When Binding Doesn't Really Mean Binding: The Early Decision College Application

Mitchell Hamline Law Review Mitchell Hamline Law Review

Volume 48 Issue 4 Article 7

2022

When Binding Doesn't Really Mean Binding: The Early Decision When Binding Doesn't Really Mean Binding: The Early Decision

College Application College Application

Jean Steadman

Follow this and additional works at: https://open.mitchellhamline.edu/mhlr

Part of the Contracts Commons, and the Education Law Commons

Recommended Citation Recommended Citation

Steadman, Jean (2022) "When Binding Doesn't Really Mean Binding: The Early Decision College

Application,"

Mitchell Hamline Law Review

: Vol. 48: Iss. 4, Article 7.

Available at: https://open.mitchellhamline.edu/mhlr/vol48/iss4/7

This Article is brought to you for free and open access by

the Law Reviews and Journals at Mitchell Hamline Open

Access. It has been accepted for inclusion in Mitchell

Hamline Law Review by an authorized administrator of

Mitchell Hamline Open Access. For more information,

please contact [email protected].

WHEN BINDING DOESN’T REALLY MEAN BINDING: THE

EARLY DECISION COLLEGE APPLICATION

Jean Steadman

ABSTRACT

Colleges offer a pathway to college admission with the binding Early

Decision

application. The Early Decision application has two key elements:

prospective students are given an admission decision earlier than the typical

spring acceptance notification date and, more importantly, the Early

Decision application is binding on the prospective student. If a prospective

student is accepted into a college under the Early Decision process, they

must withdraw all other outstanding applications. Prospective students are

repeatedly advised on the binding nature of the Early Decision application

process and are well aware that, by utilizing this process, they are forming

binding agreements.

Legally speaking, the Early Decision application is only one element

of the contract formation process. Whether it is qualified as an invitation to

offer or an offer, the mere submission of the Early Decision application

does not create a binding contractual relationship. This conclusion is

supported by the fact that no college has signaled any interest in legally

enforcing a binding Early Decision agreement. In fact, colleges acknowledge

that the Early Decision application is, at best, a moral obligation or ethical

agreement with no legal effect. However, colleges continue to promote the

binding nature of Early Decision applications and do nothing to correct this

misconception with their prospective students.

Student-college contracts have been extensively researched,

interpreted, and adjudicated over the years. With the advent of the Early

Decision application, this Article examines the contracting process and

reaches the conclusion that the Early Decision application is not, in fact,

legally binding because no enforceable contract has been formed by the

application alone. However, colleges have little incentive to share their true

interpretation of the term “binding” as applied to the Early Decision

application. Barring judicial review of the enforceability of the Early

Decision application as a legal agreement, prospective students will continue

to base their college application choices on an erroneous belief that

“binding” really means binding.

Jean Steadman is an Assistant Professor of Law at Charleston School of Law.

See infra

note 6.

2022] WHEN BINDING ISN’T REALLY BINDING 1049

1049

I. Introduction................................................................ 1050

II. The College Application Process ............................... 1053

III. Is the Student Entering into a Binding Contract with the

College by Applying for Early Decision? ............................... 1064

A. Offer ............................................................................ 1067

B. Conditional Offer ........................................................ 1068

C. Invitation to Offer ........................................................ 1071

D. Acceptance .................................................................. 1073

E. Intent to be Bound—Contractual or Moral .................. 1073

IV. History of Student-College Contract ........................... 1076

A. In Loco Parentis .......................................................... 1076

B. Express Versus Implied Student-College Contract ..... 1077

V. Formation of the Enrollment Contract ....................... 1080

A. The College’s Application Form Is an Invitation to Offer,

the Student’s Application Is the Offer, and the College’s

Admission Is the Acceptance ............................................ 1081

B. The Student’s Application Is an Invitation to Offer, the

College’s Admission Is the Offer, and the Student’s

Enrollment and Fee Deposit Is the Acceptance ............... 1084

C. The College’s Early Decision Application Form Is the

Offer and the Student’s Submission of the Application Is the

Acceptance ......................................................................... 1086

D. If Early Decision Forms a Binding Agreement, Are There

Any Affirmative Defenses Available to the Student

Applicant? .......................................................................... 1087

VI. If No Binding Contract Exists, Are Schools Enforcing the

Early Decision Applications Anyway? ................................... 1088

VII. Conclusion .................................................................. 1093

1050 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1050

I. INTRODUCTION

Seventeen-year-old Thomas is applying to several colleges.

He has

earned impressive grades and participated in various extra-curricular

activities. He applies to several top-tier colleges under the Regular Decision

(“RD”) admission process

because he is unsure about his future plans.

Weeks later, he receives a letter from one of his preferred colleges asking

him to consider converting his RD application to an Early Decision (“ED”)

application.

The college correspondence explains that by converting his

application status, Thomas will be committing to withdraw all his other

outstanding applications if he is accepted to the college under ED. The

letter makes it clear to Thomas that the ED application process is binding.

Thus, Thomas reasonably concludes that he is, in fact, a competitive

candidate, and he must decide if he is prepared to convert his application

status. While Thomas was initially unsure about his college choices, now he

is seriously considering converting his RD application to ED, but he is

concerned about being bound under this application.

Jake, another high school senior, decides to directly apply ED to one

college and RD to several others. He signs and submits the ED application,

which is also signed by a parent and high school guidance counselor. Jake’s

ED application is accepted, but Jake has since determined a different

college is a better fit. He wants to refrain from withdrawing his other

applications and attend the other college but has concerns that he will he

face repercussions from the college that accepted him under the ED

process. Jake justifiably believes he understands what the term binding

means.

When high school seniors like Thomas and Jake begin the application

process to college, one of the first decisions they face is choosing which

admissions process best suits their goals. Students and parents quickly

discover that there is more than one path to college admission; in fact, there

are as many as five application paths to college acceptance and enrollment.

For the purposes of this Article, the Author chose to use the general term “college” when

referencing any higher education institution.

See

infra

note 6.

See

infra

note 6.

Guide to Ethical Practice in College Admission

, NAT’L ASS’N FOR COLL. ADMISSION

COUNSELING (“NACAC”), 1, 10–11 (Sept. 2020),

https://www.nacacnet.org/globalassets/documents/advocacy-and-ethics/nacac_guide-to-

ethical-practice-in-college-admission_sept.-2020_final.pdf [https://perma.cc/ZL6W-9M27]

(There are three non-restrictive application plans and two restrictive application plans. The

nonrestrictive plans include: (1) Early Action (“EA”) where students apply by an earlier

deadline to receive a decision in advance of the college’s Regular Decision notification date;

(2) Regular Decision (“RD”) where students submit their applications by a specified deadline

and are notified of a decision within a clearly stated period of time; and (3) Rolling Admission

(“RA”) where students apply at any time after a college begins accepting applications until a

2022] WHEN BINDING ISN’T REALLY BINDING 1051

1051

A high school student navigating this complicated process may struggle to

understand the academic requirements and legal ramifications of each

admissions path. Additionally, while high school counselors have the

yeoman’s job of advising the student, colleges provide admissions

information that, at best, is confusing and, at worst, misleading.

Most colleges, as members of the National Association for College

Admission Counseling (“NACAC”), agree to promote transparency,

uniformity, and ethical best practices for college admissions.

Notwithstanding this noble mandate, colleges entirely fail to clarify their lack

of intent to be bound to a legally enforceable agreement based upon the ED

application.

Colleges quietly acknowledge that the ED application only

results in an honor-based or ethical agreement.

Colleges do not share this

critical information with their prospective students. Thus, a prospective

student is led to believe that the ED application is legally binding while

colleges know the ED application is only morally binding.

In fact, colleges

typically seek extra-contractual means of enforcement in lieu of seeking legal

remedies for breach of a binding ED agreement. Students who continue to

base where they apply to college on an erroneous understanding of what

binding means may suffer a negative impact when enrolling in a college.

Does conversion of an RD application to an ED application or the

initial submission of an ED application with the understanding that the

application triggers a binding commitment ignore long-established contract

law principles on the contract formation process? Will Thomas or Jake be

legally bound to their respective colleges upon the mere submission of an

ED application for admission? Contracts are the legal mechanism that

manifest legally binding obligations and reciprocal rights that may be

enforced once mutual assent and consideration are present.

Thus, only

once a contract has been formed, may a college correctly state that an

applicant has made a legally binding agreement.

The college ED application and process, specifically, lead to several

important legal questions. Is the ED application for admission to a college

an offer by the student that upon the college’s acceptance creates a binding

final closing date, which may be as late as after the start of the term for which they are

applying, and students are notified of a decision as their applications are completed and

reviewed. The restrictive plans include: (1) Early Decision (“ED”) where students commit to

a first-choice college at the time of applications and, if admitted, agree to enroll and withdraw

their other college applications (students may be required to accept the college’s ED offer of

admission and submit a deposit prior to May 1); and (2) Restrictive/Single Choice Early

Action (“REA”) where students apply to a college of preference and receive an admission

decision in advance of the Regular Decision notification date.).

Id.

at 3–5.

See

infra

Part II.E.

See infra

Part VI.

See infra

Part VI.

Krystyna Blokhina Gilkis,

Contract

, LEGAL INFO. INST. (July 2019),

https://www.law.cornell.edu/wex/contract [https://perma.cc/5DDY-HJFJ].

1052 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1052

agreement? If the application for admission is not an offer, is the offer of

admission, i.e., acceptance for enrollment by the college, the actual contract

offer? Do college admissions processes ignore the basic tenets of contract

law and principles of freedom of contract and freedom from contract, or do

they simply obfuscate contractual rights and obligations by blurring the time

of formation? If Thomas converts his RD application into an ED

application, and he is subsequently accepted to the college, is he really

legally bound to withdraw his other applications? Finally, if Jake is accepted

for enrollment through the ED application process and fails to withdraw his

other applications, will the college sue or penalize him for breach of

contract?

While much has been written about the student-college contractual

relationship, little attention has been given to the contractual ramifications

of the ED application process. This Article explores whether the ED college

application forms a binding legal agreement between prospective students

and colleges and determines that the ED application merely satisfies one of

several necessary elements of the contract formation process.

Thus,

submitting an ED application alone will not create a legally binding contract.

Furthermore, while this Article does not focus on the legal propriety of

colleges’ actions by qualifying the ED application as binding, it does

recognize that by providing inaccurate information, colleges compromise

the student-college contract formation because the parties do not share the

same meaning of “binding.”

See infra

Part V.

See infra

Parts V & VI.

2022] WHEN BINDING ISN’T REALLY BINDING 1053

1053

II. THE COLLEGE APPLICATION PROCESS

Students like Thomas and Jake typically begin the college application

process in the fall semester of their senior year of high school. Once seniors

have identified the schools that interest them, they begin the application

process, which spans several months until early spring when colleges

announce their decisions.

During the application process, high school seniors face a series of

initial procedural choices as soon as they identify their schools of choice.

One of the first decisions is the choice of admission plan or process.

Students may choose to apply through various processes, depending on

each college’s admissions requirements.

Colleges may fare better by

This Article will not address the impact that ED and other application processes have on

socio-economic diversity and financial aid issues. However, a near universal consensus exists

that ED benefits wealthy students from prestigious schools, private tutoring and test prep

companies, and top-tier colleges.

See

Heather Antecol & Janet Kiholm Smith

, The Early

Decision Option in College Admission and Its Impact on Student Diversity

, 55 J.L. & ECON.

217, 220–21 (2012); James Fallows,

The Early-Decision Racket

, THE ATLANTIC (Sept.

2001), https://www.theatlantic.com/magazine/archive/2001/09/the-early-decision-

racket/302280/ [https://perma.cc/MC36-GLCP]; Abril Castro,

Early Decision Harms

Students of Color and Low-Income Students

, CTR. FOR AM. PROGRESS (Nov. 4, 2019),

https://www.americanprogress.org/issues/race/news/2019/11/04/476789/early-decision-

harms-students-color-low-income-students/ [https://perma.cc/9FG7-9QK2]; Anya

Kamenetz,

5 Ways Elite-College Admissions Shut Out Poor Kid

s, NPR (Jan. 15, 2016),

https://www.npr.org/sections/ed/2016/01/15/462149341/5-ways-elite-college-admissions-

squeeze-out-poor-kids [https://perma.cc/3F7A-2EDZ]; Courtney Pinto,

Equity, Not

Equality, in College Admissions

, INSIDE HIGHER ED (Aug. 23, 2021),

https://www.insidehighered.com/admissions/views/2021/08/23/equity-not-equality-should-

be-goal-college-admissions-opinion [https://perma.cc/5RBX-3TTL];

Who Benefits From

Early Decision?

, COLLEGIATE GATEWAY (Mar. 14, 2019),

https://collegiategateway.com/who-benefits-from-early-decision-2/ [https://perma.cc/SW69-

ZDHR].

For a comprehensive explanation of the college admissions process, the author

recommends C

HRISTOPHER AVERY, ANDREW FAIRBANKS & RICHARD ZECKHAUSER,

THE

EARLY ADMISSIONS GAME: JOINING THE ELITE (Cambridge et al. eds., 2003).

See

Josh Moody,

What to Know About Early Action and Early Decision

, U.S. NEWS &

WORLD REP. (Mar. 20, 2020), https://www.usnews.com/education/best-

colleges/articles/what-to-know-about-early-action-early-decision-in-college-admissions

[https://perma.cc/ZD8Q-22PS] (College Board provided information showing that 450

colleges offer at least one of the ED or EA application options.).

See

Antecol & Smith

, supra

note 14, at

220–21. The admission option known as ED gained

popularity in the late 1950s and 1960s.

Id.

at 221. The ED option is often credited as the

invention of various colleges working together in order to position themselves more

competitively with the Ivy League schools.

Id.

at 221–22. Some credit the “Seven Sisters”:

“Barnard College, Bryn Mawr College, Mount Holyoke College, Radcliffe College, Smith

College, Vassar College, and Wellesley College.”

Id.

at 220 n.5. These schools began

experimenting with ED programs around 1959. . . . By the mid-1970s, all the Ivy League

schools and the Massachusetts Institute of Technology (MIT) had adopted early admissions

1054 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1054

attracting competitive applicants if they do not offer all the admission plan

options. While applicants are competing for limited openings at each

college, the colleges are competing with one another as well.

