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2.2.1 Overview. Of all the forums available for the resolution of higher education disputes (see Sections 1.1 and 2.3), administrators are usually most concerned about court litigation. There is good reason for the concern. Courts are the most public and thus most visible of the various dispute resolution forums. Courts are also the most formal, involving numerous technical matters that require extensive involvement of attorneys. In addition, courts may order the strongest and the widest range of remedies, including both compensatory and punitive money damages and both prohibitive and mandatory (affirmative) injunctive relief. Court decrees and opinions also have the highest level of authoritativeness; not only do a court's judgments and orders bind the parties for the future regarding the issues litigated, subject to enforcement through judicial contempt powers and other mechanisms, but a court's written opinions may also create precedents binding other litigants in future disputes as well (see Section 1.4.4).

For these reasons and others, court litigation is the costliest means of dispute resolution that institutions engage in—costly in time and emotional effort as well as in money—and the most risky. Thus, although lawsuits have become a regular occurrence in the lives of postsecondary institutions, involving a broad array of parties and situations (see Section 1.1), administrators should never trivialize the prospect of litigation. Involvement in a lawsuit is a serious and often complex business that can create internal campus friction, drain institutional resources, and affect an institution's public image, even if the institution eventually emerges as the “winner.”

Even a simple lawsuit can become complex and lengthy. It can involve extensive formal pretrial activities, such as depositions, interrogatories, subpoenas, pretrial conferences, and motion hearings, as well as various informal pretrial activities such as attorney-administrator conferences, witness interviews, document searches and document reviews, and negotiation sessions with opposing parties. If the case proceeds to trial, there are all the difficulties associated with presenting a case before a judge or jury: further preparatory meetings with the attorneys; preparation of trial exhibits; scheduling, travel, and preparation of witnesses; the actual trial time; and the possibility of appeals. In order for the institution to present its best case, administrators will need to be intimately involved with most stages of the process. Litigation is also monetarily expensive, since a large amount of employee time must be committed to it and various fees must be paid for outside attorneys, court reporters, perhaps expert witnesses, and so forth. Fortunately, lawsuits proceed to trial and judgment less often than most laypeople believe. The majority of disputes are resolved through settlement negotiations. Although administrators must also be involved in such negotiations, the process is less protracted, more informal, and more private than a trial.

Despite the potential costs and complexities, administrators should avoid overreacting to the threat of litigation and, instead, develop a balanced view of the litigation process. Lawsuits can usually be made manageable with careful litigation planning, resulting from good working relationships between the institution's lawyers and its administrators. Often lawsuits can be avoided entirely with careful preventive planning. And preventive planning, even when it does not deflect the lawsuit, will likely strengthen the institution's litigation position, narrow the range of viable issues in the case, and help ensure that the institution retains control of its institutional resources and maintains focus on its institutional mission. Particularly for administrators, sound understanding of the litigation process is prerequisite to both constructive litigation planning and constructive preventive planning.

2.2.2 Judicial (academic) deference. Another consideration that should play a role in the management of litigation, and in an institution's presentation of its case, is “judicial deference” or “academic deference.” At trial as well as on appeal, issues may arise concerning the extent to which the court should defer to, or give “deference” to, the institution whose decision or other action is at issue. As one commentator has explained:

[A] concept of academic deference justifies treating many university processes and decisions differently from off-campus matters. This formulation is hardly novel. In fact,…many university cases recognize in this way the distinctive nature of the academic environment. Illustrations come from many areas. [Examples] that seem especially apt [include] university based research, personnel decisions, admissions of students, evaluation of student performance, and use of university facilities [Robert O'Neil, “Academic Freedom and the Constitution,” 11 J. Coll. & Univ. Law 275, 283 (1984)].

