Читать книгу The Law of Higher Education - William A. Kaplin - Страница 45

2.3.1 Overview. The substantial cost of litigation, in terms of both time and money, and the law's limited capacity to fully resolve some types of disputes, have encouraged businesses, other organizations, and even courts to turn to alternative dispute resolution (ADR). ADR encompasses a variety of approaches to resolving disputes, from informal consultation with an ombudsperson who is vested with the authority to resolve some disputes and to seek resolution of others, to more formal processes such as grievance procedures, mediation, or arbitration. Commercial disputes and disputes in the financial services industry have been resolved through arbitration for decades. Academe has been slow to accept ADR, but it is becoming more common for certain kinds of disputes, and more institutions are turning to ADR in an attempt to reduce litigation costs and to resolve disputes, if possible, in a less adversarial manner.

Many employers embrace ADR because of its promise of quicker, less-expensive resolution of disputes, and this promise is often realized. Some for-profit colleges have also begun to include arbitration clauses in their enrollment agreements with students for the same reasons. Discovery is not used in mediation and is limited in arbitration as well. Arbitrators typically do not use judicial rules of evidence, may admit evidence that a court would not (such as hearsay evidence), and generally issue a ruling (called an “award”) a month or two after the hearing, unless they issue an oral award on the spot. The parties select the mediator or arbitrator jointly, rather than being assigned a judge, which may give them more confidence in the process. Indeed, the parties design the process in order to meet their needs and can change the process if it needs improvement.

ADR has some disadvantages, however. ADR is a private process, and there is typically no public record made of the outcome. This characteristic of ADR tends to benefit the college or university, which would prefer to avoid public inquiry into personnel or student academic performance decisions, and may make it difficult for an employee or student who must help to select a mediator or arbitrator to evaluate that individual's record or previous rulings. The lack of public accountability is viewed as problematic because many of these claims have a statutory basis, yet they are resolved without judicial or regulatory agency scrutiny. As discussed below, the decisions of arbitrators are difficult to appeal and are usually considered final. Furthermore, there may be a substantial difference in skill and knowledge between the employee or student who is challenging an institution's decision and the individual who is representing the institution before the mediator or arbitrator. Many ADR systems prohibit attorneys for either party, and even if attorneys are permitted, the employee or student may not be able to afford to retain one.

2.3.2 Types of ADR. ADR may use internal processes, external third parties, or both. Internal processes include grievance procedures, in which a student or employee may challenge a decision by invoking a right, usually created by the employee's contract, state law, or a student code of conduct, to have the decision reviewed by an individual or small group who were not involved in the challenged decision. Mediation and arbitration involve a third-party neutral, who may be a noninvolved student or employee, or a professional trained in dispute resolution. Some ADR processes use all of these mechanisms to resolve disputes.

Grievance procedures, particularly those included in collective bargaining agreements, may have multiple steps, and may culminate either in a final decision by a high-level administrator or a neutral individual who is not an employee of the institution. Depending upon the language of any contracts with employees or relevant state law, the fact finding of a grievance panel may be viewed by a reviewing court as binding on the institution and the grievant. For example, in Murphy v. Duquesne University of the Holy Ghost, 777 A.2d 418 (Pa. 2001), a tenure revocation case discussed in Section 5.7.3 of this book, the court ruled that a faculty panel's fact finding was binding on the plaintiff, who could not relitigate the issue of whether the institution had demonstrated that his misconduct satisfied the contractual grounds for termination. However, if a faculty grievance panel recommends a resolution to a dispute that involves compromise or other ADR mechanisms, a court may not allow the plaintiff to argue that this finding has preclusive effect in a breach of contract claim, as in Breiner-Sanders v. Georgetown University, 118 F. Supp. 2d 1 (D.D.C. 1999). In that case, the court ruled that the grievance panel had not applied contract law principles in its hearing of a faculty member's grievance and thus the panel's decision, which was favorable to the faculty member, did not have preclusive effect and did not support a motion for summary judgment on behalf of the faculty member.