The colleges set the rules in the admissions game, with individual

colleges changing their policies to gain competitive advantage

over their rivals. They have several goals—attract applicants, admit

the best, and then induce them to enroll—but relatively few

instruments, primarily admissions decisions and financial aid

packages, to achieve them.

From the prospective student standpoint, applying ED has advantages

as well: ED applicants are typically weighed against a smaller cohort of

applicants and statistically, students may have greater success in being

accepted under the ED process than under the RD process.

With the goal of creating uniformity in the college admissions process,

many college admissions departments and counselors join the NACAC.

The NACAC is a voluntary membership organization open to secondary

and post-secondary institutions that “promote[s] the highest ethical practices

and professional standards” in college admissions activities and provides

training and networking for members.

While members are not required to

follow all of the suggested guidelines that it promulgates, such guidelines,

resources, seminars, and professional development work together to better

inform college admissions counselors and help create transparency and

consistency in explaining and policing the college application process.

addition to the suggested materials, the NACAC promulgated the

Code of

programs—Brown University, Harvard, MIT, Princeton, and Yale initially used nonbinding

EA agreements, and the others used binding ED agreements. In the late 1970s, the EA

schools amended their rules to prevent students from applying to more than one school early

(this type of agreement is known as restrictive early action.

Id.

at 220–21.

AVERY ET AL.,

supra

note 15, at 19.

Padya Paramita,

Early Action and Early Decision Policies for the Top 50

, INGENIUS PREP

(Aug. 26, 2020), https://ingeniusprep.com/blog/early-action-and-early-decision/

[https://perma.cc/KT62-DSF4]. A brief example of 2020–2021 acceptance rates shows that

Princeton accepted 13.9% of its ED/EA applicants while it only accepted 5.8% of its RD

applicants; Harvard accepted 13.4% of its ED/EA applicants and only 4.5% of its RD

applicants; and Dartmouth College accepted 23.2% of its ED/EA applicants while it only

accepted 7.9% of its RD applicants.

Id.

History

, NACAC, https://www.nacacnet.org/about/history/ [https://perma.cc/XX9X-

5T3M].

Id.

See

id.

2022] WHEN BINDING ISN’T REALLY BINDING 1055

1055

Ethics and Professional Practices

as “the conscience of our profession.”

The purpose of the

Code of Ethics and Professional Practices

was to

promote best practices in the college admissions process and provide

information to students to help them “make thoughtful choices about their

futures . . . guided by principles of honesty, integrity, transparency, equity,

fairness, and respect.”

In 2019, the United States Department of Justice (“DOJ”) identified

elements of the

Code of Ethics and Professional Practices

that it considered

anti-competitive and in violation of Section 1 of the Sherman Antitrust Act.

Specifically,

the DOJ’s Antitrust Division investigated the NACAC for

Code of Ethics and Professional Practices

, NACAC (Sept. 2019),

https://www.nacacnet.org/globalassets/documents/advocacy-and-

ethics/cepp/cepp_10_2019_final.pdf [https://perma.cc/RDN3-MKNE];

see Statement of

Principles of Good Practice

, NACAC (2016),

https://www.nacacnet.org/globalassets/documents/advocacy-and-ethics/cepp/statement-of-

principles-of-good-practice-spgp-with-highlights.pdf [https://perma.cc/JV5L-W2XJ]. The

Code of Ethics and Professional Practices

was previously titled the

Statement of Principles

of Good Practice

(“SPGP”).

Statement of Principles of Good Practice

, at 1. The SPGP

included a series of “Member Conventions,” which represent a set of understandings or

agreements to frame our code of ethics. These statements are the purview of the Board of

Directors. All members of NACAC agree to abide by the following:

1. Members will make protecting the best interests of all students

a primary concern in the admission process.

2. Members will evaluate students on the basis of their individual

qualifications and strive for inclusion of all members of society in

the admission process.

3. Members will provide accurate admission and financial aid

information to students, empowering all participants in the process

to act responsibly.

4. Members will honor students’ decisions regarding where they

apply and choose to enroll.

5. Members will be ethical and respectful in their counseling,

recruiting and enrollment practices.

6. Members will strive to provide equal access for qualified

students through education about financial aid processes and

institutional financial aid policies.

7. Members will abide by local, state and federal laws regarding

the treatment of students and confidential information.

8. Members will support a common set of admission-related

definitions and deadlines.

9. Members will support and enforce the Statement of

Principles of Good Practice.

Id.

at 2.

See

Code of Ethics and Professional Practices

supra

note 23, at 1.

Id.

Complaint at 31, U.S. v. Nat’l Ass’n for Coll. Admission Counseling, No. 19-cv-03706-

BAH, 2020 WL 3044153 (D.D.C. Apr. 17, 2020) (No. 19-cv-03760), 2019 WL 6790660

(asserting violation of the Sherman Antitrust Act, 15 U.S.C. § 1).

1056 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1056

possible illegal restraints on colleges competing for and recruiting students.

In December 2019, the DOJ filed a complaint in the U.S. District Court for

the District of Columbia

and provided NACAC with a proposed consent

decree in the form of a proposed final judgment.

The complaint alleged

that the recruiting rules agreed upon in the

Code of Ethics and Professional

Practices

served no legitimate purpose and were not necessary to promote

open and equitable college admissions.

The NACAC agreed with the

proposed final judgment to remove any recruiting rules that related to any

ED incentive rule, transfer student recruiting rule, or first-year

undergraduate recruiting rule,

and the court issued a final judgment

approving the proposed consent decree in April 2020.

Neither the DOJ

nor the NACAC addressed the fact that the ED application is marketed as

Id.

at 6.

Id.

at 32.

[Proposed] Final Judgment, U.S. v. Nat’l Ass’n for Coll. Admission Counseling

No. 1:19-

cv-03706 (Dec. 12, 2019), https://www.justice.gov/atr/case-document/file/1226121/download

[https://perma.cc/5MVV-WSWA].

Complaint at 3–5,

supra

note 26.

3. One condition of membership in NACAC is adherence to NACAC’s

Code of Ethics and Professional Practices (“CEPP” or “Ethics Rules”),

which sets forth mandatory rules for how member organizations engage

in college admissions. These rules are drafted, voted on, and enforced

by NACAC members.

4. As part of its CEPP, NACAC includes certain rules regarding the

recruitment of students by colleges. Prior to September 2019, among

these rules were ones that prevented, or severely limited, colleges from

(1) directly recruiting transfer students from another college, (2) offering

incentives of any kind to college applicants who applied via a process

known as Early Decision, and (3) recruiting incoming college freshmen

after May 1 (together, “Recruiting Rules”).

5. The Recruiting Rules were not reasonably necessary to any separate,

legitimate procompetitive collaboration between NACAC members. As

part of its CEPP, NACAC establishes many rules and regulations for its

members’ conduct throughout the college admissions process,

including, among others, when applications may open and close, the

definitions of Early Decision and Early Access, and the use of paid

agents in recruiting students. Many of these rules appear to strengthen

the market for college admissions. The Recruiting Rules, however, were

not reasonably necessary to achieve the otherwise market-enhancing

rules contained in the CEPP, and furthermore had the effect of

unlawfully restraining competition among NACAC’s college members,

resulting in harm to college applicants and potential transfer students.

Id.

[Proposed] Final Judgment,

supra

note 29, at IV.

Final Judgment, U.S. v. Nat’l Ass’n for Coll. Admission Counseling, No. 1:19-cv-03706-

BAH, 2020 WL 3044153, at *2 (D.C.C. Apr. 17, 2020).

2022] WHEN BINDING ISN’T REALLY BINDING 1057

1057

creating a binding agreement, nor did they address the meaning of a

“binding” agreement.

As a result of the DOJ investigation and subsequent final judgment,

the NACAC discontinued the

Code of Ethics and Professional Practices

and replaced it in 2020 with the new

Guide to Ethical Practices in College

Admission.

The

Guide to Ethical Practices in College Admission

is the

current NACAC “statement of recommendations that the Assembly

believes best promotes ethical and best practices in college admission.”

The

Guide to Ethical Practices in College Admission

sets forth a

comprehensive series of “Recommended Practices” related to college

admissions.

Section III: Application Plans, Definitions of Procedures, and

Glossary specifically includes introductory language that places a premium

on uniformity and transparency, stating that the NACAC strives to uphold

such in the application process through uniform application of standardized

definitions.

The definitions of admissions procedures set forth in the

Guide to Ethical Practices in College Admission

and the additional

NACAC handout,

Definitions of Admission Options in Higher Education

are qualified as: early decision (“ED”); early action (“EA”);

restrictive early

action (“REA”); rolling admission (“RA”); and regular decision (“RD”).

Of the various types of admissions processes, the ED choice is the

most labored over by students and discussed by colleges. It is also arguably

the least successful in terms of actual transparency and clarity.

Conceptually, ED is largely homogenous and is defined with few variations.

The ED process allows students to apply to college early and receive a

response earlier than the typical college admissions response time in the

spring. Students commit to a first-choice college at the time of application

and, if admitted, they agree to enroll and withdraw their other college

applications. Colleges may offer ED I or II with different deadlines.

See

generally

id.

Guide to Ethical Practice in College Admission

supra

note 6.

Id.

at 2.

Id.

at 3–9. Topics include admission cycle dates, deadlines, and procedures for first-time

fall entry undergraduates; wait lists; transfer admission; international admission; truthfulness

and transparency: guiding principles and rationale; and professional conduct.

Id.

at 10. (“NACAC members believe it benefits members and the students they serve

when there is clarity and consistency to a process that can be complicated and confusing. To

help clarify the process, members are encouraged to use the following definitions for

application plans and other admissions terms.”).

Definitions of Admissions Options in Higher Education

, NACAC,

www.nacacnet.org/globalassets/documents/publications/DefinitionsofAdmissionOptionsin

HigherEducation.pdf [https://perma.cc/GS93-24C6]. EA or Early Action is defined as the

process in which “[s]tudents apply early and receive a decision well in advance of the

institution’s regular response date.”

Id.

This is a non-binding commitment.

Id.

;

see

Guide

to Ethical Practice in College Admission

supra

note 6, at 10; MICHELE A. HERNÁNDEZ, A

IS FOR

ADMISSION: THE INSIDER’S GUIDE TO GETTING INTO THE IVY LEAGUE AND

OTHER TOP COLLEGES

33 (1997).

See

Guide to Ethical Practice in College Admission

supra

note 6, at 10–11.

1058 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1058

Students may be required to accept a college’s offer of admission and

submit a deposit prior to May 1. Colleges using an Early Decision

application should:

• Not make Early Decision the only application option

for admission.

• Notify candidates of the admission decision within a

clearly stated period of time.

• Respond to an application for financial aid at or near

the time of an offer of admission and before a deposit

is required.

• Release applications from the Early Decision

agreement if the candidate is:

o Denied admission.

o Deferred to an admission date other than

that stated on the original application.

o Offered a program or major that is

different from that stated on the original

application.

The weakness of the ED application lies in its lack of lack clarity as to

the binding nature of the process. The ED option “[s]upersedes all other

applications. Immediately upon acceptance of an offer of admission, a

student must withdraw all other applications and make no other

applications.”

The

Princeton Review

explains that the “[e]arly decision is

binding. This means if you are accepted through early decision, you are

committed to attending that school, and will withdraw any applications you

may have submitted for the regular deadlines to other schools. You may not

apply to more than one college under early decision.”

Simply put another

way, accepting an ED offer of admission is required because the ED offer

is binding. While these definitions of the binding nature of the ED

application all follow the same pattern, that “binding” means binding, none

of them distinguish or elaborate on the difference between morally binding

and legally binding agreements.

Under the alternative RD, RA, and EA processes, a student is not

restricted from applying to multiple schools nor is the student’s

Id.

Early Decision outcomes are “Accept,” “Reject,” or “Defer”.

Id.

If a student is

“deferred,” their application is routed to the regular admission candidate pool for

consideration.

Id.

AVERY ET AL.,

supra

note 15, at 47;

see

Guide to Ethical Practice in College Admission

supra

note 6.

Rob Franek,

Should You Apply Early Action vs Early Decision?

, THE PRINCETON REV.,

https://www.princetonreview.com/college-advice/early-action-vs-early-decision

[https://perma.cc/T3DG-3DJA].

2022] WHEN BINDING ISN’T REALLY BINDING 1059

1059

commitment binding upon acceptance.

Only the ED and REA application

processes are considered restrictive or binding by colleges,

and thus,

colleges openly assert that they consider students who apply through these

processes bound to both attend the institution upon acceptance and to

follow through with the restrictive requirement of withdrawing any

outstanding applications at other institutions. Furthermore, colleges

reinforce the gravity of the binding ED application process by requiring an

applicant’s parent and high school counselor to sign the application.

The

net effect of the ED application process is that students understand that they

can only apply to one school under this qualification due to its binding

nature.

The authors of

The Early Admissions Game

purposely use the term

“game” in their tome, explaining the history, data, and strategies in the ED

application process “[b]ecause early applications programs have

transformed college admissions from a relatively straightforward process

into a complicated strategic arena.”

The creation of multiple admission

pathways also shines a light on adversarial aspects of the admissions

process.

As prospective students apply to multiple schools, the institutions

found ways to “[m]anipulate the timing of the application process to their

own advantage.”

Relying on information provided by colleges, high school counselors,

and college admissions counseling businesses, Thomas and Jake likely

believe any ED application and eventual acceptance will create a binding

commitment that they cannot simply walk away from. This belief is

reasonable if Thomas and Jake do not understand the law of contracts or

do not pursue a legal review.

Thomas and Jake may apply to college directly through a college’s

website or portal, or through a processing service, such as the Common App

website, which is owned and operated by the College Board

or the

Definitions of Admissions Options in Higher Education

supra

note 38.

Id.

Early Decision Agreement

, COMMON APP,

https://commonapp.my.salesforce.com/sfc/p/#d0000000eEna/a/0V000001Avzl/5d1XX0N

p996VeBzy8wRolENTg2XLqU8E7mJmpwMgk1s [https://perma.cc/TX59-KJMQ].

AVERY ET AL.,

supra

note 15, at

2. The authors further state, “We see the whole college

admissions process as a giant game, with roughly 1 million new applicants and more than

1,700 four-year colleges playing each year. . . . The students are competing with one another,

as are the colleges. But there is also a subtle game between the applicants and the colleges.”

Id.

at 12.

