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Need assistance to file complaint against private university.

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Dwahn S

New member
What is the name of your state? VA

Hello,

I reside in VA. I am looking for any help from anyone experienced in law that may have heard of or dealt with a similar case. My lawyers and I are in the process of trying to determine a legal basis to file suit against my private university and secure an injunction to get me back into school. We have a good case but are finding difficulty in the laws.

To summarize briefly, I’m a senior at a private university and have 9 credits left, 6 of which were 2 classes that weren’t offered in the Fall or Spring semester. I’m not new to college, I’m 32. The Dean in my department of study mischaracterized a visit I made to her office requesting her approval on an application to take a course at another institution. In an email, she said I committed verbal abuse, yelled, threatened her and other staff members had to come and help her. She then called security. In actuality, I only asked her if she approved the form and she called security right after I asked. Previous circumstances require explanation, but there was no reason for her to do this. She did this to be purposely malicious. 2 days later I was indefinitely suspended from the university based on her email.

The key here is that I recorded the conversation that day with the Dean (iPhone). It, obviously, entirely contradicts her account. The school handbook does not prohibit recording, and my state allows one party consent to record. The university’s administrative hearing committee refused to let me play the recording during the administrative hearing. They had no viable reason why they did this but tried to trick me with their electronic device policy.

After the hearing they reduced my suspension to the Spring 2019 semester, which was still unacceptable. (Anyone could easily tell she was being dishonest based on the witness testimony) When preparing the complaint, my lawyer found an issue that may cause our breach of contract complaint to be thrown out by the judge. The school has an academic catalog and a student handbook. The school handbook details the code of conduct, how students should act, discipline, etc. The school catalog explains courses, school processes and policy/regulation information. What she found was that in the catalog they have specifically: The information in this catalog is to be regarded as a binding contract between the applicant or the student and ___ University; however, the University reserves the unilateral right to change the requirements, regulations, rules, and fees set forth herein at any time without prior notice.

My lawyer said that this causes the contract between the student and university to not be mutual, in which case the contract is not a valid contract. This means the VA law, which states that the handbook/catalog is a contract between both parties (student and university), doesn't apply since it _______University's isn't a valid contract, and we can't move forward with a breach of contract case. My lawyer has determined this based off other lawsuits brought against that university that were stopped by a motion to dismiss on this basis.

What I am looking for is a way around this loophole, or another method we can move forward with, since it seems that most other cases against private schools are title discrimination cases. Negligence may be an option, but proving duty of care is an issue since the handbook isn't a valid contract. I am not sure if civil rights or discrimination may be, but we have to be able to prove it. I am sure other private schools in other states have adopted verbiage like this to circumvent litigation. I am also sure that there have been successful suits against these schools as well. There must be a way to combat this, or another avenue we can pursue. If you can offer any assistance or ideas, it would be much appreciated.

Even if other states have different laws, any relevant cases I can present to my lawyers may help. Thanks.
 


stealth2

Under the Radar Member
She then called security. In actuality, I only asked her if she approved the form and she called security right after I asked. Previous circumstances require explanation, but there was no reason for her to do this. She did this to be purposely malicious. 2 days later I was indefinitely suspended from the university based on her email.
The bolded might help. I suspect the devil is in those details.
 

Dwahn S

New member
Thanks for your replies.

I was just hoping someone had experienced a similar situation where an institution had ambiguous wording that shielded them from lawsuits. I was not asking anyone to do research, I just came here looking for help. This is a forum after all.

Before that incident we had other meetings with the Dean and then the Provost last semester regarding why the classes weren't available, what they could do, and another event where the Dean negatively changed one of my grades that a professor had given me. Our meetings were civil, but the last meeting the Dean mischaracterized my mothers behavior in an email, and had her barred from the campus. After that she did it to me. Our case shows clear retaliation by the Dean, who became frustrated with us pressing the issue of getting credit for the classes. It was my senior year and I was advised the previous semester those classes would be available. Since she hired a new department staff in the fall, replacing all of them, they didn't offer those classes, and the staff was too inept to advise me of other options at the beginning of the semester, nor did she. Either way it culminated in her actions. While I was professional through this entire ordeal, she was not.

