Читать книгу The Law of Higher Education - William A. Kaplin - Страница 31

Law's presence on the campus and its impact on the daily affairs of postsecondary institutions are pervasive and inescapable. Litigation and government regulation expose colleges and universities to jury trials and large monetary damage awards, to court injunctions affecting institutions' internal affairs, to government agency compliance investigations, hearings, and fines, and even to criminal prosecutions against administrative officers, faculty members, and students.

Many factors have contributed over the years to the development of this legalistic and litigious environment. Students' and parents' expectations have increased, spurred in part by increases in tuition and fees and in part by society's consumer orientation and marketing efforts by colleges and universities to attract students. Higher education institutions have also served as epicenters of social and political division occurring in the larger society on a range of issues. The greater availability of data that measures and compares institutions, and greater political savvy among students and faculty, has led to more sophisticated demands on institutions.

In addition, advocacy groups have used litigation against institutions as the means to assert faculty and student claims—and applicant claims as well, in suits concerning affirmative action¹ in admissions and employment. Contemporary examples of such groups include the Foundation for Individual Rights in Education (FIRE) (https://www.thefire.org); Students for Academic Freedom (see Section 7.1.4); Young America's Foundation (https://www.yaf.org); the Center for Law and Religious Freedom (https://www.clsnet.org/center/about), a project of the Christian Legal Society; the Student Press Law Center (https://splc.org); and the Center for Individual Rights (https://www.cir-usa.org), which has been particularly active in the cases on affirmative action in admissions. More traditional examples of advocacy groups include the American Civil Liberties Union (ACLU) (https://www.aclu.org) and the NAACP Legal Defense and Educational Fund, Inc. (https://www.naacpldf.org). National higher education associations also sometimes become involved in advocacy (in court or in legislative forums) on behalf of their members. The American Council on Education (https://www.acenet.edu/Pages/default.aspx), whose members are institutions, is one example; the American Association of University Professors (AAUP), whose members are individual faculty members, is another example (https://www.aaup.org; see Section 6.1.3 of this book).

In this environment, law is an indispensable consideration, whether one is responding to campus disputes, planning to avoid future disputes, or crafting an institution's policies and priorities. Institutions have responded by expanding their legal staffs and outside counsel relationships and by increasing the numbers of administrators in legally sensitive positions. As this trend has continued, more and more questions of educational policy have become converted into legal questions as well (see Section 1.7). Law and litigation have extended into every corner of campus activity.²

There are many striking examples of cutting-edge (and sometimes just wrong-headed) cases that have attracted considerable attention in higher education circles or have had a substantial impact on higher education. Students have sued their institutions for damages after being accused of plagiarism or cheating or after being penalized for improper use of a campus computer network; controversies over campus free speech have resulted in legal challenges involving student speech rights; objecting students have sued over mandatory student fee allocations; victims of harassment have sued their institutions and professors alleged to be harassers; students found in violation of institutional sexual misconduct policies have alleged violations of their due process or contractual rights; student athletes have sought injunctions ordering their institutions or athletic conferences to grant or reinstate eligibility for intercollegiate sports; student athletes or former athletes have also sued to be compensated for their athletic participation or the use of their image in marketing and merchandising; students with disabilities have filed suits against their institutions or state rehabilitation agencies, seeking accommodations to support their education; students who have been victims of violence have sued their institutions for alleged failures of campus security; hazing victims have sued fraternities, fraternity members, and institutions; parents have sued administrators and institutions after students have committed suicide; and former students involved in bankruptcy proceedings have sought judicial discharge of student loan debts owed to institutions. Disappointed students have challenged their grades in court, such as the student who filed suit claiming that being required to type led to his receiving a lower grade because he typed more slowly than other students, or the student who fell asleep during an exam and claimed that she was unfairly penalized on the basis of a disability. A student who received an “A” grade in an online class claimed in a lawsuit that a professor's removal of a comment thread from a discussion board for being non-germane to class discussion harmed her chances for future employment at the institution. Students and others supporting animal rights have used lawsuits (and civil disobedience as well) to pressure research laboratories to reduce or eliminate the use of animals. And another student, injured in a Jell-O wrestling event at a college residence hall party that he himself had organized, attempted to pin liability on his university.