Id.

at 24. As early as the 1950s, when applicant trends revealed the propensity to submit

multiple applications, the institutions “[l]abeled students as selfish if they did not withdraw

applications to other colleges immediately after learning of admission to a likely top-choice

school.”

Id.

Explore Colleges

, COMMON APP, https://www.commonapp.org/explore/

1060 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1060

Universal College Application.

For Common App users, the College

Board ED and EA website includes disclaimer-like language specifying:

Early decision plans are binding – a student who is accepted and

an ED applicant must attend the college.

ED applicants:

• Apply early (usually in November) to first-choice

college.

• Receive an admission decision from the college

well in advance of the usual notification date

(usually by December).

• Agree to attend the college if accepted and offered

a financial aid package that is considered adequate

by the family.

• Apply to only one college early decision.

• Apply to other colleges under regular admission

plans.

• Withdraw all other applications if accepted by ED.

• Send a nonrefundable deposit well in advance of

May 1.

The actual Common App ED Agreement is limited to one page.

The

2020 Common App ED Agreement references the binding nature of the

document by stating, “Before completing this form, please consult the

instructions for early decision on the college’s website. The ED Agreement

is required only for candidates who have chosen to apply via the binding

early decision plan to their first-choice institution.”

The ED Agreement

“Instructions” provide “[i]f the student is accepted under an early decision

[https://perma.cc/Y5FD-JHJL]. The Common App website boasts that more than 900

colleges use the Common App for college applications.

Id.

;

see

Briana Boyington & Josh

Moody,

The Common App: Everything You Need to Know

, U.S. NEWS & WORLD REP.

(Aug. 2, 2021), https://www.usnews.com/education/best-colleges/articles/common-app

[https://perma.cc/M8HT-YUDN].

Colleges

, UNIVERSAL COLL. APPLICATION, https://www.universalcollegeapp.com/schools

[https://perma.cc/D9TV-7KTU]. The Universal College Application website boasts two

colleges using the service for college applications: University of Charleston West Virginia

and University of the Commonwealth Global.

Id.

Early Decision & Early Action

, COLL. BOARD,

https://professionals.collegeboard.org/guidance/applications/early [https://perma.cc/HDD3-

E3S8]. Furthermore, the authors of

The Early Admissions Game

note that only 122 out of

253 colleges in The College Board database subscribe to this Agreement. A

VERY ET AL.,

supra

note 15, at 333 n.10.

Early Decision Agreement

supra

note 48.

Id.

2022] WHEN BINDING ISN’T REALLY BINDING 1061

1061

plan, the student must promptly withdraw the applications submitted to

other colleges and universities and make no additional applications to any

other university in any country.”

The ED Agreement provides an additional notice above the signature

line, requiring the student to acknowledge that they read and understood

ED Agreement in general, and specifically that they recognize any ED offer

of admissions may be shared with other colleges.

The student’s high school

counselor must also sign the ED Agreement, attesting that the student was

advised as to the binding nature of the ED application.

Additionally, the

student’s parent or legal guardian must attest that they will ensure the

student’s compliance with ED Agreement.

The Common App website

also includes a “School Counselor Information” section relating to the ED

application process and sets forth detailed steps for shepherding a student

through the ED process.

Id.

Early Decision with Common App

, COMMON APP,

https://recsupport.commonapp.org/recommendersupport/s/article/How-ED-works-in-the-

Common-App-online [https://perma.cc/8JZR-XWDF].

If a student is applying online and applying Early Decision to an institution, it is

necessary that he/she complete the Early Decision Agreement. In order to

complete and submit this form the student must first select the Early Decision

term option for one institution. Once this decision is selected, the ED

Agreement will be available as a follow-up question within the institution's

questions.

1. The student must read and sign the agreement from within his/her

Common App account. He/she must then notify the counselor that he/she is

applying ED.

2. The counselor must read and sign the agreement from within his/her

recommendation account (if the counselor has agreed to complete

recommendations online).

3. The parent/legal guardian must also read and sign the agreement. The

parent/legal guardian must go to the URL (provided in the invitation), enter their

email address (enter it exactly as it appears on the notification email; it is case

sensitive), read and sign the ED Agreement, then submit it.

4. Students must select a parent/legal guardian at the bottom of the page in the

Recommenders and FERPA section before the online agreement is sent to this

person. The student should enter the "Parent/Legal Guardian" details and save

the page.

Lastly, the counselor will log in to his/her account to read, sign, and submit the

ED Agreement as well (if the counselor has agreed to complete the

recommendations online). If the counselor is not completing the

recommendation online, the student must print the ED Agreement from within

the Recommenders and FERPA section, obtain all required signatures and give

1062 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1062

Furthermore, the College Board website includes an informative

section devoted to “[t]he ethics of applying early decision,” which outlines

that high school counselors should “[s]end the student’s final transcript to

one college only: anything else is unethical.”

Thus, once again, the ethical

buzzword is used to reinforce the binding nature of the ED application and

an obligation is placed on a high school counselor to enforce such. Slowly,

the terms “binding” and “ethical” are being intertwined although no

stakeholder in the college admissions process ever explicitly explains to a

student applicant how they actually relate—that the ED application is binding

as an ethical agreement and not a legal agreement.

The Universal College ED Application is also limited to one page and

includes language that closely mirrors that of the Common App.

Yes, I wish to be considered as an Early Decision candidate at

(Name of Institution). I understand that I may apply only to one

institution under a binding Early Decision program and that if

admitted under the Early Decision Plan, I will attend that

institution (only if sufficient financial aid is offered). I further

understand that if admitted to my Early Decision institution, I

may not apply to other colleges or universities and must

immediately withdraw applications to other colleges and

universities. I further understand that it is a violation of the Early

Decision Agreement for an applicant to be an Early Decision

candidate at two or more institutions at the same time. The

institution(s) I have applied to may discontinue my application or

withdraw my offer of admission at any time if these conditions are

not met.

it to the counselor to send directly to the institution. Please note the counselor

is responsible for the submission of the ED Agreement once the student has

completed it.

After the student has selected the Parent/Legal Guardian within the drop-down,

he/she will receive an email with the URL to the ED Agreement (only if the

email address was provided). If the parent/legal guardian does not have an email

address, his/her signature is not required online. However, the counselor must

still sign his/her portion to complete the online ED Agreement process.

Id.

Early Decision & Early Action, supra

note 54 (“The Common Application and some

colleges’ application forms require the student applying under early decision, as well as the

parent and counselor, to sign an ED agreement form spelling out the plan’s conditions.”).

“Under the Early Decision Plan, an applicant may apply to only one college. The Early

Decision Agreement allows the applicant, family, and counselor submit acknowledgement

of these conditions to the college selected by the applicant under the Early Decision plan.”

Resources,

UNIVERSAL COLL. APPLICATION,

https://www.universalcollegeapp.com/resources#forms [https://perma.cc/Z5CW-SAJR].

Early Decision Agreement,

UNIVERSAL COLL. APPLICATION,

https://www.universalcollegeapp.com/documents/ed-agreement.pdf

[https://perma.cc/W23F-KYRJ]

2022] WHEN BINDING ISN’T REALLY BINDING 1063

1063

A brief sampling of individual college admission websites reflects

language mirroring the Common App and Universal College ED

Application. For example, Boston University (“BU”) reminds students that

if they apply ED and are accepted, they “commit to attend BU by

withdrawing applications to all other schools.”

Furthermore, multiple college admission resources exist throughout

the private sector. Companies, websites, and blogs are devoted to explaining

the college admission process, and they universally define the ED

application as binding.

Education Dynamics LLC runs the Unigo website,

which offers comprehensive college admissions assistance to student

applicants.

Unigo also provides a Q&A section on its website wherein

college counselors answer questions.

Under the “College Admissions”

heading, the question “Is early decision really binding, or can I still get out

of it?” is posed, and college counselors from various schools provide their

answers.

Every respondent answered in the affirmative stating the ED

application was binding and difficult to get out of barring a financial excuse.

Early Decision at BU,

BOSTON UNIV., http://www.bu.edu/admissions/apply/early-decision/

[https://perma.cc/PE7Q-F636] (“If you are applying using the Common Application, you

must indicate your interest in the Early Decision program on the BU member section of

your application. This section of the web page explains the binding nature of the ED program

and must be signed by the applicant, a parent or guardian, and a school counselor. If you are

applying using the Coalition Application, you must select Early Decision from the Decision

Plan within the Term section and download the Early Decision Agreement. This agreement

explains the binding nature of the ED program and must be signed by the applicant, a parent

or guardian, and a school counselor. To submit a completed Early Decision application

through Coalition for College, you must upload a completed and signed Early Decision

Agreement form in the Term section.”).

Is Early Decision Really Binding, or Can I Still Get Out of It?

, UNIGO,

https://www.unigo.com/admissions-advice/is-early-decision-really-binding-or-can-i-still-get-

out-of-it [https://perma.cc/Y7X9-VRF9].

UNIGO: Engage Our Network of Active Students, Parents and Counselors

, EDUC.

DYNAMICS, https://www.educationdynamics.com/unigo/ [https://perma.cc/7L8W-Z4S5].

Advice from College Admissions Experts

, UNIGO, https://www.unigo.com/admissions-

advice [https://perma.cc/SF55-PUNA].

Is Early Decision Really Binding, or Can I Still Get Out of It?

supra

note 66.

. Scott Herrmann-Keeling, College Counselor:

The answer is it’s both. Yes, it’s really binding. . . . That said, nobody is

going to show up at your house with a pair of handcuffs if something

happens and you are unable to attend. Notice I use the word “unable.”

That’s different from, “I changed my mind and would rather go

someplace else.” “Unable” means there’s been a significant change in

your situation in a way that affects either your ability to pay for school or

your ability to physically be present on campus.

Id.

Andrew Belasco, CEO, College Transitions LLC, “Generally speaking, Early Decision

is binding and breaking an ED agreement usually leads to severe consequences. For example,

1064 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1064

By the time Thomas and Jake completed their college admissions

applications, they have been inundated with college admission materials and

commercial resources outlining, in a myriad of ways, the fundamental

binding character of the ED application. There is no doubt in the

prospective students mind that the ED application is binding. But is it really

binding? Are Thomas and Jake’s ED applications binding on them or the

schools, on both, or on neither? When are legal and enforceable contractual

rights created between the students and colleges?

III. I

S THE STUDENT ENTERING INTO A BINDING CONTRACT WITH

THE

COLLEGE BY APPLYING FOR EARLY DECISION?

Contracts are legal relationships between two or more parties. “A

contract, by ancient definition, is ‘an agreement between competent parties,

upon a consideration sufficient in law, to do or not to do a particular

thing.’”

With the consequence of legal enforceability, a contract gives rise

to a set of rights and obligations for the contacting parties, and it creates

social incentives. These incentives include limitation of the risk that the

party with less information may get taken advantage of by the party with

more information; the promulgation of acceptable behavioral norms to limit

strategic behavior; and the creation of precedent for future clear and concise

agreements. In brief, contracts create binding commitments between the

parties but certainly do not exist in a vacuum; they create “ripples of

consequences in all directions through society.”

Contract formation has been variously defined; formation

requirements may be framed by the presence of definiteness and assent in

the bargaining process

or the presence of mutual assent and

consideration.

Regardless of the terminology used, contract formation

commonalities are demonstrated through the offer and acceptance process

supported by consideration.

The presence of an offer and acceptance

students breaking ED agreements are often ‘blacklisted’ by their ‘ED’ college and prevented

from enrolling at any of their other prospective institutions for at least one year.”

Id.

Rebecca

Joseph, Executive Director & Founder, getmetocollege.org, “EARLY DECISION IS

LEGALLY BINDING.”

Id.

Edward LaMeire, CEO, LaMeire College Consulting, “If you

pull out of an ED agreement, there needs to be a ludicrously convincing reason why.”

Id.

Nancy Milne, Owner, Milne Collegiate Consulting, “Early decision IS binding.”

Id.

Steinberg v. Chi. Med. Sch., 371 N.E.2d 634, 639 (Ill. 1977) (citing People v. Dummer,

113 N.E. 934, 935 (Ill. 1916)).

See

LAWRENCE M. FRIEDMAN, CONTRACT LAW IN AMERICA: A SOCIAL AND ECONOMIC

CASE STUDY 96 (Univ. of Wis. Press 1965).

E. ALLAN FARNSWORTH, CONTRACTS

108 (West Academic 4th ed. 2004).

RESTATEMENT (SECOND) OF CONTRACTS § 17 (AM. L. INST. 1981).

Steinberg

, 371 N.E.2d at 639 (citing Milanko v. Jensen, 88 N.E.2d 857, 859 (Ill. 1949);

Geary v. Great Atl. & Pac. Tea Co., 10 N.E.2d 350, 351 (Ill. 1937); Dick v. Halun, 176 N.E.,

440, 441 (Ill. 1931); R

ESTATEMENT (SECOND) OF CONTRACTS §§ 19, 22 (Tent. Draft No.1,

1964); Moehling v. W.E. O’Neil Constr. Co

, 170 N.E.2d 100, 106 (Ill. 1960); Green v.

Ashland Sixty-Third State Bank, 178 N.E. 468, 471 (Ill. 1931)).

2022] WHEN BINDING ISN’T REALLY BINDING 1065

1065

demonstrates intent

to form a contract from which rights and obligations

may be enforced. By definition, enforceability naturally intuits compelling

observation or accountability, which easily passes as a synonym for the term

“binding.”

Furthermore, the contract formation process can be qualified as

creating either a bilateral or a unilateral contract. A bilateral contract is a

promise made in exchange for a return promise, while a unilateral contract

is a promise made in exchange for performance.

While the trend in

contract law is to minimize

the distinction between the two in favor of

general formation rules, drawing a distinction may prove helpful in

determining whether mutual obligations have been undertaken.

A review

of the ample case law focusing on student-college contracts reflects that:

[F]ew courts or scholars explicitly characterize the student-school

contract as either unilateral or bilateral. At first glance the contract

may appear bilateral; the school promises to provide the

curriculum and to award a degree upon the student’s satisfactory

completion of the academic program, and the student promises

See

SkyCom Corp. v. Telstar Corp

, 813 F.2d 810, 814–15 (7th Cir. 1987) (“Like

most other states, Wisconsin takes an objective view of ‘intent.’ ‘The intent of the

parties [to be bound] must necessarily be derived from a consideration of their

words, written and oral, and their actions.’”) (citing Household Util., Inc. v.

