Conflict Resolution and Litigation Rising in Higher Education: What Gives?

Despite making inroads into higher education, mediation and other forms of conflict resolution have done little to stem the flow of litigation. “The 1990s have witnessed a continuing escalation in the frequency, spread and total costs” of legal liability claims against colleges and universities, according to a summary of the 1997 Legal Liability Coverage Survey. Taken together, job discrimination and sexual harassment claims accounted for 60 percent of all claims in 1997, nearly doubling since 1992. Meanwhile, legal defense expenses more than doubled during this five-year period, with average annual costs approaching $110,000 at public institutions and $175,000 at private institutions. These litigation trends are particularly troubling given that mediation and conflict resolution programs have mushroomed on campuses across the country during the 1990s. This essay takes a deeper look at the counterintuitive relationship between conflict resolution and litigation in higher education.

Poor Excuses and Half-Hearted Efforts

As a society, we generally expect more from an educational institution than a business corporation. At their best, educators teach the conflicts and open the conversation, not just in the classroom but in the community as well. They move toward the points of tension (not
away); they call into question cultures of inequality or unfairness; and, they seek the hidden conflicts in any teachable moment. They shouldn’t (though they too often do) stand silent or be complicit
when hard issues need airing.

However, those more familiar with academic culture well understand that collegiality often masquerades as conflict resolution: We’re being nice to you, so why don’t you go away? While we may all value the ideals of collegiality and openness espoused by educational institutions, we do not have to embrace the social and moral posturing that constitutes a betrayal of these ideals.

Moving away from the moral high ground, there are those working inside academia who argue that schools are doing their best to prevent discrimination and harassment lawsuits. They say the problems lie with the law itself and plaintiffs’ expectations of remedies under the law, not with institutional efforts to enforce it. College administrators also protest that complying with expanding federal and state statutes is burdensome. Certainly, understanding the rapidly developing case law that provides equal measures of clarity and confusion can be frustrating. In particular, checking the validity of sexual harassment complaints, mostly about a hostile environment as opposed to quid pro quo, is not easy. Many administrators throw up their hands in the belief that no matter what they do to address discrimination and harassment on campus, they’re going to get sued anyway, conveniently shifting blame to our oft-cited “litigious society.”

In fact, educational institutions have available to them many effective tools for managing their liability risks. These include written policies and procedures as well as education and training. Written policies for faculty, staff and students governing key aspects of campus life, when regularly reviewed and consistently applied, can lead to sound practices. Education and training can expose racist and sexist attitudes that lead to discriminatory and harassing behaviors on campus. Unfortunately, legally mandated policies and education are doing little to stop lawsuits by aggrieved faculty, staff, students and even alumni. The highly charged climate around gender discrimination and sexual harassment laws, brought about in large part by the high-profile cases of Anita Hill and Paula Jones, obscures the deeper issue: Why can’t more of these complaints be resolved before they become lawsuits?

Consider the Limits of Litigation

Simply put, schools lack the will to constructively resolve discrimination and harassment complaints. In nearly all cases reported by the media, plaintiffs say it’s what the school did, or failed to do, after they lodged a complaint that drove them to litigation. Institutional response was seen as too little too late, and sometimes clearly retaliatory.

While plaintiffs often see legal action as their only means of holding a college or university accountable, it rarely achieves this end. On the contrary, the adversarial structure of litigation can work to absolve schools of their responsibility in resolving these matters. Consider how these aspects of litigation prevent plaintiffs from getting the accountability they seek:

• 
  
• Legal strategy dictates that schools not comment on pending litigation, but this also hampers trustees and other college officers from getting a clear understanding of the nature of the dispute.

• Legal strategy encourages schools to outspend and outlast the plaintiff, which also operates at cross purposes to finding a constructive and timely resolution.

• Legal strategy recommends settlement talks with the plaintiff be handled quietly, with both parties adhering to a strict confidentiality agreement. This prevents open and frank discussions about how the lawsuit could have been avoided in the first place.

As a general rule, colleges and universities like to keep their disputes in-house rather than expose them to an external authority. Once in court, they argue that their shared system of governance, tenure practices, and disciplinary measures are appropriate and sufficient, requiring little or no legal intervention. However, the immunity from liability that educatioanal institutions enjoyed for many decades began to erode in the 1990s. While juries have been increasingly responsive to individual plaintiffs’ concerns for equity and diversity, the courtroom remains a highly unsatisfactory forum for conflict resolution.

Shortcomings of Administrative Leadership

Let’s move back to the moral high ground for a moment. If educational institutions acted upon the ideals they espouse, there would be little need to bring campus disputes out into the open. Sadly, this is not the case. At the same time that colleges and universities are stepping up their education and training programs in response to new laws and regulations, they utterly fail to demonstrate a real commitment to equity and diversity on campus. Their driving concern is to protect themselves from liability and litigation, not practice moral leadership.

Even as ‘on-campus’ mediation and conflict resolution programs are beginning to receive significant support from administrators, they remain pockets of expertise poorly integrated into academic decision-making structures. The fragmentation of perspectives that evolves from higher education’s shared system of governance forces us to question the tacit but erroneous assumption that administrators will actually call upon their own campus resources for resolving disputes.