If there isn't any advice available, I understand. I just cant fathom that the laws here are so bad that we can't sue a school that does something like this and supports their staff member, even though they know she is perpetuating a falsehood.
 

Shadowbunny

Queen of the Not-Rights
Thanks for your replies.

I was just hoping someone had experienced a similar situation where an institution had ambiguous wording that shielded them from lawsuits. I was not asking anyone to do research, I just came here looking for help. This is a forum after all.

Before that incident we had other meetings with the Dean and then the Provost last semester regarding why the classes weren't available, what they could do, and another event where the Dean negatively changed one of my grades that a professor had given me. Our meetings were civil, but the last meeting the Dean mischaracterized my mothers behavior in an email, and had her barred from the campus. After that she did it to me. Our case shows clear retaliation by the Dean, who became frustrated with us pressing the issue of getting credit for the classes. It was my senior year and I was advised the previous semester those classes would be available. Since she hired a new department staff in the fall, replacing all of them, they didn't offer those classes, and the staff was too inept to advise me of other options at the beginning of the semester, nor did she. Either way it culminated in her actions. While I was professional through this entire ordeal, she was not.

If there isn't any advice available, I understand. I just cant fathom that the laws here are so bad that we can't sue a school that does something like this and supports their staff member, even though they know she is perpetuating a falsehood.
If you are 32 years old, why is your mother involved in your affairs?
 

adjusterjack

Senior Member
I just cant fathom that the laws here are so bad that we can't sue a school that does something like this and supports their staff member, even though they know she is perpetuating a falsehood.
You're all over the internet with this today. I made some comments on another site. No sense repeating them here.
 

Dwahn S

New member
If you are 32 years old, why is your mother involved in your affairs?
She is paying the tuition, so she is concerned. I wasn't aware that everyone frequented all these sites. It wasn't my intent to spam anyone.

In any case, this is information from the previous case that is preventing us from moving forward. While this was a title IX case, the motion to dismiss claim is similar. If anyone knows of other avenues I can take, or if it would be foolhardy to continue, any advice would be helpful:

ll2l Marymount also moves to dismiss Doe's breach of contract claim, arguing that Marymount's Student Handbook and Sexual Assault Policy are not contracts. Marymount is correct in this regard. Under Virginia law, a University's student conduct policies are not binding, enforceable contracts;2o rather, they are behavior 588 guidelines that may be unilaterally revised by Marymount at any time. Thus, Doe cannot rely on Marymount's Student Handbook or Sexual Assault Policy as enforceable contracts or as terms of an implieil Contracf . 113l Doe concedes that Marymount's Student Handbook or Sexual Assault Policy are not contracts. Doe claims instead that he entered into an implied confr.act with Marymount and that the payment of tuition guarantees that he cannot be expelled for an arbitrary and capricious reason. Thus the question is whether an implied co.ntract existed between Doe and Marymount under Virginia law simply because Doe paid tuition, and if so, whether Marymount breached a term or requirement of that impliefl eontratt. Significantly, the parties have not cited any Supreme Court of Virginia decision holding that an implieil contrtt is created between a student and his or her university merely through the payment of tuition. In support of his implied contractual theory, Doe cites a single federal district court case concluding that an implied contractual 11 Boe v. Marymount University,2$? F.$upp.3d 573 {?BiS} 354 Ed. Law Rep. 199 relationship arises from the payment of tuition.2l To accept Doe's argument would impermissibly expand Virginia law without any input from Virginia's highest court.ll

Doe seeks to expand the basic irnplied contract he ostensibly had with Marymount by importing a host of implied contractual terms. In doing so, Doe attempts to erect a veritable procedural fortress around him, arguing that Marymount could not suspend him without complying with these implied conditions. Doe's position is an attempted end-run around clear precedent holding that student handbooks and disciplinary policies are not contracts. Doe attempts to label the procedural protections provided by Marymount's Student Handbook and Sexual Assault Policy as implied terms, but adopting Doe's position would prejudice Marymount because it never assented to being bound by the procedural protections identified by Doe. Nothing in the act of paying tuition implies that a student is entitled to any specific procedural protections. Instead, to the extent any contract can be implied between a student and his or her university, the student is only protected by irrational - haphazard treatment by the university. Doe may disagree --+--_-- with Marymount's decision and he may believe he was treated unl'airly, but he cannot imply a host of contractual terms to which the parties never assented. Instead, Doe will have to rely on the statutory remedy provided by Title IX.