This concept of academic deference is part of a more general concept of judicial deference that encompasses a variety of circumstances and reasons that indicate when a court should defer to the expertise of some decision maker other than itself.¹ Issues regarding academic deference can play a vital, sometimes even dispositive, role in litigation involving higher educational institutions. Institutions may therefore seek to claim deference at various points in the litigation process. (See generally O'Neil, supra, at 283–89.) Deference issues may arise, for example, with regard to whether a court should recognize an implied private cause of action (see, for example, Cannon v. University of Chicago, 441 U.S. 677, 709–10 (1979)); with regard to the issuance of subpoenas and other aspects of the discovery process (see, for example, University of Pennsylvania v. EEOC, 493 U.S. 182 (1990)); with regard to standards of review and burdens of proof; and with regard to the remedies to be imposed against a losing defendant (see, for example, Kunda v. Muhlenberg College, 621 F.2d 532, 547–51 (3d Cir. 1980)), discussed in Section 5.4.2). Sometimes requests for deference are framed as claims to institutional autonomy; sometimes as “institutional academic freedom” claims (see Section 6.1.7) or faculty academic freedom claims (see Section 6.2); and sometimes as “relative institutional competence” claims, asserting that the institution's or the faculty's competence concerning the matter at issue overshadows that of the court. Sometimes institutions may contend that their claim to deference is constitutionally based—especially when they rely on the academic freedom rationale for deference and seek to ground academic freedom in the First Amendment. At other times, in statutory cases, the deference claim may be based on statutory interpretation; in effect, the institution contends that, under the statute that is at issue, Congress was deferential to higher educational institutions and intended that courts should be deferential as well. And in yet other situations, especially in common law contract or tort cases, the deference claim may be based on public policy or legal policy considerations—for instance, that any court intervention would unduly interfere with the institution's internal affairs, or that vigorous enforcement of legal principles against higher education institutions would not be an effective use of the court's limited resources (see, for example, the discussions of deference in Sections 6.1.3 and 8.1 of this book).

When plaintiffs assert constitutional claims against an institution of higher education, deference issues may work out differently than when statutory claims are asserted. In a statutory case—for example, a case asserting that an institution has violated a federal civil rights law—the court will first be concerned with interpreting and applying the law consistent with Congress's intentions and in this regard will generally defer to Congress's own judgments about the law's application (see, for example, Eldred v. Ashcroft, 537 U.S. 186 (2003)). Thus the court will take its cue on deference from Congress rather than developing its own independent judgment on the matter. In Cannon v. University of Chicago, 441 U.S. 677 (1979), for example, the plaintiff sought to subject admissions decisions to the nondiscrimination requirements of Title IX of the Education Amendments of 1972. The defendant argued that it would be “unwise to subject admissions decisions of universities to judicial scrutiny at the behest of disappointed applicants” because “this kind of litigation is burdensome and inevitably will have an adverse effect on the independence of members of university committees.” Responding, the Court asserted that “[t]his argument is not new to this litigation. It was forcefully advanced in both 1964 and 1972 by congressional opponents of Title VI and Title IX, and squarely rejected by the congressional majorities that passed the two statutes.” The Court followed suit, rejecting the defendant's claim to deference. In other cases, involving other statutes, however, courts may discern that Congress intended to be deferential to postsecondary institutions in some circumstances and that courts should do the same.

In contrast, when plaintiffs assert constitutional claims and institutions ask the court for deference, the court is on its own; its response is shaped by consideration of applicable prior precedents and the applicable standard of judicial review. Grutter v. Bollinger, 539 U.S. 306 (2003), a constitutional challenge to the University of Michigan Law School's race-conscious admission policy, is a leading example of this type of case. The plaintiffs, rejected applicants, sought a rigorous, nondeferential application of the federal Constitution's equal protection clause; the university sought deference for the academic judgments it had made in designing and implementing its diversity plan for admissions. The Court applied strict scrutiny review, requiring the university to show that maintaining the diversity of its student body was a compelling state interest. In applying this standard, however, the Court emphasized:

The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer… Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions, within constitutionally prescribed limits [539 U.S. at 328].

This deference was a critical aspect of the Court's reasoning that led it, in a landmark decision, to uphold the law school's admissions policy. A more recent example of judicial deference occurs in Christian Legal Society v. Martinez, 561 U.S. 661(2010), discussed in Section 10.1.4 of this book. Both the majority opinion and Justice Stevens's concurrence note that judges should leave policy making to the educators.