The inclusion of a grievance procedure in a faculty or staff employee handbook may convince a court that a plaintiff who has not exhausted internal remedies may not pursue contractual remedies in court. For example, in Brennan v. King, 139 F.3d 258 (1st Cir. 1998), an assistant professor who was denied tenure by Northeastern University brought breach of contract and discrimination claims against the university. With respect to the professor's contract claims, the court ruled that Massachusetts law required him to exhaust his contractual remedies before bringing suit. However, the court allowed his discrimination claims to go forward because the faculty handbook did not provide a remedy for the denial of tenure.

Even if there is no formal grievance process, in situations where faculty are challenging negative employment decisions (such as discipline or termination), a panel of peers may be convened to consider whether there are sufficient grounds to support a challenged employment decision. The outcome of the peer panel's deliberations is usually considered a recommendation, which the administration may accept, modify, or reject. In addition, student judicial boards are a form of peer review of student charges of misconduct, although appeals are usually ultimately decided by a high-level administrator. Finally, ombudspersons, or neutral employees of the institution who have the responsibility to try to resolve disputes informally and confidentially, are appearing with more frequency on campus.⁴

ADR processes involving individuals external to the institution include mediation, in which a neutral third party is engaged to work with the parties to a dispute in an effort to resolve the conflict. The mediator may meet with the parties together to attempt to resolve the dispute or may meet with each party separately, hearing their concerns and helping to craft a resolution. The mediator has no authority to decide the outcome but may provide suggestions to the parties after listening to each party's concerns. All parties to the dispute must agree with the outcome in order for the process to be final.

In 2019, the Trump administration proposed new regulations enforcing Title IX's prohibition of sexual harassment in educational programs receiving federal funds (Title IX is discussed in Section 11.5.3 of this book). Although enforcement guidance from the Obama administration had discouraged the use of mediation in cases of sexual harassment and assault, the proposed regulations permit mediation if both parties agree. At the time this book went to press, final regulations had not been issued.

In addition to concerns about an alleged victim's right to pursue a more formal grievance process, mediation of harassment or assault claims may mean that no formal record is made of the harassment or assault claim or its resolution, which could pose a problem if the alleged victim subsequently filed a lawsuit against the college or university or its staff. The lack of a record could also be problematic if the alleged harasser is again accused by another complainant but the institution has no record of the earlier complaint or its resolution.

Another form of ADR, used frequently on campuses where employees are represented by unions, is arbitration. An arbitrator, a third-party neutral with experience in employment issues, is brought in to act as a “private judge.” The parties present their concerns to the arbitrator at a hearing at which the employer has the burden of proving that the termination or discipline was justified. Arbitration is also used to resolve disputes over the meaning of contract language; in that case, the party disputing the application of the contract language to a problem (usually, but not always, the union) has the burden of demonstrating that the contract has been breached. Under a trio of U.S. Supreme Court cases called the “Steelworkers Trilogy,”⁵ arbitration decisions are not reviewable by courts unless the arbitrator has exceeded the authority given to him or her by the contract, the arbitrator has engaged in misconduct, or the outcome of the arbitration violates some important principle of public policy.

ADR systems in collective bargaining agreements are subject to the negotiation process and typically state that all claims arising under the contract will be subject to a grievance procedure that culminates in arbitration. Arbitration may be advisory to the parties, or they may agree to be bound by the decision of the arbitrator (in which case the arbitration is called “binding arbitration”). At some colleges and universities, nonunionized employees may be asked to sign agreements to arbitrate all employment-related disputes, rather than filing lawsuits. These “mandatory arbitration agreements” have, for the most part, survived vigorous court challenges, particularly by plaintiffs attempting to litigate employment discrimination claims. The legal standards for enforcing an arbitration agreement when employment discrimination claims are brought by unionized employees are discussed in Section 4.3.3 of this book.

