What is the University—Student Contract?

Courts readily accept that the university–student relationship is fundamentally contractual but face difficulties defining the agreement. This Article develops a coherent framework to discern the university–student contract in traditional four-year universities and colleges and then applies that framework to ongoing and highly contentious litigation arising from higher education’s response to COVID-19. This Article begins by considering the three most salient models of higher education: the human capital, sorting, and consumption models. Next, this Article explores how courts implicitly rely on these models to frame their contract analysis in university litigation over issues as varied as student misconduct, affirmative action, and COVID-19 remote learning. This Article demonstrates that the human capital model of higher education, under which students acquire knowledge and complex skills in a residential environment, is the best positive description of the university–student contract as well as the model emphasized in university writings. Next, this Article applies the human capital model to assess the contractual issues raised by higher education’s response to COVID-19. This Article argues that, under the human capital model, almost all universities promised in-person instruction. However, universities also have reserve powers under the contract to protect the learning environment—and consequently, COVID-19 vaccine mandates imposed during contract performance were permissible when vaccines were reasonably thought to facilitate in-person instruction. Finally, this Article considers the broader normative issues raised by the human capital model and concludes that the model appropriately recognizes and enforces university promises while leaving universities discretion in zones that require it.