The Trials of Academe: Higher Education and the Law

Amy Gadja: Abstract

Traditionally, 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 those most competent and motivated to decide them wisely. Two related trends are challenging this tradition of judicial deference: (1) students, faculty, and administrators 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. This growing resort to courts is threatening basic academic freedoms, in research, teaching, and scholarly publications. I will explore this "legalization" of academia, its history, and offer possible responses that might channel disputes away from the courts and restore a larger measure of legal respect for academic autonomy.