Faculty members have been similarly active. Professors have sought legal redress after their institutions changed the professors' laboratory or office space, their teaching assignments, or the size of their classes or after research data or curricular materials were discarded when a faculty member's office was relocated. A group of faculty challenged their institution's decision to terminate several women's studies courses, alleging sex discrimination and violation of free speech. Female coaches have sued over salaries and support for women's teams. Across the country, suits brought by faculty members who have been denied tenure—once one of the most closely guarded and sacrosanct of all institutional judgments—have become commonplace. Increasing reliance by institutions on non-tenure-track faculty has resulted in contingent faculty seeking to advance their economic and professional interests, including through litigation and administrative actions involving their collective bargaining rights under federal or state law.

Outside parties also have been increasingly involved in postsecondary education litigation. Athletic conferences have been named as defendants in student athlete cases. University academic and athletic foundations have been the subject of lawsuits, including by donors or their families dissatisfied with the use of gifts. Universities have sued sporting goods companies for trademark infringement because they allegedly appropriated university insignia and emblems for use on their products. Broadcasting companies and athletic conferences have been in litigation over rights to control television broadcasts of intercollegiate athletic contests, and athletic conferences have been in disputes concerning teams leaving one conference to join another. Media organizations have brought suits and other complaints under laws requiring open meetings and public records. Separate entities created by or affiliated with institutions have been involved in litigation with the institutions. Drug companies have sued and been sued in disputes over human subjects research and patent rights to discoveries. And increasingly, other commercial and industrial entities of various types have engaged in litigation with institutions regarding purchases, sales, and research ventures. Community groups, environmental organizations, taxpayers, and other outsiders have also gotten into the act, suing institutions for a wide variety of reasons, from curriculum to land use. Recipients of university services have also resorted to the courts. For example, clients of a university's Center for Reproductive Health sued the university when the center gave fertilized embryos to unrelated couples without the consent of the parents of the embryos; another institution was sued for alleged mishandling of the cremated remains of a cadaver donated to the university's research program.

Other societal developments have led to new types of lawsuits and new issues for legal planning. And, of course, myriad government agencies at federal, state, and local levels have frequently been involved in civil suits as well as criminal prosecutions concerning higher education. Drug abuse problems have spawned legal issues, especially those concerning mandatory drug testing of employees or student athletes and compliance with “drug-free campus” laws. A technical college sought unsuccessfully to engage in mandatory, suspicionless drug testing of all its students before the policy was struck down by a federal appeals court. Federal government regulation of internet communications has led to new questions about liability for the spread of computer viruses, copyright infringement, transmission of sexually explicit materials, and defamation by cyberspeech. The rise of Massive Open Online Courses (MOOCS) and similar variations have sparked questions over student privacy and the use of Big Data in higher education. Outbreaks of racial, anti-Semitic, anti-Arab, homophobic, and political and ideological tensions on campuses have led to speech codes, academic bills of rights, and the eruption of a range of issues concerning student and faculty academic freedom. Initiatives to strengthen women's teams, prompted by alleged sex-based inequities in intercollegiate athletics, have led to suits by male athletes and coaches whose teams have been eliminated or downsized. Sexual harassment concerns have grown to include student peer harassment and harassment based on sexual orientation, as well as date rape and sexual assault. Hazing, alcohol use, and behavioral problems, implicating fraternities and men's athletic teams especially, continue as major issues.

The development of more relationships between research universities and private industry has led to more legal issues concerning technology transfer. Heightened sensitivities to alleged sexual harassment and political bias in academia have prompted disputes between faculty and students over academic freedom, manifested especially in student complaints about faculty members' classroom comments and course assignments. Recent disagreement in this area has included debates over the use of “trigger” warnings before the presentation of sensitive course materials. Increased attention to student learning disabilities and to psychological and emotional conditions that may interfere with learning has led to new types of disability discrimination claims and issues concerning the modification of academic standards or other accommodations. For instance, students have sued for the right to have emotional support animals in campus housing. Renewed attention to affirmative action policies for admissions and financial aid has resulted in lawsuits, state legislation, and state referenda and initiative drives among voters. Disputes persist on campus concerning the rights of lesbian, gay, bisexual, transgender, questioning, or queer (LGBTQ) individuals and student religious organizations that exclude these students from membership or leadership. Some advocates have contended that colleges and universities regularly discriminate against students and faculty who are politically and socially conservative. Controversy and legal conflict have also arisen over whether institutions should provide access to campus for speakers espousing views considered harmful or hateful to constituencies on campus and beyond.

