Along with producing lawyers, our nation’s colleges are increasingly producing work for them. As courts get more involved in campus affairs, such judicial intervention poses a serious threat to academic freedom, argues Amy Gajda in her new book, The Trials of Academe: The New Era of Campus Litigation, scheduled for release by Harvard University Press in October.
Ms. Gajda, an assistant professor of journalism and law at the University of Illinois at Urbana-Champaign, discussed her views in an e-mail interview.
Q. How many lawsuits is a typical college involved in at this point, and have such lawsuits become more prevalent?
A. Well, as one example, the University of Nevada at Reno last summer reportedly was defending more than 30 pending lawsuits and had spent $1.7-million on outside counsel in just four cases. But that doesn’t really capture the scope of the problem. For one thing, it doesn’t count lawsuits between individual academics or students. And the problem is not just lawsuits, but also legal claims that are resolved short of litigation, and “defensive” positions taken by colleges or professors to avoid even the risk of litigation.
My book is necessarily more qualitative than quantitative because aggregate data are hard to come by, but nobody doubts that the number of lawsuits has spiked significantly in recent years. You know that the academic universe has changed when professors are warned not to forecast class coverage in a syllabus lest students sue for breach of contract if the professor doesn’t reach some promised material.
Q. Are some academic environments more litigious than others?
A. Most of the drivers of litigation these days are common to almost all colleges and universities. Students have successfully sued over gauzy promises made in campus literature, for example, or what might be called negligent exam administration, and those scenarios seem fairly universal. But there are surely some conditions—a breakdown in communication by academic leaders, a culture of distrust among colleagues, anxieties from the shift to nontenured faculty, and so on—that can make some departments or campuses more prone to legal claims.
Q. Your book says broader litigation came about as a result of civil-rights laws’ being applied to colleges. How so?
A. The civil-rights movement made it untenable to think of college campuses as operating outside the law, given the obvious importance of education to equal opportunity. The NAACP chose higher education, especially graduate school, for its first legal challenges to segregation. And Congress later specifically made faculty hiring and tenure decisions subject to employment-discrimination law. Once judges gained experience and confidence striking down segregation policies and reviewing tenure decisions, they became less wary of intervening in other academic decisions, far removed from the civil-rights context. There’s a lively debate, though, over how instrumental courts really were in advancing the civil-rights movement generally. In higher education, the fact is that many state-university leaders would have preferred to end segregation on their campuses but had their hands tied by legislators through state law.
Q. You argue that the Supreme Court’s embrace of the concept of “academic freedom” actually has led to more court oversight of higher-education institutions. Why is this?
A. The first cases invoked “academic freedom” to shield universities or academics from outside interference by legislators or prosecutors during the McCarthy era. But, before long, universities found that their First Amendment claims to “academic freedom” in setting campus policies were being answered by First Amendment claims to “academic freedom” by students or faculty who wished to flout those policies. Any time the Supreme Court embraces an ethereal concept like academic freedom, it leads lawyers and others to invite courts to define the boundaries.
Q. Is the increasing commercialization of higher education another key force driving judicial involvement?
A. Part of the rationale for the historic deference to academics was that they were thought to be motivated by something higher than mere political or commercial self-interest. As colleges and universities behave more and more like corporations—entering into joint ventures with industry, slickly marketing themselves to students, raising tuition to what the market will bear—many courts feel as though colleges and universities ought to be treated like corporations in court.
Q. You also blame the growing job insecurity of academics for fueling litigation. How so?
A. The shift toward nontenured faculty spurs litigation for at least a couple of reasons. First, it’s part of a major transition where the new norms and expectations are still being worked out. That kind of uncertainty can easily lead to disputes and litigation. Second, people are more likely to go to court when the stakes are higher. Because of the lack of job security, employment disputes now can more often involve termination rather than simply the denial of some job privilege.
Q. Is it fair to say that increasing judicial involvement in their affairs is something colleges have brought upon themselves?
A. At least in part, yes. First, to the extent that colleges and universities pushed the envelope of deference given to them by the courts—misusing academic autonomy to defend the shoddy treatment of faculty or students, for example—they made themselves vulnerable. Second, colleges and universities arguably opened the door by turning to the courts for legal protection against legislative interference and unruly students in the 1950s and 60s. And, finally, they are making themselves more vulnerable today by making themselves look more like ordinary commercial enterprises.
Q. Is there any way to put the genie of campus litigation back in the bottle?
A. Campus litigation is here to stay, but there are steps that can be taken to limit the volume and keep it constructive. I suggest in the book (some may say naïvely) that colleges and universities need to build a stronger sense of community on campus. By this I mean an inclusive, open, diverse community with open channels of communication and effective means of addressing disputes internally. If students, faculty, administrators, and staff are divided by a sense of detachment or mutual suspicion, we can expect to see more litigation. Offering alternatives through campus mediation, ombudspersons, and the like can help to defuse conflicts and keep them out of court. And I suggest building community also as a former corporate defense litigator who often heard in depositions that a simple “I’m sorry” could have avoided the underlying lawsuit.