I15l For these reasons Doe's breach of contract claim fails; and for the same reasons, Doe's claim for breach of the implied covenant of good faith and fair dealing also fails.23

Negligence:
t16l First, Doe argues that there is a special relationship between a university and its students and that Marymount and McMurdock owed and breached a duty to exercise special care throughout Doe's disciplinary proceedings. Stated simply, Doe believes Marymount owed him a duty to be fair, especially considering the impact that school disciplinary proceedings can have on a student's 1ife. In support of his belief, Doe cites a Tennessee federal district court decision and a Minnesota Court of Appeals decision, both of which have recognized a special relationship between a university and its students giving rise to certain duties. i,f{"S{fi€#ffi.i.}ffiffiffi, I$ffi{,; illW.il:09-CY-62,2011WL 1258104 at 21 (E.D. Tenn. 201 1); liW26 N.w.2d 464, 470 (Minn. Ct. App. 2001). Unfortunately for Doe, the United States District Court for the Eastern District of Tennessee and the Minnesota Court of Appeals do not make Virginia law and there appears to be no Virginia law establishing the duty he claims Marymount and McMurdock breached. Consistent with the Fourth Circuit's published opinion in llffi]S{ffiSY5ffiffi l$tr!ffi ; ffiT$ffi$LtrX&ffi.{ffiffiihis federal district court will not recognize a 590 new cofltmon law tort that has not been previously recognized by the Supreme Court of Virginia or Virginia Court ofAppeals. t ii$3 .HH,ffilW55 F.3d 331,348 (4th Cir.1998) ("As a federal court exercising concurrentjurisdiction over this important question of state law we are most unwilling to extend North Carolina tort law farther than anv North Carolina court has been willing to go."). Thus, Doe's negligence claim against Marymount and McMurdock fails as a matter of law because the claim is not currently recognized in Virginia.
 

quincy

Senior Member
She is paying the tuition, so she is concerned. I wasn't aware that everyone frequented all these sites. It wasn't my intent to spam anyone.

In any case, this is information from the previous case that is preventing us from moving forward. While this was a title IX case, the motion to dismiss claim is similar. If anyone knows of other avenues I can take, or if it would be foolhardy to continue, any advice would be helpful:

ll2l Marymount also moves to dismiss Doe's breach of contract claim, arguing that Marymount's Student Handbook and Sexual Assault Policy are not contracts. Marymount is correct in this regard. Under Virginia law, a University's student conduct policies are not binding, enforceable contracts;2o rather, they are behavior 588 guidelines that may be unilaterally revised by Marymount at any time. Thus, Doe cannot rely on Marymount's Student Handbook or Sexual Assault Policy as enforceable contracts or as terms of an implieil Contracf . 113l Doe concedes that Marymount's Student Handbook or Sexual Assault Policy are not contracts. Doe claims instead that he entered into an implied confr.act with Marymount and that the payment of tuition guarantees that he cannot be expelled for an arbitrary and capricious reason. Thus the question is whether an implied co.ntract existed between Doe and Marymount under Virginia law simply because Doe paid tuition, and if so, whether Marymount breached a term or requirement of that impliefl eontratt. Significantly, the parties have not cited any Supreme Court of Virginia decision holding that an implieil contrtt is created between a student and his or her university merely through the payment of tuition. In support of his implied contractual theory, Doe cites a single federal district court case concluding that an implied contractual 11 Boe v. Marymount University,2$? F.$upp.3d 573 {?BiS} 354 Ed. Law Rep. 199 relationship arises from the payment of tuition.2l To accept Doe's argument would impermissibly expand Virginia law without any input from Virginia's highest court.ll

