Magazine article Academe

Litigation Lite?

Magazine article Academe

Litigation Lite?

Article excerpt

\ LEGAL WATCH

IN 1995, BLISSFULLY UNAware that he was about to become the center of swirling legal debate, Saint Clair Adams applied for ajob. 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. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.