The Trials of Academe: The New Era of Campus Litigation
Academic freedom is not a licence for sloppy or unprofessional behaviour, says David Palfreyman
The theme of this lively and readable book is that campus litigation is on the increase - and the threat of litigation is all-pervasive as, seemingly, everybody sues at the drop of a writ. Amy Gajda attributes this depressing state of affairs to a combination of factors: academics themselves being part of a more litigious society; more consumerist-minded students; and courts that are being less deferential about questioning what goes on in the groves of academe.
Gajda works through the drivers of increased litigation: the use of anti-discrimination laws by employees and students, battles over campus free speech and academic freedom, disputes over the ownership of intellectual property, the application of data protection and privacy legislation, academics resorting to defamation law, negligence claims arising from injuries on campus and from incidents during study abroad, and alleged breaches of the contract to educate.
My concern with the line that all this poses "a substantial threat" to the very essence of academic self-governance is that it may well cloak an expectation that academics need not ever be accountable to anyone for anything. Gajda comes close to this when declaring that "the courts' willingness to subject academia's judgments to searching review is cause for concern". That said, she does recognise later that many universities have become mere teaching machines, using cheap casual labour, and that, for them, the language of shared governance in the context of a traditional collegial academic community is outdated.
Some might even argue that the only viable protection of quality in higher education lies in an increased use of consumer law, for reliance on other mechanisms is ineffective. The massification, corporatisation, commodification and commercialisation of the sector unavoidably and inevitably brings with it an inability for the academy to claim legal immunity as a special unique place in society any longer. Otherwise, arguably, the only special privilege the university can still claim is judicial discretion when the law of the land bumps up against the rather fuzzy concept of academic freedom or autonomy.
The chapter "War of the words: The rise of academic defamation" is especially alarming: robust scholarly criticism tips over into professional denigration and thence to simple defamation. Gajda next turns to the tort of "educational malpractice" (recognised in the UK since the House of Lords case of Phelps v Hillingdon London Borough Council in 2000): the US courts, even in the land of tort, still refuse, however, to contemplate this putative tort. Here one fears that Gajda doth protest too much about the supposed loss of some kind of legal immunity for incompetent academics: "Courts have all but crossed the Rubicon." Or indeed for plain rude ones - she seems to think it unacceptable that a student recovered $5,000 (£3,000) from a law professor who twice called her a "slut" in class, as opposed to recognising that this is simply professional misbehaviour that should not be tolerated.
Similarly, in "Promises, promises: Contracts on campus", the pleading of the offended academic comes through again, as if it is acceptable for a university to promise the earth in recruitment literature and fail miserably to deliver, or for it to have grievance/appeal regulations that it then ignores procedurally (as holiday companies used to expect to get away with when dumping you in a half-built hotel in Ibiza). Is Gajda really prepared to argue that academics can be capricious, arbitrary and biased, and then rationally be affronted if taken to task? Moreover, in the general absence of formal contracts between students and higher education institutions, can Gajda credibly complain if the courts look at the prospectus and course handbooks, along with the institution's student regulations, so as to detect the terms of an implied contract?
In a book that, despite being lively and readable, is ultimately unsatisfying, Gajda concludes by reiterating the threat to academe from increasing "legalisation". But her evidence is in fact more journalistic hype than legal analysis. What she is really doing is trying to defend sloppy, unprofessional practices under the name of academic freedom and autonomy. As higher education costs ever more by way of tuition fees (in the US at least) and as it presents itself using the instrumentalist rhetoric of "Get a degree, get a fancy job", it is to be expected that with such commodification and commercialisation comes consumerism. As she quotes from Sharick v Southeastern University of the Health Sciences in the Florida courts, "judicial deference to university conduct towards students becomes increasingly less defensible as bottom-line, commercial concerns motivate university actions and students seek a more consumer-friendly product".
When the university stops behaving as a business, perhaps the law will once again treat it as something special. In the meantime, it gets what it deserves - or its unprincipled managers and governors should; sadly, it is often the innocent foot soldier, namely the chalk-face lecturer, who is caught in the vice between the excessive demands of management and those of empowered students and even their stroppy parents.
She is right, however, in calling for universities to "constructively reduce the current incentives to litigation by working to restore a sense of community within their own sprawling institutions". Now there's a thought for the CEO and the COO to discuss with their SMT in the admin bunker ...
The Trials of Academe: The New Era of Campus Litigation
By Amy Gajda
Harvard University Press
Published 26 October 2009
David Palfreyman is bursar of New College, Oxford and director of the Oxford Centre for Higher Education Policy Studies. He is co-author, with Dennis Farrington, of The Law of Higher Education (2006).