Sovereign Immunity After Galette v. New Jersey Transit Corporation: A Chance to Protect All Higher Education Students from Fraudulent, Unfair, and Deceptive Practices

In recent years, increasing financial pressures on colleges and universities have driven many institutions to focus heavily on strategies to increase institutional revenue. Although strategies vary, many institutions have undertaken partnerships with private companies. Some institutions have adopted recruitment and enrollment tactics traditionally associated with for profit colleges, while others have simply acquired for-profit colleges. The increased focus on revenue maximization by public and nonprofit institutions is not without risk to students. But in many places, the law creates a dichotomy: when students at public institutions fall victim to unfair or deceptive practices from those schools, they generally have fewer legal protections than their private school counterparts. The reason? Sovereign immunity. But the U.S. Supreme Court’s recent decision in Galette v. New Jersey Transit Corp. provides legislatures and advocates with an opportunity to address this public-private student-consumer inequality. This Essay examines why state consumer protection laws often provide the only legal remedy for students harmed by intentional misconduct, provides an overview of the pre-Galette landscape for higher education and sovereign immunity, reviews Galette and its implications, and identifies the critical components for a comprehensive legislative solution. The Essay closes with model statutory language to address the consumer protection issue.