Andrews Co.

236 N.W.2d 663, 669 (Wis. 1976)).

Secret hopes and wishes count for nothing. The status of a document as a

contract depends on what the parties express to each other and to the world,

not on what they keep to themselves. It is therefore unimportant whether

Walters expected this letter to be the definitive agreement; the binding force of

the document depends on public or shared expressions. These often will be

undisputed, making summary judgment appropriate. Material disputes may

remain even under an objective approach to intent, but the recitation that “intent

matters” does not on its own call for a trial. The objective approach is an

essential ingredient to allowing the parties jointly to control the effect of their

document. If unilateral or secret intents could bind, parties would become wary,

and the written word would lose some of its power.

Id.

at 814–815 (internal citations omitted).

RESTATEMENT (FIRST) OF CONTRACTS § 12 (AM. L. INST. 1932) (explaining the difference

between bilateral and unilateral contracts by stating “[a] unilateral contract is one in which no

promisor receives a promise as consideration for his promise. A bilateral contract is one in

which there are mutual promises between two parties to the contract; each party being both

a promisor and a promise.”).

RESTATEMENT (SECOND) OF CONTRACTS § 1 (AM. L. INST. 1981) (making no distinction

between “bilateral” and “unilateral” contracts).

1 ARTHUR L. CORBIN, CORBIN ON CONTRACTS: A COMPREHENSIVE TREATISE ON THE

WORKING RULES OF CONTRACT LAW § 21, at 52–52 (1963).

1066 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1066

to pay the tuition and to follow the school’s rules and

regulations.

However, “[m]ost schools . . . do not permit the student to accept the

offer of admission with a promise to pay tuition; the student cannot register

until tuition is paid.”

Requiring student action, such as payment of

enrollment fees or tuition, creates a unilateral contract. Colleges appear to

be focusing less on the type of contractual relationship formed and more on

the identification or misidentification of their respective rights and

obligations.

Colleges are painting the ED application as binding and allowing

prospective students to reach the logical conclusion that a legal relationship

has been formed with the application. In reality, the actual moment of

contract formation, i.e., the creation of a legal relationship, is somewhat

obfuscated. Nothing in the application itself refers to a “contract.” Many

colleges use language referencing “an agreement” while language specific to

a legal contractual relationship is conspicuously missing.

In the April 2020

United States v. NACAC

final judgment, the court noted that “‘[a]greement’

means any agreement, understanding, pact, contract, or arrangement,

formal or informal, oral or written, between two or more persons.”

Does

Mark Pettit, Jr.,

Modern Unilateral Contracts

, 63 B.U. L. REV. 551, 572–73 (1983) (citing

Perretti v. Montana, 464 F. Supp. 784, 786 (D. Mont. 1979) (quoting Eugene L. Kramer,

Expulsion of College and Professional Students—Rights and Remedies

, 38 NOTRE DAME L.

REV., 174, 183 (1962))).

Id.

at 573 n.103 (“It could be argued that a student’s letter to a school ‘accepting’ the

school’s offer of admission and perhaps enclosing a small deposit should be enough to

prevent the school from revoking its offer. On the other hand, to conclude that the student

by these actions undertakes a legally enforceable obligation to pay tuition seems inconsistent

with the expectations of both parties in this era of multiple applications for admission.”).

RESTATEMENT (SECOND) OF CONTRACTS § 1 (“A contract is a promise or a set of promises

for the breach of which the law gives a remedy, or the performance of which the law in some

way recognizes a duty.”);

Id.

at cmt. a (“The word ‘contract’ is often used with meanings

different from that given here. It is sometimes used as a synonym for ‘agreement or ‘bargain’.

It may refer to legally ineffective agreements, or wholly executed transactions such as

conveyances; it may refer indifferently to the acts of the parties, to a document which

evidences those acts, or to the resulting legal relations. In a statute the word may be given still

other meanings by context or explicit definition.”). The Uniform Commercial Code

(“UCC”) has chosen to make a distinction between agreement and contract for its purposes

of setting out a framework for sales of goods.

See

U.C.C. § 1-201(b)(3) (AM. L. INST. & UNIF.

L. COMM’N 2012) (defining an agreement, “as distinguished from ‘contract’, means the

bargain of the parties in fact, as found in their language or inferred from other circumstances,

including course of performance, course of dealing, or usage of trade as provided in Section

1-303”);

id.

§1-201(b)(12) (defining a contract “as distinguished from ‘agreement’, means the

total legal obligation that results from the parties’ agreement as determined by [the UCC] as

supplemented by any other applicable laws”).

U.S. v. Nat’l Ass’n for Coll. Admission Counseling, No. 1:19-cv-03706-BAH, 2020 WL

3044153, at *1 (D.C. Cir. Apr. 17, 2020) (using binding language to reference the definition

2022] WHEN BINDING ISN’T REALLY BINDING 1067

1067

this open the window to a determination that any “agreement” between a

student and college is a contract? The court does not attempt to answer this

question; although, the DOJ Antitrust Division’s complaint compared the

ED application to an exclusive contract.

Following the DOJ’s assertion, if

the ED application is the entry into an “exclusive contract,” a student’s

forbearance of the right to accept other offers of admission in exchange for

an ED acceptance would seemingly satisfy the contract law requirement of

consideration. This creates an enforceable agreement, albeit only upon

acceptance, i.e., positive reception, of the student’s application.

In other words, if an ED applicant promises to withdraw all other

applications in exchange for an ED decision and they are subsequently

accepted, then upon such acceptance the student is bound to follow

through. Both parties have bargained for something: notice of early

acceptance in exchange for the obligation to attend and withdraw other

applications.

However, if the ED applicant promises to withdraw all other

applications in exchange for an ED decision, and the prospective student’s

application is subsequently rejected, the promise to withdraw the other

applications cannot and will not ever be enforced.

These circumstances

raise the specter of an illusory or alternative promise that would fail to satisfy

the requirement of consideration.

The

United States v. NACAC

court

does not address the properness of the “exclusive contract” analogy in its

final judgment and lacking such, further inquiry is necessary to determine

exactly how and when the contractual relationship is formed.

A. Offer

of the “First-Year Undergraduate Recruiting Rule” by stating that it “means any Rule or

Agreement, or part of a Rule or Agreement, including, but not limited to, Section II.B.5 of

the Ethics Rules, that restrains any college or university from recruiting or offering enrollment

incentives to first-year college applicants on the basis that (a) a particular date has passed; (b)

the applicants have either declined admission or not affirmatively indicated that they are still

interested in attending that institution; or (c) the applicants have already enrolled in,

registered at, declared their intent to enroll in or register at, or submitted contractual deposits

to other institutions.”).

U.S. v. Nat’l Ass’n for Coll. Admission Counseling; Proposed Final Judgment and

Competitive Impact Statement, 85 Fed. Reg. 1329, 1330–31 (Jan. 10, 2020);

see

Complaint

at 7–8, U.S. v. Nat’l Ass’n for Coll. Admission Counseling, No. 1:19-cv-03706-BAH, 2020

WL 3044153, at *1 (D.C. Cir. Apr. 17, 2020) (“The Early Decision application plan is akin

to an exclusive contract in any other industry. In this case, the student foregoes the

opportunity to consider the competitive offers from other institutions in exchange for an

early decision on acceptance . . . At base, the only form of payment an institution may provide

in exchange for the exclusive contract with an applicant is the early decision itself.”).

United States v. National Association for College Admission Counseling; Proposed Final

Judgment and Competitive Impact Statement, 85 Fed. Reg. 1329, 1330 (Jan 10, 2020).

See id.

1330–31.

See id.

at 1331.

RESTATEMENT (SECOND) OF CONTRACTS § 77 (AM. L. INST. 1981).

1068 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1068

A contract offer is “the manifestation of willingness to enter into a

bargain, so made as to justify another person in understanding that his assent

to that bargain is invited and will conclude it.”

More simply put, an offeror’s

intent to form a contract manifests through creating an offer that can be

accepted by another.

An offer is effective and capable of being accepted

when the offeree has knowledge of the offer.

Thus, offers must be

communicated to an offeree, sufficiently clear and definite, so as to be

capable of being accepted and manifest the offeror’s intent to be bound to

a contract.

The NACAC

Guide to Ethical Practice in College Admission

includes in its Definitions and Glossary section “offer of admission,” which

is, unfortunately, less of a definition than stipulation setting forth “[o]fficial

offers of admission may be transmitted by mail, electronically, or on official

websites.”

Whether this is actually a definition is less important than the

NACAC’s tacit acknowledgement that an offer arises when a college offers

admission to its academic program.

Contract law further establishes that not every salvo made to an offeree

may be qualified as an offer.

An offer and acceptance may be part of a

lengthy negotiation process, which entails a series of assertions and

concessions that are negotiated and refined into an eventual offer that is

capable of being accepted.

The contract formation process may also

require examination of a conditional offer or a seeming offer that is actually

an entreaty to solicit an offer.

Consider our hypothetical students once

more. If their ED applications are not offers, would these applications

qualify as promises or conditional offers? If either, can they result in

enforceable contracts? Furthermore, by pinpointing who made the offer to

whom, Thomas and Jake have a clear understanding of whether they are

each the offeror or offeree. By determining these roles in the contract

process, Thomas and Jake are each one step closer to understanding

whether they are legally bound under the ED application.

B. Conditional Offer

A conditional offer is an offer that is contingent upon the agreement

Id.

§ 24 (AM. L. INST. 1981).

See id.

at cmt. b.

See id.

; RESTATEMENT (SECOND) OF CONTRACTS § 33 (AM. L. INST. 1981) (“(1) Even

though a manifestation of intention is intended to be understood as an offer, it cannot be

accepted so as to form a contract unless the terms of the contract are reasonably certain.”);

U.C.C. § 2-204(1) (1989) (official comment) (“The more terms the parties leave open, the

less likely it is that they have intended to conclude a binding agreement.”).

Guide to Ethical Practice in College Admission, supra

note 6, at 13.

RESTATEMENT (SECOND) OF CONTRACTS § 24 cmt. a.

See

id.

§ 26.

See

id.

§ 59;

see also

Hill v.

Conway, 463 A.2d 232, 233 (Vt. 1983); R

ESTATEMENT (SECOND) OF CONTRACTS § 202 (AM.

L. INST. 1981) (explaining the Plain Meaning Rule—the rule of construction—holding that if

the meaning of a term is plain on its face, then a court must enforce the provision as it is

written. A court will presume that, barring evidence to the contrary, parties to an agreement

intended for the ordinary and plain meaning of a term to apply).

Duke University Acceptance Letter 2019-2020

, SOLOMON ADMISSIONS CONSULTING,

https://www.solomonadmissions.com/acceptance-letters-2019-2020?lightbox=dataItem-

k92zcmcc [https://perma.cc/35CC-97HL]

(emphasis added).

2022] WHEN BINDING ISN’T REALLY BINDING 1071

1071

Community Standard and does not encompass the withdrawal of other

outstanding applications.

Had Thomas or Jake received one of these letters, either one of them

would certainly have understood that their college admission was

conditional on continued academic success. Whether they could have

parsed the difference between the actual express conditions of admission

and the request to “please withdraw any other applications,” the statement

of future action—“you will need to withdraw,” or the imperative “you must

withdraw,” requires a level of linguistic and legal interpretation that is

incompatible with their ages and current level of education.

Furthermore, private college admissions consulting companies do little

to help clarify the situation. Laurie Kopp Weingarten, president and chief

educational consultant at One-Stop College Counseling, has commented

that “[students] entered into a contract stating if the school admits them,

they will come. They knew the ramifications, and the school accepted them

under the premise that they would attend.”

With experts in the field of

college admissions taking strong positions that parrot those of the colleges,

100

the ability to see through real versus imagined contractual obligations

becomes ever more formidable for Thomas and Jake. Nonetheless,

accepting the premise that a conditional contract is created, if the condition

is satisfied, i.e., the student is admitted, the student’s obligation to attend

becomes operative and enforceable. However, this stance presumes that the

college intended to form a legally binding contract and not merely an honor-

based agreement.

C. Invitation to Offer

If a party does not intend to make an offer that is capable of being

accepted, and thus form a contract, the party may have merely made an

invitation to offer. An invitation to an offer or a mere inquiry fails to rise to

the level of an offer and does not vest the recipient (supposed offeree) with

the power to accept.

101

Steinberg v. Chicago Medical School

, Robert Steinberg, a

prospective medical school student, received a school catalog and submitted

an application along with the requisite fee to the Chicago Medical School.

102

Upon his rejection from the program, Steinberg filed a cause of action

alleging that his application was not properly evaluated according to the

school’s academic criteria.

103

The

Steinberg

court began its analysis of

Katherine Martinelli,

What Happens If You Get in Early Decision but Change Your

Mind?

, COLLEGECOVERED, https://www.collegecovered.com/getting-into-college/backing-

out-of-early-decision/ [https://perma.cc/77LA-LCFD].

100

Is Early Decision Really Binding, or Can I Still Get Out of It?

supra

note 66.

101

See

RESTATEMENT (SECOND) OF CONTRACTS § 22 (AM. L. INST. 1981).

102

Steinberg v. Chi. Med. School, 371 N.E.2d 634, 638 (Ill. 1977).

103

Id.

1072 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1072

Steinberg’s breach of contract claim by recalling, “[a] contract, by ancient

definition, is ‘an agreement between competent parties, upon consideration

sufficient in law, to do or not to do a particular thing’”

104

before reciting the

required elements for contract formation and drawing a parallel between

the facts of the case and a merchant contract.

105

Steinberg asserted that a

contract was formed through a series of events that began with issuance of

the school brochure, which constituted an invitation to offer.

106

Upon receipt

of the invitation to offer, “the filing of the applications constituted an offer

to have their credentials appraised under the terms described by the

defendant, and that the defendant’s voluntary reception of the application

and fee constituted an acceptance, the final act necessary for the creation of

a binding contract.”

107

The

Steinberg

court agreed and treated the brochure as an

advertisement, stating that:

While the advertisement itself is not an offer to contract, it

constitutes an invitation to deal on terms described in the

advertisement. Although in some cases the advertisement itself

may be an offer, usually it constitutes only an invitation to deal on

the advertised terms. Only when the

merchant

takes the money

is there acceptance of the offer.