Doe seeks to expand the basic irnplied contract he ostensibly had with Marymount by importing a host of implied contractual terms. In doing so, Doe attempts to erect a veritable procedural fortress around him, arguing that Marymount could not suspend him without complying with these implied conditions. Doe's position is an attempted end-run around clear precedent holding that student handbooks and disciplinary policies are not contracts. Doe attempts to label the procedural protections provided by Marymount's Student Handbook and Sexual Assault Policy as implied terms, but adopting Doe's position would prejudice Marymount because it never assented to being bound by the procedural protections identified by Doe. Nothing in the act of paying tuition implies that a student is entitled to any specific procedural protections. Instead, to the extent any contract can be implied between a student and his or her university, the student is only protected by irrational - haphazard treatment by the university. Doe may disagree --+--_-- with Marymount's decision and he may believe he was treated unl'airly, but he cannot imply a host of contractual terms to which the parties never assented. Instead, Doe will have to rely on the statutory remedy provided by Title IX.

I15l For these reasons Doe's breach of contract claim fails; and for the same reasons, Doe's claim for breach of the implied covenant of good faith and fair dealing also fails.23

Negligence:
t16l First, Doe argues that there is a special relationship between a university and its students and that Marymount and McMurdock owed and breached a duty to exercise special care throughout Doe's disciplinary proceedings. Stated simply, Doe believes Marymount owed him a duty to be fair, especially considering the impact that school disciplinary proceedings can have on a student's 1ife. In support of his belief, Doe cites a Tennessee federal district court decision and a Minnesota Court of Appeals decision, both of which have recognized a special relationship between a university and its students giving rise to certain duties. i,f{"S{fi€#ffi.i.}ffiffiffi, I$ffi{,; illW.il:09-CY-62,2011WL 1258104 at 21 (E.D. Tenn. 201 1); liW26 N.w.2d 464, 470 (Minn. Ct. App. 2001). Unfortunately for Doe, the United States District Court for the Eastern District of Tennessee and the Minnesota Court of Appeals do not make Virginia law and there appears to be no Virginia law establishing the duty he claims Marymount and McMurdock breached. Consistent with the Fourth Circuit's published opinion in llffi]S{ffiSY5ffiffi l$tr!ffi ; ffiT$ffi$LtrX&ffi.{ffiffiihis federal district court will not recognize a 590 new cofltmon law tort that has not been previously recognized by the Supreme Court of Virginia or Virginia Court ofAppeals. t ii$3 .HH,ffilW55 F.3d 331,348 (4th Cir.1998) ("As a federal court exercising concurrentjurisdiction over this important question of state law we are most unwilling to extend North Carolina tort law farther than anv North Carolina court has been willing to go."). Thus, Doe's negligence claim against Marymount and McMurdock fails as a matter of law because the claim is not currently recognized in Virginia.
"Everyone" doesn't frequent all of the other sites on the internet. A handful of posters on FreeAdvice, however, choose to spread their words of wisdom hither, thither and yon - sometimes refraining from posting hither when they have already responded thither and yon.

You can wait for additional input here from FA members but I am with Ohiogal. You have an attorney who knows all of the facts behind your suspension. I am confident your attorney can handle your case and the necessary research without our assistance.

I will say that you do not know - and possibly will never know - what actions the school has taken against the Dean (if any). My personal feeling is, since Spring Term is approaching rapidly, that you concentrate on preparing for spring studies and not on a lawsuit.

Good luck.
 

stealth2

Under the Radar Member
All I can tell you is that I paid my kids' tuition. It would never have occurred to me to involve myself in this sort of meeting with either of them. How embarrassing. And neither was anywhere near 32.
 

quincy

Senior Member
All I can tell you is that I paid my kids' tuition. It would never have occurred to me to involve myself in this sort of meeting with either of them. How embarrassing. And neither was anywhere near 32.
What I have a hard time with is the following statement made by Dwahn:
"My lawyers and I are in the process of trying to determine a legal basis to file suit ..."

I just don't understand it.
 
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