<p>First of all, you took my quote out of context. Read the preceding sentence. I was comparing the relative legal sufficiency and likelihood of an effective remedy between an action by the school based on a breach of an ED agreement versus an action by a student against a school for disclosing the ED dispute to a second school thereby resulting in a rescission of admission to the second school.</p>
<p>Second, you fail to distinguish between the legal sufficiency of a claim or cause of action and evidentiary issues associated with proving the claim and entitlement to a remedy. Obviously you must aduce the evidence necessary to meet the burden of proof. However, that is different than whether as a matter of law the school could state a claim for which relief could be granted as opposed to the student stating such a claim. If I were an attorney representing a student in this type of situation, I bet I could blow out the school's claim on a motion to dismiss and could survive a similar motion filed by the school against a claim asserted by the student.</p>
<p>That then would put the parties in the pretrial discovery phase of the litigation and if I've learned nothing else over the last 29 years it's that you never know what the evidence is really going to be until you go through the process. Often times you will be amazed at what comes out during discovery. And if the evidence supported the student's claim that school "A" torpedoed the student's acceptance to school "B", I think there is a likelihood that a case for liability could be made and perhaps even for compensatory and punitive damages. Even if not, as the case received publicity, can you imagine the PR hit school "A" would take if the facts, for example, were that the student pulled out of the ED acceptance because he couldn't afford the school with the level of financial aid that was offered and school "A", by shooting off its mouth, screwed the student out of attending a school he could afford?</p>
<p>And if you think that in terms of developing the "evidence" this is unrealistic, consider this. An employee terminates his employment with Employer "A" under unfavorable circumstances. He then applies for a job with Employer "B" (or better yet gets a job offer from Employer "B"). He then looses the job opportunity with Employer "B" (either his application is not acted on or the job offer is rescinded) and believes with good reason that Employers "A" and "B" were in communication and Employer "A" disclosed adverse information about the employee. Guess what happens. That's right, Employer "A" gets sued, has to spend a ton of time and money defending itself and with the right facts, under the law of many states, ends up with very real liability exposure. So how does the employee in this situation "prove" the existence of these private communications or get past the hurdle that there could be a dozen reasons that Employer "B" didn't hire the employee - you got it, effective pretrial discovery. Happens all the time. What makes you think it couldn't happen in the world of education?</p>
<p>Now, before anyone jumps all over this, keep in mind that I'm not talking about a situation where a student is being a "player" and acting unethically. If a student makes a commitment to ED, there should be a compelling and necessitous reason for backing out. By the same token, a school - including a h.s guidance counselor - better think twice before taking action, simply because the student has backed out of an ED acceptance, that will cause a student to loose an admissions opportunity from another school.</p>