Split court punts Duke student-contract case
By the narrowest of margins, the N.C. Supreme Court has let stand existing law that says the promises private schools like Duke University make in their student handbooks aren’t binding.
Ruling before the holidays, justices announced that they’d split 3-3 on a case brought to them by two former Duke students who had faced an on-campus disciplinary proceeding just before graduation.
The split came because Justice Barbara Jackson, a member of the court’s Republican majority, didn’t participate in deliberations on the case. It left intact a N.C. Court of Appeals panel ruling that favored Duke, with the proviso it shouldn’t be taken as precedent.
The two former students, Al Samost and Tim Shaughnessy, argued Duke hadn’t followed its own rules in 2011 when it considered suspending them over an off-campus noise complaint mere days before their scheduled graduation
They lost at the trial-court level in Durham in 2012, and then again last spring in the Court of Appeals.
But a Court of Appeals judge, Robert C. Hunter, threw them a lifeline by dissenting from the spring ruling handed down by two of his colleagues.
Hunter said judges should make the due-process rights Duke promises students in its undergraduate bulletin “judicially enforceable.”
His dissent gave Samost and Shaughnessy an automatic right of appeal to the state Supreme Court. Had he sided with his colleagues, the high court could have refused to take the case.
Traditionally, North Carolina courts don’t put much stock on student-handbook due-process pledges when they’re asked to asked to weigh in on whether a private school has handled a disciplinary matter fairly.
Borrowing from labor law, state judges instead have likened documents like the Duke undergraduate bulletin to corporate employee handbooks that don’t have the binding status of a formal contract.
Hunter’s Court of Appeals dissent put that doctrine under the microscope.
The issue’s one that mainly affects private schools like Duke.
As Hunter noted in his opinion, because a public university like UNC is an arm of the government, the federal and state constitutions oblige it to honor due-process guarantees.
“Students at private universities and colleges are not afforded this same constitutional protection because there is no state action” inherent in what their schools do, Hunter said.
Duke has benefited repeatedly from the state courts’ reluctance to make its bulletin equivalent to a contract, winning a string of student-filed breach-of-contract cases, many involving athletes.
Some have played out in federal court, and resulted in Duke victories because federal judges operating in North Carolina take their cues on breach-of-contract doctrine from the state courts.
Hunter’s dissent pointed out that courts in other parts of the country do consider student handbooks and bulletins part of a school’s contract with its students.
The fact of a 3-3 split implies that three Supreme Court justices were inclined to agree with Hunter. By rule, when the justices take up a case the Court of Appeals decided by a split vote, they have to focus on the objections of the dissenter.
The other two judges on the Court of Appeals panel tossed Samost’s and Shaughnessy’s case because they thought the students had jumped the gun by suing Duke before the campus disciplinary process had fully played out.
The Supreme Court, following its usual custom, didn’t explain why Jackson didn’t participate.
Ironically, Jackson won her seat on the high court in the 2010 election by defeating Hunter, a Democrat. She at the time was also a Court of Appeals judge.
The Durham lawyer who represented Samost and Shaughnessy, Bob Ekstrand, has argued for student contract rights in a number of cases against Duke, most prominently in one of the lawsuits spawned by the 2006 Duke lacrosse case.