If the employees are not unionized, however, the standards for enforcing arbitration clauses are somewhat less strict. Beginning with a decision by the U.S. Supreme Court in Gilmer v. Interstate-Johnson Lane, 500 U.S. 20 (1991), courts have agreed to enforce arbitration clauses in individual employment contracts. Gilmer, a registered securities representative, had signed a contract that required him to submit all employment disputes to compulsory arbitration. When he challenged his discharge by filing an age discrimination claim, his employer filed a motion to compel arbitration, which the trial court upheld. The appellate court reversed, but the U.S. Supreme Court sided with the trial court, ruling that the language of the contract must be enforced.

In several cases decided after Gilmer, trial courts have enforced arbitration clauses in situations where plaintiffs have filed employment discrimination claims with an administrative agency or in court. The Supreme Court in Gilmer noted that the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) favors arbitration agreements and that they should be upheld whenever appropriate. Since Gilmer, most lower federal courts, as well as the U.S. Supreme Court, have upheld most arbitration agreements; these cases are discussed in Sections 4.3.6 and 4.5.5.

Courts typically use contract law principles to determine whether an employee's agreement to use arbitration rather than to litigate is binding. In Futrelle v. Duke University, 488 S.E.2d 635 (N.C. Ct. App. 1997), a state appellate court dismissed a medical librarian's breach of contract, wrongful discharge, and defamation claims because she had used Duke University's internal grievance procedure, which culminated in arbitration. The plaintiff had prevailed at arbitration and Duke gave her a check for the damages the university had been ordered to pay by the arbitrator. The court ruled that because the plaintiff had cashed the check, which was in satisfaction of the arbitration award, she was precluded from initiating litigation about the same issues that had been determined through arbitration.

2.3.3 Applications to colleges and universities. Litigation involving ADR in colleges and universities has focused primarily on what issues an arbitrator may decide and under what circumstances an arbitration award may be overturned by a court.

Because ADR mechanisms are created by the parties in contracts, an arbitrator's authority to resolve a particular issue and the authority to impose a sanction are creatures of the arbitration agreement. Although faculty at a number of unionized colleges and universities are covered by collective bargaining agreements that provide for arbitral review of most employment decisions, many agreements do not permit the arbitrator to grant or deny tenure, although they may allow the arbitrator to determine the procedural compliance or fairness of the tenure decision. In Board of Trustees of the California State University v. Public Employment Relations Board, 66 Cal. Rptr. 3d 389 (Cal. Ct. App., 2d Dist. 2007), the state's Public Employment Relations Board, interpreting the state's enabling legislation for collective bargaining at the state university system, had ruled that a collective bargaining agreement between the faculty union and the California State University system could not include a provision that limited the power of an arbitrator to reverse a campus president's decision on appointment, reappointment, tenure, or promotion. A state appellate court reversed the board's ruling, stating that the board had misinterpreted the statute, and allowed the limitation on the arbitrator's authority to stand.

If an agreement does not permit an arbitrator to substitute his or her judgment concerning the merits of a tenure decision, a court will overturn an award in which the arbitrator does his or her own review of the grievant's qualifications. For example, in California Faculty Association v. Superior Court of Santa Clara County, 75 Cal. Rptr. 2d 1 (Cal. Ct. App. 1998), a state appellate court affirmed a trial court's decision vacating an arbitration award and remanding the case for another hearing before a different arbitrator. The arbitrator whose decision was challenged had conducted his own review of the scholarly achievements of a grievant who had been denied tenure and had awarded her tenure. The trial court ruled that the arbitrator had exceeded his authority under the collective bargaining agreement, because the standard in the collective bargaining agreement for overturning a negative tenure decision required the arbitrator to find that the president could not have made a “reasoned judgment” in reaching the negative decision and that the arbitrator could state with certainty that the grievant would have been granted tenure otherwise. In this case, the grievant had not received positive recommendations at various stages of the tenure decision process, and the arbitrator based his decision on testimony from witnesses who supported the grievant's quest for tenure, rather than on a review of the record that the president had used to reach his decision. Finding that the arbitrator had substituted his judgment for the president's, the court affirmed the trial court's remedy. For a case with similar facts, see Nash v. Florida Atlantic University Board of Trustees, 213 So.3d 363 (Fla. Dist. Ct. App. 2017).

