FIRE: University “courts” are hardly known for their fairness and reliability. Time after time, FIRE gets reports of proceedings where the accused doesn’t have the right to face his or her accuser, has little or no opportunity to present evidence, and/or is put on trial for unconstitutional charges, while the ultimate decisions are made by officials with a vested interest in the outcome of the case. This is the last system you would want to have investigating or punishing serious criminal charges. But that may not stop colleges, as Oppenheimer explains:
TASTE COMMENTARY
College Goes to Court
Universities practically employ their own law firms these days. Little wonder.
WSJ.com OpinionJournal
BY MARK OPPENHEIMER
Friday, July 14, 2006 12:01 a.m.
CHICAGO--At one point a couple of weeks ago, during the annual conference of college and university lawyers, I found myself seated next to Glynne Stanfield, who, as an Englishman, was an outsider to this club. A partner with the London firm Eversheds, Mr. Stanfield represents many English universities in their partnerships with American schools, study-abroad programs and the like. He was astounded by the sheer number of conference attendees--over a thousand. "The similar association in England has about 40 lawyers," Mr. Stanfield said.
That the U.S. is more top-heavy with legal minds than the rest of the Anglophone world is hardly a fresh insight. But why are so many of them, these days, devoting their careers to the legal ordeals of campus life? Of the 1,040 attendees this year, the vast majority are now in-house counsels, full-timers employed by schools, whereas years ago most colleges hired outside lawyers on occasion, as needed. Large universities now employ the equivalents of small law firms on staff, and it's worth pondering what this Perry Masonification of our schools says about how they operate.
In the case of higher education, litigiousness is driven less by ambulance-chasers' advertisements on television than by deeper, structural changes in how we relate to our alma maters. As Ed Stoner, a retired Pittsburgh lawyer who, over a 30-year career, represented numerous schools in Western Pennsylvania, told me: "People [today] are much less inclined to think, 'I wouldn't sue the university, it'd be like suing my mother.' People tend to look at the university as one more institution that might have a lot of money." And the people are right--more than 50 colleges and universities have endowments of $1 billion, not just Harvard and Yale but also Grinnell, Pitt and Case Western.
Changes in American law have encouraged that attenuation of loyalty. The expansion of Title IX rules for athletics, the constantly evolving rules about gender equality and sexual harassment and, lately, the practice of holding schools accountable for students' mental health--suing M.I.T. for not preventing a beloved daughter's suicide, to take a recent example--mean that there are ever more reasons to sue. On-staff lawyers are thus needed as prophylactics, advising faculty and staff on how to ensure themselves against liability. After all, as Mr. Stoner explained: "In-house lawyers are a lot cheaper. There's a lot of specialized knowledge that you don't want to pay $300 an hour to have someone read up on."
Universities have been growing--adding new majors, opening graduate schools, absorbing local hospitals into their medical schools. Colleges are almost all co-educational, and many of them run what amount to professional sports teams. In this new world, there are always new precedents for school lawyers to master.
At one panel I attended, San Francisco lawyer Zachary Hutton explained Williams v. Board of Regents, a recent case in which a University of Georgia student alleged having been raped by two student-athletes while a third student watched. The police charged the athletes with rape, and the university decided not to conduct its own investigation until the criminal case was resolved.
That turned out to be a mistake. The plaintiff then sued the university for sexual harassment, and the 11th Circuit held this year that the university could be liable because, by waiting to conduct an independent investigation until the criminal case was resolved, it had exhibited deliberate indifference to the alleged rape. "The court emphasized," Mr. Hutton told the college lawyers, "that the pending criminal trial . . . did not affect the university's ability to institute its own proceedings, and the criminal charges would not have prevented future attacks while the charges were pending."
To those who believe courts are over-reaching, the decision in Williams may seem absurd. But it actually recognizes a central fact of academia today: Large universities are basically cities unto themselves, with tens of thousands of students and employees. With responsibility for so many people, it can be foolish to rely on police and prosecutors for protection.
There's a downside to this reality: Student courts and disciplinary committees are not necessarily qualified to pass judgment on accused criminals. And civil courts (to take another example) have been more vigorous defenders of free speech than schools with speech codes. At the same time, many universities are much larger and more powerful than the polities they inhabit. Purdue University (one of the schools with over $1 billion) has more resources than the municipal bureaucracy of West Lafayette, Ind.
And it's a sign of how powerful higher education has become that schools are being asked to police themselves. At a panel called "Students with Criminal Backgrounds," the moderator asked how many of the 75 lawyers present came from schools that asked students on their applications if they had criminal records, and about a third of the audience raised its hands. Since universities are involved in certifying teachers and licensing nurses, academia must involve itself even in criminal investigation. In training the professionals who nurse us, teach us history and repair leaky heart valves, large universities have no choice but to consider themselves agents of the law.
What's more, universities are home to the people most likely to be at the frontiers of law, where Congress and the courts have yet to venture. Professors, increasingly working in concert with industries like biotech, are developing new technologies, and schools are thus tackling a host of novel legal questions. A knowledge of copyright law, several lawyers told me, has become the most important part of their job.
The most entertaining discussion I heard at the lawyers' convention centered on what to do about facebook.com and myspace.com--how to prevent slander, harassment and rumor-mongering on these online communities popular with undergrads. The room was evenly divided: Some lawyers recommended ignoring the students' Web sites unless something offensive was brought to administrators' attention, while others suggested taking aggressive action. "If you can't beat them, join them," said Debra Wood, a lawyer who is dean of students at Scripps College in California. "I've registered my name, so the students know that I'm there, watching, and I will call them in to discuss their conduct on facebook."
But despite all they have to worry about, including a regulatory state that makes their job more complicated all the time, this was the happiest bunch of lawyers I have ever met. Their caseload is varied and interesting: negotiating patent agreements for drugs their schools' scientists invent, obtaining post-9/11 visas for foreign students and scholars, defending against harassment claims.
And they are, it occurred to me, important guarantors of the academic ideal of freedom; they negotiate an increasingly complex modern world so that students and teachers don't have to. This protective shield does, of course, allow the sophomore to focus on facebook.com with a worrisome devotion, living in an extended adolescence. But it also allows the same singularity of purpose to the Sanskrit scholar, who, keeping her head in her books, leaving politics and legal matters to the school lawyers, may win the admiration of some of her students, facebook.com be damned.
Mr. Oppenheimer is the editor of the journal In Character. |