In other constitutional cases, courts may reach the opposite result. In the Virginia Military Institute (VMI) case, United States v. Virginia, 518 U.S. 515 (1996) (discussed in Section 7.2.4.2), for instance, the U.S. Supreme Court bypassed the defendant institution's expert evidence and declined to defer to its judgment that maintaining VMI as an all-male institution was essential to the institution's educational mission. The Court's apparent reason for refusing to defer, and the apparent distinction between Grutter and United States v. Virginia, is that the Court did not view the state's judgments over the years about VMI's all-male character to be genuinely academic judgments but rather viewed them as judgments based on other factors and later dressed up with educational research for purposes of the litigation. The state's proffered educational reasons for the all-male policy were “rationalizations for actions in fact differently grounded,” said the Court, and were based on “overbroad generalizations” about the abilities and interests of the sexes.

The paradigmatic setting for institutions' invoking academic deference, and courts' granting it, is the setting of faculty tenure, promotion, and termination decisions. The deference issues arising in this setting and the key cases are discussed in Section 5.4.2, as is the evolving tendency of courts to subject these decisions to thorough scrutiny for fairness while deferring to the academic standards used to evaluate a candidate for promotion or tenure.

When faculty members challenge adverse personnel decisions, they may assert statutory claims (such as a Title VII sex discrimination claim), or constitutional claims (such as a First Amendment free speech or academic freedom claim), or sometimes common law claims (such as a breach of contract claim). In response, institutions typically argue that courts should not involve themselves in institutional personnel judgments concerning faculty members, since these are expert and evaluative (often subjective) academic judgments to which courts should defer.² Institutions have had considerable success with such arguments in this setting. They have also achieved similar success in cases concerning their academic evaluations of students; indeed, a student case, Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985) (discussed below), is one of the primary authorities on academic deference.

In a constitutional case, Feldman v. Ho, 171 F.3d 494 (7th Cir. 1999), for example, a professor claimed that Southern Illinois University did not renew his contract because he had accused a colleague of academic misconduct. The court rejected his First Amendment free speech claim by emphasizing the university's own academic freedom to make its own personnel decisions:

A university seeks to accumulate and disseminate knowledge; for a university to function well, it must be able to decide which members of its faculty are productive scholars and which are not (or, worse, are distracting those who are)…

If the University erred in telling [Professor] Feldman to seek employment elsewhere that is unfortunate, but the only way to preserve academic freedom is to keep claims of academic error out of the legal maw [171 F.3d at 495–97].

At the same time, the court in Feldman issued a strong statement on the need for courts to defer to the academic judgments of colleges and universities:

[A]n unsubstantiated charge of academic misconduct not only squanders the time of other faculty members (who must analyze the charge, or defend against it) but also reflects poorly on the judgment of the accuser. A university is entitled to decide for itself whether the charge is sound; transferring that decision to the jury in the name of the first amendment would undermine the university's mission—not only by committing an academic decision to amateurs (is a jury really the best institution to determine who should receive credit for a paper in mathematics?) but also by creating the possibility of substantial damages when jurors disagree with the faculty's resolution, a possibility that could discourage universities from acting to improve their faculty… If the kind of decision Southern Illinois University made about Feldman is mete for litigation, then we might as well commit all tenure decisions to juries, for all are equally based on speech [171 F.3d at 497].

Like the Feldman court, most contemporary courts will recognize that they should accord deference to the academic decisions of academic institutions with regard to faculty personnel matters. But seldom are courts as outspoken on this point as was the court in Feldman. Other courts, moreover, may (and should) give more attention than the Feldman court to whether the decision being challenged was a genuinely academic decision, based on expert review of professional qualifications and performance.

There are also many statutory employment discrimination cases in which courts defer substantially to the faculty personnel judgments of colleges and universities (see generally Section 5.4 of this book), sometimes with language as striking as that in the Feldman opinion (see, for example, Kyriakopoulos v. George Washington University, 657 F. Supp. 1525, 1529 (1987)). But this does not mean that courts will, or should, defer broadly in all or most cases challenging faculty personnel decisions. There have been and will continue to be cases where countervailing considerations counsel against deference—for example, cases where there is evidence that an institution has relied on race, ethnicity, or gender in making an adverse personnel judgment; or where an institution has relied on personal animosity or bias, internal politics, or other nonacademic factors; or where an institution has declined to afford the faculty member procedural safeguards; or where a decision for the plaintiff would not significantly intrude on university decision makers' ability to apply their expertise and discretion in making personnel decisions. The court in Kunda v. Muhlenberg College, above, strikes the right note about such situations:

The fact that the discrimination in this case took place in an academic rather than commercial setting does not permit the court to abdicate its responsibility… Congress did not intend that those institutions which employ persons who work primarily with their mental faculties should enjoy a different status under Title VII than those which employ persons who work primarily with their hands [621 F.2d at 550].