108

Once the court qualified the brochure as an invitation to offer, it found

that,

The tender of the application, as well as the payment of the fee

pursuant to the terms of the brochure, was an offer to apply.

Acceptance of the application and fee constituted acceptance of

an offer to apply under the criteria defendant had established . . .

. The application fee was sufficient consideration to support the

agreement between the applicant and the school.

109

The court acknowledged its limited scope of review and posited that

the facts support the argument that the parties formed a contract;

110

however,

the contract formed was not for the admission of the applicant to the school

but rather the contract was for the appraisal of the applicant’s eligibility for

admission according to the criteria set forth in the brochure.

111

104

Id.

at 639 (citing People v. Dummer, 274 Ill. 637, 640, 113 N.E. 934, 935 (1916)).

105

Id.

106

Id.

at 639.

107

Id.

108

Id.

(citations omitted). While the

Steinberg

court cites the role of a “merchant” making an

offer, the “school” stands in the merchant’s shoes.

See id.

109

Id.

110

Id.

at 640.

111

Id.

2022] WHEN BINDING ISN’T REALLY BINDING 1073

1073

D. Acceptance

Acceptance of an offer manifests assent to enter into a contract.

112

offeree’s acceptance of the offeror’s offer must meet several requirements.

It must be unequivocal and unqualified.

113

If the offeror stipulated a manner

of acceptance, the acceptance must be made accordingly.

114

If the offeror

does not designate a manner of acceptance, the offeree may accept verbally,

in writing, or by any other reasonable behavior or manner under the

circumstances.

115

The acceptance of an offer that leads to contract formation

allows an applicant or prospective student to assume the role of student.

In the event that a contractual relationship fails to meet the minimum

criteria of mutual assent and consideration, may parties be bound ethically,

nonetheless? Can Thomas and Jake enter into binding legal contracts with

the colleges through the ED application if the colleges never intended to be

bound to a legal agreement? Can colleges hold Thomas and Jake morally

bound to withdraw their other applications upon acceptance of an ED

application for college admission?

E. Intent to be Bound—Contractual or Moral

Intent to be bound manifests through the exchange of an offer and

acceptance. Not all offers invite an acceptance that leads to a validly formed

contract.

116

Parties may make offers jokingly or in jest,

117

or parties may

simply never intend to be bound. “Neither real nor apparent intention that

a promise be legally binding is essential to the formation of a contract, but a

manifestation of intention that a promise shall not affect legal relations may

prevent the formation of a contract.”

118

Colleges admit that no legal contract

is formed upon an ED application,

119

but is this admission enough to show

that colleges have no intention to form a contract with a prospective student

upon the ED application? This admission coupled with evidence or, more

precisely, the lack of evidence of colleges enforcing ED applications in court

supports the conclusion that colleges never intended to form legal contracts

with ED applicants. Colleges have the temerity to assert that the ED

112

RESTATEMENT (SECOND) OF CONTRACTS § 50 (AM. L. INST. 1981).

113

See id.

§ 50 cmt. a.

114

See id.

115

Id.

§ 30;

see

Fujimoto v. Rio Grande Pickle Co., 414 F.2d 648, 652 (5th Cir. 1969)

(“Where, as here, the offer and surrounding circumstances are silent as to permissible modes

of acceptance, the law requires only that there be some clear and unmistakable expression

of the offeree’s intention to accept.”).

116

See

Nat’l Bank v. Louisville Trust Co., 67 F.2d 97, 105 (6th Cir. 1933).

117

See

Leonard v. Pepsico, 88 F. Supp. 2d 116, 130 (S.D.N.Y. 1999).

118

RESTATEMENT (SECOND) OF CONTRACTS § 21 (AM. L. INST. 1981).

119

See

Alexandra Pannoni,

What Happens to Students Who Back Out of Early Decision

Offers

, U.S. NEWS & WORLD REP. (Oct. 24, 2016, 9:00 AM),

https://www.usnews.com/education/best-colleges/articles/2016-10-24/what-happens-to-

students-who-back-out-of-early-decision-offers [https://perma.cc/DZ8Z-B3NS].

1074 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1074

application is binding while lacking any intention to interpret it as anything

other than a moral agreement.

Moral agreements are anchored in honor-based or ethical obligations

that compel a party to carry out an action or refrain from an action out of a

sense of personal conviction.

120

“[O]ne may have a moral obligation to do

something, but unless there is also a valid legal obligation, one cannot

legitimately be forced by another to do it. A moral obligation is only a legal

obligation if it can be enforced by the use or threat of legal force.”

121

The clear rule that a moral or ethical obligation is not legally

enforceable without another underlying legal obligation is a rare and

welcome find. However, in practice, ethical and moral obligations are often

couched in terms of a “gentleman’s agreement.”

122

A gentleman’s agreement

is not a helpful tool in converting a moral obligation into a legal obligation.

Historically, a gentleman’s agreement was a non-legal agreement based

upon a man’s honor or word.

123

They were often oral agreements that were

memorialized with a handshake.

124

Today, gentleman’s agreements are

either recognized as not legally binding or they are relegated to informal

agreements that are either intended to be memorialized in a later contractual

manifestation, or the term is used synonymously with letter of intent,

memorandum of understanding, or other preliminary agreements.

125

Thus,

if a gentleman’s agreement is a manifestation of the expression, a man’s

word is his bond.

Does the ED application, which states that a student will

withdraw all other applications upon acceptance to the applied-to school,

create a non-legally enforceable gentleman’s agreement or a legal

agreement?

Once again, while colleges and college admission consulting

companies publicly perpetuate the fact that the ED application is binding,

colleges accept the reality that the ED application does not create a legal

120

Van Thompson,

Is a Moral Obligation a Legal Contract?

, CHRON,

https://smallbusiness.chron.com/moral-obligation-legal-contract-66668.html

[https://perma.cc/XR25-9YA2].

121

Randy E. Barnett,

A Consent Theory of Contract

, 86 COLUM. L. REV. 269, 296 (Mar.

1986).

122

Herbert Bernstein & Joachim Zekoll,

The Gentleman’s Agreement in Legal Theory and

in Modern Practice: United States

, 46 AM. J. COMP. L. 87, 90 (1998).

123

Id.

124

Id.

125

See

Dunhill Sec. Corp. v. Microthermal Applications, 308 F. Supp. 195, 198 (S.D.N.Y.

1969) (“[T]he financial community does not regard [a letter of intent] as a binding agreement,

but rather, an expression of tentative intentions of the parties.”);

see also

Paramount Brokers,

Inc. v. Digital River, Inc

, 126 F. Supp. 2d 939, 945 (D. Md. 2000) (“Letters of intent and

negotiations ordinarily do not constitute binding contracts and will not be enforced by the

courts.”); Harris Ominsky,

Counseling the Client on “Gentleman’s Agreements,”

36 PRAC.

LAW 25 (1990); Bernstein & Zekoll,

supra

note 125

2022] WHEN BINDING ISN’T REALLY BINDING 1075

1075

obligation.

126

Unfortunately, this acknowledgement that the ED application

is merely an honor-bound agreement never finds its way into the college

marketing materials or ED application instructions.

127

Nonetheless, cracks

in the binding agreement façade are being slowly revealed through news

articles and academic volumes that are critical of the ED application:

If you do get accepted into a college you applied ED, you are

bound by an honor code to attend. Remember, you, your parents

and even your guidance counselor signed a contract that stated if

you were accepted into the college, you would enroll. However,

while you did sign an agreement, it is not legally binding, and

there will be no legal ramifications if you do reject the offer. The

college cannot force you to attend or hold you legally responsible

for the tuition and fees associated with attending.

128

Even leaders in college admissions and enrollment acknowledge the

ED application does not create a legally binding contractual relationship.

129

Dave Tobias, vice president of enrollment for Ursinus College in

Pennsylvania recognized that “[i]n some ways, early decision is a gentleman's

agreement . . . . ‘We don't have a lot of ability to do anything on our end to

the student.’”

130

Does this framing of the ED application as a moral or ethical obligation

help Thomas and Jake understand the limits of their respective autonomy

under an ED application? Probably not. Conflating a moral obligation with

a legal obligation does nothing to dispel the reality that until a companion

legal obligation exists, a court will not enforce a binding moral obligation.

131

Furthermore, Thomas and Jake only become aware of this interpretation of

the ED application after performing due diligence on the ED application

process. If Thomas and Jake had no reason to believe they would need to

investigate the true consequences of the ED application, it is unlikely they

will discover the truth about the binding nature of the ED application.

Thomas and Jake reasonably believe the college admissions officers and

high school counselors that “binding” means binding, and they are

126

See Early Decision & Early Action

supra

note 54;

see generally

David Mainero,

Breaking

an Early Decision Agreement: What Happens?

, INGENIUS PREP (Dec. 20, 2017),

https://ingeniusprep.com/blog/early-decision-agreement/ [https://perma.cc/JWL8-9BVB].

127

See

Kristen Moon,

Can Student’s Get Out of ED?,

FORBES (Dec. 14, 2018, 5:00 AM),

https://www.forbes.com/sites/kristenmoon/2018/12/14/can-students-get-out-of-

ed/?sh=1d07ffaf584d [https://perma.cc/GV8K-5YNE].

128

129

Dan Rosenheck,

Harvard May Ignore Early Decision

, HARV. CRIMSON (June 6, 2002),

https://www.thecrimson.com/article/2002/6/6/harvard-may-ignore-early-decision-as/

[https://perma.cc/VQ8M-GQPW];

see

Martinelli,

supra

note 102.

130

Pannoni,

supra

note 122.

131

Barnett,

supra,

note 124, at 296 (citing Dale Nance

, Legal Theory and the Pivotal Role of

the Concept of Coercion

, 57 U. COLO. L. REV. 1 (1985)).

1076 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1076

contractually bound under the ED application. Therefore, if Thomas and

Jake accept the premise that they will be entering into a legal relationship

with a college, relying on established legal principles and case law, can we

hypothesize how the ED application will fit into the contract formation

paradigm?

IV. H

ISTORY OF STUDENT-COLLEGE CONTRACT

A. In Loco Parentis

Courts have long recognized the existence of contractual relationships

between students and college institutions under the doctrine of

in loco

parentis

132

Gott v. Berea College

, the college amended its student manual

to prohibit students from patronizing forbidden locations, such as places of

ill repute, liquor saloons, gambling houses, and eating houses not controlled

by the college.

133

Gott, the owner of a nearby restaurant, suffered economic

losses when students refrained from patronizing it upon pain of expulsion

from the college.

134

Gott sought an injunction against the school’s

enforcement of the new rule.

135

In affirming the lower court’s decision for

Berea College, the court noted that “[c]ollege authorities stand

in loco

parentis

concerning the physical and moral welfare and mental training of

the pupils.”

136

Legally speaking, parents entrusted colleges with the welfare

132

In this context, the school acts

in loco parentis

(in the place of the parents). Gott v. Berea

Coll., 161 S.W. 204, 206 (Ky. 1913).

College authorities stand

in loco parentis

concerning the physical and moral

welfare and mental training of the pupils, and we are unable to see why, to that

end,

they

may not make any rule or regulation for the government or betterment

of their pupils that a parent could for the same purpose. Whether the rules or

regulations are wise or their aims worthy is a matter left solely to the discretion

of the authorities or parents, as the case may be, and, in the exercise of that

discretion, the courts are not disposed to interfere, unless the rules and aims are

unlawful or against public policy.

Id.

(emphasis added).

See

Brian Jackson,

The Lingering Legacy of

In Loco Parentis

: An

Historical Survey and Proposal for Reform

, 44 VAND. L. REV. 1135, 1136 (1991) (“College

authorities stood in the place of parents to the students entrusted to their care.”);

id.

at 1144

(“[I]n its early stages the

in loco parentis

doctrine was a delegation of authority designed for

the special circumstances of the tutor-pupil relationship.”); Michael P. Germano,

Student

Rights: The Contract of Enrollment

, 3 J. JUV. L. 62, 76 (1979) (“The teacher or school

official, under this doctrine, is able to exercise essentially the same authority over the child

as would the parent in similar circumstances.”).

133

Gott

, 161 S.W. at 205.

134

Id.

135

Id.

136

Id.

at 206 (emphasis added);

see

Theodore C. Stamatakos,

The Doctrine of

In Loco

2022] WHEN BINDING ISN’T REALLY BINDING 1077

1077

and education of their children and often entered into express agreements

memorializing such.

137

Many of these contracts between the parents and the

colleges manifested through the written enrollment agreements and were

treated as commercial or service agreements.

138

However, over the years the

proliferation of higher education institutions and evolving contractual

relationships have shifted the contractual relationship from parent-college

to student-college and brought into focus the possibility of implied student-

college contracts.

139

B. Express Versus Implied Student-College Contract

With the historical acknowledgment that students enrolled in college

programs have a contractual relationship, widespread use of express

contracts has waned in recent years.

140

Today, when courts have struggled to

identify an express student-college contract, they have implied one:

[s]ince a formal contract is rarely prepared, the general nature and

terms of the agreement are usually implied, with specific terms to

be found in the university bulletin and other publications; custom

and usages can also become specific terms by implication.

141

Anthony v. Syracuse University

, Beatrice Anthony sued Syracuse

University for improper dismissal.

142

During the course of Anthony’s tenure

at Syracuse University, she signed registration cards meant to “safeguard

those ideals of scholarship and that moral atmosphere” as an admitted

student, and Syracuse determined that she had not conducted herself as “a

typical Syracuse girl,”

143

resulting in her expulsion from the school. Anthony

sued seeking readmission, ultimately leading to the court’s determination

that while “the relation between plaintiff and defendant was wholly

contractual,”

144

the terms of their contract were that of an implied contract

Parentis

, Tort Liability and the Student-College Relationship

, 65 IND. L. J. 471, 473–74

(1990).

137

See

Stamatakos,

supra

note 139, at 471.

138

Germano

, supra

, note 135, at 79;

see

Anthony G. Covatta,

Colleges and Universities –

Contracts – Class Actions – A Medical School’s Failure to Evaluate Duly Filed Admission

Applications by the Criteria It Has Published Gives Rise to an Action for Breach of Contract

Maintainable as a Class Action

, 47 U. CIN. L. REV. 309, 311 (1978) (“Until the early 1900’s,

the student-college relationship, as colored by the

in loco parentis

doctrine, found expression

in a written contract between college and parent.”).

