HUNTER, Robert C., Judge,
dissenting.
Because I believe the Student Bulletin created an enforceable contract and plaintiffs specifically pled a breach of that contract in their complaint, I conclude that the trial court erred in granting defendant’s motion for judgment on the pleadings. Therefore, I respectfully dissent.
Background
Plaintiffs Albert Samost (“Samost”) and Timothy Shaughnessy (“Shaughnessy”) (collectively “plaintiffs”) were seniors at Duke University (“defendant”) in the spring of 2011. They lived in off-campus housing. Although each plaintiff lived in his own house, their houses, along with three additional houses, all shared a one-acre backyard.
On 2 April 2011, plaintiffs hosted a party. At approximately 4:45 p.m., a neighbor requested plaintiffs turn the music down. Plaintiffs alleged they did, but the neighbor’s husband made a complaint to Dr. Phail Wynn, Duke University’s Vice President of Durham and Regional Affairs, reporting that the noise continued even though the music had been turned off. Defendant was also informed that plaintiffs hosted a similar party on 6 April 2011 that resulted in trash in their yard and on the street.
Based on these complaints, Duke University Assistant Dean of Students Christine Pesetski (“Assistant Dean Pesetski”) notified plaintiffs she would be “launching a formal inquiry into this matter in order to . determine whether to proceed with possible university disciplinary action.” The university policies at issue were disorderly conduct, guests, and “other - violating ordinances and/or laws.” For an explanation of Duke’s disciplinary system, including policies and procedures, Assistant Dean Pesetski pointed plaintiffs to the online publication “The Duke Community Standard in Practice: A Guide for Undergraduates” (the “Bulletin”).
The Bulletin is published each academic year and “expresses a standard for behavior — a set of expectations of students who claim membership in Duke’s learning community.” All incoming undergraduates, upon admittance, are required to sign a pledge to adhere to the values reflected in the Bulletin. Among other things, the Bulletin includes sections that describe undergraduate policies and the undergraduate disciplinary process.
On 8 April 2011, plaintiffs again hosted a party in their backyard. Two police officers responded and issued Shaughnessy a citation for a noise ordinance violation. Assistant Dean Pesetski notified plaintiffs that she knew about the 8 April 2011 party and citation. She requested plaintiffs meet with her immediately to discuss this issue. Plaintiffs’ allege that instead of meeting to discuss an informal resolution in lieu of a formal hearing, Assistant Dean Pesetski referred the matter for formal university hearings.
A disciplinary hearing was held on 4 May 2011 with a five-member Undergraduate Conduct Board panel (the “UCB panel”). After a two-hour long hearing, the UCB panel voted unanimously to hold plaintiffs responsible for violating Duke’s “Guest” rule and to hold Shaughnessy responsible for violating Duke’s “Other - Violating Ordinances and/or Laws” rule. The UCB panel suspended plaintiffs for two semesters and ordered them to perform 50 hours of community service.
On or about 11 May 2011, plaintiffs appealed the UCB panel’s decision. On 12 May, the Appellate Board vacated the UCB’s decision and remanded the matter for a new hearing. The Appellate Board agreed to allow plaintiffs to participate in the upcoming commencement exercises but informed them that they would not receive their diplomas until the disciplinary charges were resolved. Graduation ceremonies and the conferment of plaintiffs’ diplomas and degrees were scheduled to take place on 14 and 15 May, a Saturday and Sunday. After learning of the Appellate Board’s decision on 12 May, plaintiffs requested that the Chair of the Appellate Board reconsider its decision to remand the matter for a new hearing and its decision to withhold their diplomas.
By Friday afternoon, 13 May 2011, the Chair of the Appellate Board had not responded to plaintiffs’ request for reconsideration. However, plaintiffs were contacted to schedule their rehearing before the UCB panel. That same day, plaintiffs filed a complaint in Durham County Superior Court alleging a breach of contract claim and requesting both injunctive relief and damages. With regard to the injunctive relief, plaintiffs requested defendant be enjoined from “interfering with [plaintiffs’ participation in commencement and related events, such as receiving their diplomas or placing a hold on any request for the issuance of [plaintiffs’ transcripts” and subjecting them to further disciplinary proceedings. On that same day, plaintiffs filed a motion for a temporary restraining order and preliminary injunction (“TRO”). A hearing was held that same afternoon with regard to plaintiffs’ TRO. At the hearing, Duke agreed to allow plaintiffs to graduate and receive their diplomas. No TRO was filed.
