'The Trials of Academe'

September 22, 2009

When in doubt, sue. That philosophy has become an expected part of American society and (to the frustration of many in higher education) academe as well. A new book -- The Trials of Academe: The New Era of Campus Litigation (Harvard University Press) -- combines humor and history to examine the impact (most of it negative) of academic disputes landing in court. Amy Gajda, the author, is assistant professor of journalism and law at the University of Illinois at Urbana-Champaign. She responded via e-mail to questions about her book.

Q: Your book notes that the traditional judicial deference toward academe has disappeared in all kinds of cases -- how did that deference disappear?

A: For most of American history, courts steered clear of academic lawsuits on the ground that judges lacked the expert judgment to second-guess administrators. The Civil Rights movement opened the door to broader court involvement, as courts desegregated campuses and Congress extended anti-discrimination statutes directly to colleges. Once courts got their feet wet, they realized that the academic waters weren't all that challenging to navigate after all and could benefit from a little outside channeling. More recently, trends making universities look more like businesses have fueled a further retreat of deference. Judges now ask why colleges should receive any sort of special treatment in court.

Q: Many academics who do sue say that the old system of deference ended up hiding a lot of old-boy-network discrimination. Is there an argument to be made that the courts used to be too deferential?

A: Absolutely. At one time, colleges were basically unaccountable in the courts. They ignored contracts, trampled speech rights, and dismissed students and faculty on whim or prejudice with basic impunity. No one should want to go back to those days. The trouble is that courts are now veering too far in the other direction -- charging into territory that directly impacts academic freedom without any real sensitivity to the damage they can do. The challenge is to strike the right balance, holding universities accountable under the law without simply substituting the judgment of judges for that of academics.

Q: Of the cases you discuss, do you have one or two favorites that show the damage done by so much litigation about academe?

A: Well, I hesitate to call these cases favorites, but there are a few that stand out. The spate of recent cases involving professors who have sued their students after locking horns in the classroom are extreme, but show what we've come to. And the reality is that the courts are becoming more receptive to these sorts of cases. A federal appeals court, for example, has upheld the right of students to sue their professors for negligence in handing back exams. But the most troubling line of cases for me involves defamation claims based on critical evaluations of scholarship. The willingness of courts to police and punish criticism in peer review threatens the backbone of the academic enterprise.

Q: Many college administrators these days complain that lawyers for their institutions have too much power. Do you think that's true, or a reasonable response to the trends you discuss?

A: I'd say that that's a very reasonable response, but then again I'm a lawyer, so I would say that. After reading hundreds of court decisions involving lawsuits by students, faculty, administrators, and alumni, it's hard not to be wary. University counsel have never been busier or more important, but there is a danger in letting lawyers call all the shots. The "safest" course from a litigation standpoint may not be the best for innovation, research, or teaching. In their effort to avoid the danger of having judges seize control of academic matters through litigation, colleges may risk effectively ceding the same sort of control to lawyers in the university counsel's office. College administrators and faculty generally need to be alert to the legal risks, while remaining true to their academic judgment.

Q: Can you summarize the steps you recommend to colleges to discourage litigation as a means of solving disputes?

A: The most important thing is for colleges to find a way of defusing academic disputes before they harden into a legal complaint. If colleges and universities took greater care to promote communication and a sense of community on campus, there would be fewer lawsuits. I base that on my own experience in law practice, when I came to recognize that many plaintiffs sued simply because they felt that their grievances hadn't been heard or taken seriously until they hired a lawyer. More colleges are now using ombudspersons and other forms of internal dispute resolution. There is no way to stop all litigation, and we wouldn't want to, but I believe that building community and encouraging real alternatives to litigation would help.

Q: Based on your research, what is your advice to a college or academic who ends up being sued?

A: Here, I'll punt in the same way I often do when students ask me for legal advice: Get a good lawyer!

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