L. Kristen Schneider, San Jacinto College – Central Campus
**This is the first of an ongoing series of member contributions written by TEXAAN members for TEXAAN members. Schneider also addressed advisor liability in a session at the 2017 TEXAAN Annual Conference.**
Show of hands, how many of us entered the academic advising field in order to trick and deceive students, resulting in extra time to graduate, increased student debt, or even lost scholarships? Hopefully no one answered yes to that! But when our actions and the advice we provide lead to these very results, then we, as well the institutions we represent, may face a lawsuit by a disgruntled student.
For over 45 years, various courts in the United States have been considering the claim of educational malpractice in public school systems and higher education. For many policy reasons, perhaps most of all the difficulty of defining what amounts to a “good education,” the courts have been reluctant to hold institutions or their representatives (such as faculty, staff, and administration) liable for this claim.
In more recent years, there has appeared a trend of new claims that the courts are willing to consider. For advisors, the most notable claims include negligent misrepresentation and breach of contract. It is in these areas of the law that advisors may find themselves held accountable for wrong advice, even when given to a student in good faith.
To understand advisors’ legal exposure and develop effective ways to minimize it, a quick review of the case law in this area helps. The claim of educational malpractice was first famously recognized in the California case of Peter W. v. San Francisco Unified School District.[i] In this case, the plaintiff graduated high school but had only a fifth grade reading ability. He claimed that the school and its teachers were negligent in teaching him, and in passing him to the next grade level with such deficient skills. This resulted in his being unable to find employment upon graduation.
To establish a claim in any malpractice suit, the plaintiff must prove that the defendant owed a duty of care to the plaintiff, that the defendant failed to satisfy that duty, and that the failure caused injury to the plaintiff physically, emotionally, and/or financially. The court in this case found that the school district did not owe a duty of care in educating the student, other than not physically harming him. The court reasoned that defining a workable standard of duty was too difficult given all of the variables involved that can affect education, such as student motivation, home life, teaching style, etc.
While Peter W. involved a secondary school, a seminal case for higher education is Ross v. Creighton University.[ii] In this case, a student on basketball scholarship to the university failed to graduate when his eligibility ended. His reading and language skills tested at an elementary school level. In his suit, Ross claimed that the school was negligent in admitting him, advising him, and educating him. In deciding against the student, the Court established four policy reasons for refusing to recognize an educational malpractice cause of action. These reasons would be cited repeatedly by courts for the next several decades. In a nutshell, the Court stated that it was too difficult to define the duty owed to the student, and allowing the claim would flood the courts with litigation and drag them into overseeing the details of running institutions of higher learner, something courts throughout history have been most reluctant to do.
Given that academic advisors are not generally seen as providing the education to a student, it would seem that this claim for educational malpractice would not have applied to us anyway. Of course, it can be argued that advisors are indeed teaching students. Perhaps they do not teach math skills or sentence composition, but they are teaching critical thinking and life skills every day.
Most literature argues that academic advising has not yet risen to the level of a profession and cannot be held liable for professional malpractice. Professions typically held liable for professional malpractice include lawyers, doctors, engineers, architects, accountants and others who attend many years of specialized training, often sit for a licensing or entrance exam, and are generally self-regulated by various organizations recognized by the courts. A discernible shift in this area of case law occurred in the 1990s. Although educational malpractice was still discouraged as a cause of action, attorneys began bringing very similar cases but suing on grounds such as breach of contract, fiduciary duty, or negligent misrepresentation. When considering these claims, it is much easier to see how an advisor could be held liable.
Byrd v. Dr. Horace Lamar (Alabama State University)[iii] is one interesting case brought under a breach of contract theory. In this case, Byrd chose to attend Alabama State University to pursue a degree in music media. This degree was listed in the University catalog, and the student was assured that he would be able to pursue this degree when he enrolled. However, the classes were either not offered, or if offered, were taught by faculty without the necessary expertise in the subject area, and without the necessary equipment to teach the classes.
Byrd based his case on a contract theory, alleging that the university catalog and the assurances provided by the university’s agents (including the faculty and the academic advisors) created a contract with the student to provide the necessary classes for him to complete the degree. The Court held that the university was contractually bound by the promises it made through its agents and written materials. And as long as the student complied with such guidance in good faith, the University could be held liable for a breach of contract.
