ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Tuesday, January 22, 2008

Evaluations, Contracts and Ethics

I have written many an angry letter to Randy Cohen, author of a column called "The Ethicist" which appers in The New York Times' Sunday Magazine.  My letters are always about how law and ethics are not the same thing and how he fudges his analysis when he consults attorneys (as he frequently does) and, upon learning that the conduct in question is lawful, concludes that it is also ethical -- or at least not unethical.  Mr. Cohen has always been very patient with me, explaining that while legality is not proof of ethics, there is considerable overlap and so if conduct is lawful, that counts as some evidence that it is also ethical.  But we both know what is really going on here.  I'm really just pissed off that he never asks my advice.

But this time, I'm going to criticize Mr. Cohen for not considering a legal angle.  In his most recent column, which you can listen to here and read here, a reader reports that a university had employed a handwriting expert in order to determine which student was responsible for breaking the university's code of conduct by making derogatory comments about an instructor's sexual orientation in the student's supposedly anonymous evaluation of the instructor's course.  Mr. Cohen answered that the university's response would do far more harm than the student had caused with his or her homophobic slurs.  He recommends that the university clarify that it will only protect the anonymity of students who comment on what he called a professor's "work," by which I assume he means classroom teaching.  Seems like a tough line to draw. 

My question though goes to the most basic of all contracts issues.  When the university says that it has a policy of protecting the anonymity of evaluators, is that an enforceable promise?  I think it ought to be, and my reasons for thinking so are basically ethical.  The breach gives rise to no cognizable damages as far as I can tell, but I think a court could enjoin the university from disciplining a student whose anonymity it has promised to protect.

[Jeremy Telman]

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