The term academic abstention appears to be the creation of Harry T. Edwards and Virginia D. Nordin, because it first appeared in the literature in their 1979 book, Higher Education and the Law. As it applies to higher education, academic abstention reflects the ideological basis of academic autonomy and freedom that was established at the formation of universities in medieval times. The courts have traditionally exercised caution when asked to intervene in the internal affairs of institutions of higher education. This practice of academic deference evolved from a circumspection by a judiciary that hesitated to substitute its judgment for that of academicians. In light of the history and significance of this practice, this entry examines the growth and development of the important concept of academic abstention in the world of American higher education.
Historically, the American judiciary has respected the autonomy of higher education. The U.S. Supreme Court, in Trustees of Dartmouth College v. Woodward (1819), its first-ever case set in an educational context, articulated a traditional legal view that private colleges could best serve society when they were free from outside, namely, governmental, interference. This independence has included virtually all institutional employment, admission, teaching, and research practices in higher education. Moreover, academicians frequently invoked “academic freedom” to prevent outside forces from interfering with the internal management of colleges and universities based on the notion that the delicate and complex nature of academic institutions demanded autonomy. The academicians maintained that lawyers, judges, and other outsiders lacked knowledge of the unique qualities and nature of the academic milieu. In buttressing their position, the academicians were of the view that only unfettered autonomy and respect for the traditional means of governance and collegiality would permit higher education institutions to achieve their lofty goals.
Such deferential treatment for higher education reflected society’s early perception that academic institutions were private, complex, and fragile. If outsiders, including the courts, interfered with the internal operation of universities, then many believed that a delicate balance might be so disturbed that the institutions would flounder. According to supporters of academic abstention, then, only with the respect of other institutions for its traditional means of governance by consensus and collegiality could American higher education thrive and prosper.
Not only was the educational environment special, faculty and administrators were perceived as possessing unique qualities of virtue and ability, because their educational background and training were vastly superior to those of the general population. Additionally, faculty and administrators in higher education were charged with preserving knowledge and educating future leaders. This combination of exclusive or “special” expertise and special mission introduced the idea that outside monitoring of academe was unnecessary, even dangerous, to society’s interests. These judicial impressions and perceptions are entangled with the concepts of academic freedom and institutional autonomy, concepts that have special meaning in a country with America’s democratic tradition. Judicial deference under the doctrine of special expertise has been applied in a variety of legal settings. It was employed in response to early student attempts to challenge the authority of academicians by an unsuccessful attempt to force the award of a degree where a student failed to meet the proscribed standards (e.g., Mahavongsanan v. Hall, 1976). Judges reasoned that the determination of student academic qualifications was of a quasi-judicial nature, requiring discretionary judgment over which legal powers such as mandamus had no authority (e.g., Steinhauer v. Arkins, 1902). However, judges invoked the doctrine of special expertise only when they were convinced that academic officials acted in good faith, such as when refusing to grant relief when a student unsuccessfully applied for admission to law school (Timmerman v. University of Toledo, 1976) and in affirming the refusal to grant a student’s request for an order directing officials to reinstate and promote a medical student who had failed a third-year course in medicine and surgery (Mustell v. Rose, 1968).
Judges relied on the doctrine of special expertise to distinguish due process requirements for student academic and disciplinary dismissals (e.g., Gaspar v. Bruton, 1975). In acknowledging the subjective nature of academic decision making, courts refused to require the more extensive due process procedures associated with disciplinary dismissals. Provided that educators acted reasonably, in good faith, and without constitutionally impermissible intent, judges invoked the doctrine in deference to those better equipped to direct the academic decision- making process in higher education (e.g., Board of Curators of University of Missouri v. Horowitz, 1978; Regents of University of Michigan v. Ewing, 1985). Despite the Supreme Court’s application of the doctrine, institutional officials began to administer academic dismissals with greater procedural and substantive precision (e.g., Haberle v. University of Alabama in Birmingham, 1986; Mauriello v. University of Medicine & Dentistry of New Jersey, 1986; Nash v. Auburn University, 1987).
Similarly, judges also deferred to the special expertise of academicians vis-à-vis faculty qualifications when institutional decisions were the result of legitimate academic decision making (e.g., Faro v. New York University, 1974; Powell v. Syracuse University, 1978). However, the courts demonstrated a willingness to intervene in those academic areas that traditionally received judicial deference when compelling evidence of abuse of discretion (e.g., State ex rel. Bartlett v. Pantzer, 1971) or arbitrary action (e.g., Wong v. Regents of University of California, 1971) by institutional authorities was present. This pattern of judicial intervention reflected early common-law concepts regarding the exercise of authority within academic institutions (e.g., Jones v. New York Homeopathic Medical College & Hospital, 1892; State ex rel. Niles v. Orange Training School for Nurses, 1899).