139

See

Jonathon Flagg Buchter,

Contract Law and the Student-University Relationship

, 48

ND. L. J. 253, 253 (1973).

140

Id.

141

Peretti v. Montana, 464 F. Supp. 784, 786 (D. Mont. 1979),

rev’d on other grounds

, 661

F.2d 756 (9th Cir. 1981).

142

Anthony v. Syracuse Univ., 224 A.D. 487, 489 (N.Y. App. Div. 1928).

143

Id.

at 488–89.

144

Id.

at 490.

1078 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1078

with conditions established relating to the student’s acceptance.

145

Courts

have since continued to rely upon the conduct of the parties and filled in

the terms of the student-college contract through various communications,

such as college catalogs,

146

bulletins, registration cards, admission

applications, dormitory contracts, and brochures.

147

In 1962, Howard Glenn Carr, a student at St. John’s University, a

Roman Catholic school, was married in a civil ceremony without

conforming to the rituals and requirements of a Catholic marriage.

148

Upon

the discovery of such, St. John’s University determined that Carr and his

witnesses had engaged in “seriously sinful”

149

behavior and were dismissed

from the school. The procedural basis for the dismissal was the breach of

the university bulletins that set forth “the right to dismiss a student at any

time on whatever grounds the University judges advisable.”

150

The court, in

determining that the bulletins formed a part of the agreement with the

students and that the school did not abuse its discretion, held that “[w]hen

a student is duly admitted by a private university . . . there is an implied

contract between the student and university that, if he complies with the

terms prescribed by the university, he will obtain the degree which he

sought.”

151

145

Id.

at 490–91.

146

See

Tex. Mil. Coll. v. Taylor, 275 S.W. 1089, 1091 (Tex. Civ. App. 1925) (“[A] catalogue

such as the one in the instant case of an educational institution, when properly circulated and

made known to patrons who enter their children under the terms thereof, will constitute a

binding written contract.”).

147

See

Brody v. Finch Univ. of Health Sci., 698 N.E.2d 257, 266 (Ill. App. Ct. 1998)

(“[D]ocuments distributed by a school are only a

part

of the contract between the student

and the school.” (citing Johnson v. Lincoln Christian Coll., 501 N.E.2d 1380, 1383 (Ill. App.

Ct. 1986)));

see also

Frederick v. Nw. Univ. Dental Sch., 617 N.E.2d 382, 387 (Ill. App. Ct.

1993) (“A college or university and its students have a contractual relationship, and the terms

of the contract are generally set forth in the school's catalogs and bulletins.”).

148

Carr v. St. John’s Univ., 17 A.D.2d 632, 633 (N.Y. App. Div. 1962),

aff’d

, 187 N.E.2d 18

(N.Y. 1962).

149

Id.

150

Id.

at 634.

151

Id.

at 633;

see

Booker v. Grand Rapids Med. Coll., 120 N.W. 589, 591 (Mich. 1909)

(“There is no good reason why the law should not recognize, as growing out of these relations,

a right of relators resting in contract.”).

Where a student is wrongfully expelled from a college which is maintained by a

private corporation of the first class that obtains all its funds from private

benefactions and charges made against those who attend its courses and receives

no pecuniary aid from the State or the public, and the relation between the

student and the college is solely contractual in character, the Court of Common

Pleas does not have jurisdiction to issue a writ of mandamus to compel her

reinstatement.

2022] WHEN BINDING ISN’T REALLY BINDING 1079

1079

In 1972, in

Zumbrun v. University of Southern California

, the court

reiterated that “[t]he basic legal relation between a student and a private

university or college is contractual in nature. The catalogues, bulletins,

circulars, and regulations of the institution made available to the matriculant

become a part of the contract.”

152

Courts have also considered a student’s

entrance onto campus, the receipt of acknowledgement of a tuition

payment, or enrollment as establishing the contract between the parties.

153

More recently, the court in

Guckenberger v. Boston University

revisited the student-college contract.

154

Prior to the 1995–1996 academic

year, Boston University established a program and series of procedures to

assist students with learning disabilities.

155

During the year, students who

previously qualified for accommodations under the program were notified

that new qualification requirements were established.

156

If the students did

not comply with the new regulations or were deemed unqualified under the

new requirements, no avenue of appeal was available.

157

Students who had

been denied accommodations under the new regime and who had been the

target of derogatory remarks by the president of the university sued on

various claims including breach of contract:

158

Plaintiffs allege[d] that BU “published and disseminated various

brochures, catalogues, and promotional materials” that described

accommodations that students with learning disabilities are

eligible to obtain . . . [and] that the promotional materials created

a contract between the students with learning disabilities and the

university, and that the university breached this agreement.

159

Barker v. Bryn Mawr Coll. Tr., 1 Pa. D. & C. 383, 396 (D. Pa. 1922);

see

Buchter,

supra

note 142 at 255–57 (“Courts still approach student-university implied contracts by using

essentially traditional, early twentieth century contract doctrines. Under such approach, there

is ‘the implication that the institution had obligated itself—subject, of course, to changes in

plan, curriculum, and the like—to permit a student in good standing to continue the particular

course for which he has entered upon payment of the necessary fees and compliance with

other reasonable requirements. . . . In general, if no specific contract document is signed at

the time of application, admission, or registration, entry of the student onto the university

campus, or into university life is regarded as the point of formation of the student-university

contract.’”) (quoting Samson v. Tr. of Columbia Univ., 167 N.Y.S. 202, 204 (N.Y. App. Div.

1917)) (internal citations omitted).

152

Zumbrun v. Univ. of S. Cal., 101 Cal. Rptr. 499, 504 (Cal. Ct. App. 1972);

see

Guckenberger v. Boston Univ., 957 F. Supp. 306, 317 (D. Mass. 1997) (“Brochures, policy

manuals, and other advertisements can form the basis of such contractual agreements.”).

153

Covatta,

supra,

note 141, at 311 n.11–17;

see

Buchter,

supra

note 142, at 257 and

accompanying text.

154

Guckenberger v. Boston Univ., 957 F. Supp. 306 (D. Mass. 1997).

155

Id.

at 311.

156

Id.

at 312.

157

Id.

158

Id.

at 311.

159

Id.

at 317.

1080 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1080

The court, in concluding that the plaintiffs’ allegations, if true,

supported a breach of contract claim, stated, “Brochures, policy manuals,

and other advertisements can form the basis of such contractual

agreements.”

160

Author Anthony G. Covatta opines as to whether the student-college

relationship should fit within contract law at all and concludes that a

bifurcation of the relationship may be made leaving only procedural actions

such as “admission, registration and clerical procedures, fashioning and

application of disciplinary rules, setting of tuition and fees, notice of change

of requirements, and living regulations”

161

to fall within contract law.

Acknowledging that students and colleges can and do form legally binding

contracts, we return to the issue of whether Thomas and Jake have entered

into binding contracts with their colleges through either the ED application

or the acceptance process. The significance of the recognition of exactly

when a contract is binding continues to propel exploration because it is the

moment in which Thomas, Jake, and their respective colleges are vested

with all the rights, obligations, defenses, and remedies available under

general contract law.

V. F

ORMATION OF THE ENROLLMENT CONTRACT

Moving away from the

in loco parentis

contract framework, the

student-college legal relationship has evolved to the point that it merits its

own terminology; “the ‘contract of enrollment,’ defines the basic

relationship between the educational institution and its students in terms of

respective rights and obligations.”

162

Recognizing a specific contract of

enrollment vehicle is a major step toward transparency and understanding

of the student-college relationship. By reverse engineering the contract of

enrollment, the moments of formation will reveal themselves and allow

Thomas and Jake to make informed decisions on whether to utilize the

binding ED application process.

160

Id.

161

Covatta,

supra

note 141, at 316.

162

Germano,

supra,

note 135, at 78.

2022] WHEN BINDING ISN’T REALLY BINDING 1081

1081

A. The College’s Application Form Is an Invitation to Offer, the

Student’s Application Is the Offer, and the College’s Admission Is the

Acceptance

Courts have held that college admissions brochures, bulletins, and

catalogs can form an implied student-college contract.

163

Is it possible,

though, that these materials can be construed as mere invitations to an offer

or solicitations for an offer of admission? If so, Thomas and Jake as would-

be offerors are making an offer to attend the college by way of submitting

an application based upon the college’s invitation to apply. The college’s

offer of admission will thus act as the acceptance of the offer that marks the

formation of their contractual relationship.

Tinkoff v. Northwestern University

, the court took up this issue in

its determination of whether Tinkoff had the right to contract with the

university.

164

Tinkoff Jr. was fourteen-years-old when he applied for

admission to Northwestern University and passed the required entrance

examination and satisfied the requirement of successfully completing thirty-

six high school credits.

165

Northwestern University denied him admission

based upon his age, and his subsequent attempts to be admitted to the

university were met with the same fate.

166

Tinkoff sued, seeking to compel

the university to admit him.

167

The university argued that its bulletin

regulating admissions “expressly stated it was not possible to admit all who

met the specific entrance requirements. For the years 1945–1946, the

bulletin in addition stated that the University reserved the right to reject any

application for any reason it considers adequate.”

168

The court stated that:

Plaintiffs complain Tinkoff, Jr. was denied the right to contract as

guaranteed by the Illinois and United States constitutions. We

need only say that he had no right to contract with the University.

His right to contract for and pursue an education is limited by the

right which the University has under its charter.

We see no merit

to plaintiff’s contention that the rules and regulations were an

offer of contract and his compliance therewith and acceptance

giving rise to a binding contract

The wording of the bulletin

required further action by the University in admitting Tinkoff, Jr.

before a contract between them would arise

169

163

See

Texas Mil. Coll. v. Taylor, 275 S.W. 1089, 1091 (Tex. App. 1925) (“[A] catalogue

such as the one in the instant case of an educational institution, when properly circulated and

made known to patrons who enter their children under the terms thereof, will constitute a

binding written contract.”).

164

People

ex rel.

Tinkoff v. Nw. Univ., 77 N.E.2d 345, 347 (Ill. App. Ct. 1947).

165

Id.

166

Id.

167

Id.

168

. at 349.

169

Id.

(emphasis added).

1082 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1082

This holding supports the argument that the admission criteria within

the series of bulletins cannot plausibly form a binding contract—it is not an

offer a student can accept. Lacking a qualification as an offer, the admission

criteria may be considered an invitation to an offer.

170

Johnson v. Lincoln Christian College

, Gregory Johnson was

enrolled in and largely completed a five-year academic program to prepare

him for a career teaching sacred music.

171

Upon an allegation that Johnson

was homosexual, Lincoln Christian College informed him that he would

only graduate if he attended counseling.

172

Johnson, afraid of not graduating,

agreed and shared confidential and intimate details of his life with the

designated counselor, believing they would be held in confidence.

173

The

information was shared with the college, which thereafter informed Johnson

he would be dismissed from the college; the reason of “homosexuality”

would be stamped across his transcript, and his mother would be notified

of his dismissal and the reasons therefore.

174

Johnson filed a breach of

contract cause of action against Lincoln Christian College, alleging that the

college breached “the terms of a college-student contract . . . implied by

law.”

175

In determining that Johnson’s complaint set forth a valid cause of

action for breach of contract, the court held:

The elements of a traditional contract are present in the implied

contract between a college and a student attending that college

and are readily discernible. The student's tender of an application

constitutes an offer to apply to the college. By “accepting” an

applicant to be a student at the college, the college accepts the

applicant's offer. Thereafter, the student pays tuition (which

obviously constitutes sufficient consideration), attends classes,

completes course work, and takes tests.

176

Based upon

Tinkoff

, college brochures and catalogs may easily be

considered invitations to offer. The

Johnson

court sets forth the clear

determination that the prospective student’s application for admission is an

170

RESTATEMENT (SECOND) OF CONTRACTS § 26;

see

Steinberg v. Chicago Med. Sch., 371

N.E.2d 634 (Ill. 1977); Lefkowitz v. Great Minneapolis Surplus Store, 251 Minn. 188, 86

N.W.2d 689 (1957).

171

Johnson v. Lincoln Christian Coll., 501 N.E.2d 1380, 1382 (Ill. App. Ct. 1986);

see

Twenty-Four Questions on Sacred Music

, CHURCH MUSIC ASS’N AMERICA,

https://musicasacra.com/about-cmaa/faq/ [https://perma.cc/VNK6-DFHJ]. “Sacred music”

is liturgical music that is created for the purpose of being used as part of a religious service

and is “‘a necessary and integral part of the solemn liturgy.’”

Id.

172

Johnson,

501 N.E.2d at 1382.

173

Id.

174

Id.

175

Id.

at 1383.

176

Id.

at 1384.

2022] WHEN BINDING ISN’T REALLY BINDING 1083

1083

offer that is capable of being accepted by the college by way of an offer for

admission.

177

Relying on

Tinkoff

and

Johnson

, Thomas’ and Jake’s ED

applications for admission may be qualified as offers for admission.

Colleges, by accepting and admitting Thomas and Jake, accept the offers

and form student-college enrollment contracts. If their applications were

offers, is it possible to discern whether an invitation to offer existed? Is it

possible to extend

Tinkoff

to include pre-printed forms provided by the

colleges within the definition of invitations to offers? If so, it cannot be

overlooked that Thomas and Jake did not create the offers they made to

their respective colleges. Their offers take the form of the pre-printed

applications provided by the colleges or private entities (e.g., Common

App). Thus, Thomas and Jake have not set the terms of their offers—they

simply submitted the standard applications, i.e., invitations to an offer,

provided by the colleges. The pre-printed forms include the stipulation that

the ED process is binding.

An offer requires that the offerors, like Thomas and Jake, intend to be

bound by the terms of their offer.

178

Can it be conclusively determined that

they intended to be bound to the terms of their offers if they did not know

they were in fact the offerors? With alternative application processes,

Thomas or Jake could have each chosen a different and non-binding

application process to follow. However, under the guidelines provided by

NACAC, individual colleges, and high school counselors, students like

Thomas and Jake are free to apply to other colleges through non-ED

processes contemporaneously with their ED applications to one school.

This is counterintuitive to the interpretation that Thomas and Jake are each

making a binding offer. If the ED application offer is binding, the students

should be foreclosed from making other applications until after a decision,

i.e., rejection, is made by the school that they applied to through the ED

application process. Furthermore, if the colleges have previously

acknowledged that the ED application is, in fact, not legally binding, is it

equitable to hold Thomas and Jake liable to the binding agreement when

the colleges never intended to be legally bound themselves?

