Student Contracts – Denials – Needless Fear – Key to Management, Regulation and Innovation

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Presenter: John Boon J.D., HKMK Law Canada

Despite widespread denials in parts of higher education, the student-institution relationship is contractual and commercial if tuition is charged – and often if it is not because choices made have consequences. This is legal reality – not ideology. A contract is a promise made with the intention of being legally bound. It does not matter if evidence of that is written documents, verbal statements or actions of parties.

Education service providers (institutions or others) exercise their rights pursuant to the long protected civil right of freedom of contract. They do not exercise a delegated public power. Governments have jurisdiction to make laws in relation to education – not exclusively rights to provide it.

These realities do not mean lawsuits abound and that time will be wasted negotiating and administering long documents. When parties in any sector are clear eyed about and understand the true nature of their relationships, promises and expectations the better off they are. Clarity and understanding are vital to good management, effective and justified regulation and innovation.

Contract Management

1. How contracts and public law regulation are distinct and act in parallel to order relationships.
2. What education service quality means in private contracts and public law regulation.
3. Why institutions cannot promise what they don’t control – jobs, income, immigration or professional status – and why regulators cannot hold institutions responsible for what they don’t control – no student contract risk means regulation has no student interest to protect.
4. Why claims by some regulators that institutions are not providing the full program if they use third party suppliers for program elements are legally unsound and impede innovation and efficiency.
5. How student and institution contracts relate to other sector contracts – workplace integrated learning – recruitment and referrals (we avoid agency law) – articulation and credit transfer – immigration services – institutions and third-party service or technology suppliers – workplace, employer training.
6. The very limited ability of government to impose contract terms or words on contract parties.
7. Start and end dates – contract periods (one contract or multiple contracts).
8. Regulators cannot dictate contract duration – if multi-year promises cannot exist there can be no multi-year programs or products.
9. Ongoing contract change and amendments.
10. Equipment costs – issues with inclusion in tuition or independent attribution.

Contract Inclusions

1. Best Practice Student Contracts – key inclusions – provisions to avoid.
2. Why government drafted sample contracts must be avoided.
3. The five core outcomes – promised and un-promised – misuse of term “Outcomes”.
4. How to manage pre-contract representations and contract inducements.
5. Applications, standards and admissions – personal information.
6. Needed inclusions – written terms – promises, representation and statements before and during term.

7. Why broad incorporation of policy statements is not advised.
8. Why public-sector models – contract declarations and policy inclusions – are to be avoided.
9. What a student-institution contract should say about future membership in professions, jobs or other post-contract outcomes (very little and no promises).
10. What assessments, credentials and student supports mean in contract terms.
11. Future inclusions, changes or fee changes – what contracts allow regulators may allow (UBC case).
12. Intellectual property and confidentiality provisions.

Contract Dispute Management

1. Dispute resolution management – only contract parties control – regulators cannot be regulators and impartial adjudicators – why complaints and defences must be articulated and defended in the law of contract or tort.
2. Distinguishing private disputes and regulatory disputes (institutions and regulators are the parties).
3. Types of disputes – contract performance – strikes – related disputes.