In the area of negligent misrepresentation, perhaps one of the most disturbing cases for academic advisors is Sain v. Cedar Rapids Community School District.[iv] The plaintiff in this case claimed that the negligent advice provided to him by his high school advisor caused him to take a class not approved by the NCAA. This resulted in the loss of his eligibility to play basketball in his freshman year, as well as the loss of a college scholarship.
While the Court quickly dismissed the plaintiff’s claim for educational malpractice, they ruled that the advisor could be liable for negligent misrepresentation under the same type of logic used when holding a professional, such as an attorney or accountant, liable for erroneous advice. The Court reasoned that advisors were in the “business” of giving advice and thus should be held accountable when a student seeks advice, that advice is provided knowing the student is relying on it, and the student then acts upon that advice in good faith. The Court then sent the case back to the trial court where the parties settled out of court.
To establish a claim of negligent misrepresentation in Texas, the plaintiff must show; “(1) the representation in question was made by the defendant in the course of his business or in a transaction in which he had a pecuniary interest, (2) the defendant supplied false information for the guidance of others in their business, (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information, and (4) the plaintiff suffered pecuniary loss by justifiably relying on the representation.”[v]
As noted, academic advising is not typically considered a profession, and yet in this case the court explicitly compares it to the very professionals who can be held liable for professional malpractice. As the Sain case concerned a secondary school rather than an institution of higher learning, there might be a different outcome for a college or university given the increased age and independence of the students. Nonetheless, even the dissenting argument in Sain recognized that providing completely accurate advice on all matters at all times is likely impossible. While it might at first glance appear to be an easy endeavor, the constantly changing laws, regulations, school policies and procedures, and curriculum changes make the reality of this quite a different matter.
For advisors at Texas public institutions, most actions will be protected under governmental immunity statutes. These statutes provide immunity for public schools, as governmental entities, for all but an enumerated list of actions such as the use of excessive force in discipline, negligence that results in bodily injury, and certain non-discretionary duties. Academic advising is generally considered a discretionary duty, and as long as the advisor acted within the scope of his or her job and has not acted to intentionally cause harm or mislead a student, then the institution must “defend, protect, and hold harmless” such an advisor.[vi]
So what is a conscientious academic advisor to do? Act like a professional of course. As advisors who work with students all day, we are aware of the questions most commonly asked by our students: What do I have to do to graduate/maintain my athletic eligibility/meet my scholarship requirements? What should I do to prepare to move to the next level in my career path?
As advisors and guides to a student’s path, we must continually seek out information to remain cognizant of the current requirements. This might include continuing professional development as well as collaboration with multiple departments across campus. We should be aware of all written information provided to students, including websites, brochures, catalogs, etc., reporting any noted discrepancies to supervisors.
Most college handbooks now include a statement that advisors are available to guide and assist, but that ultimately the choice of classes and verification of requirements is the responsibility of the student. So perhaps most importantly, in our role as educators, we must continue to encourage our students to development critical thinking skills, along with independent research and judgment abilities. They will not be our students forever; the goal is for them to successfully complete this stage of their education and move forward.
The legal landscape can seem scary when we realize that the advice we give each day has the potential to land us in a court room. Particularly in the current environment where institutions of higher learning are being held more and more accountable for the success of their students, and where the student mentality has taken a decided shift towards a consumerism approach. It should come as some comfort that academic advisors are only held to a reasonable standard of care. An advisor who acts in good faith to pursue the best interests of a student should be protected from liability by both the institution and state law.
L. Kristen Schneider, J.D.
Educational Planner, S.C.O., Center of Excellence for Veteran Student Success
San Jacinto College – Central Campus
[i] Peter W. v. San Francisco Unified School District, 160 Cal. App. 3d 814, 131 Cal. Rptr. 854 (1976)
[iii] Byrd v. Dr. Horace Lamar (Alabama State University), 846 So. 2d 334 ( Ala. 2002)
[iv] Sain v. Cedar Rapids Community School District, 626 N.W.2d 116 (Iowa 2001)
[v] Fed. Land Bank Ass’n of Tyler v. Shane, 825 S.W.2d 439, 442 (Tex. 1991); see also Roof Sys., Inc. v. Johns Manville Corp., 130 S.W.3d 430, 439 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (“The `false information’ contemplated in a negligent misrepresentation case is a misstatement of existing fact, not a promise of future conduct.”).
[vi] Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001 et seq (West 2011).
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