Other potentially conflict-laden situations in academia arise from student-faculty relations. Students are increasingly considering themselves buyers of education, treating education like other consumer items and expecting a proper return for their educational dollars (Johnson, 2003). Because students are purchasers of education, they expect “delivery” of a product. In this context, the question of academic malpractice becomes important. Academic malpractice is generally considered to be improper, injurious, or negligent instruction, and/or action that has a “negative effect” on the student’s academic standing, professional licensing, or employment (Vago, 1979:39). Many examples of possible academic malpractice exist. A faculty member may be charged with malpractice by a student who perceives a particular course as “worthless,” or by a student who contends that he or she did not obtain any “relevant” information or that for some reason a course did not fit into the student’s general educational outlook, requirement, or area of concentration. In such instances, individual professors are charged, and the object of the lawsuit is usually the recovery of tuition money, and occasionally an intent to seek punitive damages, because the legal doctrine of respondeat superior (that is, the sins of the employee are imputed to the employer) is usually invoked (Vago, 1979).
Disputes resulting from a failure of a student to pass an exam in a course may also culminate in attempts to involve the courts. In such a situation, a student may question the expertise and competency of professors to evaluate examinations, or a department may be accused of following improper procedures during examinations. Questions of expertise and competency usually arise in the area of alleged academic overspecialization. For example, instructors sometimes teach a course that is outside their area of expertise. If so, are they qualified to evaluate an exam in this course? Issues of improper procedures often arise in the context of due process involving the department’s or the university’s failure to list specific guidelines for examination procedures, or to live up to those guidelines, or to provide clearly written guidelines and appeal procedures.
However, judges are ordinarily restricted from overturning strictly academic decisions made by faculty members about a student’s academic career. According to a 1985 Supreme Court ruling, “When judges are asked to review the substance of a genuinely academic decision . . . they should show great respect for the faculty’s professional judgment,” and courts are not “suited to evaluate the substance of the multitude of academic decisions that are made daily by faculty members” (Palmer, 1985:33).
A student’s failure to pass a professional examination (for example, to become an attorney or a physician) is another ground for lawsuits. Here the charge is usually that a given department failed to properly prepare the student to successfully take an external examination, such as a bar examination, and thus provided a “defective product.” In a well- publicized case some years ago, a court ruled against a graduate of the Southern University Law School who claimed the university was responsible for his failure to pass—on three occasions—the state bar examination. The court held that it was against Louisiana law to sue a state agency and that the university is such an agency; the court also noted that a properly drafted contract suit may have stated a “remediable” course of action (Vago, 1979:41).
Student-Administration Relationship Student-administration relations provide a third area for potential conflict in academia. Students have increasingly brought legal challenges regarding such things as suspension and dismissal procedures, the rights of students to organize, alleged censorship activities over student publications, and sex.
Although institutions of higher learning have the right to dismiss, suspend, or otherwise sanction students for misconduct or academic deficiency, the exercise of this right must observe a body of procedural requirements. Under the due process clause, students are entitled to a hearing and notice before disciplinary action is taken. In general, several court rulings indicate a judicial trend toward increased protection of student rights, in both public and private institutions, in suspension and dismissal cases (Alexander and Alexander, 2017).
Student-administration disputes sometimes raise First Amendment rights. Under the First Amendment, students have a legal right to organize and use appropriate campus facilities.
In some instances, however, postsecondary institutions retain the authority to revoke or withhold recognition of student groups and to regulate the organizational use of campus facilities. When a mutually acceptable and satisfactory balance between the organization’s rights and the institution’s authority cannot be attained, the organizing students may turn to the courts to settle their dispute with the administration, as has been the case, for example, with various gay rights organizations at religious institutions.
First Amendment principles also apply to student publications. The chief concern here is censorship and administrative control over publications. Sometimes campus newspapers publish op-eds or other material that, for better or worse, offends the administration, many students, or other parties. In some situations, campus administrations have attempted to shut down a newspaper or otherwise to control its content.
Student lawsuits against university administrations on the basis of alleged sex discrimination, particularly in athletics, also occur. Although these lawsuits reflect the increasing cultural acceptance of women’s participation in intercollegiate athletics, they were made possible in the first place by the Title IX federal statute that prohibits sex discrimination in education (Brake, 2010). Title IX lawsuits have concerned such issues as funding disparities in men’s and women’s athletics; the use of university sports facilities and locker rooms; scheduling games and practice time; the provision of equipment and supplies; travel and per diem allowances; publicity; and the provision of coaches, housing, and dining facilities.
The growing use of lawsuits as a method of conflict resolution in academia has had important implications for contemporary higher education. The economic cost of these lawsuits can be considerable. In addition, colleges and universities have had to hire more on-staff lawyers to advise administrators, faculty, and other parties regarding liability issues. They have also needed to develop and maintain more effective ways of handling disputes that respect the principles of fairness and due process. Because there is certainly no evidence that the various disputes that occur at almost every institution of higher education will ever disappear, law and litigation will continue to be important features of the halls of academia.