.  Ms. Zwick began her dentistry studies back in 2002, and her troubles began a year later, when she performed poorly on exams and claimed to have trouble paying attention in class.  A psychiatrist diagnosed attention deficit disorder.  Zwick and her clinical faculty disagreed on reasonable accommodations.  In May 2004, her continued shortfalls led to a dismissal by the school’s Academic Review Board.  Zwick appealed and was reinstated.
      
Ms. Zwick continued to be plagued with poor grades.  In June 2005, a number of faculty wrote uniformly negative letters concerning Zwick’s potential for success in the dental profession.  Plaintiff was notified of another dismissal on June 20th, and argued her appeal before the Academic Review Board with counsel present on December 8, 2005. The board denied the appeal and again recommended dismissal. Plaintiff appealed that decision to the Executive Committee of the Dental School, and argued her appeal before the committee on January 11, 2006, losing again – and then dismissed from school.
Zwick was able to lay her grievances before a jury in a courtroom late last year.  During the trial, her attorney, Deborah Gordon, elicited some damaging admissions from the school’s former dean (see adjacent box), which no doubt influenced the jury in rendering its banner verdict and $1.72 million award to Ms. Zwick.    
Zwick trial testimony that did not help the University of Michigan’s defense
Q You would agree with me that based on Alissa's transcript, there is nothing to support your statement that she had deficits?
A I disagree.
Q Let's look and see what you said at your deposition. Page 89:
Q So is there anything on her transcript that you can see that would
legitimize your statement that the reason for the decision is past and continuing
clinical performance deficits?
A If this is the only information I have with which this deposition is based, I
would say she has a B in clinical.
Q So let me just sum this up then.  Based on her transcript alone, just alone, you do not see any basis for your statement that she is being dismissed on past and
continuing clinical performance deficits.
Your answer: Just based on that, I can't extract anything other than that she did B
work.
A Okay. I will -- I agree.
Q Correct?
A Yes.
Q She's one of the few students in the D3 level that's ever been dismissed, correct?
A I can't recall who in the past has.
Q Very few, correct?
A Correct.

Tip of an iceberg?
I inquired of two higher education attorneys at the Philadelphia-based law firm Saul Ewing:  Jim Keller, who heads up the firm’s higher education practice, and partner Jim Kilcur.  They both concurred that they see no significant up-tick in the number of cases coming their clients’ way.  But, adds Keller, “I have seen a change in the nature of the suits.”  He continues, “More cases involve plaintiff’s recent economic struggles.  The economy is driving the litigation.  That’s true for faculty lawsuits, too.”
By way of example, Keller cites a case currently pending in neighboring New York state.  “The suit was filed on the theory that the institution’s career counseling service discriminated against students, such as the plaintiff, in favor of those with higher GPAs.  The plaintiff is arguing, “A part of your contract with me is to help me find a job when I graduate.  You haven’t done it.  You owe me damages.”
Keller also recounted a case in which a New York University professor had earlier settled his denial-of-tenure lawsuit against the Manhattan-based institution for --- among other things --- a promise that his children would be eligible for tuition-remission benefits, when they came of college age.  Years later, when one of his kids was denied admission to NYU, the ex-prof filed suit, claiming that the settlement agreement implied the right to be admitted in order to enjoy the benefit.  According to Keller, the judge disagreed, siding with the university’s position, that to receive tuition remission, the child first had to qualify for admission under NYU’s stated standards.
Although Saul Ewing’s legal practice is limited to representing universities, Keller reveals that he receives frequent calls from students and parents, who find his name using Google.  “Disgruntled parents call with queries such as, ‘My kid failed a course,’ or ‘My kid was disciplined,’ or ‘My kid was assigned to a poor housing situation, and now the school won’t make a change.’  Can I sue?”
“These complaints don’t always lead to lawsuits,” he adds.  “But more suits seem to have parental involvement.”  Online social networks such as Facebook and MySpace are involved in some of the suits involving campus housing disputes.  “You can find out on Facebook or MySpace who your child’s roommate will be and what he or she is like.  If the future roommate doesn’t measure up to the parents’ expectations, they often insist on a change.  If the school balks, litigation may be threatened.”
Latex allergy equals lawsuit
Parents aren’t shy about demanding other accommodations for their children, Jim Kilcur chimes in.  He recalls a case in which he represented a local arts college.  “After the child was admitted, he revealed that he suffered from a severe latex allergy.  The parents demanded that the school remove all latex products from the campus, including the latex paints used in the studios.”
In this case, the parents and the student were at odds.  Explains Kilcur, “The parents were extremely vocal and threatened suit.  The student seemed to be a little embarrassed by his parents’ position.”  In the end, more reasonable accommodations were worked out and the student attended.
Kilcur replayed another relatively recent case in which Franklin & Marshall College sought to withhold a diploma from a graduating senior accused of date rape.  The student had been permitted to “walk” at graduation in June, although he still had one course to complete over the summer.  In between graduation day and course completion, he was accused of the crime.  Refusing to issue a diploma, F&M argued that the would-be grad had engaged in “conduct unbecoming” an alumnus. 
“The college proceeded to conduct a hearing without the student.  He subsequently sued in federal court.  Three days into the jury trial, the parties settled.  The student got his diploma.  He became a lawyer and today works in-house with a small venture-capital firm.”  The settlement, adds Kilcur, came right after plaintiff’s counsel cross-examined the college’s provost. 
Apparently, as with the Zwick case, some campus administrators are unable to defend institutional decisions that once upon a time were shielded from the harsh light of courtroom litigation.  At any rate, the list of our colleagues who have most definitely dropped “So sue me” from their lexicon, is long and growing.

A sampler of recent suits
• Radke v. University of Illinois at Urbana/Champaign (U.S. District Court, Northern Illinois, 2009):  A class action suit by applicants who claimed they were denied admission in favor of other applicants, who were on a university “clout list.”  Result: Despite the political scandal this case was dismissed for lack of jurisdiction.  
• Kashmiri v. Regents of the University of California (California Court of Appeals, 2007):  Professional program students claimed the university was obliged to maintain their fees at the same level as the year they were admitted.  Result: The court agreed with the students.  Furthermore, the state’s financial crisis did not constitute an emergency that excused the school from adhering to the implied contract in its catalog.
• Blake v. Career Education Corporation  (U.S. District Court, Eastern Missouri, 2009):  Students claimed that the defendant’s Sanford Brown College violated the Missouri Merchandising Practices Act, when it claimed its associate and bachelor’s degrees in criminal justice were valuable.  Plaintiffs claimed in fact they had very little practical, real-world value.  Result: Case dismissed for failure to plead the facts of fraud with the specificity required by the state’s law. 
• Diallo v. American InterContinental University (Georgia Court of Appeals, 2009): Students brought a fraud action, alleging the education they had received wasn’t worth its cost.  Result: The courts denied class-action status to the students, but allowed individual students to go forward and try to prove their unique cases.

This compilation is courtesy of Attorney Jennifer Farer of the law firm of Saul Ewing.

 

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Jim is a university attorney and the author of Al Qaeda Goes to College [Praeger].
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