If the term stipulating that the ED application process is binding is

found in the invitation to offer, subsequent offer, and eventual acceptance

or admission to the college, under this sequence of legal events, Thomas

and Jake are bound to the terms of the ED applications and must withdraw

their other applications upon acceptance. If Thomas and Jake fail to

withdraw their other applications, they have breached their agreements and

their respective colleges have the right to enforce the contracts and sue for

breach. To date, no college has brought suit against a student who was

accepted under the ED application process and failed to withdraw any

177

Id.

178

RESTATEMENT (SECOND) OF CONTRACTS § 24 (defining offer as “the manifestation of

willingness to enter into a bargain.”).

1084 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1084

outstanding applications. This marked lack of litigation cannot be ignored

and supports a strong inference that a prospective student’s offer to the

college by way of their ED application for admission does not lead to a

binding legal obligation.

B. The Student’s Application Is an Invitation to Offer, the College’s

Admission Is the Offer, and the Student’s Enrollment and Fee Deposit Is

the Acceptance

In 1892, plaintiff Niedermeyer, a student at the University of Missouri,

examined the catalog for the University of Missouri, which stipulated that

“[a]pplicants for admission to any of the classes of the law department . . .

are required to pay the sum of [$50] for the first year’s attendance and [$40]

for each successive year.”

179

The fee was subsequently increased to $50 in

his senior year, and when Niedermeyer attempted to pay the original $40,

he was informed his continued enrollment was predicated on the payment

of the new amount of $50.

180

Niedermeyer paid the amount and sued to

recover the excess $10.

181

In reaching its decision, the court first considered

whether the provisions of the school catalog constituted the entire

agreement between the parties.

182

The court determined that:

the catalogue of 1892 and 1893 was by its very terms, a public

offer to admit persons as students to any of the classes of the law

department of the University, on payment of the sum of $50 for

the first year and $40 for each successive year. The plaintiff’s

payment of $50 and receipt of his matriculation card for the years

1892 and 1893, constituted an implied acceptance and also notice

of such acceptance. The contractual relations created between the

parties thus became complete and binding.

183

According to

Niedermeyer

, a contract of enrollment is formed and

becomes binding when the school makes a proposition, i.e., an offer and

the student pays his tuition and fees.

184

Courts have consistently found the

act of payment of tuition upon acceptance of admission creates a binding

agreement.

185

“Commentators have defined formation as the point when the

student pays the first deposit after receiving an offer of admission, or

alternatively the point when the student arrives on campus . . . . Quite

179

Niedermeyer v. Curators of Univ. of Mo., 61 Mo. App. 654, 656 (1895).

180

Id.

at 656–57.

181

Id.

at 657.

182

Id.

183

Id.

(citing Society v. Broomfield, 1 N.E. 382 (Ind. 1885))

184

Id.

185

Germano,

supra

note 135, at

; see, e.g.

, Buchter,

supra,

note 142; Drucker v. N.Y. Univ.,

300 N.Y.S.2d 749, 750–51 (N.Y. App. Term 1969); Silver v. Queens Coll. of City Univ.,

311 N.Y.S.2d 313, 314 (N.Y. Civ. Ct. 1970).

2022] WHEN BINDING ISN’T REALLY BINDING 1085

1085

possibly, registration for classes constitutes the final acceptance.”

186

In 1902,

Goldstein v. New York University,

an expelled student brought suit

against the school to allow him to continue his educational studies.

187

determining whether Goldstein was entitled to an injunction preventing

university interference with his studies, the court recognized that students

and colleges enjoy a relationship, specifically,

[t]he relation existing between the university and student is

contractual. The plaintiff became a student in the defendant’s law

school through an invitation contained in a circular issued by the

authority of the university, in which it was stated that tuition would

be given to law students who were at least eighteen years of age

and of good moral character and who would pay to the university

the sum of $100 a year. He was accepted as a student.

188

. . .

[W]hen a student matriculates under such circumstances, it is a

contract between the college and himself.

189

While the

Goldstein

case reinforces the contractual nature of the

student-college relationship, the decision also serves as a reminder to both

parties that they should expect to be bound by the initial terms of their

agreement that were accepted by both parties.

Cazenovia College v. Patterson

, Patterson’s daughter was accepted

at Cazenovia College, and Patterson paid her tuition deposit to reserve a

place in the freshman class.

190

When Patterson’s daughter subsequently

failed to matriculate and Patterson made no further tuition payments, the

college then sued for the balance of Patterson’s tuition.

191

Cazenovia College

presented Patterson’s signed contract containing the terms of the parties’

relationship along with the enrollment deposit.

192

Patterson defended his

actions, questioning the existence of any contractual relationship.

193

The

court disposed of this argument, determining “[i]t was the College’s

‘acceptance’ of defendant daughter’s application for admission which

constituted the offer, so that defendant accepted the offer when he

186

Michael Zolandz,

Storming the Ivory Tower: Renewing the Breach of Contract Claim by

Students Against Universities,

69 GEO. WASH. L. REV. 91, 97 n.50 (2000) (citing David

Davenport

, The Catalog in the Courtroom: From Shield to Sword?

, 12 J.C. & U.L. 201, 210

(1985); Kevin P. Mcjessy,

Contract Law: The Proper Framework for Litigating Educational

Liability Claims

, 89 NW. U.L. REV. 1768, 1789–90 (1995)).

187

Goldstein v. N.Y. Univ., 76 A.D. 80 (N.Y. App. Div. 1902).

188

Id.

at 82–83.

189

Id.

(citing People

ex rel.

Cecil v. Bellevue Hosp. Med. Coll., 14 N.Y.S. 490 (N.Y. Gen.

Term 1891)).

190

Cazenovia Coll. v. Patterson, 360 N.Y.S.2d 84, 86 (N.Y. App. Div. 1974).

191

Id.

192

Id.

193

Id.

1086 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1086

subsequently signed it.”

194

The court does not expand on its contract

formation analysis, and we are left to decipher its matryoshka-like

conclusion: the admission application was an invitation to an offer made by

Patterson’s daughter, the prospective student, and Cazenovia College’s

acceptance of her application was an offer of admission, which was accepted

by Patterson by way of submitting the college contract and tuition deposit.

195

Applying the reasoning that Thomas’ and Jake’s ED applications are

invitations to offer and the colleges’ acceptances for admission were offers,

when and if Thomas and Jake matriculate, i.e., enroll and pay any tuition or

fees required, they have accepted the offers and formed binding contracts.

Under this interpretation of the formation sequence, the ED application

cannot be binding because it is not an offer. If the language of the college’s

acceptance for admission conditions such acceptance on the withdrawal of

the other applications, then Thomas and Jake have received conditional

offers. Based on an examination of sample admission acceptance letters,

they require an interpretative analysis before a conclusion may be made as

to whether they actually create conditional offers. Assuming the offers of

admission are not conditional, and the binding language appears in the ED

application, it does not become part of the actual student-college enrollment

contract and thus, cannot be enforced. It bears repeating that, to date, no

college has sued a student to enforce an ED application.

C. The College’s Early Decision Application Form Is the Offer and the

Student’s Submission of the Application Is the Acceptance

Accepting the premise that the college makes an offer of admission

that a student can accept by enrolling in the college, either a bilateral or

unilateral contract is formed. “Most schools, however, do not permit the

student to accept the offer of admission with a promise to pay tuition; the

student cannot register until tuition is paid. In this situation, the school’s

offer is an offer for a unilateral contract.”

196

Furthermore, logic and history

inform us that colleges do not accept all those who apply. If an application

is acceptance of an offer that results in a contractual relationship, then all

194

Id.

195

Id.

at 87.

196

Pettit,

supra

note 80, at 573.

It could be argued that a student’s letter to a school “accepting” the school’s

offer of admission and perhaps enclosing a small deposit should be enough to

prevent the school from revoking its offer. On the other hand, to conclude that

the student by these actions undertakes a legally enforceable obligation to pay

tuition seems inconsistent with the expectations of both parties in this era of

multiple applications for admission.

Id.

at 573 n.103.

2022] WHEN BINDING ISN’T REALLY BINDING 1087

1087

prospective student applicants must be admitted as students or the college

risks breaching its obligations. This is clearly an untenable conclusion that

is supported by courts’ recognition of the exercise of lawful discretion in

evaluating applications.

197

D. If Early Decision Forms a Binding Agreement, Are There Any

Affirmative Defenses Available to the Student Applicant?

Once a student-college enrollment contract has been formed, “[c]ourts

apply varying degrees of scrutiny to different categories of contract terms.”

198

Additionally, upon the formation of a contract, general contract affirmative

defenses

199

against enforceability, or arguments in the face of an

interpretation issue, are available to the contracting parties. If a contract of

enrollment is expressly created, the included terms will apply along with any

implied terms. Courts have found that the contract terms may be implied in

a contract based upon college catalogs, manuals,

200

and brochures.

201

implied contract of enrollment may also be based upon the actions of the

parties, i.e., the student’s presence on the college campus or payment and

acceptance of tuition. Acknowledging the conclusion that the student and

college have formed a contract, the implied obligation of good faith and fair

197

See

People

ex rel.

Tinkoff v. Nw. Univ., 77 N.E.2d 345, 349 (Ill. App. Ct. 1947) (“Courts

have refused to coerce private educational institutions in the exercise of lawful discretion.”).

198

Buchter,

supra

note 142, at 258. Furthermore, courts have recognized student

constitutional due process rights in relationships with public institutions while contract law

has been the leading legal mechanism that governs relations with private institutions.

See

Eileen K. Jennings,

Breach of Contract Suits by Students Against Postsecondary Education

Institutions: Can They Succeed

, 7 J.C. & U.L. 191, 199 (1980) (“Since

Dixon v. Alabama

State Board of Education,

students at public institutions have been assured substantial

procedural protection prior to a dismissal for misconduct. It is doubtful that a court will find

state action in a dismissal by a private college, however, and so students at those institutions

do not have constitutional protection. . . . private university students could be expected to

rely more heavily on contract doctrine to secure procedural rights to notice and hearing

before dismissal.”) (citations omitted).

199

See Anthony v. Syracuse Univ

231 N.Y.S. 435 (N.Y. App. Div. 1928), for a discussion

on the Infancy Doctrine; Steinberg v. Chi. Med. Sch., 371 N.E.2d 634, 638 (Ill. 1977), for a

discussion on fraud.

See

Buchter,

supra

note 142, at 265 (“[S]ince the institution maintains

exclusive control over the drafting of the contract terms, the logic applied to contracts of

adhesion could be employed.”).

200

Andre v. Pace Univ

, 655 N.Y.S.2d 777, 779 (N.Y. App. Term 1996) (“The rights and

obligations of the parties, as contained in the university’s bulletins and catalogs became a part

of the parties’ contract.”) (citing Vought v. Teachers Coll

, 511 N.Y.S.2d 880, 881 (N.Y. App.

Div. 1987); Prusack v. State of New York, 498 N.Y.S.2d 455, 456 (N.Y. App. Div. 1986);

Auser v. Cornell Univ

, 337 N.Y.S.2d 878 (N.Y. Sup. Ct. 1972); Silver v. Queens Coll

, 311

N.Y.S.2d 313 (N.Y. Civ. Ct. 1970));

see also

Holert v. Univ. of Chi., 751 F. Supp. 1294,

1300 (N.D. Ill. 1990) (“[T]he terms of [the relevant] contract are generally set forth in the

university’s catalogs and manuals.”) (citing Wilson v. Ill. Benedictine Coll., 445 N.E.2d 901,

906 (Ill. App. Ct. 1983); Eisele v. Ayers, 381 N.E.2d 21, 26 (Ill. App. Ct. 1978)).

201

Steinberg v. Chi. Med. Sch., 371 N.E.2d 634 (Ill. 1977).

1088 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1088

dealing also attaches.

202

Author Anthony G. Covatta raises an important distinction relating to

the contracting parties themselves by noting that young students often lack

sophistication and experience that is necessary when identifying legal

relations.

203

He [the student] may not realize that in applying for admission to

college he is entering a contractual relationship. Even if he

understands the consequences of his actions and has the foresight

to see that changes in the contract are desirable and bargaining

necessary, the process generally takes place under circumstances

in which he encounters no one who would have authority to

bargain with him. His options frequently limited by geographic

and financial considerations, he must “take it or leave it,” with the

college, his superior in knowledge and resources, often reserving

the right to change conditions without notice and even to insulate

itself from liability.

204

Covatta relies on the

Steinberg

court, arguing that it properly addressed

this inequitable relationship through the employment of the class action that

allowed “otherwise remediless” individual claims to be aggregated.

205

In the event that Thomas and Jake find themselves in the unenviable

position of having been sued for breach of a contract of enrollment due to

their failure to withdraw their other applications, they may avail themselves

of any defenses that arise by law, such as lack of capacity, fraud, or adhesion

contracts. However, taking into consideration the dearth of breach of

contract cases in ED applications, the success of any of these affirmative

defenses is largely academic.

VI. I

F NO BINDING CONTRACT EXISTS, ARE SCHOOLS ENFORCING

THE

EARLY DECISION APPLICATIONS ANYWAY?

202

DeMarco v. Univ. of Health Scis./Chi. Med. Sch

, 352 N.E.2d 356, 362 (Ill. App. Ct.

1976) (“[A] decision of the school authorities relating to academic qualifications of the

students will not be reviewed, but a plaintiff is not without a remedy when it is alleged that a

decision to dismiss a student, supposedly for academic deficiencies, was made arbitrarily and

capriciously and in bad faith.”);

see also

Raethz v. Aurora Univ

, 805 N.E.2d 696, 699 (Ill.

App. Ct. 2004) (“It is true that a college or university and its students have a contractual

relationship, and the terms of the contract are generally set forth in the school’s catalogs and

bulletins . . . Therefore, in the student-university context, a student may have a remedy for

breach of contract when it is alleged that an adverse academic decision has been made

concerning the student but

only

if that decision was made

arbitrarily, capriciously, or

in bad

faith.

”) (citing Frederick v. Nw. Univ. Dental Sch., 617 N.E.2d 382 (Ill. App. Ct. 1993)).

203

See

Covatta,

supra

note 141, at 314.

