In a Contract Dispute Between an Academic Institution and a Student, When Does the Academic Deference Standard Apply?

The Supreme Court of Nebraska untangled this complicated question in Armstrong v. Clarkson, (297 Neb. 595). A jury awarded Kelly Armstrong (“Armstrong”) a $1 million verdict on a breach of contract claim against Clarkson College (“Clarkson”). Armstrong had been a student at Clarkson, but was placed on probation and then administratively withdrawn from the school by Clarkson. Clarkson appeals the district court’s denial of its motion for a directed verdict, the denial of several requested jury instructions, the exclusion of evidence, and the denial of its motion for new trial.

In this case, Armstrong was a nursing student at Clarkson, and had moved on to her clinical part of her education, which put her into a clinic (“UNMC”). She and a friend went to a nursing conference, and Armstrong allegedly got drunk on a party/fundraising cruise on the Potomac. According to conflicting testimony, Armstrong acted inappropriately on the bus ride back from the party boat. There were supervisors and administrators from the college on the bus, and they were allegedly very upset by her behavior. When everyone returned to Clarkson, the administration called Armstrong in for several meetings. Summarized, she was put on probation, unable to return to her clinic to complete required work, and because of the probation, unable to get in at another clinical site. Armstrong ran out of excused absences and was administratively withdrawn from the program. There is a protocol for Armstrong to file a grievance within 7 days. Armstrong did not file.

The Court first addressed Clarkson’s assertion that the district court erred in not granting its motion for directed verdict. The parties do not dispute that there was a contractual relationship between them, but Clarkson asserted that its actions were subject to academic deference such that no breach occurs unless Clarkson’s actions are arbitrary and capricious. It argues it was entitled to judgment as a matter of law because there was no evidence it acted arbitrarily and capriciously in its actions leading to Armstrong’s damages. The Court concluded the contract between Armstrong and Clarkson was implied.

Clarkson argued that all its actions relevant to Armstrong’s claimed damages constituted academic judgments that are entitled to deference. Academic deference is given to the expert evaluation of cumulative information involved in academic decision-making. A university’s academic judgments are entitled to substantial deference in a breach of contract claim. But it does not follow that every decision by an academic institution is subject to deference. The parties’ arguments on appeal illustrate that academic deference to some disciplinary judgments involving specialized academic or professional expertise, when such expertise comes into play is often less than clear.

Regardless of whether the deferential standard applies to Clarkson’s other decisions, the Court found that academic deference did not apply to its failure to provide Armstrong with a clinical site. And if there are controverted facts to support recovery upon any theory of liability pled by Armstrong, then the directed verdict was properly denied.

Clarkson assigned error to the district court’s refusal to give three of its proposed jury instructions. Clarkson’s tendered jury instructions on the impossibility of Clarkson’s performance, Armstrong’s alleged failure to mitigate her damages, and Armstrong’s alleged failure to fulfill a condition precedent. To establish reversible error from a court’s failure to give a requested jury instruction, Clarkson has the burden to show that the requested instruction is a correct statement of the law, the instruction was warranted by the evidence, and that Clarkson was prejudiced by the court’s failure to give the requested instruction. Here, Clarkson argues that Armstrong’s conduct and the clinical site’s refusal to accept her made it impossible for Clarkson to perform its duties under the contract. The Court stated that Clarkson’s claim was unsupported by evidence, and concluded the lower court did not err in denying the request for jury instructions on impossibility. Second, Clarkson claims that Armstrong failed to mitigate her damages by failing to reapply for Clarkson’s nursing program or apply at a nurse anesthetist program at another school. The evidence provided said that whether Armstrong applied again Clarkson or to another school, she would have had to start over. Therefore, there was insufficient evidence to warrant the requested jury instructions, therefore there was no error in the lower court. Third, Clarkson argued that taking advantage of the school’s internal grievance protocol was a condition precedent to the enforceability of Armstrong’s rights under the contract.  While the district court should have instructed the jury on the condition precedent issue, Armstrong’s failure to exhaust the grievance procedure would be irrelevant if she never agreed to the policy. To prevail on this defense, Clarkson must prove to a jury that the grievance policy was a term of the contract. The Court stated that the contract between Armstrong and Clarkson was not outlined in the school handbook. However, failing to treat grievance procedures as a condition precedent would effectively make them optional.

Clarkson presented evidence that it provided a copy of the grievance policy and the grievance form to Armstrong when she was placed on probation. Because Clarkson’s requested jury instruction was a correct statement of law and was warranted by the evidence, and because the failure to give this instruction was prejudicial to Clarkson, the district court erred in refusing to give Clarkson’s instruction. The Court reversed the judgment of the district court and remanded the case for a new trial in accordance with this opinion.

The Metier Law Firm is committed to assisting people with personal injury claims throughout Colorado, Wyoming and Nebraska, and we frequently serve as co-counsel to law firms nationwide. Tom Metier recently secured the largest personal injury verdict in Colorado