As recently as 1979, legal academics Virginia Nordin and Harry Edwards were able to say that “historically American courts have adhered fairly consistently to the doctrine of academic abstention in order to avoid excessive judicial oversight of academic institutions” (Higher Education and the Law). Academic abstention is the doctrine (never formally promulgated) that courts should defer to colleges and universities when it comes to matters like promotions, curricula, admission policies, grading, tenure, etc. The reasoning is that courts lack the competence to monitor academic behavior; they should get out of the way and let the professionals do the job. “Courts are particularly ill-equipped,” Chief Justice Rehnquist declared in 1978, “to evaluate academic performance.” (Board of Curators of the University of Missouri v. Horowitz)
In 2009, courts still pay lip service to this doctrine but in practice, Amy Gajda tells us in her terrific new book, “The Trials of Academe,” they now boldly go where their predecessors feared to tread. Once, “if a student or faculty member had the temerity to bring a grievance to court, is was likely to be bounced out in short order.” Now, however, “courts feel free to enter . . . from the ground up, parceling out the right and obligations of each disputant down to the last dollar.” Indeed, “litigation and ‘rights talk’ have permeated every crease and wrinkle of academic life.”
When I began teaching in 1962 at the University of California in Berkeley, I asked older colleagues about the decorums and rules of the classroom. In response, I was given the Myron Brightfield rule. Brightfield was then a very senior member of the department. His rule (and I paraphrase) was, When you close the door, there’s nothing they can do to you. Those were the days, and they had their injustices as well as their advantages. Now we have justice, or at least the demand for justice, all the time and it may, Gajda suggests, be killing us.
Fish highlights several cases to make his argument-by-anecdote. Let’s look at his “favorite:”
My favorite (and Gajda’s, too) involves a student in osteopathic medicine who, after failing an important rotation, was dismissed because “he didn’t have the basic understanding that he should have as a fourth-year medical student.” The student sued on the grounds that he had been promised a degree by a phrase in a student handbook that described the program he was enrolled in as “a four-year curriculum leading to the DO degree.”
Anyone with the slightest familiarity with the way universities work would know that ‘”leading to” included the qualification “provided that the requirements for graduating were met” — a medical degree is not equivalent to the certificate you get for having completed six weeks of a summer camp — but the courts were persuaded to a more literal (and perverse) reading and awarded the plaintiff a partial tuition reimbursement. But he wanted more and he got it by arguing that he should receive an amount commensurate with the earnings he would have accumulated had the “promised” degree been conferred. Jurors ordered the medical school to pay him $4.3 million.
The case is Sharick v. Southeastern Univ. of the Health Scis., 780 So. 2d 136, (Fla. Dist. Ct. App. 3d Dist. 2000).
Indeed, as Fish says, anyone with “the slightest familiarity” with academia knows that the award of a degree is predicated on meeting the school’s requirements — except, of course, for the school in question, which argued the student “contracted with [the school] solely to provide an education in exchange for payment of tuition.” Id., 139 (emphasis added).
Got that? The school’s argument was that, regardless of whether the student met the requirements, all the school contracted to do was “provide an education” and not actually award the degree. That is to say, the school argued that it was free to destroy the student’s career for any reason, a bad reason, or no reason, so long as it had “educated” him in a way the student couldn’t possibly use without the actual degree. The court disagreed. So do I. So, too, apparently, does Fish.
Contrary to Fish and Gadja’s description, the student didn’t allege the school “promised” a degree but didn’t give it because he failed, he alleged that “Southeastern’s decision to dismiss him [two months before his graduation] was arbitrary, capricious, and/or lacking any discernable rational basis.” Id., 138. It’s the only way he could recover under Florida law, in light of the “academic abstention” doctrine that Fish claims has been “increasingly narrowed to the point that it is in danger of vanishing.”
A jury agreed with the student. In fact, the evidence against the school was so overwhelming that Southeastern didn’t even appeal the jury’s findings. The school only appealed the trial judge’s rejection of their ridiculous and insulting “solely to provide an education” argument.
Let me tell you, as a plaintiff it’s not easy to prove “arbitrary and capricious” behavior. It’s one of the highest bars a plaintiff can ever face, and typically results in the plaintiff losing. Do you have any doubt that, if Southeastern had any credible defense at all, it would have appealed the jury’s findings? All they had to show was some reason — any reason — justifying the student’s dismissal and the verdict would have been overturned.
Yet, they didn’t even try, presumably because they knew they couldn’t. Rather than making things right, however, they forced him into over fifteen years of litigation, litigation which is still going on. See the most recent appeal, Nova Southeastern Univ. of the Health Scis., Inc. v. Sharick, 2009 Fla. App. LEXIS 12494 (Fla. Dist. Ct. App. 3d Dist. Aug. 26, 2009)
How are we to take Fish or Gadja seriously when their “favorite” example shows why academic institutions should not be above the law?