204

Id.

(citing Van Alstyne,

The Student as University Resident

, 45 DENV. U.L. REV. 582, 583–

84 n.1 (1968)).

205

Covatta,

supra

note 141, at 315.

2022] WHEN BINDING ISN’T REALLY BINDING 1089

1089

“A contract between a private institution and a student confers duties

upon both parties which cannot be arbitrarily disregarded and may be

judicially enforced.”

206

Assuming Thomas and Jake are legally bound

through the ED application process, if they are accepted, they must

withdraw their other outstanding applications according to the colleges. If

Thomas and Jake fail to do so, the colleges arguably have the right to seek

a remedy for breach. If we accept the assumption that the agreement is a

legal contract, then the colleges will surely want to sue Thomas and Jake for

breach of contract as a demonstration of their seriousness towards the

binding nature of the ED application. As repeatedly stated herein, research

reflects no case law where a college has chosen to sue an ED applicant for

breach of contract. In fact, colleges admit that they do not consider the ED

application a legally enforceable contract; rather, they frame it as an ethical

or moral contract.

207

Outside of a contractual relationship, colleges have no legal remedies

available against a student who fails to comply with an ethical ED agreement.

If colleges acknowledge that no legal agreement is formed with an ED

application, they cannot arguably have any expectation interest to protect in

the event of non-compliance or breach.

208

While the principles of equity

open the possibility of protection of reliance interests or restitution

interests,

209

colleges seem more focused on punishing or penalizing student

applicants who breach their honor-based ED agreements. As Martin Wilder

commented in 2002, a student’s ED commitment to a college is an “honor-

bound agreement” that “doesn’t have any legal standing.”

210

Jack Wang, an

expert in the related field of financing and payment strategies for college

tuition, has stated, “Filing early decision is more morally and ethically

binding than legally binding.”

211

The colleges, while lacking enforceable contractual rights, cannot risk

doing nothing. The colleges must attempt to enforce the ED application

agreements in some measure as a deterrent to future ED applicants. “Early

decision, after all, would have no effect if students who were admitted early

could costlessly renege on their commitments. Thus, the effectiveness of

ED as a means to soften competition for students depends on the threat of

mutual enforcement by adopting schools.”

212

“The early decision agreement

210

DeMarco

, 352 N.E.2d at 361–62 (citing People

ex rel.

Cecil v. Bellevue Hosp. Med. Coll.,

14 N.Y.S. 490 (N.Y. Gen. Term 1891); Balt. Univ. v. Colton, 57 A. 14 (Md. 1904); State

rel.

Nelson v. Lincoln Med. Coll., 116 N.W. 294 (Neb. 1908)).

207

See

Rosenheck,

supra

note 132; Pannoni,

supra

note 122; Martinelli,

supra

note 102.

208

See

RESTATEMENT (SECOND) OF CONTRACTS § 344 (AM. L. INST. 1981);

see also

L.L.

Fuller & William R. Perdue, Jr.,

The Reliance Interest in Contract Damages: 1

, 46 YALE L.J.

52, 54 (1936).

209

Fuller & Perdue,

supra

note 211, at 54.

210

Rosenheck,

supra

note 132.

211

Martinelli,

supra

note 102.

212

Antecol & Smith,

supra

note 14, at 224.

1090 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1090

is not legally binding and the school wouldn’t go after the student for tuition,

but there could be other consequences.”

213

Non-contract-based actions are

often taken by the colleges when the accepted ED student does not enroll.

Some colleges simply take the posture of a disappointed parent: “It's

just kind of an honor thing, you said you were going to do this. But no, we

are not chasing them down.”

214

Other consequences range from fairly benign

phone calls to determine why an accepted ED student has not enrolled to

phone calls to the student’s high school counselor or to other colleges that

have offered admission to the student.

215

Judith Dobai, the acting director of

admissions at Fairfield University, spoke at the May 2001 New England

Association for College Admissions Counseling meeting and “[e]xplained

that she phoned all Early Decision admits who did not submit a deposit by

the January 2001 deadline to remind them of their commitment to enroll.”

216

James Fallows, author of

The Early-Decision Racket

, opined about ED

decisions, “How is this enforced? Mainly through counselors, who know

when a student has been admitted ED and agree not to send official

transcripts to other schools.”

217

Some colleges share information with the goal of disqualifying the

student from attending another college. In 2016, “Katharine Fretwell, dean

of admission and financial aid at Amherst College, . . . [said] her school and

about [thirty] other colleges share lists of students admitted through early

decision.”

218

Andrew Belasco, Ph.D and chief executive officer of College

Transitions, also acknowledges that “there are groups of colleges that share

lists of early decision acceptances. ‘If a student backs out of an agreement

and attempts to apply to a college within this group, it is very unlikely that

213

Pannoni,

supra

note 122.

214

Id.

215

Moon,

supra

note 130 (“While it isn’t his intention to get every college to withdraw their

offers of admittance, he does want to make sure the student knows that Carleton College is

not happy. However, the bottom line is that an early decision offer is just a gentleman’s

agreement, and the college can’t force you to do anything. While it might seem far-fetched

that colleges will communicate with each other, it is a real possibility.”);

see

Pannoni,

supra

note 122 (“Occasionally, students back out of early decision agreements without a good

reason, says Richard Nesbitt, director of admission at Williams College in Massachusetts. ‘It

would be a big ethical issue’ . . . [i]f, for instance, they found out a student somehow had

applied to two different places early decision, or even another early action and the student

had broken the early decision agreement, Nesbitt says they'd call the other schools and the

student would risk losing both acceptances. . . . Katharine Fretwell . . . says she'd likely also

share the names of students who were admitted via early decision, but who are not attending

for financial aid and other reasons.”).

216

AVERY ET AL.,

supra

note 15, at 57. The authors also recount the experiences of students

who received angry phone calls from admissions offices when they failed to withdraw their

applications.

Id.

217

Fallows,

supra

note 14, at 3;

see

Pannoni,

supra

note 122 (“[H]igh school counselors may

stop sending transcripts, letters of recommendation and other necessary admissions materials

if a student has applied to a school via early decision until they know the outcome.”).

218

Pannoni,

supra

note 122.

2022] WHEN BINDING ISN’T REALLY BINDING 1091

1091

they will be admitted.’”

219

The authors of

The Early Decision Game

also reference the informal

historical enforcement method of sharing “lists of students admitted under

Early Decision with the understanding that once admitted to one college

they should not be considered subsequently for admission to other

colleges.”

220

The understanding between the schools is that the other schools

will withdraw those students accepted elsewhere from their applicant

pools.

221

“Even without legal ramifications, bowing out of an ED acceptance

can hurt [a student’s] chances of acceptance elsewhere.”

222

As such, colleges

that have extended admissions offers under ED only to discover the

prospective student applied ED to more than one school may even

withdraw their offers.

Michele Hernandez, a former assistant director of admissions at

Dartmouth and author of

A is for Admission

, explains that colleges do not

routinely share student information.

The only information that is shared among all highly selective

colleges is a list of those students accepted early decision or early

action, because of the commitment on the student’s part to honor

the agreement. When Dartmouth finishes its final decisions for

the early-decision applicants, it mails a list to the Ivies and several

other highly selective colleges . . . so that systems technicians can

run the names through the computer and check to see if anyone

who is already committed to attending Dartmouth has applied

early action or early decision somewhere else. Most of the other

colleges would do the same, thereby making sure that students

follow the rules.

223

Dartmouth is far from alone in this practice. As many as fifty colleges

engage in sharing ED information.

224

“Early Decision colleges practice this

form of reciprocity for self-protection.”

225

The authors of

The Early

Decision Game

even hypothesize that “[i]t is conceivable that courts would

find the sharing of lists of accepted ED applicants to be collusive and illegal.

There have been no court cases on this matter, and the legal scholars we

consulted disagreed about the legality of the practice.”

226

College Admissions Counselors justify these actions by creating false

equivalencies:

Marlyn McGrath Lewis, the director of Harvard’s admissions

219

Martinelli,

supra

note 102.

220

AVERY ET AL.,

supra

note 15, at 329 n.58.

221

See id.

222

Martinelli,

supra

note 102.

223

HERNÁNDEZ,

supra

note 38, at 230.

224

AVERY ET AL.,

supra

note 15

at 55.

225

Id.

226

Id.

at 335 n.27.

1092 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1092

office, explained,

If we admitted someone and then found out they murdered

someone, we probably would rethink that case as well. . . . It is

not proper for us to be enforcing or policing other institutions’

rules, but we are very concerned about the ethical behavior of

students who might be Harvard students.

227

The idea that a high school senior’s college decision-making process

should be compared to someone who committed the criminal act of murder

is patently problematic and farcical.

Both the NACAC and College Board recommend pressure

techniques on high school counselors under the guise of guidelines or

helpful resources.

228

The College Board further provides guidance for high

school counselors on topics such as “Application Ethics” and “Early

Decision & Early Action.”

229

The College Board “Application Ethics”

resources webpage states that counselors should advise and explain the

ethics of the college application process.

230

Generally, the counselors are

advised to inform students that “they can’t . . . [t]ell more than one college

that it’s their first choice,”

231

and counselors should:

Make sure [their] students understand what early decision and

early action programs are and what restrictions apply to any early

application program they intend to pursue. . . . Early decision

programs (and some types of early action programs) are

binding.

If a student applies to a college early decision, that student is

agreeing to attend if accepted.

232

Furthermore, the College Board cites specific NACAC guidance on its

website stating,

“Make sure your students know they can’t:”

• Apply to early decision programs at more than one

college. Many colleges now ask that counselors sign their

227

Dan Rosenheck,

Early Decision Policy Clarified

, HARV. CRIMSON (July 26, 2002),

https://www.thecrimson.com/article/2002/7/26/early-decision-policy-clarified-after-weeks/

[https://perma.cc/9A7W-7NRZ].

228

See

AVERY ET AL.,

supra

note 15

at 57–58 (providing that the NACAC thinks a parent

and a guidance counselor should be required to sign ED commitments along with students).

229

Application Ethics

, COLL. BOARD,

https://professionals.collegeboard.org/guidance/applications/ethics

[https://perma.cc/GV2M-6JXQ];

Early Decision & Early Action

supra

note 54.

230

Application Ethics

supra

note 232.

231

Id.

232

Id.

(emphasis in original).

2022] WHEN BINDING ISN’T REALLY BINDING 1093

1093

students' early decision applications, and NACAC's

guidelines bar members from signing more than one per

student per application season.

• Fail to withdraw their applications to other colleges after

they’ve been accepted to a college under a binding early

decision program. The only acceptable reason not to

withdraw other applications immediately is that the

student is waiting to hear about financial aid.

• Try to get out of the early decision contract because the

student’s mind has changed. The only acceptable

circumstance under which to break the contract,

according to NACAC, is the following: “Should a student

who applies for financial aid not be offered an award that

makes attendance possible, the student may decline the

offer of admission and be released from the Early

Decision commitment.”

233

Thus, College Board specifically refers to the ED process as a

“contract” that may not be broken, helping promulgate the understanding

that the ED application is legally binding.

Currently there is no uniform requirement for high school counselors

to sign a student’s application. A suggestion that both parents and guidance

counselors sign the student’s application was rejected at the May 2001 New

England Association for College Admissions Counseling meeting.

However, the NACAC has “adopted a new guideline for ED in 2001 that

included a ‘request’ for the counselor to sign each ED application to certify

that the student understands the nature of the Early Decision

commitment.”

234

VII. C

ONCLUSION

The college admissions process for students is complicated,

competitive, and fraught with contractual questions. Young people, like

Thomas and Jake, are expected to make life changing decisions based on

information provided by ostensibly trustworthy people: high school

guidance counselors and college admissions officers. Thomas and Jake

know that their chances of being accepted into a favored or top-tier college

improve if they apply through the ED application process. They have also

been inundated with the concept of a binding ED application throughout

the process. Thus, Thomas and Jake justifiably conclude that the ED

application process is high risk, high reward. They gain early entry into their

college of choice but at the cost of having to withdraw all other applications

233

Id.

(citing NACAC's

Statement of Principles

234

AVERY ET AL.,

supra

note 15

at 58.

1094 MITCHELL HAMLINE LAW REVIEW [Vol. 48:4

1094

to other colleges. Thomas and Jake are making their decisions based on a

false narrative—that the ED application is binding.

The ED application does not create a legally binding relationship. It is

merely one step of the contracting process that results in a contractual

relationship. A contract of enrollment will eventually result between

students and colleges. However, the ED application is either an invitation

to offer or an offer. The application, on its own, does not trigger any legal

rights or obligations.

Furthermore, colleges readily admit that any relationship created

through the ED application process is unlikely to be enforced by colleges.

Colleges understand the ED application is an honor-bound agreement

between the student applicant and the college. Nonetheless, colleges reserve

this interpretation with the complicity of admission counselors, high school

counselors, the NACAC, the College Board, and private college admissions

companies all while highlighting the binding nature of the ED application.

When students do not honor their ED application acceptances, colleges

resort to ostensibly penalizing admitted ED applicants in non-contractual

ways by relying on pressure tactics and collusive behavior.

The colleges know that these ED applications are not legally binding,

but the colleges must maintain that they are, so that the ED application

remains an effective and competitive admissions tool. The colleges see no

benefit in abiding by the many ethical obligations that they agree to through

associations, such as NACAC. The colleges see no hypocrisy or hubris in

failing to act ethically and transparently in disclosing their interpretation of

“binding” while holding students accountable to moral or ethical ED

agreements.

The colleges know that neither Thomas nor Jake created legally

binding obligations upon their ED applications. Thomas and Jake are not

equally informed. Lacking a clear understanding of the contractual process

underpinning the ED application leaves students like Thomas and Jake

without all the information necessary to arrive at a determination as to

whether the ED application process best suits their goals and whether they

have vested any legally enforceable rights or obligations. Thus, Thomas

ultimately makes his decision based upon the information he has available,

that the ED application is binding. He chooses not to risk being bound to

the college and he does not convert his RD application. Jake, who was

accepted under a binding ED application, decides that while he has second

thoughts about this school, he must withdraw his other applications because

he is bound to do so. Both Thomas and Jake may have followed other paths

and chosen other colleges had they known what “binding” really means.

Unfortunately, Thomas and Jake are only two examples of the many

students filing ED applications who have and will continue to face the same

dilemmas.