Constitutional Torts and Breach of Education Contracts

Bissessur v. Indiana University, Case No. 08-3504 (7th Cir. Sep. 11, 2009) (here) is a helpful and short primer on breach-of-education contract cases.  In Bissessur: "Khem Bissessur was expelled from the Indiana University School of Optometry after receiving several sub-par grades and failing a clinical rotation. He alleges that he had a protected property interest in a continuing education at the University, which was established in an implied contract between the parties."

In a rare move, the panel dismissed under 12(b)(6) for failure to properly plead a claim.  Even applying liberal rules of pleading, the plaintiffs failed to allege a cause of action:

Among other things, it contains no facts concerning:(1) what, if any, promises the University made to Bissessur; (2) how these promises were communicated; (3) what Bissessur promised in return; or (4) how these promises created an implied contract. In sum, it leaves the University with no notice of what this “implied contact” is or how it supports Bissessur’s constitutional claims. 
Slip op. at *8.  It seems like the panel is almost demanding fact-based pleading, although F.R.C.P. Rule 8 only requires notice pleading.  Perhaps the complaint was a mess.  Or it could be that there's a new trend demanding fact-based pleading in Section 1983 cases, especially post-Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937 (2009).

Bissessur also contains this helpful rule statement:
A graduate student does not have a federal constitutional right to a continued graduate education. See Williams v. Wendler, 530 F.3d 584, 589 (7th Cir. 2008). That said, given that the “basic legal relation between a student and a private university or college is contractual in nature,” a student may establish that an implied contract existed between himself and the university that entitled the student to a specific right, such as the right to a continuing education or the right not to be suspended without good cause. Ross v. Creighton Univ., 957F.2d 410, 416 (7th Cir. 1992) (citation and quotation omitted). The “catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant may become a part of the contract.” Id. A right established by an implied contract between a student and a university can be a property interest subject to constitutional protection, id., but to receive such protection, the student must first show that the implied contract establishes an entitlement to a tangible continuing benefit, see Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 574 (1972). In order to establish this type of entitlement, the student must “point to an identifiable  contractual promise that the [university] failed to honor.” Id.; Gordon v. Purdue Univ., 862 N.E.2d 1244, 1248 (Ind. App. Ct.2007). Absent evidence of such a specific promise, the court will not participate in “second-guessing the professional judgment of the University faculty on academic matters.” Ross, 957 F.2d at 415.
Good stuff.  And only seven pages of reading.

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