Legal Watch: Litigation Lite?

By Ann D. Springer

In 1995, blissfully unaware that he was about to become the center of swirling legal debate, Saint Clair Adams applied for a job. Nestled in his application was an agreement to "settle any and all . . . claims . . . arising out of . . . [his] employment, . . . by final and binding arbitration." Six years later, the Supreme Court ruled that the clause was enforceable and barred Adams from bringing his case to court. Unfortunately, this nonacademic case could have a profound effect on the litigation rights of faculty. Circuit City Stores, Inc. v. Adams allows any employer, including a college or university, unilaterally to require that employees submit all legal claims, even civil rights claims, to arbitration.

Arbitration is a system for resolving disputes whereby the parties submit controversies to a third party for decision in lieu of bringing a lawsuit. As the AAUP statement Arbitration in Cases of Dismissal points out, arbitration can be efficient and equitable if standards of fairness and due process are followed. Criteria for mutually beneficial arbitrations include sound procedures that enjoy the confidence of the faculty and the administration, careful definition of subjects and standards, arbitrators knowledgeable about academe, and reliance on the standards and expectations of the profession. Faculty who understand the issues presented by arbitration, and who are proactive in negotiating the rules by which it is conducted, can and do benefit from the numerous efficiencies it provides.

Nevertheless, unilateral imposition of mandatory arbitration clauses in academic contracts is exceedingly troubling and does not comport with AAUP policies on shared governance. Barring access to the courts for employment claims without consulting faculty undermines joint faculty-administration leadership, undercuts faculty faith in the system, and increases the risk of conflict and court challenges; in other words, it eliminates the very benefits that arbitration can provide. Thus, as more colleges and universities explore the feasibility of arbitration clauses, faculty should be aware of the underlying issues, such as choice of arbitrator, cost allocation, and due process procedures.

Often, arbitration provisions are simple and vague, establishing mandatory arbitration but not spelling out any of the details of the process. Yet details like the choice of arbitrator are extremely important. Faculty should pay attention to how an arbitrator is to be selected, and should make efforts to identify a pool of knowledgeable, well-respected individuals to propose. Arbitrators familiar with the law and higher education can be found by consulting attorneys, union leaders, and dispute-resolution services. A fair provision calls for mutual agreement on arbitrators, and mutual opportunities to propose and strike candidates.

Arbitration allows parties to avoid the costs and long delays of litigation, which form their own barrier to court access. Finding attorneys willing to take cases on contingency can be difficult, because of the heavy time and resource investment required before any potential payoff. Moreover, litigation is weighted in favor of those with the resources to delay and obfuscate. Arbitration, with its expeditious and more informal process, can eliminate many of these problems.

Arbitration's benefits can, however, only be realized if costs are allocated in a way that is financially feasible for faculty. Yet asking the administration to pay for the entire cost may not be the best approach. As a regular employer of arbitrators, an institution develops a relationship with them; they, in turn, have an incentive to keep a repeat client happy. Most arbitrators are conscientious and sincere in their efforts to remain neutral. But when an institution consistently employs certain arbitrators, there is at least a perception of increased administration control over the outcome, thereby undermining faith in the impartiality of the system. All costs need not be divided equally, but faculty should carefully consider ways of proposing, selecting, and paying for arbitrators so that they are comfortable with the balance of influence and control.

Another important factor is due process. Will the arbitration be governed by American Arbitration Association rules, which provide for due process, discovery, and neutral evaluation? If not, what rules will govern? What discovery will be allowed? Although some cases can be resolved without extensive discovery, others require collection of information from the employer. Arbitration rules need to provide for fair information-gathering opportunities.

A mutually agreed-upon and well-constructed arbitration policy can benefit faculty and administrations alike, but faculty must educate themselves about issues critical to ensuring a fair and efficient process.

Ann Springer is AAUP associate counsel.

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