Defendant sent plaintiffs letters dated 20 May 2011, after graduation exercises, informing them that defendant would not place any administrative holds on their transcripts and that their cases were considered “closed” and would not be referred to a new panel for reconsideration. It is not clear from the record whether plaintiffs were aware that their cases were “closed” or that there would be no administrative hold on their transcripts prior to the 20 May letter. On 12 August 2011, defendant filed an Answer reiterating that it would conduct no further disciplinary hearings and that the disciplinary action against plaintiffs was “close [d]. ” That same day, defendant filed a motion for judgment on the pleadings pursuant to Rule 12(c). The matter came on for hearing on 9 January 2012. The trial court granted defendant’s motion and dismissed plaintiffs’ complaint with prejudice on 12 January 2012. Plaintiffs appealed on 18 January 2012.
Arguments
Plaintiffs’ sole argument on appeal is that the trial court erred in granting defendant’s motion for judgment on the pleadings. Specifically, relying on Ryan v. University of N.C. Hosps., 128 N.C. App 300, 494 S.E.2d 789, disc. review improvidently allowed, 349 N.C. 349, 507 S.E.2d 39 (1998), and persuasive authority from other jurisdictions, plaintiffs contend that the relationship between a university and a student is contractual in nature. The Bulletin’s specific, express promises regarding the procedural guarantees governing disciplinary matters constitute the terms of their contract. By failing to comply with those promises, defendant breached its contract with plaintiffs. I agree with plaintiffs and recognize the relationship between plaintiffs and defendant as contractual in nature. Thus, the terms of that contract include the express, nonacademic promises defendant made in the Bulletin regarding the disciplinary process, specifically the “procedural rights” afforded to “accused students.” Accordingly, I believe plaintiffs’ complaint sufficiently pled facts to warrant further proceedings, and the trial court erred in granting defendant’s motion for judgment on the pleadings.
We review the trial court’s ruling on a motion for judgment on the pleadings de novo. Toomer v. Branch Banking & Trust Co., 171 N.C. App. 58, 66, 614 S.E.2d 328, 335 (2005). “The [motion’s] function is to dispose of baseless claims or defenses when the formal pleadings reveal their lack of merit. A motion for judgment on the pleadings is the proper procedure when all the material allegations of fact are admitted in the pleadings and only questions of law remain.” Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974). When determining whether to grant a motion for judgment on the pleadings, “[t]he trial court is required to view the facts and permissible inferences in the light most favorable to the nonmoving party.” Id. (internal citations omitted). “The elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of that contract.” Griffith v. Glen Wood Co., Inc., 184 N.C. App. 206, 210, 646 S.E.2d 550, 554 (2007).
The first issue the trial court was required to determine was whether the Bulletin constituted an enforceable contract. Although the majority assumes, without deciding, that the Bulletin created an enforceable contract, I must decide this issue since my ultimate conclusion requires a showing of both elements of a breach of contract claim — existence of a valid contract and breach. In support of their argument that the Bulletin’s terms were enforceable, plaintiffs rely on Ryan. In Ryan, 128 N.C. App. at 301, 494 S.E.2d at 790, the plaintiff was a medical resident who was matched as a resident with the defendant University of North Carolina Hospitals. The parties entered into a one-year written contract that was renewable for each of the three years of the residency. Id. During the second year of his residency, the plaintiff alleged that the defendant planned to terminate the residency. Id. Plaintiff filed an action against the defendant alleging breach of contract and various other claims. Id.
The trial court granted the defendant’s motion to dismiss on all claims. Id. Plaintiff appealed the dismissal of his breach of contract claim contending that he had an “employment contract whereby [he] worked for a ‘substandard wage’ in ‘partial consideration’ for a ‘training program in full compliance with the Accreditation Council for Graduate Medical Education Residency Review Committee.’ ” Id. This Court reversed noting that one of the plaintiff’s claims did not involve an “inquiry into the nuances of educational processes and theories”— specifically, plaintiff alleged that the defendant breached the “Essentials of Accredited Residencies” that required a one-month rotation in gynecology. Id. at 302-03, 494 S.E.2d at 791. Thus, the Court held that the plaintiff alleged facts sufficient to support his breach of contract claim based on the defendant’s failure to provide him a one-month rotation in gynecology. Id. at 303, 494 S.E.2d at 791. In support of its conclusion, the Ryan court cites Ross v. Creighton Univ., 957 F.2d 410, 417 (7th Cir. 1992), where the Seventh Circuit concluded that a student may allege a breach of contract claim against his university if he “point[s] to an identifiable contractual promise that [the University] failed to honor.” Id. at 302, 494 S.E.2d at 791.
