The Trials of Academe: The New Era of Campus Litigation

Abstract

The Trials of Academe: The New Age of Campus Litigation (Harvard University Press 2009) explores First Amendment rights on campus in the context of academic freedom. Traditionally, just as courts have given a broad berth to journalists under the First Amendment, courts and other legal actors have deferred heavily to college and university defendants in academic disputes. This deference, embodied in both common law and constitutional doctrines, is meant to ensure that judgments about academic inquiry and merit are placed outside the courts in the hands of the scholars most competent and motivated to decide them wisely. The book shows how two related trends challenge the tradition of judicial deference: (1) faculty, administrators, and students are increasingly likely to take their academic grievances to court, and (2) courts are increasingly willing to overcome their traditional disinclination to become entangled in academic controversies and to decide them on the merits. It explores the causes of this growing assertiveness by the courts over campus affairs, ranging from the rise of statutory and constitutional protection for civil rights to the rising “commercialization” of academia. Of particular importance, it demonstrates the ways in which the growing resort to courts and other legal intervention is threatening basic academic freedoms, in research, teaching, scholarly publications, and even in the university’s definition of its academic mission. Finally, the book offers possible responses that might channel dispute resolution away from the courts and restore a larger measure of legal respect for academic autonomy. The book seeks to advance understanding of the balance between campus values and competing social interests, articulating ways in which courts can constructively safeguard those interests without threatening the basic conditions necessary for vital academic freedom.

Keywords: academia, academic law, campus litigation, First Amendment, academic freedom

JEL Classification: K00, K13