Academic Freedom and Education "Contracts"

I've been wrestling with an issue for quite a while, and would appreciate commentary or citation to relevant sources.  Here's my thinking:

A public school student whose speech and associational rights have been violated has a cause of action against the offending school officials, since they are state actors and thus must obey the Constitution.  School officials at private schools are not subject to constitutional restraints.

Yet in almost every private-school student handbook, school officials promise students equal treatment when it comes to matters of free speech.  When school officials break that promise, is there any cause of action?  (I'm not looking for causes of action under Title VI, or related anti-discrimination laws.)

What I'm wondering is whether a student whose free speech and associational rights (as defined and promised by the school), can sue, alleging that the school, by not providing him the educational atomphere it promised him, has breached an implied educational contract. 

I have zero understanding of this area of law and would love to hear your thoughts.

Comments

[Paul Gowder]

Well, the "educational environment" claim might not fly, because presumably the courts are going to be reluctant to substitute their judgment of good educational enviornment for paid professionals (unless a war of experts is desired?) -- but perhaps a contract claim premised on the punishment? I.e. if the kid is expelled, there'd be a breach if the explusion was for something not permitted by the contract, and that might be a way to crowbar the speech claim in.

All that is just speculation: I've never heard of one of these suits. I think it's a huge gap in the law, especially as things like vouchers come in. (A cookie to the first person to make a state actor claim v. a private school funded with vouchers.)

[Mike]

Paul, I agree that it's a huge gap. Here's my main "beef" with private schools: They make all of these promises about equal treatment when it comes to free speech and association (in an effort to recruit students, which means, to get money), and then break these promises. I don't think it's right, and someone needs to find a way to hold these liars accountable.

To me, it's no different than any other contract. If I materially breach a promise, you can sue me. Not guaranteeing equal treatment is a lie, and that lie is material.

[Norm Pattis]

I am mulling this, too. Can't the recruiting case be leveraged in to something like the denial of an equal educational opprtunity? That claim might fly under 42 USC 1983; more challenging in the context of a private college

[Paul Gowder]

Part of the problem is, I think, the same as the problem in all consumer law. (This really is more consumer law than constitutional/civil liberties law.) That being that these institutions tend to write really harsh one-sided adhesive contracts. Like "we can expel your kid for any reason and you don't get the tuition back." I'm not sure that litigation (as opposed to market action) is the best way to solve this.

[mythago]

Wouldn't the parents have the right to sue in most cases, if the child is a minor and the parents are paying tuition?

[Anthony LeRose]

I've heard of courts forcing a school to adhere to its "student handbook" based on an implied contract theory. It does make sense, as its very similiar to the implied contract exception to employment at will, where the implied contract arises from the use of an employee handbook. I represented some students in disciplinary matters where the university's conduct was contrary to their published handbook, and that was going to be a major issue, but we resolved the situation before having to file anything in court.

The best starting point for this kind of research is at FIRE (Foundation for Invididual Rights in Education). THey publish several guides that give a good starting point for research in this area; if I recall they cite several important cases that can lead to more partiuclarized research. The guides are free to download or you can order a physical copy. You can find the guides here:

http://www.thefire.org/index.php/guides/