Faye Hardy-Lucas, Esq.
Hampton University General Counsel
In constructing course syllabi that are legally sound, you are basically focusing on avoiding educational malpractice. Just as a background, "Educational Malpractice" is a claim generally based on contract law and is a claim which is generally unsuccessful for the student/plaintiff. The claim arises from the duty assumed by a professional not to harm the individuals relying on the professional's expertise. You, as a professor are required to exercise that degree of skill and knowledge usually had by members of your profession.
Although a syllabus is not considered to be a legal document, it is a good safe practice in this litigious society, for you as a professor to treat it as one.
Although courts often sympathize with students who claim that they have not learned, or that their professors were negligent in teaching or supervising them, traditionally courts have been very reluctant to create a cause of action for educational malpractice citing reasons such as the following:
There is no satisfactory standard of care by which to measure an educator's conduct.
Permitting such claims would flood the courts with litigation and would thus place a substantial burden on educational institutions.
The courts are not equipped to oversee the day-to-day operation of educational institutions.
But in constructing syllabi that are legally sound, and in turn avoiding educational malpractice, it is first and foremost important for you to comply with the contractual documents of the institution, such as the Faculty Handbook and the student catalog. Courts view these as legal contractual documents. Make sure that the description of the course in your syllabus is consistent with the description of the course in the student catalog.
In constructing course syllabi that are legally sound, you must follow and comply with Section 8.5 (Course Outlines/Syllabi) of the Faculty Handbook. Remember, the Faculty Handbook is viewed as a legal document by the courts. Under Section 8.5, you are required to prepare a course outline/syllabus for each course taught. Copies must be distributed to each student on the first day of class.
The course outline shall:
State succinctly the objectives of the course.
List the required textbook(s).
List dates major projects are to be submitted.
List dates for tests and examinations.
Summarize the major topics to be covered.
Enumerate the expectations of students, including attendance, make-up and honor code policies.
State the criteria for grading students' performance.
All of the above criteria are extremely important in making your syllabus legally sound.
It is also important to place language in your syllabus that reserves your right to modify, supplement or make changes during the semester - language similar to a disclaimer clause, such as "This syllabus is intended to give the student guidance in what may be covered during the semester and will be followed as closely as possible. However, the professor reserves the right to modify, supplement and make changes as the course needs arise."
If you need to make changes or adjustments to the syllabus during the course of the semester, make them to the benefit of the students, not to the student's detriment.
Always ask, "Is what I am doing fair to the students?" Good public relations with students is very important. Be cognizant of placing yourself in a legally defensible position.
Although there have been no successful claims presented by students over whether they have learned what was presented in class and institutions normally win educational malpractice cases, an obligation of fair dealing is implied between the institution and the student.
Communicate with your students. If changes to the syllabus have been made consider this: Have you so fundamentally changed what is presented in the course syllabus, that it is unfair to the students.
If you make changes to your syllabus during the course of your teaching, make them for student fairness only.
Common sense should prevail.
Ask, would it be "fair"?
What was the reasonable expectation of the student coming in the class?
Remember, even though the courts do not view a syllabus as a legal document- it is safe for you to view it as a contract. View your syllabus as an agreement between you and the students. If it is necessary to make changes, do so only to benefit the student.
Your specific policies regarding make-up exams, etc. should be specifically outlined and strictly and consistently followed. Never do for one student, what you would not do for another.
Virginia does not currently recognize Educational Malpractice as a tort, although in other states there have been claims of Educational Malpractice.
In researching the subject matter, I came across an article in The Higher Education Law Bulletin, Volume VI, Number 4 published by the National Association of College and University Attorneys which I thought would be of interest to you:
"Private University Responsibility for Professors Taking the Afternoon Off" by James B. MacRobbie. Is a private university liable to its students for failing to provide a complete course? Hardened veterans of higher education law generally answer no, dismissing such claims as further examples of the discredited "educational malpractice" cause of action. But what if a student alleges that she is entitled to a tuition refund because her instructors failed to provide the required number of hours of instruction or failed to cover topics mentioned in the catalog or syllabus? What if the professor routinely canceled a Friday meeting of class or refused to cover a key topic that is generally considered essential to such courses?
The Traditional Approach: Judicial Deference of Academic Decisions, Educational malpractice claims have not been looked upon with much favor by courts. Courts often dismiss claims against private universities whenever they even so much as resemble this discredited tort. If such cases are not dismissed on this basis, courts often dismiss them out of deference to the academic decisions of professional educators.
This approach has been taken in cases involving a parent's attempt to recover tuition paid for hours of instruction that the university allegedly failed to deliver. In Paynter v. New York University, an appellate court held that it would be an "error to substitute its judgment for that of university administrators" in second guessing a decision to cancel classes. The court also found that a private institution or instructor was privileged to make "minor or insubstantial" changes in the amount of time spent in the classroom. Furthermore, the court determined that the service to be rendered by the university should not be measured "by the time spent in the classroom" and a minor change in scheduling did not constitute breach of contract.
Similarly, courts have long applied the same doctrine in rejecting tuition refund claims arising out of an instructor's failure to strictly adhere to catalog descriptions of courses. In Barngrover v. Maack, a Missouri appellate court found that an instructor was not bound to comply with the "minute subdivisions" of prospectus (or catalog) descriptions, and within "reasonable limits" he or she had the discretion to allocate classroom time to each topic as he or she wished.
These and similar authorities are still valid, and likely to be followed by most courts considering such issues. Nevertheless, you need to realize that some courts are now taking an approach that is much less favorable to colleges and universities.
The New Trend: Holding Colleges Accountable
There is a new trend to find liability in tuition refund cases developing in some courts. In rejecting a student's educational malpractice claim, a recent New York appellate court opined that "[a] different situation might be presented if defendant [the college]. failed to meet its contractual obligation to provide certain specified services, such as designated hours of instruction." A Number of other recent cases have opined that a school may be liable in contract if it failed to deliver the agreed upon number of hours of instruction.
Even in cases where courts admit that the amounts in controversy are relatively small, an institution may be required to undertake considerable legal expenses in defending apparently trivial claims as far as either the summary judgment or trial stage of litigation.
Preventative Strategies In order to minimize legal expenses arising out of tuition refund claims:
You should continuously be reminded of your obligation to provide the requisite number of hours of instruction for your course and to cover certain course topics in classroom lectures, especially those topics which have been promised in course offerings found in the college catalog, course syllabus, or in today's world of advanced technology, on your future web page.
Insert disclaimers in your course syllabus regarding your right to modify the class schedule when necessary and your freedom to cover course topics as you wish.
Communicate with your students. Remember the obligation of fair dealing. If changes are made to your syllabus, make them for student fairness only.