As the preceding discussion suggests, several interrelated factors are key in determining when a court should defer to the judgments of a postsecondary institution. First and foremost, the judgment must be a genuine academic judgment. In Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985), the Court stated this requirement well: “When judges are asked to review the substance of a genuinely academic decision…, they should show great respect for the faculty's professional judgment” (474 U.S. at 225 [emphasis added]). The demonstrated exercise of “professional judgment” is a hallmark of an academic decision. Generally, as Ewing indicates, such judgments must be made in large part by faculty members based on their expertise as scholars and teachers. Such judgments usually require “an expert evaluation of cumulative information” and, for that reason, are not readily amenable to being reviewed using “the procedural tools of judicial or administrative decisionmaking” (Board of Curators, University of Missouri v. Horowitz, 435 U.S. 78, 90 (1978)). Such judgments are also usually “discretionary” and “subjective,” and thus even less amenable to reasoned review on their merits by the courts.

A second key factor, related to the first, concerns relative institutional competence. Courts are more likely to defer when the judgment or decision being reviewed, even if not academic in character, involves considerations regarding which the postsecondary institution's competence is superior to that of the courts. The Kunda court, for instance, spoke of inquiries whose substance is “beyond the competence of individual judges” (621 F.2d at 548). Another court has advised that “courts must be ever-mindful of relative institutional competencies” (Powell v. Syracuse University, 580 F.2d 1150, 1153 (2d Cir. 1978)).

Third, courts are more likely to defer to the institution when a judicial decision against it would create undue burdens that would unduly interfere with its ability to perform its educational functions—or when similar judgments to follow, against other institutions, would subject them to similar burdens. The Kunda court (above), for instance, suggested that deference may be appropriate when a court decision would “necessarily intrude upon the nature of the educational process itself” (621 F.2d at 547). The U.S. Supreme Court in the Cannon case (above) suggested that deference may be appropriate if litigating issues of the type before the court would be “so costly or voluminous that…the academic community [would be] unduly burdened” (441 U.S. at 710). And the court in Feldman warned of judicial decisions that would interfere with the institution's ability to fulfill its educational mission.

And fourth, occasionally a court may assert that the plaintiff's claim is not significant enough to warrant judicial intervention. For example, a Georgia state appellate court ruled broadly that “disputes concerning academic decisions made by public institutions of learning present no justiciable controversy” and that a trial court's injunction requiring a university to reinstate a student was erroneously awarded. In Board of Regents of University System of Georgia v. Houston, 638 S.E.2d 750 (Ga. Ct. App. 2006), a student who was suspended for two semesters after he was arrested for attempting to arrange a marijuana sale sought a temporary restraining order to reinstate him at Georgia Institute of Technology (Georgia Tech) and on the football team. Despite the fact that the discipline was for social (and criminal) misconduct rather than for academic misconduct, the court, quoting earlier decisions by the Georgia Supreme Court, applied the academic abstention doctrine to the case. Said the court, “[a]bsent plain necessity impelled by a deprivation of major proportion, the hand of the judicial branch alike must be withheld,” citing McDaniel v. Thomas, 285 S.E.2d 156 (Ga. 1981). The court explained that the student had not raised an equal protection claim of disparate treatment in punishment and that “there is no right to participate in extracurricular sports, including football.” Therefore, the trial court lacked jurisdiction over the controversy.

