The Law of Higher Education. William A. Kaplin
industry have been resolved through arbitration for decades. Academe has been slow to accept ADR, but it is becoming more common for certain kinds of disputes, and more institutions are turning to ADR in an attempt to reduce litigation costs and to resolve disputes, if possible, in a less adversarial manner.
Many employers embrace ADR because of its promise of quicker, less-expensive resolution of disputes, and this promise is often realized. Some for-profit colleges have also begun to include arbitration clauses in their enrollment agreements with students for the same reasons. Discovery is not used in mediation and is limited in arbitration as well. Arbitrators typically do not use judicial rules of evidence, may admit evidence that a court would not (such as hearsay evidence), and generally issue a ruling (called an “award”) a month or two after the hearing, unless they issue an oral award on the spot. The parties select the mediator or arbitrator jointly, rather than being assigned a judge, which may give them more confidence in the process. Indeed, the parties design the process in order to meet their needs and can change the process if it needs improvement.
ADR has some disadvantages, however. ADR is a private process, and there is typically no public record made of the outcome. This characteristic of ADR tends to benefit the college or university, which would prefer to avoid public inquiry into personnel or student academic performance decisions, and may make it difficult for an employee or student who must help to select a mediator or arbitrator to evaluate that individual's record or previous rulings. The lack of public accountability is viewed as problematic because many of these claims have a statutory basis, yet they are resolved without judicial or regulatory agency scrutiny. As discussed below, the decisions of arbitrators are difficult to appeal and are usually considered final. Furthermore, there may be a substantial difference in skill and knowledge between the employee or student who is challenging an institution's decision and the individual who is representing the institution before the mediator or arbitrator. Many ADR systems prohibit attorneys for either party, and even if attorneys are permitted, the employee or student may not be able to afford to retain one.
2.3.2 Types of ADR. ADR may use internal processes, external third parties, or both. Internal processes include grievance procedures, in which a student or employee may challenge a decision by invoking a right, usually created by the employee's contract, state law, or a student code of conduct, to have the decision reviewed by an individual or small group who were not involved in the challenged decision. Mediation and arbitration involve a third-party neutral, who may be a noninvolved student or employee, or a professional trained in dispute resolution. Some ADR processes use all of these mechanisms to resolve disputes.
Grievance procedures, particularly those included in collective bargaining agreements, may have multiple steps, and may culminate either in a final decision by a high-level administrator or a neutral individual who is not an employee of the institution. Depending upon the language of any contracts with employees or relevant state law, the fact finding of a grievance panel may be viewed by a reviewing court as binding on the institution and the grievant. For example, in Murphy v. Duquesne University of the Holy Ghost, 777 A.2d 418 (Pa. 2001), a tenure revocation case discussed in Section 5.7.3 of this book, the court ruled that a faculty panel's fact finding was binding on the plaintiff, who could not relitigate the issue of whether the institution had demonstrated that his misconduct satisfied the contractual grounds for termination. However, if a faculty grievance panel recommends a resolution to a dispute that involves compromise or other ADR mechanisms, a court may not allow the plaintiff to argue that this finding has preclusive effect in a breach of contract claim, as in Breiner-Sanders v. Georgetown University, 118 F. Supp. 2d 1 (D.D.C. 1999). In that case, the court ruled that the grievance panel had not applied contract law principles in its hearing of a faculty member's grievance and thus the panel's decision, which was favorable to the faculty member, did not have preclusive effect and did not support a motion for summary judgment on behalf of the faculty member.
The inclusion of a grievance procedure in a faculty or staff employee handbook may convince a court that a plaintiff who has not exhausted internal remedies may not pursue contractual remedies in court. For example, in Brennan v. King, 139 F.3d 258 (1st Cir. 1998), an assistant professor who was denied tenure by Northeastern University brought breach of contract and discrimination claims against the university. With respect to the professor's contract claims, the court ruled that Massachusetts law required him to exhaust his contractual remedies before bringing suit. However, the court allowed his discrimination claims to go forward because the faculty handbook did not provide a remedy for the denial of tenure.
Even if there is no formal grievance process, in situations where faculty are challenging negative employment decisions (such as discipline or termination), a panel of peers may be convened to consider whether there are sufficient grounds to support a challenged employment decision. The outcome of the peer panel's deliberations is usually considered a recommendation, which the administration may accept, modify, or reject. In addition, student judicial boards are a form of peer review of student charges of misconduct, although appeals are usually ultimately decided by a high-level administrator. Finally, ombudspersons, or neutral employees of the institution who have the responsibility to try to resolve disputes informally and confidentially, are appearing with more frequency on campus.4
ADR processes involving individuals external to the institution include mediation, in which a neutral third party is engaged to work with the parties to a dispute in an effort to resolve the conflict. The mediator may meet with the parties together to attempt to resolve the dispute or may meet with each party separately, hearing their concerns and helping to craft a resolution. The mediator has no authority to decide the outcome but may provide suggestions to the parties after listening to each party's concerns. All parties to the dispute must agree with the outcome in order for the process to be final.
In 2019, the Trump administration proposed new regulations enforcing Title IX's prohibition of sexual harassment in educational programs receiving federal funds (Title IX is discussed in Section 11.5.3 of this book). Although enforcement guidance from the Obama administration had discouraged the use of mediation in cases of sexual harassment and assault, the proposed regulations permit mediation if both parties agree. At the time this book went to press, final regulations had not been issued.
In addition to concerns about an alleged victim's right to pursue a more formal grievance process, mediation of harassment or assault claims may mean that no formal record is made of the harassment or assault claim or its resolution, which could pose a problem if the alleged victim subsequently filed a lawsuit against the college or university or its staff. The lack of a record could also be problematic if the alleged harasser is again accused by another complainant but the institution has no record of the earlier complaint or its resolution.
Another form of ADR, used frequently on campuses where employees are represented by unions, is arbitration. An arbitrator, a third-party neutral with experience in employment issues, is brought in to act as a “private judge.” The parties present their concerns to the arbitrator at a hearing at which the employer has the burden of proving that the termination or discipline was justified. Arbitration is also used to resolve disputes over the meaning of contract language; in that case, the party disputing the application of the contract language to a problem (usually, but not always, the union) has the burden of demonstrating that the contract has been breached. Under a trio of U.S. Supreme Court cases called the “Steelworkers Trilogy,”5 arbitration decisions are not reviewable by courts unless the arbitrator has exceeded the authority given to him or her by the contract, the arbitrator has engaged in misconduct, or the outcome of the arbitration violates some important principle of public policy.
ADR systems in collective bargaining agreements are subject to the negotiation process and typically state that all claims arising under the contract will be subject to a grievance procedure that culminates in arbitration. Arbitration may be advisory to the parties, or they may agree to be bound by the decision of the arbitrator (in which case the arbitration is called “binding arbitration”). At some colleges and universities, nonunionized employees may be asked to sign agreements