Kathryn Atkinson Overberg August 16, 2006

1. Syllabi and Contracts Kathryn Atkinson Overberg August 16, 2006

2. Million Dollar Question… Is my syllabus a contract? Answer:It depends!

3. First Things First • What is a Contract? “An agreement between two or more persons which creates an obligation to do or not to do a particular thing.” Black’s Law Dictionary (1991). “A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” Restatement (2nd) Contracts, § 3.

4. Contracts 101 To create a contract, there must be: 1. An offer (must be definite to enforce) 2. Acceptance of that offer (i.e., same terms otherwise it is a counter offer) 3. Consideration (right, profit, benefit to one party, or detriment, forbearance, or loss suffered by another)

5. Types of Offers There must be an expressed or implied intention to be bound by the agreement. “I will sell you my car today if you pay me $3,000 cash.” “This is a contract.” “All parties agree to be bound by the terms of this document.” Even without these express commitments, intent can be implied by words and conduct. “An offer is a ‘manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his [or her] assent to that bargain is invited and will conclude it.’” Magnusson Agency v. Public Entity Nat. Company-Midwest,560 N.W.2d 20 (Iowa1997).

6. Offer or No Offer? No Statement of Intent Objectives No Quotes for work Yes Estimates for work No Options Yes Requests for Bid No Bid Yes “Ordinarily, a municipality's advertisement for bids is a solicitation for offers, and does not itself constitute an offer. A bid generally constitutes an offer, and does notin itself constitute a contract.” Horsfield Const., Inc. v. Dubuque County,653 N.W.2d 563 (Iowa 2002).

7. Is a Syllabus an Offer to Contract? That’s up to you! The syllabus is not rendered a contract simply because you have requirements of the students. • If you say it is a contract, then you are binding yourself contractually. • – E.g., “Review your syllabus. It is your contract with • the university.”

8. Is a Syllabus an Offer to Contract? • If you say nothing, most likely the syllabus will not be a contract, but the language may make this ambiguous. • If you say it is not a contract, then there is no intent to be bound and therefore, it can’t be a contract.

9. Disclaimers Disclaimers reflect an intention not to be bound by a document and can preclude the other party from relying on the syllabus as a contract or from contesting modifications to the syllabus.

10. Some Disclaimer Language… • “The instructor reserves the right to alter the syllabus if unforeseen circumstances warrant.” • “This syllabus is subject to change.” These are good notices to the students that you have the right to modify the syllabus,* which suggests there is not a contract… * Make sure student is alerted to changes.

11. Better Disclaimer Language… But why not take it one step further? • “This syllabus is a guide, not a contract. It may be revised if it seems in the best interests of the class to do so. Students will be notified promptly of any revisions.” • “This syllabus is a guideline for the course and not a contract. As such, its terms may be altered when doing so is, in the opinion of the instructor, in the best interests of the class.” • Words like “objectives,” “guide,” or “guidelines” are good and non-binding terminology.

12. Claims for Breach of Contract To state a breach of contract claim, a party must show: (1) the existence of the contract (offer, acceptance, consideration); (2) the terms and conditions of the contract (must be definite); (3) that the party has performed all of the terms and conditions of the contract required of him/her to now require the other to perform; (4) that the contract was breached in some particular way; and • that the party has suffered damages. Lautenbach v. Rowan, 710 N.W.2d 257 (Iowa Ct. App. 2005)

13. Educational Malpractice and Other Claims Generally, claims based on the reasonableness or adequacy of educational services are not recognized causes of action. “Educational malpractice is a tort theory beloved of commentators, but not of courts. While often proposed as a remedy for those who think themselves wronged by educators [citations omitted], educational malpractice has been repeatedly rejected by the American courts.” Ross v. Creighton Univ., 740 F.Supp. 1319 (N.D. Ill. 1990) Iowa has rejected claims of “educational malpractice,” which includes academic instruction, placement in specific educational setting, and supervising performance. Courts do not like to review adequacy of academics due to unique setting and lack of specific knowledge and expertise. This can vary by state.

14. Educational Malpractice and Other Claims However, Iowa has recognized “negligent misrepresentation” in a case where a school counselor allegedly provided bad advice/instruction. Sain v. Cedar Rapids Comm. Schl. Dist., 626 N.W.2d 115 (Iowa 2001). Other states are also cautious to avoid labeling all claims against educators as educational malpractice.

15. Relevant Cases Poe v. Hamilton, 565 N.E.2d 887 (Ohio Ct. App. 1990) (student sued teacher after failing high school course alleging failure to follow School Board’s rules and guidelines). Finstad v. Washburn Univ., 845 P.2d 685 (Kan. 1993) (students sued under Consumer Protection Act and for educational malpractice due to false statements regarding accreditation).

16. Relevant Cases Andre v. Pace University, 655 N.Y.S.2d 777 (N.Y. App. 1996) (students sued for misrepresentation of computer program, breach of contract, and deception). Alsides v. Brown Inst., Ltd., 592 N.W.2d 468 (Minn. Ct. App. 1999) (40 computer program students sued trade school alleging breach of contract, fraud, misrepresentation, and violations of the Consumer Fraud and Uniform Deceptive Trade Practices Act). Leiby v. University of Akron, 2006 WL 1530152 (Ohio Ct. App. 2006) (student brought breach of contract and educational malpractice claims against university over re-use of exams in courses).

17. Relevant Cases Lemmon v. Univ. of Cinn., 750 N.E.2d 668 (Ohio Ct. Claims 2001) (claim by court reporting students for breach of contract, fraud, and negligence when students could not achieve speed levels). Alligood v. County of Erie, Erie Comm. College, 749 N.Y.S.2d 349 (N.Y. App. 2002) students brought claim alleging failure to provide adequate instruction and failure to teach biomedical technology in accordance with syllabus). Hutchings v. Vanderbilt Univ., 55 Fed. Appx. 308 (6th Cir. 2003) (student sued over inadequate education when he failed student teaching assignment and could not graduate with licensure).

18. Lessons Learned Generally, claims over the adequacy, quality, or reasonableness of education will not be recognized even if stated as claims of breach of contract. This can vary by state. However, specific promises (e.g., number of hours, particular skill or experience, accreditation, licensure) may be enforced under theories of breach of contract or fraud.

19. Questions?