Whether or not the arbitrator's decision is binding on the parties is also a creature of the contract. Unless the contract explicitly states that the arbitration is binding, the arbitrator's award is not enforceable in court. For example, in Massachusetts Community College Council v. Massachusetts Board of Higher Education/Roxbury Community College, 991 N.E.2d 646 (Mass. 2013), a professor denied tenure at the community college grieved the decision, which then went before an arbitrator. The arbitrator ruled in favor of the faculty member and ordered the college to reinstate the professor and provide him with a second opportunity to be reviewed for tenure. The union filed a claim with a state trial court to confirm the arbitration award. Although the trial court confirmed the award, a state appellate court and the state supreme court disagreed. In reviewing the collective bargaining agreement, the Massachusetts Supreme Court refused to enforce the arbitration award, noting that the language of the collective bargaining agreement made it clear that, although the parties could arbitrate a tenure denial, the outcome of the arbitration was not binding.

Grievants challenging a tenure denial may attempt to state claims of procedural noncompliance that actually attack the substance of the tenure decision. For example, in AAUP, University of Toledo Chapter v. University of Toledo, 797 N.E.2d 583 (Oh. Ct. C.P. 2003), an assistant professor denied tenure challenged the negative decision as a procedural violation, stating that the determinations of the department chair and the dean that the professor had produced an insufficient number of publications violated the contract's procedural requirements. The arbitrator ruled that the agreement had not been violated and found for the university, and the plaintiff appealed the award to a state trial court. The court upheld the arbitrator's award, stating that the contract's procedural requirements afforded the chair and the dean the latitude to determine what weight to give a tenure candidate's publications compared with teaching and service, and that the arbitrator did not exceed his authority by interpreting the contract in the university's favor.

The decision of an institution to limit arbitration of employment decisions to only procedural issues rather than to the merits of the decision may persuade a court to allow a plaintiff to litigate the merits of the decision in court—at least when discrimination is alleged. In Brennan v. King, cited above, a faculty handbook provided for arbitration of procedural issues in tenure disputes but specifically provided that the arbitrator was without the power to grant or deny tenure. Because the arbitration procedure did not provide “a forum for the entire resolution” of the candidate's tenure dispute, said the court, the plaintiff did not have to exhaust his arbitral remedies prior to bringing a lawsuit alleging discrimination.

Although arbitration awards are usually final and binding (unless the agreement provides for some other arrangement, such as “advisory arbitration”), courts are reluctant to overturn an arbitrator's award because the parties to the agreement intended it to be final. Nevertheless, courts will overturn arbitration awards that go beyond the power of the arbitrator, that are viewed as harmful to public policy, or that are a result of arbitrator misconduct (such as a conflict of interest or dishonesty). Generally speaking, a court will examine whether the issues as defined by the parties and the arbitrator are within the terms of the agreement. Second, the authority for the arbitrator's award must be rationally derived from the agreement (State System of Higher Education v. State College and University Professional Association, 743 A.2d 405 (Pa. 1999)). (See Luzerne County Community College Association of Higher Education v. Luzerne County Community College, 916 A.2d 731 (Pa. Commw. Ct. 2007), upholding the arbitrator's award of promotion because the agreement included such authority; but see Massachusetts Board of Higher Education v. Massachusetts Teachers Association, 943 N.E.2d 485 (Mass. App. Ct. 2011), holding that an arbitrator had exceeded his authority by ordering a college to hire a grievant.)

If an arbitration award is challenged on public policy grounds, the party seeking to overturn the award must demonstrate that the award is contrary to law or some recognized source of public policy. For example, in Illinois Nurses Association v. Board of Trustees of the University of Illinois, 741 N.E.2d 1014 (Ill. App. Ct. 2000), a nurse had been fired for actions that endangered patient safety. An arbitrator reinstated her, ruling that the hospital had not proved one of the charges and that the nurse's long seniority and otherwise good work record mitigated the severity of her misconduct. The court refused to enforce the arbitrator's award, ruling that the nurse's actions had threatened patient safety and thus her reinstatement violated public policy with respect to patient care.

