SLU Violates Students' Rights-- Just Not in the Way You Think

"The political locus of tolerance has changed: while it is more or less quietly and constitutionally withdrawn from the opposition, it is made compulsory behavior with respect to established policies."-- Herbert Marcuse, "Repressive Tolerance," A Critique of Pure Tolerance, 1965

"Fuck the harder way/ We doing this the smarter way."-- Talib Kweli, 2004

One of our readers has insisted that SLU banning on-campus access to Take Back Our Campus is a First Amendment issue. As much as one would hope it is, it's not. St. Lawrence University, as a private institution, is free to do as it pleases (or as the mercenary and mercurial Dan Sullivan pleases) on campus. Clunkily-- as SLU owns the network, it reserves the right to control what is accessed via that network. [See Hudgens v. NLRB, 424 U.S. 507 (1976), which ruled that workers do not have the right to protest their employer on private property, for relevant caselaw.]

But, your inquiring minds must be asking. If SLU isn't subject to Constitutional law, to what code is the University subject? The answer can be one of two things. Some courts have found that contract law applies to the relationship of the student to his/her University, while others have found that the law of associations (a little looser than contract law) applies to the relationship. But the differences between the two don't really matter. As the Student Press Law Center notes, "[w]hile the legal theories vary slightly, the general notion is the same: where a private school voluntarily establishes a set of guidelines or rules, it must adhere to them. Otherwise, there exists a breach of a legally enforceable promise for which a student may obtain legal relief."

In other words, SLU is obligated to follow its own policies as a condition of the contract it has entered into with a student. By altering the Acceptable Use Policy midyear, SLU has committed what is known in contract law as a unilateral change of contract. This can be acceptable if the original contract allows for one party to change the terms of the contract without the consent of the other. In order to have unilateral change available as an option, SLU would have to explicitly reserve that right in the student handbook. In this instance, however, there's a small problem:

SLU doesn't do that.

What does this mean for the block on Take Back Our Campus and the Stalinist repeal of privacy in the Acceptable Use Policy? Essentially, the changes are invalid. While the changes could be applied to the fall semester, SLU doesn't have the right to institute these changes midyear without the consent of the student body. By doing so, SLU has violated the contractual rights of its students.

Editor's note: For more on contract law and the law of associations as applied to private universities, use LexisNexis to look up the following cites courtesy of the Student Press Law Center.

Contract law: Ross v. Creighton Univ., 957 F.2d 410 (7th Cir. 1992); Steinberg v. Chicago Medical School, 371 N.E.2d 634 (Ill. 1977); Zumbrun v. U.S.C., 51 ALR3d 991 (Cal. App. 1972); Univ. of Texas Health Science Ctr. at Houston v. Babb, 646 S.W.2d 502 (Tex. Ct. App. 1982); Stanoch v. Breck School, No. CT 02-019852 (Dist. Ct. Hennepin County Nov. 21, 2002)

Law of associations: Clayton v. Princeton Univ., 519 F. Supp. 802 (D.N.J. 1981); Tedeschi v. Wagner College, 404 N.E.2d 1302 (N.Y. Ct. App. 1980); A. v. C. College, 863 F. Supp. 156 (S.D.N.Y. 1994); Abrariao v. Hamline Univ. School of Law, 258 N.W.2d 108, 112 (Minn. 1977); Baltimore Univ. v. Colton, 57 A. 14 (Md. 1904)

Update: If any of SLU's legal beagles want to bark at us, please send an e-mail to Takebackourcampus@yahoo.com.