By developing the converse of the reasons for according deference, one can discern various reasons why a court would or should not defer to a college or university. Again, there are three overlapping categories of reasons. First, if the judgment to be reviewed by the court is not a “genuinely academic decision,” courts are less likely to defer. As the Court in Ewing noted, if “the person or committee responsible did not actually exercise professional judgment” (474 U.S. at 225), there is little reason to defer. This is particularly so if the nonacademic reason for the decision may be an illegitimate reason, such as racial or gender bias (see Gray v. Board of Higher Education, 692 F.2d 901, 909 (2d Cir. 1982), and Williams v. Lindenwood, 288 F.3d 349, 356 (8th Cir. 2002)). Second, if the judgment being reviewed is a disciplinary rather than an academic judgment, the court's competence is relatively greater and the university's is relatively less; the factor of relative institutional competence may therefore become a wash or weigh more heavily in the court's (and thus the challenger's) favor. Similarly, when the challenge to the institution's decision concerns the procedures it used rather than the substance or merits of the decision itself, the court's competence is greater than the institution's, and there is usually little or no room for deference. The case of Board of Curators v. Horowitz, above, explores these two distinctions at length. Third, when reviewing and overturning an institutional decision would not intrude upon the institution's core functions, or would not likely burden other institutions with a flood of litigation, these reasons for deference diminish as well. The U.S. Supreme Court used this point in University of Pennsylvania v. EEOC, above, when it declined to defer to the university because upholding the plaintiff's request would have only an “extremely attenuated” effect on academic freedom. And fourth, if the plaintiff alleges significant constitutional deprivations, it is unlikely that the court will withhold review.

2.2.3 Managing litigation and the threat of litigation. Managing, settling, and conducting litigation, like planning to avoid it, requires at all stages the in-depth involvement of attorneys.³ Institutions should place heavy emphasis on this aspect of institutional operations. Both administrators and counsel should cultivate conditions in which they can work together as a team in a treatment law mode (see Section 2.1.7). The administrator's basic understanding of the tactical and technical matters concerning jurisdiction, procedure, evidence, and remedies, and counsel's mastery of these technicalities and the tactical options and difficulties they present, will greatly enhance the institution's capacity to engage in treatment law that successfully protects the institution's mission as well as its reputation and financial resources. Counsel's understanding of judicial deference (see Section 2.2.5 above) and its tactical role in litigation is also of critical importance.

Litigation management is a two-way street. It may be employed either in a defensive posture, when the institution or its employees are sued or threatened with suit, or in an offensive posture, when the institution seeks access to the courts as the best means of protecting its interests with respect to a particular dispute. Administrators, like counsel, will thus do well to consider treatment law from both perspectives and to view courts and litigation as offering, in some circumstances, a potential benefit, rather than only as presenting a hindrance.

Although administrators and counsel must accord great attention and energy to lawsuits when they arise and thus must emphasize the expert practice of treatment law, their primary and broader objective should be to avoid lawsuits or limit their scope whenever that can be accomplished consistently with the institutional mission. Once a lawsuit has been filed, administrators and counsel sometimes can achieve this objective by using summary judgment motions or (if the institution is a defendant) motions to dismiss, or by encouraging pretrial negotiation and settlement. Moreover, by agreement of the parties, the dispute may be diverted from the courts to a mediator or an arbitrator. Even better, administrators and counsel may be able to derail disputes from the litigation track before any suit is filed by providing for a suitable alternative mechanism for resolving the dispute. Mediation and arbitration are common and increasingly important examples of such alternative dispute resolution (ADR) mechanisms (see Section 2.3 below), which are usable whether the institution is a defendant or a plaintiff and whether the dispute is an internal campus dispute or an external dispute with a commercial vendor, construction contractor, or other outside entity. For internal campus disputes, internal grievance processes and hearing panels (see, for example, Section 10.1) are also important ADR mechanisms and may frequently constitute remedies that, under the “exhaustion of remedies” doctrine (see Section 2.2.2.4 above), disputants must utilize before resorting to court.

Even before disputes arise, administrators and counsel should be actively engaging in preventive law (Section 2.4.2) as the most comprehensive and forward-looking means of avoiding and limiting lawsuits. Preventive law also has a useful role to play in the wake of a lawsuit, especially a major one in which the institution is sued and loses. In such a circumstance, administrators may engage in a “post-litigation audit” of the institutional offices and functions involved in the lawsuit—using the audit as a lens through which to view institutional shortcomings of the type that led to the judgment against the institution and to rectify such shortcomings in a way that serves to avoid future lawsuits in that area of concern.