As the number and variety of disputes have increased, the use of administrative agencies as alternative forums for airing disputes has grown alongside litigation in court. In some circumstances, especially at the federal level, the courts (and particularly the U.S. Supreme Court) have imposed various technical limitations on access to courts, redirecting complainants to administrative agencies as an alternative. Administrative agency regulations at federal, state, and local levels may now routinely be enforced through agency compliance proceedings and private complaints filed with administrative agencies. Thus, postsecondary institutions may find themselves before the federal Equal Employment Opportunity Commission or an analogous state agency; the National Labor Relations Board or a state's public employee relations board; the administrative law judges of the U.S. Department of Education or that Department's Office for Civil Rights (OCR); contract dispute boards of federal and state contracting agencies; state workers' compensation and unemployment insurance boards; state licensing boards; state civil service commissions; the boards or officers of federal, state, and local taxing authorities; local zoning boards; or mediators or arbitrators of various agencies at all levels of government.

Paralleling these administrative developments has been an increase in the internal forums created by postsecondary institutions for their own use in resolving disputes. Faculty and staff grievance committees, processes for appealing denials of promotion or tenure, student judiciaries, honor boards, and grade appeals panels are common examples. In recent years, mediation has assumed a major role in some of these processes. In an effort to address concerns over the handling of student sexual misconduct allegations, some institutions have altered their procedures, such as adopting a single investigator model in a place of a hearing panel. In addition to such internal forums, private organizations and associations involved in postsecondary governance have given increased attention to their own dispute resolution mechanisms. Thus, besides appearing before courts and administrative agencies, postsecondary institutions may become involved in grievance procedures of faculty and staff unions, hearings of accrediting agencies on the accreditation status of institutional programs, probation hearings of athletic conferences, and censure proceedings of the American Association of University Professors.

Of course, some counter-trends have emerged over time that have served to ameliorate the more negative aspects of the greater role of law and litigiousness in academia. The alternative dispute resolution (ADR) movement in society generally has led to the use of mediation and other constructive mechanisms for the internal resolution of campus disputes, such as restorative justice programs (see Section 2.3 of this book). Colleges and universities have increased their commitments to and capabilities for risk management and preventive legal planning. On a broader scale, not only institutions but also their officers have increasingly banded together in associations to maximize their influence on the development of legislation and agency regulations affecting postsecondary education. These associations also facilitate the sharing of strategies and resources for managing campus affairs in ways that minimize legal problems. Government agencies have developed processes for “notice” and “comment” prior to implementing regulations, for negotiated rule making, and for mediation of disputes. The trial courts have developed processes for pretrial mediation, and the appellate courts, including the U.S. Supreme Court, have developed a concept of “judicial deference” or “academic deference” that is used by both trial and appellate courts to limit judicial intrusion into the genuinely academic decisions of postsecondary institutions.

Administrators, counsel, public policy makers, and scholars have all reflected on the role of law on campus. While the influence of law is frequently criticized, this criticism is becoming more perceptive and more balanced. It is still often asserted that the law reaches too far and speaks too loudly. Especially because of the courts' and federal government's involvement, it is said that legal proceedings and compliance with legal requirements are too costly, not only in monetary terms but also in terms of the talents and energies expended; that they divert higher education from its primary mission of teaching and scholarship; and that they erode the integrity of campus decision making by bending it to real or perceived legal technicalities that are not always in the academic community's best interests. It is increasingly recognized, however, that such criticisms—although highlighting pressing issues for higher education's future—do not acknowledge all sides of these issues. We cannot evaluate the role of law on campus by looking only at dollars expended, hours of time logged, pages of compliance reports completed, or numbers of legal proceedings participated in. We must also consider a number of less-quantifiable questions: Are legal claims made against institutions, faculty, or staff usually frivolous or unimportant, or are they sometimes justified? Are institutions providing effective mechanisms for dealing with claims and complaints internally, thus helping themselves avoid any negative effects of outside legal proceedings? Are the courts and counsel for colleges and universities doing an adequate job of sorting out frivolous from justifiable claims and of developing means for summary disposition of frivolous claims and settlement of justifiable ones? Have administrators and counsel ensured that their legal houses are in order by engaging in effective preventive planning? Are courts being sensitive to the mission of higher education when they apply legal rules to campuses and when they devise remedies in suits lost by institutions? Do government regulations for higher education implement worthy policy goals, and are they adequately sensitive to the mission of higher education and to the level of governmental financial support that is provided to achieve desired aims? In situations where the message of the law has appeared to conflict with the best interests of academia, how has academia responded? Has the inclination been to kill the messenger or to develop more positive remedies—to hide behind rhetoric or to forthrightly document and defend the interests of higher education?

We still do not know all we should about these questions. But we know that they are clearly a critical counterpoint to questions about money, time, and energy expended. We must have insight into both sets of questions before we can fully judge law's impact on the campus—before we can know, in particular situations, whether law is more a beacon or a blanket of ground fog.