The Rise and Fall of Academic Abstention
As recently as 1979, legal academics Virginia Nordin and Harry Edwards were able to say that “historically American courts have adhered fairly consistently to the doctrine of academic abstention in order to avoid excessive judicial oversight of academic institutions” (Higher Education and the Law). Academic abstention is the doctrine (never formally promulgated) that courts should defer to colleges and universities when it comes to matters like promotions, curricula, admission policies, grading, tenure, etc. The reasoning is that courts lack the competence to monitor academic behavior; they should get out of the way and let the professionals do the job. “Courts are particularly ill-equipped,” Chief Justice Rehnquist declared in 1978, “to evaluate academic performance.” (Board of Curators of the University of Missouri v. Horowitz)
In 2009, courts still pay lip service to this doctrine but in practice, Amy Gajda tells us in her terrific new book, “The Trials of Academe,” they now boldly go where their predecessors feared to tread. Once, “if a student or faculty member had the temerity to bring a grievance to court, is was likely to be bounced out in short order.” Now, however, “courts feel free to enter . . . from the ground up, parceling out the right and obligations of each disputant down to the last dollar.” Indeed, “litigation and ‘rights talk’ have permeated every crease and wrinkle of academic life.”
There are still landmark cases that support the older view, if only by the narrowest of margins. Gajda cites Grutter v. Bollinger (2003), a case in which the Supreme Court by a 5-4 vote upheld the University of Michigan Law School’s practice of considering an applicant’s race among many other factors in the admissions process. Justice O’Connor, writing for the majority, cited “educational autonomy” and the law school’s “compelling interest in a diverse student body” as sufficient counterweights to the usual prohibition against using race to determine the distribution of rewards by public institutions.
J. Peter Byrne, an authority on academic freedom, acknowledges that this limitation on a state’s ability “to control the admissions policy of its state university” is “surprising” [1]. But he cites as justification “the special values of free scholarship” that must, he claims, be “protected from control by a democratic state or electorate because they involve scholarly, educational, and scientific judgments that most of us cannot competently make most of the time.”
This was precisely the reasoning rejected by the dissenters in Grutter. Chief Justice Rehnquist declined “to apply more lenient review based on the particular setting in which race is being used.” Just because it’s a university rather than a construction company doesn’t mean that practices otherwise unconstitutional should be permitted. Justice Thomas was even more sweeping in his scorn for the notion that the Constitution authorizes or commands a “special” respect for academic practices: the law school may believe “in the benefits of racial discrimination,” but that belief is not “entitled to any sort of deference, grounded in the First Amendment or anywhere else.” Thomas is appalled by “the idea that the First Amendment authorizes a public university to do what would otherwise violate the Equal Protection Clause.”
As Gajda notes, the majority and minority opinions in Grutter starkly present the opposing positions on the relationship between the academy and the law: “respect for universities as uniquely public minded against a demand for unbridled public accountability through law.”
“Uniquely public minded” nicely captures the nature of the claim being made while at the same time hinting at its vulnerability. What makes universities more public minded than hospitals or national parks or public radio stations? What exactly is so “unique” about institutions of higher education? These questions are sometimes answered by invoking phrases like “the life of the mind” or “the intellectual life,” which suggest a mysterious realm of value accessible only to an elite few.
Justice Stevens is more helpful (and less mystical) in Michigan v. Ewing (1985) when he proffers a distinction between issues that are “genuinely academic” and issues that one might encounter in any workplace. “When judges are asked to review the substance of a genuinely academic decision . . . they should show great respect for the faculty’s professional judgment.” The challenge is to demarcate the area in which professional judgments are to hold sway from the areas in which what goes on in colleges and universities is no different from what goes on elsewhere and is no less subject to legal scrutiny. In the story Gajda tells, the area in which university activities are shielded by the law is increasingly narrowed to the point that it is in danger of vanishing.
A key moment in that story came in 1990, when the Supreme Court decided that the practice of peer review along with its safeguard of confidentiality must give way to the “compelling interest” of “ferreting out invidious discrimination” (University of Pennsylvania v. EEOC, 1990.) Acknowledging “the importance of avoiding second guessing of legitimate academic decisions,” the court nevertheless declared that the superior authority of the Civil Rights Act of 1964 made it necessary “to expose tenure determinations to the same enforcement procedures applicable to other employment decisions.” At a stroke courts that had previously been so wary of interfering with academic processes now took upon themselves the task of awarding or withholding tenure. In the wake of the University of Pennsylvania decision, Gajda observes, “courts have increasingly appeared ready to set aside their qualms and wade into the murky waters of academic evaluation.”
