Barbara A. Lee is co-author, with William A. Kaplin, of The Law of Higher Education, 5th edition (2013). She is a professor at Rutgers, the State University of New Jersey, teaching courses in higher education law and employment law. She’s also of counsel to the law firm of Edwards Wildman Palmer, LLP.

You don’t have to be a lawyer to know that lawsuits against colleges and universities — and in some cases against deans and provosts — have mushroomed in recent years.

Students file lawsuits for everything from plagiarism allegations to academic or disciplinary dismissals. And faculty sue when they are denied promotion or tenure, when they are disappointed in the amount of their salary increase, or when they are moved to a smaller office or lab.

Colleges usually prevail in these lawsuits, but they are expensive, time-consuming, generate unfavorable publicity, and are a significant distraction.

The following are the top 10 issues campus leaders should focus on in this litigious era.

1

The fastest growing topic of litigation in academic affairs is student challenges to faculty academic judgments — allegations of plagiarism, denial of a graduate degree on the basis of academic failure, or academic dismissal.

Although courts remain deferential to “genuine academic judgments,” faculty committees who do not follow institutional policies carefully, or who appear to be making judgments about students on the basis of their religious or political beliefs, have encountered judicial hostility to their requests for academic deference.

2

Faculty who are disciplined, whose contracts are not renewed, or who are removed from teaching as a result of provocative speech are suing more frequently. Even adjunct faculty are protected by the institution’s academic freedom policies, and over-reaction by the institution to protected speech leads to litigation.

3

Although student claims of sexual harassment by faculty appear to be declining, the issue is still a problem on campus and, when it occurs, creates serious legal and public relations repercussions. Training of faculty — whether they believe they need training or not — is essential to prevent harassment and to enable the college to respond effectively in the event that harassment occurs.

4

Students with disabilities are arriving on campuses in increasing numbers, and are requesting — and sometimes demanding — extensive academic accommodations. While the college’s disability services professionals understand the legal requirements of accommodation, many faculty do not. In fact, some may resist the requested accommodations under the banner of their “academic freedom.”

When students with disabilities are dismissed on academic grounds, they frequently claim that they were not accommodated appropriately and cite the intransigent professors as evidence. Again, training of faculty is essential to avoid litigation.

5

Research misconduct is an unfortunate fact of life at colleges and universities, and the ubiquity of the Internet may be fueling the increase in allegations and ensuing litigation. Federal funding agencies have strict protocols for the investigation and resolution of claims of scientific misconduct, and deans and provosts need to acquaint themselves with those requirements and ensure that they are followed.

6

Students are claiming that their faculty advisors “stole my ideas,” and demanding to be included on patents and as co-authors on articles. In some cases, these demands are legitimate. Deans and chairs need to monitor student-faculty research relationships to ensure that student intellectual property rights are protected and recognized.

7

Despite the fact that legal challenges to denial of tenure or promotion are nearly always unsuccessful, faculty continue to sue over those negative decisions. These cases are complicated, lengthy and acrimonious. And they often require the assistance of expert witnesses to review the justification for the institution’s negative decision in the face of what is usually a claim of discrimination by the aggrieved faculty member.

Careful and honest mentoring of untenured faculty members and regular, honest feedback when a faculty member’s work does not meet institutional standards are critical to a successful defense of subsequent claims of discrimination when tenure or promotion is denied.

8

Disputes between faculty members are on the increase, and occasionally lead to litigation that draws in the chair, dean or provost as a witness — if not a defendant. Defamation claims — sometimes brought by both of the disputing parties — may involve academic administrators as well. Courts have permitted institutions to use collegiality as a criterion — even if unwritten — for tenure or promotion. And academic leaders have a responsibility to deal promptly and effectively with uncollegial behavior, whether or not the perpetrator is tenured. Academic freedom does not protect uncivil behavior.

9

Because the career ladder for faculty is so short (two or possibly three promotions in an entire career), other perquisites become important, such as office size and location, teaching schedule and selection of courses, or the amount of lab space allocated to a faculty member.

These lawsuits are virtually always unsuccessful for the faculty member, but they waste time, energy and money, and they can divide a department for decades if faculty members take sides.

10

The academic freedom rights and protections of faculty at public colleges and universities were challenged by a 2006 Supreme Court ruling that work-related speech is not protected by the First Amendment. Whether that opinion applies to classroom speech and faculty scholarship is not clear; courts have differed in their subsequent rulings.

Academic administrators and faculty need to work together to create institutional policies that protect speech related to teaching and scholarship that comport with the rights and responsibilities of academic freedom.

There is no magic formula for avoiding litigation, but institution officials who enforce their policies consistently, provide frequent and honest feedback to both faculty and students concerning their performance, and respond promptly to student complaints of faculty misconduct should be able to get many of these lawsuits dismissed or, in the unlikely event that they go to trial, prevail.   

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The Law of Higher Education, 5th Edition, 2 Volume Set, 2013, is published by Jossey-Bass, A Wiley Brand. This is the most comprehensive reference, research source and practical legal guide for college and university administrators, campus attorneys and institutional researchers. It addresses all the major legal issues and regulatory developments in higher education.

 

For more information, or to order, go to www.josseybass.com/WileyCDA/WileyTitle/productCd-1118032012.html.