Plaintiffs contend that the “identifiable contractual promise,” Ross, 957 F.2d at 417, defendant made was to adhere to the terms and conditions regarding disciplinary proceedings stated in the Bulletin. In contrast, defendant asserts that “Ryan does not hold that all educational handbooks are enforceable contracts.” Instead, defendant argues that this case is controlled by our caselaw holding that policies and procedures included in employment handbooks or manuals do not become enforceable unless they are expressly included in an employment contract. See Walker v. Westinghouse Elec. Corp., 77 N.C. App. 253, 259, 335 S.E.2d 79, 83-84 (1985) (noting that “employment manuals or policies do not become part of the employment contract unless expressly included in it”); Black v. Western Carolina Univ., 109 N.C. App. 209, 213-14, 426 S.E.2d 733, 736, writ denied, 334 N.C. 433, 433 S.E.2d 173 (1993) (holding that because “neither of the plaintiffs employment contracts expressly incorporated the provisions of the UNC Code[,]” the Code was not an enforceable contract). Thus, pursuant to defendant’s arguments, if the policies and promises in an educational handbook or manual are not specifically incorporated into a written contract between the student and the university, they are not enforceable.
In reviewing the relevant caselaw in our federal courts, the issue of whether a student handbook, which would include the Bulletin, can create a valid and enforceable contract is unsettled. For example, in Love v. Duke Univ., 776 F. Supp. 1070, 1075 (M.D.N.C.1991), affd, 959 F.2d 231 (4th Cir. 1992), the court held that the academic bulletin was not a binding contract between a student and the university. Similarly, in Guiliani v. Duke Univ., No. 1:08CV502, 2010 WL 1292321, *7-8 (M.D.N.C. 2010), the court dismissed the plaintiffs breach of contract claim where the student did not allege the existence of a contract that specifically incorporated the university’s handbooks and policy manuals into a contract.
However, in McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 983 (M.D.N.C. 2011), reversed in part, affirmed in part, and dismissed in part on other grounds in Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012), the court allowed the plaintiffs breach of contract claim to proceed with regard to his allegations that the defendant failed to follow promised disciplinary procedures outlined in the Student Bulletin and Student Code of Conduct. Citing Havlik v. Johnson & Wales Univ., 509 F.3d 25, 34-35 (1st Cir. 2007), the court held that
a breach of contract claim would not allow for review of the substance of the disciplinary proceedings, since that is a matter left to educational discretion, a breach of contract claim could potentially reach the limited inquiry of whether Duke failed to follow promised procedures for imposing discipline (particularly suspension) under the Code of Conduct.
McFadyen, 786 F. Supp. 2d at 983.
As in McFadyen, other federal courts have construed student handbooks and manuals as binding contracts. In Havlik, 509 F.3d at 34, the First Circuit noted that the relationship between a student and the university is contractual and the “relevant terms of the contractual relationship between a student and a university typically include language found in the university’s student handbook.” In Mangla v. Brown Univ., 135 F.3d 80, 83 (1st Cir. 1998), the court stated that “[t]he student-college relationship is essentially contractual in nature. The terms of the contract may include statements provided in student manuals and registration materials.”
In Ross, 957 F.2d at 416, the Seventh Circuit, in reviewing other states’ treatment of the relationship between a student and a private university or college, found that “ [i]t is held generally in the United States that the 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.” However, the Ross Court emphasized that not all breach of contract claims against a private university or college axe proper: “To state a claim for breach of contract, the plaintiff must do more than simply allege that the education was not good enough. Instead, he must point to an identifiable contractual promise that the defendant failed to honor.” Ross, 957 F.2d at 416-17.
I find the reasoning of McFayden and the Seventh and First Circuits persuasive and would adopt their reasoning. Accordingly, I conclude that the procedural rights afforded to students involved in the disciplinary process that are specifically stated in the Bulletin are judicially enforceable. Here, I believe that plaintiffs’ complaint sufficiently pled a breach of contract claim by asserting that defendant failed to comply with those procedural rights. Plaintiffs’ complaint did not challenge academic matters or attack the quality of their education, see Ross, 957 F.2d at 416; assert a breach of contract claim based on general policies contained in a student manual, see McFadyen, 86 F. Supp. 2d at 982-83; or challenge the substance of the procedural mechanism, see id. at 983. Plaintiffs’ complaint only alleged that defendant failed to abide by the specific promises set forth in the Bulletin regarding their procedural rights in the undergraduate disciplinary system. Accordingly, I believe plaintiffs’ breach of contract claim should be allowed to proceed with regard to defendant’s alleged failure to comply with promised rights in their disciplinary procedures.