When it comes to internal disputes, colleges and universities must throw off the cloak of feigned collegiality, which often delays the onset of genuine conflict resolution, and open the conversation. But, what does this mean? Quite simply, educational institutions must learn to deal with the discomfort that comes from engaging-rather than distancing-angry, hurt, or otherwise upset individuals. And, they must not resort so quickly to assertions of institutional authority when the conversation starts getting messy and rancorous. Instead, they must acknowledge that mediation and other forms of conflict resolution, while not panaceas, will shape a constructive dialogue that carries with it the prospect of bearing fruitful outcomes, not simply for the parties involved but for the larger educational community. How, then, do we get college and university administrators to go beyond embracing the concepts of conflict resolution and actually start using the on-campus services they financially support?

Increase Awareness of the Costs of Litigation

When a discrimination or harassment suit is filed, an educational institution is accountable to its larger community, particularly those who support it with their goodwill, time and money: trustees and major donors, alumni and friends, students and parents, townspeople and taxpayers. Only when the larger community is made aware of the monetary and social costs of litigation will colleges and universities find constructive ways of resolving disputes. In addition to court awards and legal defense expenses, other costs may include:

• The cost of draining public resources. When a school fails in its response to faculty, staff and student complaints, it usually shifts the responsibility for resolving disputes to federal and state anti-discrimination agencies. These chronically underfunded and understaffed agencies are so backlogged with complaints that it typically takes several years to process a single case. Given this protracted timetable, many complainants transfer their claims to federal and state court, which in turn clogs up the judicial system with cases that belong in an administrative forum.

• The cost of a toxic work or learning environment. Colleges and universities are generally perceived as benevolent organizations with enlightened employment practices and a family-friendly working climate. In reality, discrimination and harassment lawsuits significantly exacerbate existing tensions within an institution. While there is something to be said for the healthy role that higher education plays as a lightning rod for conflict within our larger society, protracted litigation on individual campuses is distracting, if not ugly, and takes a toll on academic departments and administrative offices alike.

• The cost of ineffective leadership. Every discrimination and harassment lawsuit in higher education represents a failure of policy and practice. And, a failure of policy and practice is, at its root, a failure of institutional leadership. If administrators at all levels were to understand that what they “believe precedes policy and practice,” as Max DePree states in Leadership is an Art, colleges and universities would face far fewer legal challenges. Not surprisingly, schools that value collaborative and creative leadership are more likely to resolve complaints before they become lawsuits.

Encourage Donor Activism for Conflict Resolution

Those who support colleges and universities through endowment gifts and annual contributions are the ultimate stewards of higher education. This is particularly true for private institutions, which are not subject to the same governmental oversight as public institutions. However, even public universities are becoming increasingly reliant on donor dollars as they begin to launch multi-year campaigns and annual fund drives.

The connection between discrimination litigation and fund raising is recognized by the American Association of University Women Legal Advocacy Fund. Since its founding in 1981, the AAUW LAF has supported nearly 50 cases, contributing more than $350,000 to women seeking judicial redress for gender discrimination in higher education. The AAUW Legal Advocacy Fund encourages alumni of an institution involved in a LAF-supported lawsuit to “tell the school that you will not contribute this year because of the school’s lack of support for equity in academe.” The next step for the AAUW LAF, and other national higher education associations, should be to encourage academia to use mediation and other forms of conflict resolution. Director of the AAUW LAF Patty McCabe says her program supports conflict resolution in concept but has no mechanisms in place to bolster its use.

As the face of philanthropy becomes increasingly female, women are using their donor power to press for change in higher education. To draw attention to Harvard’s dearth of tenured female faculty, a group of Radcliffe College alumnae began a boycott of Harvard University’s comprehensive campaign in 1995. They’ve placed over $500,000 in pledges from more than 2,000 women and men in escrow. They could strengthen their effort by arguing for the wider use of mediation and conflict resolution by elite institutions like Harvard that influence practices throughout higher education.

Finally, how can individual donors encourage the schools they care about to seek constructive ways to resolve discrimination and harassment complaints? By asking two simple questions the next time they are solicited for contributions:

• How many faculty, staff and student legal claims have been filed in the past five years?
  
• How many of these claims have been resolved through mediation or other forms of conflict resolution?

Given this information, donors are in a better position to decide if they want to conditionally withhold their contributions. If enough donors, particularly highly influential trustees or major donors, raise these questions, schools will more clearly see their stake in reducing litigation. Furthermore, as public worries about access and quality hold schools accountable for their practices in new and detailed ways, administrators will be forced to look more closely at litigation costs. Will higher education become a littered landscape of litigation or will the inroads made by mediation and conflict resolution programs develop into an integrated, well-traveled road system? Ultimately, it will depend upon what pressures are brought to bear by the larger educational community.

                       

Marjorie Hutter

Marjorie Hutter is the founder of CollegeConsumers, a research and advocacy firm focused on market trends and consumer choices in higher education. Ms. Hutter has worked in higher education for nearly ten years. Her articles and opinion pieces have appeared in both popular and professional publications, including The Washington Post… MORE >