Yesterday’s Chronicle of Higher Education takes a look (subscription required) at an upcoming book observing that colleges and universities have faced an increase in litigation in recent years and discussing the impacts that this trend has had and may continue to have on the college campus. The book, The Trials of Academe: The New Era of Campus Litigation, is authored by Amy Gajda, an assistant professor of journalism and law at the University of Illinois at Urbana-Champaign, and is scheduled to be released in October.
In the interview for the Chronicle, Gajda discusses several aspects of her book. I will discuss some of these here, and Will will discuss others in a separate post.
In response to the question, "How many lawsuits is a typical college [sic] involved in at this point, and have such lawsuits become more prevalent?" I found Gajda’s answer illuminating:
Well, as one example, the University of Nevada at Reno last summer reportedly was defending more than 30 pending lawsuits and had spent $1.7-million on outside counsel in just four cases. But that doesn’t really capture the scope of the problem. For one thing, it doesn’t count lawsuits between individual academics or students. And the problem is not just lawsuits, but also legal claims that are resolved short of litigation, and "defensive" positions taken by colleges or professors to avoid even the risk of litigation.
My book is necessarily more qualitative than quantitative because aggregate data are hard to come by, but nobody doubts that the number of lawsuits has spiked significantly in recent years. You know that the academic universe has changed when professors are warned not to forecast class coverage in a syllabus lest students sue for breach of contract if the professor doesn’t reach some promised material.
FIRE’s experience fighting for individual rights on campus bears out her assertion that universities tend to take defensive positions in order to avoid the risk of litigation, and that this often comes at the expense of students’ and faculty members’ speech rights. Rather than risk a lawsuit by a hypersensitive student or faculty member who subjectively feels offended, harassed, or threatened by particular speech, colleges and universities typically will err on the side of curtailing campus expression and expressive activity, regardless of whether or not that curtailment does violence to First Amendment freedoms. FIRE has observed previously that these tactics are spurred on by the risk management industry and the growing bureaucracy of university administrations.
The regrettable results can be seen both in university policies and practices. In terms of practice, a brief survey of FIRE cases from recent years reveals that defensive positions taken against, for instance, students or faculty perceived (no matter how unreasonably) to have violent tendencies or to have engaged in harassment routinely result in infringement of speech rights. Cases at schools such as Colorado College, Hamline University, and Valdosta State University attest to the former, while cases at IUPUI and Brandeis University speak to the latter. In terms of policy, our 2009 speech code report reveals that approximately three-fourths of colleges and universities nationwide maintain policies that clearly restrict speech that, in the larger society, is protected by the First Amendment.
The good news is that there are many ways that FIRE and others can get colleges and universities to change their policies and practices. This requires changing the risk management calculus so that university administrators are compelled to uphold speech rights on campus. Thus, continued speech code litigation is essential, not only to strike down additional unconstitutional speech codes, but also to hold individual administrators liable in their personal capacity for violating students’ expressive rights. Following the Third Circuit Court of Appeals’ noteworthy 2008 decision in DeJohn v. Temple University, FIRE warned administrators via a mailing campaign that they risk personal liability for enacting and enforcing speech codes. Given the ever-growing clarity of the law on speech codes, administrators can no longer reasonably claim the defense of qualified immunity when sued under 42 U.S.C. § 1983 for depriving students of their speech rights. Piercing qualified immunity in student free speech cases will allow student-plaintiffs to collect monetary damages directly from administrators, thereby shifting the risk management calculus on campus. FIRE hopes that this will force colleges and universities to abandon their "defensive positions" and to truly respect freedom of expression.
Be sure to check out the rest of the Chronicle article to read more about the increase in campus litigation.