Advisers are growing increasingly concerned over the recent Iowa Supreme Court holding in Sain v. Cedar Rapids Community School District. In its decision, the court argued that a student who felt that he had not been advised with due care and attention may pursue a tort claim against the adviser and the educational institution. The time for taking out advising malpractice insurance, however, may not be as close as some of us fear.

First, please bear in mind that I am not an attorney, nor have I played one on TV, so any questions and concerns you may have over this and other legal issues should be directed to the competent legal authorities on your campus. It may not be a bad idea to arrange some type of in-service with your university counsel about this and other issues. My own interest in legal issues in higher education began over the confusing and competing interpretations I was encountering, even within my own college, concerning FERPA. So after some research into higher education law, I offer these observations on the Sain case.

Sain brought a tort claim for negligence against his high school counselor and the school district over some alleged bad advice that subsequently led to the denial of an NCAA-sanctioned college scholarship. Sain believed that Bowen, the counselor, had a duty to provide accurate and timely information but breached that duty. The lower court followed the traditional judicial unwillingness to become involved in cases that appear to border on educational malpractice and dismissed the case. Sain appealed to the Iowa Supreme Court, and that court reversed the lower court's decision and remanded the case for trial.

So, for the advising community outside of Iowa, relax, at least for the time being. The holding is from an Iowa court and has bearing only upon lower courts in Iowa itself. The decision is not binding on any other states. Although it could be used to support the reasoning behind similar cases in different states, it is not precedent. And everyone has to remember that the decision is not for Sain's negligence case; it is, at the moment a controversial overturning of a lower court's decision to grant summary judgment, essentially a dismissal of the case, in favor of the school district. The case remains to be heard, and Sain will have to present a significant burden of proof to prevail, especially as some of the critical facts of the case are, apparently, in dispute. The facts behind this case should, however, serve as a warning about fact checking and correct note keeping; these could be critical for both Sain and Bowen.

It is, indeed, unusual for a tort claim of this nature to proceed to court. The Iowa Supreme Court's majority opinion recognizes the unusual nature of its decision in allowing such a tort to be heard over a problem arising from a student-school relationship. The two justices who dissented argue that the tradition of judicial noninterference in such issues should have been respected even in this case and that the lower court dismissal should have remained in force. By subverting tradition, the Iowa Supreme Court has reinterpreted the nature of the student-adviser relationship in order to allow the case to be heard, but one has to question whether it, or any court, would view the relationship between a college student and an academic adviser in a similar light. It is important to note that Sain was under the age of his majority, and the high school and its agent, the counselor, were acting under the doctrine of in loco parentis. No such doctrine exists at the higher education level, and students are expected to think and behave independently. And the courts do indeed view college students differently than high school students. College students are treated under the law as adults, hence FERPA. As adults, college students have more freedom and more responsibility. For example, the use of prayer at a college commencement ceremony is legal because the fact that the students are now adults creates the expectation that they will not be coerced into religious beliefs and are free not to attend the ceremony if they so wish. So the nature of the relationship between a college academic adviser and a college student is different from that of Bowen and Sain's professional relationship. A college student is an adult and should, therefore, be considered ultimately responsible for his/her course selections and academic progress. Most university publications come attached with a disclaimer concerning the fact that information is usually informational and not binding.

But what happens if in the course of advising a student an error is made and the student is denied a degree and subsequently sues you, your dean, your board of trustees, and your president? I think an argument can be made that if the adviser were performing his/her duties in “good faith,” then liability may not necessarily be an issue. It would be difficult to bring an action for negligence if an adviser had conducted him/herself and performed his/her duties responsibly and professionally. Also, there may even be a contract issue here as the student is expected to abide by the university's policies and procedures and should have checked the adviser's information against published sources and alerted the adviser or the department to the potential error. For example, an incorrect oral description of a program does not result in a contract between student and institution. In one case when a student brought suit against a college to abide by the program that was orally articulated to him, he lost the suit.

Courts have traditionally viewed involvement at any level in the educational mission of a higher education institution as anathema. Courts do not supervise the relationship between colleges and students, but such a hands-off doctrine is not found at the K-12 level. Remember, Sain v. Cedar Rapids Community School District is a high school case. This fact alone helps explain the Iowa Supreme Court's willingness to have the case heard. I doubt that the court would have had the same response to a student litigant at, say, Iowa State.

The few cases of higher education negligence that have been heard by courts usually revolve around issues of fraud and misrepresentation, not good-faith advising mistakes. If an advising error is found to be egregious, however, and the matter does go to court, then the adviser should still be protected by the institution in terms of representation of legal counsel. In addition, a student and his attorney are probably not going to go after the adviser, but the people with the resources: the board of trustees and the university president. In my own state of Illinois, most claims against individuals employed by a state institution who are being sued due to something that occurred in the course of their vocational responsibilities are usually heard in the state's court of claims, where liability is strictly limited. You may want to check with your university counsel to find out what your institution and state offer in terms of some form of legal protection for good-faith mistakes. One should note that it would be unusual for a case to reach such lofty heights. The mistake, if proven, usually becomes moot, and it is the remedy that is the real issue. As I'm sure most of us have experienced, mistakes can usually be ameliorated quickly and efficiently at the departmental or college level.

A case brought under a federal statute against an adviser at a state institution may, ironically, offer the adviser and the institution an extra level of protection in the form of qualified immunity for the state employee and sovereign immunity for the state. Recent U.S. Supreme Court decisions have found facets of trademark law, age discrimination and employment protection, and even the ADA to be unconstitutional as they illegally abrogate the state's Eleventh Amendment sovereign immunity. But most advisers, unless they are involved in the realm of employment issues, probably will not encounter federal statutes or the possibility of qualified immunity.

There is, I believe, a basic immunity involved that is intrinsic to the process of advising itself – the desire to help students develop and grow academically, vocationally, and socially. If we dedicate ourselves to this goal and complete our duties efficiently, effectively, and in good faith, we can avoid any potential litigation. If any case should, unfortunately, arise, the adviser should be protected because of his/her use of extensive notes and because of the very nature of the adviser-advisee relationship. If there are three things to take from the Sain lawsuit, they are these: first, to continue to complete your duties professionally and in good faith; second, to have a chat with your legal counsel; and third, I believe, not to worry.