a critical aspect of the Court's reasoning that led it, in a landmark decision, to uphold the law school's admissions policy. A more recent example of judicial deference occurs in Christian Legal Society v. Martinez, 561 U.S. 661(2010), discussed in Section 10.1.4 of this book. Both the majority opinion and Justice Stevens's concurrence note that judges should leave policy making to the educators.
In other constitutional cases, courts may reach the opposite result. In the Virginia Military Institute (VMI) case, United States v. Virginia, 518 U.S. 515 (1996) (discussed in Section 7.2.4.2), for instance, the U.S. Supreme Court bypassed the defendant institution's expert evidence and declined to defer to its judgment that maintaining VMI as an all-male institution was essential to the institution's educational mission. The Court's apparent reason for refusing to defer, and the apparent distinction between Grutter and United States v. Virginia, is that the Court did not view the state's judgments over the years about VMI's all-male character to be genuinely academic judgments but rather viewed them as judgments based on other factors and later dressed up with educational research for purposes of the litigation. The state's proffered educational reasons for the all-male policy were “rationalizations for actions in fact differently grounded,” said the Court, and were based on “overbroad generalizations” about the abilities and interests of the sexes.
The paradigmatic setting for institutions' invoking academic deference, and courts' granting it, is the setting of faculty tenure, promotion, and termination decisions. The deference issues arising in this setting and the key cases are discussed in Section 5.4.2, as is the evolving tendency of courts to subject these decisions to thorough scrutiny for fairness while deferring to the academic standards used to evaluate a candidate for promotion or tenure.
When faculty members challenge adverse personnel decisions, they may assert statutory claims (such as a Title VII sex discrimination claim), or constitutional claims (such as a First Amendment free speech or academic freedom claim), or sometimes common law claims (such as a breach of contract claim). In response, institutions typically argue that courts should not involve themselves in institutional personnel judgments concerning faculty members, since these are expert and evaluative (often subjective) academic judgments to which courts should defer.2 Institutions have had considerable success with such arguments in this setting. They have also achieved similar success in cases concerning their academic evaluations of students; indeed, a student case, Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985) (discussed below), is one of the primary authorities on academic deference.
In a constitutional case, Feldman v. Ho, 171 F.3d 494 (7th Cir. 1999), for example, a professor claimed that Southern Illinois University did not renew his contract because he had accused a colleague of academic misconduct. The court rejected his First Amendment free speech claim by emphasizing the university's own academic freedom to make its own personnel decisions:
A university seeks to accumulate and disseminate knowledge; for a university to function well, it must be able to decide which members of its faculty are productive scholars and which are not (or, worse, are distracting those who are)…
If the University erred in telling [Professor] Feldman to seek employment elsewhere that is unfortunate, but the only way to preserve academic freedom is to keep claims of academic error out of the legal maw [171 F.3d at 495–97].
At the same time, the court in Feldman issued a strong statement on the need for courts to defer to the academic judgments of colleges and universities:
[A]n unsubstantiated charge of academic misconduct not only squanders the time of other faculty members (who must analyze the charge, or defend against it) but also reflects poorly on the judgment of the accuser. A university is entitled to decide for itself whether the charge is sound; transferring that decision to the jury in the name of the first amendment would undermine the university's mission—not only by committing an academic decision to amateurs (is a jury really the best institution to determine who should receive credit for a paper in mathematics?) but also by creating the possibility of substantial damages when jurors disagree with the faculty's resolution, a possibility that could discourage universities from acting to improve their faculty… If the kind of decision Southern Illinois University made about Feldman is mete for litigation, then we might as well commit all tenure decisions to juries, for all are equally based on speech [171 F.3d at 497].
Like the Feldman court, most contemporary courts will recognize that they should accord deference to the academic decisions of academic institutions with regard to faculty personnel matters. But seldom are courts as outspoken on this point as was the court in Feldman. Other courts, moreover, may (and should) give more attention than the Feldman court to whether the decision being challenged was a genuinely academic decision, based on expert review of professional qualifications and performance.
There are also many statutory employment discrimination cases in which courts defer substantially to the faculty personnel judgments of colleges and universities (see generally Section 5.4 of this book), sometimes with language as striking as that in the Feldman opinion (see, for example, Kyriakopoulos v. George Washington University, 657 F. Supp. 1525, 1529 (1987)). But this does not mean that courts will, or should, defer broadly in all or most cases challenging faculty personnel decisions. There have been and will continue to be cases where countervailing considerations counsel against deference—for example, cases where there is evidence that an institution has relied on race, ethnicity, or gender in making an adverse personnel judgment; or where an institution has relied on personal animosity or bias, internal politics, or other nonacademic factors; or where an institution has declined to afford the faculty member procedural safeguards; or where a decision for the plaintiff would not significantly intrude on university decision makers' ability to apply their expertise and discretion in making personnel decisions. The court in Kunda v. Muhlenberg College, above, strikes the right note about such situations:
The fact that the discrimination in this case took place in an academic rather than commercial setting does not permit the court to abdicate its responsibility… Congress did not intend that those institutions which employ persons who work primarily with their mental faculties should enjoy a different status under Title VII than those which employ persons who work primarily with their hands [621 F.2d at 550].
As the preceding discussion suggests, several interrelated factors are key in determining when a court should defer to the judgments of a postsecondary institution. First and foremost, the judgment must be a genuine academic judgment. In Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985), the Court stated this requirement well: “When judges are asked to review the substance of a genuinely academic decision…, they should show great respect for the faculty's professional judgment” (474 U.S. at 225 [emphasis added]). The demonstrated exercise of “professional judgment” is a hallmark of an academic decision. Generally, as Ewing indicates, such judgments must be made in large part by faculty members based on their expertise as scholars and teachers. Such judgments usually require “an expert evaluation of cumulative information” and, for that reason, are not readily amenable to being reviewed using “the procedural tools of judicial or administrative decisionmaking” (Board of Curators, University of Missouri v. Horowitz, 435 U.S. 78, 90 (1978)). Such judgments are also usually “discretionary” and “subjective,” and thus even less amenable to reasoned review on their merits by the courts.
A second key factor, related to the first, concerns relative institutional competence. Courts are more likely to defer when the judgment or decision being reviewed, even if not academic in character, involves considerations regarding which the postsecondary institution's competence is superior to that of the courts. The Kunda court, for instance, spoke of inquiries whose substance is “beyond the competence of individual judges” (621 F.2d at 548). Another court has advised that “courts must be ever-mindful of relative institutional competencies” (Powell v. Syracuse University, 580 F.2d 1150, 1153 (2d Cir. 1978)).
Third, courts are more likely to defer to the institution when