|
« AAUP Homepage
|
From the Editor: Universities and the Law
Ellen Schrecker
Americans, as Alexis de Tocqueville noted over 150 years ago, take their conflicts to court. Such an observation is as valid for the academic community as it is for the rest of society. True, litigation is not yet a matter of daily life for most professors, but the law shapes much of what takes place on campus. When Academe, with the help of the AAUP's present and former counsel, Donna Euben and Jonathan Alger, began to explore how the legal system affects higher education, we discovered that it influences everything from affirmative action and tenure to copy-rights and grades. While some of these matters are routine, others involve the most contentious issues facing the academy today.
Resolving the university's conflicts through litigation, however, can create serious problems. The academic community, Robert O'Neil notes, frequently operates in accordance with what he calls "academic common law," the uncodified body of principles and traditions that govern American higher education. Unfortunately, neither judges nor juries always understand or sympathize with those principles or with practices like tenure and peer review that undergird the academic profession. As a result, their decisions can sometimes disregard the values of academe. Similarly, as Mary Ann Connell and Frederick Savage show in their discussion of collegiality in personnel decisions, the courts can reach premature resolutions of issues that are still contested within the university.
They can even end academic freedom as we know it. In his troubling survey of the current status of academic freedom, David Rabban explains how recent decisions have chipped away at the faculty's right to teach and do research without external interference. Ruling that academic freedom adheres to institutions, not individuals, some courts have refused to grant professors the special protections traditionally regarded as essential to the academic enterprise. Until the Supreme Court resolves this issue, the situation is in flux. Faculty members whose collective bargaining contracts or faculty handbooks do not contain specific guarantees cannot be assured of their rights if their own schools seek to curtail them. Nor can they expect to retain the exclusive possession of academic freedom. In the current legal climate, it has become a "shared" right that, Gary Pavela claims, belongs as much to universities and students as it does to faculty members.
Still, we should not be too quick to decry the influence of the law. Although the courts sometimes reflect and aggravate the cultural divide between the academy and the outside world, they can also make the academic community confront its own internal problems and rectify inequities it might otherwise overlook. Ann Franke explains how legal rulings can force universities to make their tenure evaluations fairer and more effective, while Paul Grossman shows how complying with the nation's disability laws both eliminates discrimination and enriches the experiences of everyone on campus. Similarly, as William Kauffman and his fellow panelists note in their discussion of the role of university counsel, an institution's attorney can often devise problem-solving procedures that not only avoid litigation but also strengthen faculty governance.
In the final analysis, however, once we look beyond its technical apparatus, it is clear that the legal system reflects the prevailing views of the broader society. If courts seem insensitive to the culture of academe, it probably means that we have failed to communicate its value beyond the campus. Such communication is essential, Phi Beta Kappa's Douglas Foard reminded the AAUP's annual meeting last June, if the values of a liberal education as well as the autonomy and intellectual freedom of the academic profession are to be retained.
|