Scorecards and Navigators: Higher Education Law in a Consumer Culture

By:  Michael Porter
Miller Nash LLP
Portland, Oregon

I am preparing to write an article for Campus Legal Advisor about how the consumer culture and consumer laws affect the work of higher education administrators.  That article will focus on day-to-day work of campus administrators, but here I’m thinking about how the consumer culture on campus affects how we practice as higher education lawyers.

Before practicing law, I worked in student affairs/student services.  Even 20 years ago, those of us in the field wrestled with tension between the educational aspect of our work (educating the whole student) and the undeniable fact that students or their families were “customers” paying for housing or food or even student-activities fees.  That understandably creates a sense of entitlement to “something” for one’s money.  And while the customer sentiment may make some of us harken back to the more faculty-centered view of the “Academy”—a center for intellectual endeavors and the pursuit of knowledge—the customer and student-centered approach is now a reality.  And the federal government’s College Navigator and College Scorecard now make looking at college options a bit like purchasing an airline ticket, and students and parents presumably click through net price calculator disclaimers the same way people click through updated terms and conditions to use their favorite mobile app.  These initiatives also reinforce the notion that attending college is more of a buy-sell transaction than engagement between a student and the faculty to engage in academic discourse in the pursuit of knowledge.

I remember as a residence life director sorting out a dispute related to the way the sun was shining in a resident’s window.  The 25-year-old hall director in me thought, “Get over it.”  The parent in me now worries about what the cost of on-campus life will be when my kids go to college, and if we are paying for housing and the sun wakes our baby up too early and it affects his studies, then maybe we’re not getting what we are paying for.

Bringing this back to practice as a lawyer supporting colleges and universities, the tension plays out in the filings that relate to consumer-protection laws, breach-of-contract claims, and economic torts invoked by litigant students making claims against schools.  There are law firms dedicated to seeking out potential claimants for claims under the Uniform Trade Secrets Act against for-profit institutions of higher education, and assertions of misrepresentation, consumer statute violations, breach of contract, and even fraud against all types of institutions are becoming more common.  The increase in this type of claim creates a challenge with respect to how we advise our clients and how we litigate claims.

I often like to ask, “What do you think is the appropriate thing to do as an educational matter?”  The answer to this question usually results in a legally supportable approach to a problem that we as lawyers can defend in any subsequent litigation.  But now in the modern consumer-driven world, as much as I’d rather not acknowledge it, we cannot ignore the fact that our advice must consider that a judge or a jury may insist on seeing a matter through the lens of a more traditional consumer transaction.  When defending an action, I want to be able to tell both stories—in other words, I want to be able to show how almost every interaction an institution has with its students has an educational component, but also that a consumer would find the bargain a fair one.  Most of the time, the educational aspect of a situation and the consumer aspect are not mutually exclusive, but they may not be completely congruent.  It seems that intentional recognition of when and how these lenses may affect an approach to a problem has become more and more necessary as our institutions of higher education expand what they offer and how they offer it, and as students and families (and their potential lawyers) become more sophisticated about ensuring that they get what they pay for.

I certainly welcome observations or reflections that might stimulate thinking on this tension.

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