Litigiousness

When substantive and procedural inequities propel faculty members to pursue their rights, such faculty are denounced as litigious. Would that litigiousness were rampant!


Administrators, trustees, and faculty may lament American litigiousness because multiple attorneys for plaintiffs have profited from our inability to fol­low even the simplest procedures. Despite costly legal reverses, faculty and administrators blunder along, cour­ting more legal disasters, so fear of litigation seems to have made little difference. Perhaps campus elites understand that the university’s lawyers will almost always fend off substantive or procedural claims and that facul­ty win lawsuits against educational institutions far less often than myths of litigiousness have misled laypersons to believe.

If faculty had the access to litigation that such a myth suggests, power committees and ad­minis­trators might be less prone to procedural injustices. Campus lore tells us that legal debacles in the mid-1990s for a while scared straight even doughty and dotty members of the Professional Stan­dards Committee [PSC]. While memories of legal losses were fresh, old-timers claim, the PSC’s procedural punctiliousness peaked. As those memories have faded, this revisionism goes, PCs and administrators have “backslid.”

Nonsense! Our persistent procedural shortcomings do not result in more litigation because resort to court is actually far more circumscribed than lamenters presume and because appeals and other procedural provisions in the rules enable our university to cover up missteps.

Consider a woman who stood for tenure in the very year [1994] in which a former member of the faculty was awarded nearly $2,000,000 and the gender discrimina­tion suit by a woman denied tenure two years before was settled. The evaluation in 1994 had been so botched procedurally that the President asked the evaluee to forego a for­mal hearing board and consent to be re-evaluated. [The President had in the interim assured herself that the evaluee would face more departmental resistance the second time around.] The evaluee decided that following the code might be a better idea and easily prevailed in the hearing board. When the evaluee was re-evaluated and denied more than a year after she originally submitted her file, an attorney told her he did not see how she could prevail despite myriad violations of the Faculty Code. This former colleague – who went on to tenure, a campus wide teaching award, and a house overlooking the Pacific Ocean – learned that even filing a lawsuit was far more difficult than the mythology of litigiousness instructs us.

As the next evaluation season dawned in Fall 1995, the President met with the Faculty Advancement Committee [FAC] to inform them that a dozen faculty were can­di­dates for tenure and that the President was not about to recommend to the trustees that a dozen faculty be tenured. The President, apparently unchastened by her legal losses the previous year but perhaps emboldened by the denial of the embattled woman from 1994, also discussed her reluctance to accept a dozen affirmative recommendations with three faculty over lunch. Such presidential proclamations would seem to set an arbitrary [and self-serving] ceiling on the number or percentage of faculty recommended for tenure. I have no doubt, however, that apologists could make the repeated, explicit warning sound more like a forecast. I guess that is the beauty of multiple narratives, especially multiple revisionist narratives in service of seeming malefactors.

When the FAC forwarded twelve affirmative recommendations, the President balked at two women. [To the best of my recollection, that president said no to two women and no men in that president’s first tenure “season,” to one woman and no men in her third “season,” and two women and no men in her fourth “season,” but only radicals would detect any gendered pattern in that president’s decisions or in the decisions of the departments that trashed evaluees.] The President informed each woman that a member of the FAC had filed a minority report. That minority report – a sentence indicating disagreement with the recommendation of the five non-administrators on the FAC – issued from the Academic Vice President, who had not notified the rest of the FAC what he had done. [One member of the FAC later resigned over the actions of the President and the Academic Vice President.] Both women “won” hearing boards but were rejected for tenure after some of the procedural missteps at the departmental and FAC levels were corrected. One woman accepted money to move on before her ter­minal year. The other rejected the buyoff and sued. Her efforts were crushed by the new legal team. This litigant learned that the University’s losses in 1994 had taught adminis­tra­tors that litigators able to stymie resort to court and attempts at redress could free decision-makers from bothersome rules, proprieties, and due process.

These examples [and others that I might provide] reveal that, while faculty aware of their rights and willing to assert them may be derided as litigious louts, the ill-treated will surrender their rights in return for a modest sum or be steamrolled by a law firm in the unlikely event that they can interest a plaintiff’s attorney in rolling the dice to vindicate substantive or procedural rights.

The women above and other tenure aspirants also learned throughout the 1990s how Pyrrhic victories in hearing boards tend to be. Indeed, hearing boards usually give departments or the FAC an opportunity to polish up their acts. I should supply stunning examples of misbehaviors eliminated from files after which that president reached the same decision, but I participated in those hearing boards and so may be barred by the Faculty Code from specific references.

If administrators and their collaborators on power committees genuinely feared that faculty might assert their rights successfully, decision-makers might adhere to procedures more often. Litigiousness, were it more than mythical, might induce power committees and administrators to pursue procedural and perhaps even substantive justice.

Campus elites do not fear lawsuits. They fear exposure. They score litigiousness because litigation threatens to reveal arbitrariness and injustices. Were faculty able to litigate rights and justice with some hope of prevailing, campus elites might have to follow rules. Indeed, they might have to read the rules. What a nightmare that would be!


Next – “Multiple Narratives” –The “multiple narratives” dodge is bad enough, but the nescience it portends or presumes is even more troubling.