I note that in their brief, defendant contends that even if the Court concludes that the Bulletin constitutes an enforceable contract, plaintiffs cannot prevail on their breach of contract claim because the complaint fails to show that defendant breached the contractual provisions of the Bulletin. However, I disagree. Here, plaintiffs have alleged facts that, when treated as true, support an inference that defendant violated specific provisions of its academic disciplinary procedure, as stated in the Bulletin. While I do not express an opinion as to whether plaintiffs would ultimately prevail in their claims, I do believe that this aspect of defendant’s argument is more appropriate in a summary judgment motion.
The majority holds that there has been no breach until defendant made a decision which was upheld in all stages of the review procedure. Thus, since the disciplinary process had not been completed on the date at which plaintiffs filed their complaint, there has been no breach. Therefore, plaintiffs are not entitled to seek an award of damages or other relief according to the majority. In other words, the majority holds that plaintiffs would not be entitled to seek an award of damages or other relief for breach of contract until the UCB panel reheard the case, made a decision, plaintiffs had a chance to appeal that decision, and the Appellate Board made a final decision.
However, I disagree with the majority’s conclusion that plaintiffs were required to wait to file their complaint until all disciplinary proceedings were completed for two primary reasons. First, the majority’s conclusion ignores the nature of one of plaintiffs’ requested forms of relief, injunctive relief. Plaintiffs requested the trial court enjoin defendant from interfering with their participation in graduation exercises, including receiving their diplomas or placing a hold on their academic transcripts. While the Appellate Board had agreed to let plaintiffs participate in commencement exercises, it had informed them that they would not receive their diplomas and their transcripts would be placed on hold. All of the disciplinary proceedings necessary to render a final decision would have occurred after graduation. Thus, since graduation activities were to occur that Saturday and Sunday, plaintiffs had to file for injunctive relief that Friday afternoon or else they would lose their opportunity to obtain this relief prior to graduation. Because plaintiffs’ request for damages also stemmed from the breach of contract claim, plaintiffs properly included their request for damages in their complaint.
Second, for all intents and purposes, defendant’s decision to not pursue further disciplinary action against plaintiffs constituted a final decision. In addition, this decision to “close” the proceedings was reflected in the parties’ pleadings. Defendant sent plaintiffs letters on 20 May specifically stating that it considered the disciplinary matters against them “closed” and informing them that it would not be referring their case to a new UCB panel. In its Answer, defendant noted this and attached a copy of the 20 May 2011 correspondence. At the hearing on defendant’s motion for judgment on the pleadings, defendant emphasized this point on at least two occasions. Thus, these statements were included in the parties’ pleadings and made known to the trial court at the time it ruled on the motion for judgment on the pleadings.
Based on these reasons, I respectfully disagree with the majority’s conclusion that granting defendant’s motion for judgment on the pleadings was proper because the disciplinary proceedings had not been “completed.” I believe that the majority’s holding, which concludes otherwise, would put plaintiffs in a position where they were unable to obtain appropriate relief from either defendant or the courts.
Conclusion
Because I believe that plaintiffs have successfully pled a breach of contract claim, I would hold that the trial court erred in granting defendant’s motion for judgment on the pleadings. Accordingly, I would reverse and remand the matter to the trial court for further proceedings.
. It is important to note that while students facing suspension or expulsion from public schools are entitled to procedural due process pursuant to the 14th Amendment to the United States Constitution, see Goss v. Lopez, 419 U.S. 565, 576, 42 L. Ed. 2d 725, 739 (1975), and Article I, Section 19 of the North Carolina Constitution, see Sneed v. Greensboro City Bd. of Ed., 299 N.C. 609, 618, 264 S.E.2d 106, 113 (1980), students at private universities and colleges are not afforded this same constitutional protection since there is no state action, see N.C. Nat. Bank v. Burnette, 297 N.C. 524, 535, 256 S.E.2d 388, 394 (1979) (noting that the constitutional due process protects individuals only where there has been state action).