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  Academia on Trial: How Campus Litigation Transforms Universities
Amy Gajda’s The Trials of Academe: The New Era of Campus Litigation. Cambridge: Harvard University Press, 2009.

Reviewed by Matthew Abraham

“Litigation is academic politics by others means.” This appropriation of Carl von Clausewitz’s famous saying that “War is politics by other means” is a fitting way to understand Amy Gajda’s overall argument in The Trials of Academe: The New Era of Campus Litigation.
In an era where students, faculty, and administrators are increasingly turning to the courts to resolve matters ranging from failing grades to tenure and promotion denials, the courts have become the last resort for those seeking to resolve grievances, which in the past would have been resolved within the academic institution.

Historically, American courts have simply dismissed what they deemed to be frivolous litigation by invoking the concepts of “academic abstention” and “institutional authority”—the notions that academic matters should be handled by academic experts and that the courts had not business in questioning expert judgments about grading, faculty competence, and administrative skills—Gajda reports that this is no longer the operative rule.

Academic abstention and institutional autonomy are now being seriously undermined and called into question by the legal system’s recognition that higher education’s commercialization requires protecting the expectation and reliance interests of consumers such as students.

The variety of behaviors that can now be litigated on behalf of a disgruntled student, faculty, or administrator runs the gamut of the imagination. Students unable to complete medical or law school due to poor academic performance are now suing these educational institutions alleging breach of contract; employing novel contract interpretation theories such as “quasi contract” and “implied contract” and by drawing upon vague language in university handbooks that suggestsmerely completing a program “leads” to the granting of the M.D. or J.D. degree.

Motivated students have even tried to advance their rights by arguing that they are third-party beneficiaries of contractual rights that inhere between faculty members and the university.

Professors who are unable to achieve tenure are now suing their academic institutions alleging everything from hostile work environments, sexism, racism, resistance to certain research topics and methods, and academic freedom violations.

Gajda tell us about the Atria case at Vanderbilt, where a professor’s supposedly lax way of handing back exams enabled a student to allege that he was framed by another student for cheating. We also learn about a student who fails to graduate from chiropractor school due to poor academic performance, attempting to argue that he was owed a degree for making it to the end of prescribed course of study.

Gajda introduces us to a law student who is unable to successfully take his exams because of dyslexia, arguing that the institution did not provide him the conditions under which he could perform at his best.
In all of these cases, we see students pressing legal claims based upon an implied guarantee that by successfully completing the education program they will automatically have access to a career and lifelong earnings simply because they were admitted to an institution of higher learning.

Students can sue their professors if they feel demeaned in class, or are “touched” by the professor as part of a demonstration in a tort class. A female colleague receives death threats from a pro-gun organization, leading the chancellor to tell the History department—that posted photos of two male colleagues wearing civil war costumes and touting guns—to refrain from displaying the photo in the name of “collegiality.” The two professors successfully sued the Chancellor for violating their academic freedom.
By threatening academic researchers with defamation lawsuits, powerful drug companies or wealthy individuals can deter the completion of important and innovative research that calls into question a company or individual’s integrity.

Indeed, academic researchers are steering away from research that might end them up in court, even though the research on important social questions should obviously continue unimpeded.

Even academic administrators can be left “high and dry,” so to speak, when they ultimately do not receive the much sought-after promotion they were banking on.

Gajda tells the story of a college dean, seeking to move up in the institutional higher anarchy, who sunk a small fortune into remodeling his house for the express purpose of entertaining university guests. On the strong verbal assurances of the president of the university that he was about to receive a lucrative promotion, the dean went forward with the home remodeling effort, until he learned he was not the favored candidate for the position after all. The dean died shortly thereafter, allegedly because of the levels of stress he had to endure. His widow was left to settle all of the outstanding home improvement bills. She successfully sued the university because of the president’s implied promise.

As someone who writes regularly about scholarly debates on the Israel-Palestine conflict, I found Gajda’s book extremely helpful. By alerting me to the potential legal pitfalls that potentially await academics straying into the potentially hazardous waters of contentious debate, it is useful to know what might be awaiting someone who comes up against powerful parties seeking to deter criticism of an organization or special interest group.

Gajda believes firmly that the mission of the academy is being threatened by the increased tendency of various actors to take disputes that at one time may have been resolved inside the institution to the courts. This tendency means insurance companies will now instruct university general counsel offices to declare certain lines of research inquiry off limits, especially if it is likely the university might be sued because a faculty member offers an argument that offends a key constituency.

Sadly, Gajda points to a loss of community within most university settings, a loss which contributes to the increasingly litigious environment that undermines the educational ethos. Competition for grades, class ranking, jobs, promotions, and good salaries makes the contemporary educational landscape both complex and fascinating.

Gajda is an adept guide at leading readers through the numerous issues presented by this increasingly troubling tendency within academe. This is a must-read book for every academic, as well as every citizen concerned about the future of the university.