A Pennsylvania appeals court determined that an arbitration award reinstating a faculty member found responsible for engaging in sexual harassment of students violated public policy and thus refused to enforce it. In Slippery Rock University of Pennsylvania v. Association of Pennsylvania State College and University Faculty, 71 A.3d 353 (Pa. Commw. 2013), the university had terminated a tenured faculty member and department chair who had made allegedly inappropriate sexual comments to students while intoxicated on a field trip to Spain that he was leading. Although the arbitrator credited the professor's defense that his comments were “trash talk” and not sexually harassing, the court found that several of the arbitrator's findings were not rationally derived from the collective bargaining agreement, and also that, given the alleged conduct, which the professor admitted, and an earlier instance of sexual harassment by that individual, reinstating the professor violated public policy.

Also, the Supreme Court of New Hampshire vacated an arbitration award that would have reinstated a tenured professor who had lowered evaluations that students had given another instructor. In University System of New Hampshire Board of Trustees v. Dorfsman, 130 A.3d 1219 (N.H. 2015), the university had terminated the professor on the grounds of moral turpitude—one of the “just cause” reasons for termination in the collective bargaining agreement. Although the arbitrator found that the misconduct did constitute moral turpitude, he determined that the termination did not comport with the requirements of just cause and ordered the professor reinstated. The court ruled that the arbitrator acted beyond the scope of his authority; his finding that the professor's misconduct constituted moral turpitude required the arbitrator to uphold the termination.

Arbitration clauses are appearing in student enrollment agreements, particularly those used by for-profit proprietary schools. To date, most students who have signed such agreements, but who have then attempted to avoid arbitration and pursue class action claims for fraud, breach of contract, and other state law claims, have been unsuccessful. The decision of the U.S. Supreme Court in AT&T Mobility v. Concepcion, 563 U.S. 333 (2011), which ruled that arbitration clauses containing waivers of class action claims, both in court and in arbitration, were not preempted by the Federal Arbitration Act, is in large part responsible for this lack of success. For example, in Miller v. Corinthian Colleges, Inc., 769 F. Supp. 2d 1336 (D. Utah 2011), and Montgomery v. Corinthian Colleges, Inc., 2011 U.S. Dist. LEXIS 31651 (N.D. Ill. March 25, 2011), students who had enrolled at Everest College, owned by Corinthian Colleges, signed arbitration agreements that not only limited the students to arbitration in the event of a dispute but also included a waiver of their right to file class action lawsuits or demands for arbitration. The students later attempted to bring class action lawsuits against Corinthian under state consumer protection laws for allegedly deceptive practices and promises. In both cases, federal trial courts ruled that the arbitration clauses were valid and that the only remedy was individual arbitration. See also Bernal v. Burnett and Westwood College, 793 F. Supp. 2d 1280 (D. Colo. 2011) (same result).

Students in one case had some success escaping the arbitration clause they had signed. In Rude v. NUCO Education Corp., 2011 Ohio App. LEXIS 5605 (Ohio Ct. App. December 30, 2011), a state appellate court ruled that an arbitration clause in the enrollment agreement of a nursing school was both procedurally and substantively unconscionable as a contract of adhesion. But in Best v. Education Affiliates, Inc., 82 So.3d 143 (Fla. Dist. Ct. App. 2012), the court ruled that the arbitrator, not the court, must determine whether the enrollment agreement's arbitration clause was invalid because of its limits on remedies for students.

Faculty and administrators should carefully weigh the benefits and challenges of ADR systems when considering whether to implement such innovations as mediation, arbitration, or the creation of a campus ombudsperson. Although these systems are useful in channeling disputes away from the courts, they require extensive internal processes, additional staff, and careful adherence to procedural requirements in order to be effective.