Читать книгу The Law of Higher Education - William A. Kaplin - Страница 47

1 1 Another branch of judicial deference that is highly important to higher education arises when an institution, or an association of institutions, challenges a rule or decision of a federal or state administrative agency in court. Questions may then arise concerning the extent to which the court should defer to the expertise or authority of the administrative agency.

2 2 Some personnel disputes will have gone to arbitration before landing in court. When an institution prevails in arbitration and the faculty member then files suit in court, the institution has an additional argument for deference: that the court should accord deference not only to the institution's judgment but also to the arbitrator's decision. See, for example, Samoan v. Trustees of California State University and Colleges, 197 Cal. Rptr. 856 (Cal. 1983).

3 3 The suggestions in this section apply not only to litigation against the institution but also to suits against officers or employees of the institution when the institution is providing them, or considering providing them, with legal representation or related assistance. In suits in which both the institution and one or more named institutional officers or employees are defendants, questions may arise concerning possible conflicts of interest that could preclude the institution's legal staff from representing all or some of the officers or employees (see Section 2.4.3).

4 4 Information about ombudspersons may be found on the website of the International Ombudsman Association (www.ombudsassociation.org).

5 5 Steelworkers v. American Manufacturing Co., 363 U.S. 564 (1960); Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593 (1960); and Steelworkers v. Warrior and Gulf Navigation, 363 U.S. 574 (1960).

6 6 This section was revised and updated by Jonathan R. Alger, former senior vice president and general counsel at Rutgers University and currently president of James Madison University.