Influence of the Courts: A Review of the Major Legal Issues Surrounding Employment Practices of Academic Administrators in Higher Education

Article excerpt

INTRODUCTION

Higher education institutions have historically remained insulated from the lawsuits that are prevalent in our litigious society. There is, however, evidence to suggest that this trend may not continue. Thus, college and university administrators need to become aware of the steady erosion of the traditional protections against lawsuits on which institutions have relied. Academic administrators must be kept informed of the legal consequences of their actions or inaction.

As the scale and complexity of individual institutions have increased, consensus has been more difficult to achieve and the courts have come to take a more active role in resolving the inevitable disputes (Toma & Palm, 1999). According to Toma and Palm (1999), several factors have led to this state of affairs:

* Traditional processes of selection and acculturation have broken down as institutions have become more egalitarian and democratic and students and faculty have become increasingly diverse and demanding.

* Given an increasing concern for reducing arbitrary decision making and recognizing constitutional and contractual rights, society has become more litigious, more frequently attempting to avail themselves of the courts to settle disputes. The qualitative judgments that traditionally have been the hallmark of life in academe are exactly the type of decisions that have come to prompt litigation involving employment from faculty and legal challenges from students.

* The stakes in higher education have risen as the mobility of faculty has declined, providing incentives for disappointed faculty to vigorously challenge negative decisions about tenure and promotion instead of simply leaving for another institution. Similarly, students have come to expect more of institutions as costs have increased and employment markets tightened.

* Institutions have taken on a greater array of service functions over time.

* Several new settings have emerged in higher education--community colleges, technical institutes, distance learning, international programs--and each has raised a distinctive set of legal issues.

* Both external regulations and institutional self-regulation (e.g., formal grievance procedures) have increased, as have external demands for greater accountability. Institutions have also become more closely tied to the world outside academe through grants and other relationships with corporations and the federal government, and through direct federal aid.

* As institutions have adapted to various national and global trends--the technological revolution, internationalization, concerns about personal security--their position relative to the law has evolved accordingly (p. 11).

Higher education professionals need to understand how this growing litigious environment will impact on their roles. To help academic administrators understand their responsibilities when supervising faculty and dealing with students, this article highlights some of the most important areas of concern. In their roles, they must learn how to deal with a growing number of legal problems. Institutions need to consider whether or not their rules, regulations and policies adequately minimize their exposure to litigation. Deans and department chairs are the ones most often on the front line, with responsibility for legal issues surrounding employment relationships, students, and research, as well as for school and departmental issues such as accreditation and copyrights. Deans' and department chairs' administrative activities must be examined and considered daily in the context of legal issues that might be related to those activities. Most handbooks from human resources personnel or even from legal counsel will not adequately prepare an academic administrator for this job.

This paper explores the legal issues surrounding employment practices of academic administrators in higher education. …