a simple lawsuit can become complex and lengthy. It can involve extensive formal pretrial activities, such as depositions, interrogatories, subpoenas, pretrial conferences, and motion hearings, as well as various informal pretrial activities such as attorney-administrator conferences, witness interviews, document searches and document reviews, and negotiation sessions with opposing parties. If the case proceeds to trial, there are all the difficulties associated with presenting a case before a judge or jury: further preparatory meetings with the attorneys; preparation of trial exhibits; scheduling, travel, and preparation of witnesses; the actual trial time; and the possibility of appeals. In order for the institution to present its best case, administrators will need to be intimately involved with most stages of the process. Litigation is also monetarily expensive, since a large amount of employee time must be committed to it and various fees must be paid for outside attorneys, court reporters, perhaps expert witnesses, and so forth. Fortunately, lawsuits proceed to trial and judgment less often than most laypeople believe. The majority of disputes are resolved through settlement negotiations. Although administrators must also be involved in such negotiations, the process is less protracted, more informal, and more private than a trial.
Despite the potential costs and complexities, administrators should avoid overreacting to the threat of litigation and, instead, develop a balanced view of the litigation process. Lawsuits can usually be made manageable with careful litigation planning, resulting from good working relationships between the institution's lawyers and its administrators. Often lawsuits can be avoided entirely with careful preventive planning. And preventive planning, even when it does not deflect the lawsuit, will likely strengthen the institution's litigation position, narrow the range of viable issues in the case, and help ensure that the institution retains control of its institutional resources and maintains focus on its institutional mission. Particularly for administrators, sound understanding of the litigation process is prerequisite to both constructive litigation planning and constructive preventive planning.
2.2.2 Judicial (academic) deference. Another consideration that should play a role in the management of litigation, and in an institution's presentation of its case, is “judicial deference” or “academic deference.” At trial as well as on appeal, issues may arise concerning the extent to which the court should defer to, or give “deference” to, the institution whose decision or other action is at issue. As one commentator has explained:
[A] concept of academic deference justifies treating many university processes and decisions differently from off-campus matters. This formulation is hardly novel. In fact,…many university cases recognize in this way the distinctive nature of the academic environment. Illustrations come from many areas. [Examples] that seem especially apt [include] university based research, personnel decisions, admissions of students, evaluation of student performance, and use of university facilities [Robert O'Neil, “Academic Freedom and the Constitution,” 11 J. Coll. & Univ. Law 275, 283 (1984)].
This concept of academic deference is part of a more general concept of judicial deference that encompasses a variety of circumstances and reasons that indicate when a court should defer to the expertise of some decision maker other than itself.1 Issues regarding academic deference can play a vital, sometimes even dispositive, role in litigation involving higher educational institutions. Institutions may therefore seek to claim deference at various points in the litigation process. (See generally O'Neil, supra, at 283–89.) Deference issues may arise, for example, with regard to whether a court should recognize an implied private cause of action (see, for example, Cannon v. University of Chicago, 441 U.S. 677, 709–10 (1979)); with regard to the issuance of subpoenas and other aspects of the discovery process (see, for example, University of Pennsylvania v. EEOC, 493 U.S. 182 (1990)); with regard to standards of review and burdens of proof; and with regard to the remedies to be imposed against a losing defendant (see, for example, Kunda v. Muhlenberg College, 621 F.2d 532, 547–51 (3d Cir. 1980)), discussed in Section 5.4.2). Sometimes requests for deference are framed as claims to institutional autonomy; sometimes as “institutional academic freedom” claims (see Section 6.1.7) or faculty academic freedom claims (see Section 6.2); and sometimes as “relative institutional competence” claims, asserting that the institution's or the faculty's competence concerning the matter at issue overshadows that of the court. Sometimes institutions may contend that their claim to deference is constitutionally based—especially when they rely on the academic freedom rationale for deference and seek to ground academic freedom in the First Amendment. At other times, in statutory cases, the deference claim may be based on statutory interpretation; in effect, the institution contends that, under the statute that is at issue, Congress was deferential to higher educational institutions and intended that courts should be deferential as well. And in yet other situations, especially in common law contract or tort cases, the deference claim may be based on public policy or legal policy considerations—for instance, that any court intervention would unduly interfere with the institution's internal affairs, or that vigorous enforcement of legal principles against higher education institutions would not be an effective use of the court's limited resources (see, for example, the discussions of deference in Sections 6.1.3 and 8.1 of this book).
When plaintiffs assert constitutional claims against an institution of higher education, deference issues may work out differently than when statutory claims are asserted. In a statutory case—for example, a case asserting that an institution has violated a federal civil rights law—the court will first be concerned with interpreting and applying the law consistent with Congress's intentions and in this regard will generally defer to Congress's own judgments about the law's application (see, for example, Eldred v. Ashcroft, 537 U.S. 186 (2003)). Thus the court will take its cue on deference from Congress rather than developing its own independent judgment on the matter. In Cannon v. University of Chicago, 441 U.S. 677 (1979), for example, the plaintiff sought to subject admissions decisions to the nondiscrimination requirements of Title IX of the Education Amendments of 1972. The defendant argued that it would be “unwise to subject admissions decisions of universities to judicial scrutiny at the behest of disappointed applicants” because “this kind of litigation is burdensome and inevitably will have an adverse effect on the independence of members of university committees.” Responding, the Court asserted that “[t]his argument is not new to this litigation. It was forcefully advanced in both 1964 and 1972 by congressional opponents of Title VI and Title IX, and squarely rejected by the congressional majorities that passed the two statutes.” The Court followed suit, rejecting the defendant's claim to deference. In other cases, involving other statutes, however, courts may discern that Congress intended to be deferential to postsecondary institutions in some circumstances and that courts should do the same.
In contrast, when plaintiffs assert constitutional claims and institutions ask the court for deference, the court is on its own; its response is shaped by consideration of applicable prior precedents and the applicable standard of judicial review. Grutter v. Bollinger, 539 U.S. 306 (2003), a constitutional challenge to the University of Michigan Law School's race-conscious admission policy, is a leading example of this type of case. The plaintiffs, rejected applicants, sought a rigorous, nondeferential application of the federal Constitution's equal protection clause; the university sought deference for the academic judgments it had made in designing and implementing its diversity plan for admissions. The Court applied strict scrutiny review, requiring the university to show that maintaining the diversity of its student body was a compelling state interest. In applying this standard, however, the Court emphasized:
The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer… Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions, within constitutionally prescribed limits [539 U.S. at 328].
This