The Contract Conspiracy ...

by Cliopatria

When my colleague, Jonathan Reynolds, posted here about College Attendance and Public Education, both Inside HigherEd and the Little Professor linked to his post. The lively discussion here about attendance policies in the college classroom moved toward a discussion of whether the class syllabus is rightly understood as a contract.

Thinking that the discussion could use some good legal advice, I wrote to both Jonathan's less good looking brother, Glenn, and to Eugene Volokh of The Volokh Conspiracy. Both of them are very busy and smart professors of law, so I was fortunate to get an answer from Volokh. With his permission and his caveat that this is his"quick-and-dirty" take on the issue, here is his answer:

the short answer is that the syllabus almost certainly isn't a contract, because it wouldn't be understood as intending to create a binding promise -- only a general plan that it's understood the instructor can deviate from. Simple analogy: Say that you promise an article for a symposium, and you say you'll say X. Then you realize that X isn't quite right, so you instead say X'. Now the symposium editor might be within his legal rights to refuse your submission; but he surely can't sue you for breaching your contract to write something that says X. And that's because your statement, even if it's in writing and in some detail, is an expression of your plan, not your promise.

How that might affect an attendance policy, Volokh does not say. Presumably, however, the syllabus itself and whatever it in particular might say about attendance, would not be considered to have the binding effect of a contract.

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Greg James Robinson - 1/31/2005

This debate is interesting for me because in my University, the University of Quebec at Montreal, the syllabus is explicitly a contract we sign a contract with our students. More precisely, in every undergraduate course, we propose a syllabus, and in the first or second class session the students must vote to accept it or not. I do not think the vote ever includes matters such as which books to place on the reading list. Rather, it fixes precisely the dates, format, and value of each assignment, test, paper, or grade. My understanding is that this custom was established in response to student demands for a more democratic system (there are other structures, which I will discuss in a different posting).

Once approved by a majority and signed by two student-witnesses, the "entente d'évaluation" is a binding contract, and cannot be altered except by unanimous vote of the students. The professor has a certain leeway, such as in granting extensions of deadlines to individuals for cause, but the professor cannot unilaterally announce a pop quiz, change the date of the final, or decide that it will be a multiple choice exam. Failure to obey the contract is grounds for disciplinary action.

The system is not very burdensome in reality. Usually I do not have problems getting my syllabus approved, although last semester I was forced to negotiate how long in advance I would give the questions for the final. I have mixed feelings about its utility. On the one hand it means I have to formulate many things in advance, and have to watch deadlines carefully. On the other hand, it does give the students a sense of responsibility and reciprocal obligation. It also gives me a ready argument when a student asks for special treatment--to have the student's lowest exam grade dropped, do an extra credit assignment, etc.

Richard Henry Morgan - 1/29/2005

This is a technical point, but I'm not sure Volokh's analogy includes an element of contract called consideration. To be fair, it was a quick and dirty look.

Consider a different analogy. A prominent scholar is approached to participate in a conference and deliver a paper on a subject. He promises a 30 page paper on the subject, saying X. On the basis of this, he is promised travel, room, and board, and publication of the proceedings in a prestigious journal -- something of value to his CV. The organization gets something of value -- they get to publicize their symposium using his participation -- after all, he's a prominent scholar. He sends in the 30 page paper, and he is informed that his efforts won't be needed, his bills won't be picked up if he attends, he won't deliver the paper, and it won't be published. Was there a contract?

There is a good reason teachers do indeed add disclaimers that the syllabus is subject to change. Some are so detailed and explicit, promising a certain grade in exchange for a certain number of points, the points to be awarded as a result of a cetain number of tests, etc. Let's put it this way. It's certainly to a teacher's advantage not to have it considered a contract. I did put the question to a guy who taught law, and who is currently a barrister -- my brother. He seems to think a syllabus COULD be a contract.

Volokh said, it "almost certainly" wouldn't be understood to be a contract. As they say, where there's a will, there's a lawyer.

Jonathan Dresner - 1/29/2005

Volokh's analogy is ok, but I think the concept of syllabus as agenda rather than contract would be stronger. And I'm sure that law faculty are both more sensitive to (and since they deal with budding lawyers, more vulnerable to, or at least more annoyed by) the potential contract-like issues, but I wouldn't take that as a sign of anything yet. Though we should look at some law school syllabi and see if they have other useful disclaimers.....

Ralph E. Luker - 1/29/2005

I don't know, Richard. I'm only reporting a quick reply from him.

Richard Henry Morgan - 1/29/2005

It is interesting to find posted on the net syllabi by law professors, where the law professors feel compelled to include in their syllabi the explicit disclaimer that the syllabi are contracts. It only takes a minute, and suggests at least to me that whether the syllabus is a contract may be subject to legal dispute (or that, at least, they wish to dispense with the problems of dealing with students operating under that false understanding).

I'm not sure the analogy given by Volokh is that apt.