What followed was a series of cases in which courts reached conclusions that can only be described as incredible, if not bizarre, especially in the context of the long tradition of academic abstention. My favorite (and Gajda’s, too) involves a student in osteopathic medicine who, after failing an important rotation, was dismissed because “he didn’t have the basic understanding that he should have as a fourth-year medical student.” The student sued on the grounds that he had been promised a degree by a phrase in a student handbook that described the program he was enrolled in as “a four-year curriculum leading to the DO degree.”
Anyone with the slightest familiarity with the way universities work would know that ‘”leading to” included the qualification “provided that the requirements for graduating were met” — a medical degree is not equivalent to the certificate you get for having completed six weeks of a summer camp — but the courts were persuaded to a more literal (and perverse) reading and awarded the plaintiff a partial tuition reimbursement. But he wanted more and he got it by arguing that he should receive an amount commensurate with the earnings he would have accumulated had the “promised” degree been conferred. Jurors ordered the medical school to pay him $4.3 million dollars.
If that doesn’t take your breath away, consider the case of the faculty member who, having been denied tenure because of a documented history of poor teaching, argued, successfully, that the decision was arbitrary and capricious because the faculty handbook specified “classroom visitations” by senior scholars as one of the many mechanisms of evaluation, and he had only been visited a single time by the department chair. Gajda comments: “An apparently multi-layered tenure evaluation, taking into account multiple forms of student feedback, faculty peer review, and the chair’s own classroom evaluations was deemed legally defective on the basis of an ‘s’ in a single sentence in the faculty handbook.”
Or how about the student whose claim that his professor was negligent in his method of handing back graded exams was recognized by a court of appeals as constituting a legitimate cause of action? Or the associate professor who declared himself defamed when an external review committee found that he “does not appear to be meeting the standard for a tenured university professor.” It was of course the committee’s job to make such judgments and if by doing that job the members of the committee opened themselves up to future litigation, anyone asked to serve in a similar capacity would have to think twice. As Gajda observes, the willingness of courts to entertain this suit “might serve as a major new pathway for judicial scrutiny of tenure standards,” a pathway that, if extended far enough, would bring the judicial system into every department meeting, where it often already seems to be.
In a way the academic world is reaping what it has sown. Colleges and universities turned to the courts, Gajda reminds us, “in the gloom of the Cold War when the menace to academic freedom took the stark . . . form of a prosecutorial inquisition” from the outside. (I should note that the external threat has by no means disappeared.) And many academics were pleased to see the courts intervening to overturn long standing practices of discrimination (against Marxists, Jews, blacks, women, gays) that had been shielded by the doctrine of academic abstention. The problem is that once the door to judicial intervention is opened, it can’t be closed.
These days “the government’s insinuation into the intellectual life of the university” is “more prosaic” than it was in the ’50s but it is also, as Gajda documents, more extensive and intrusive and therefore more “worrisome” in part because it is often initiated by those on the inside. It is a nice Foucauldian point — the legalization of the academy may finally be more destructive of its values than any number of direct assaults — and only one of many Gajda makes in a book that delivers everything it promises and more. (No breach of contract here.)
Gajda acknowledges that “there is obviously no way to put the genie of campus litigation back in the bottle.” Nor does she wish to. Instead, she says, we should take up the task “of setting a balance point between the value of accountability through the courts and the value of limiting intrusions on the autonomy of academic communities.” But by the evidence she herself marshals that balance has already tipped, and the strategies she urges — educating courts to a better “understanding of the nature of academic judgment” and restoring a sense of community in a way that might make academics less likely to litigate — seem more pious than practical.
When I began teaching in 1962 at the University of California in Berkeley, I asked older colleagues about the decorums and rules of the classroom. In response, I was given the Myron Brightfield rule. Brightfield was then a very senior member of the department. His rule (and I paraphrase) was, When you close the door, there’s nothing they can do to you. Those were the days, and they had their injustices as well as their advantages. Now we have justice, or at least the demand for justice, all the time and it may, Gajda suggests, be killing us.
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FOOTNOTE
[1]. “Constitutional Academic Freedom After Grutter,” Georgetown Law Faculty Working Papers, 2006.