Law as a Method of Dispute Resolution in Academia
As we move further into the twenty-first century, law remains a potent force in institutions of higher learning in the United States (Alexander and Alexander, 2017); it is also becoming more pronounced at all other levels of education (Imber et al., 2014). Along with producing lawyers, our nation’s colleges and universities are increasingly producing work for lawyers (Gajda, 2010). Many disputes that develop on campuses in America are resolved outside the halls of academia. Students, faculty members, academic administrators, and their institutions have become litigants in growing numbers during the past few decades. For example, students have sued their institutions after being raped or sexually assaulted and after being sexually harassed (Mervosh, 2017). Less seriously, students have also sued their institutions over grades they did not like.
Faculty members have also sued their own institutions. The grounds for these lawsuits include denial of tenure and/or promotion, and allegedly unfair firings or other disciplinary actions after charges of plagiarism or sexual harassment. Faculty have also taken legal action alleging infringement on academic freedom and unfair labor practices by their administration (Nelson, 2010).
Because litigation involving colleges and universities involve several different types of parties, it is helpful to discuss campus lawsuits further in the context of three combinations of these parties’ relationships with each other: (1) faculty-administration; (2) student- faculty; and (3) student-administration.
Faculty-Administration Relationship The faculty-administration relationship in higher education features an increasingly complex web of legal principles and authorities. The essence of this relationship is contract law, but “that core is encircled by expanding layers of labor relations law, employment discrimination law, and, in public institutions, constitutional law and public employment statutes and regulations” (Kaplin and Lee, 2006:159). The growth in the number and variety of laws and regulations governing faculty-administration relations provides a fertile ground for grievances and coincides with an increase in the number of lawsuits stemming from that relationship.
Many legal disputes center on the meaning and interpretation of the faculty-institution contract. Depending on the institution, a contract may vary from a basic notice of appointment to a complex collective bargaining agreement negotiated under federal or state labor laws. In some instances, the formal document does not encompass all the terms of the contract, and other terms are included through “incorporation by reference”—that is, by referring to other documents, such as the faculty handbook, or even to past custom and usage at an institution. In the context of contract interpretation, legal disputes arise most often in the context of contract termination and due notice for such termination.
Many lawsuits instituted by faculty members against university administrations have focused on faculty-personnel decisions, such as appointment, retention, promotion, and tenure policies; monetary matters affecting women and people of color; and sex discrimination. As a result of civil rights legislation, hiring procedures must follow clearly established affirmative action guidelines. Many traditional practices of departments and universities are being questioned, such as the use of “the old boy network” and other selection processes not in compliance with these guidelines. Similarly, termination procedures must also follow specific guidelines and deadlines, and in recent years, faculty members have increasingly resorted to lawsuits on the grounds of procedural matters.