Contemporary statutory enactments resulted in judges struggling with the possibility that the traditional abstention doctrine might undermine civil rights and antidiscrimination policies behind the legislation (e.g., Powell v. Syracuse University, 1978). Judges have made no secret that they believe themselves inadequate to substitute their judgment in purely academic matters; however, to enforce the statutory mandate for social justice, jurists have repeatedly emphasized that academic freedom does not include the freedom to engage in invidious discrimination (e.g., In re Dinnan, 1981; Powell v. Syracuse University, 1978). In this specific context, jurists find themselves torn between their constitutional and statutory obligations to ensure fair educational practices and their traditional deference to the authority of academicians (e.g., Clark v. Whiting, 1979; Southeastern Community College v. Davis, 1979).
In resolving this dynamic dilemma, judges justify intervention as a way that affords them opportunities to evaluate whether professed legitimate academic reasons are pretextual. Absent impermissible constitutional or statutory violations, judicial abstention is ensured (e.g., Gray v. Board of Higher Education, City of New York, 1982; Kunda v. Muhlenberg College, 1980; Regents of University of Michigan v. Ewing, 1985; University of Pennsylvania v. EEOC, 1990). Even so, when educational officials enforce their rules and regulations inconsistently, the likelihood of subterfuge may override any judicial predilection for deference (e.g., Holliman v. Martin, 1971), thereby leading to possible litigation.
- Edwards, H. T. (1980). Higher education and the unholy crusade against governmental regulation. Cambridge, MA: Harvard University Institute for Educational Management.
- Edwards, H. T., & Nordin, V. D. (1979). Higher education and the law. Cambridge, MA: Harvard University Institute for Educational Management.
- Kaplin, W. A., & Lee, B. A. The law of higher education, 4th ed. (2006). San Francisco: Jossey-Bass.
- LaNear, J. (2005). Academic freedom in public higher education: For the faculty or institution? Madison: University of Wisconsin–Madison.
- Leas, T. (1989). Evolution of the doctrine of academic abstention in American jurisprudence (1989). Tallahassee: Florida State University.
- Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78 (1978).
- Clark v. Whiting, 607 F.2d 634 (4th Cir. 1979).
- In re Dinnan, 661 F.2d 426 (5th Cir. 1981).
- Faro v. New York University, 502 F.2d 1229 (2d Cir. 1974).
- Gaspar v. Bruton, 513 F.2d 843 (10th Cir. 1975).
- Gray v. Board of Higher Education, City of New York, 692 F.2d 901 (2d Cir. 1982).
- Haberle v. University of Alabama in Birmingham, 803 F.2d 1539 (11th Cir. 1986).
- Holliman v. Martin, 330 F. Supp. 1 (W.D. Va. 1971).
- Jones v. New York Homeopathic Medical College & Hospital, 20 N.Y.S. 379 (N.Y. City Super. Ct. 1892).
- Kunda v. Muhlenberg College, 612 F.2d 532 (3d Cir. 1980).
- Mahavongsanan v. Hall, 529 F.2d 448 (5th Cir. 1976).
- Mauriello v. University of Medicine & Dentistry of New Jersey, 781 F.2d (3d Cir. 1986).
- Mustell v. Rose, 211 So. 2d 489 (Ala. 1968).
- Nash v. Auburn University, 812 F.2d 655 (11th Cir. 1987).
- Powell v. Syracuse University, 580 F.2d 1150 (2d Cir. 1978), cert. denied, 439 U.S. 984 (1978).
- Regents of University of Michigan v. Ewing, 474 U.S. 214 (1985).
- Southeastern Community College v. Davis, 442 U.S. 397 (1979).
- State ex rel. Bartlett v. Pantzer, 489 P.2d 375 (Mont. 1971).
- State ex rel. Niles v. Orange Training School for Nurses, 42 A. 846 (N.J. 1899).
- Steinhauer v. Arkins, 69 P. 1075 (Colo. Ct. App. 1902).
- Timmerman v. University of Toledo, 421 F. Supp. 464 (N.D. Ohio 1976).
- Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819).
- University of Pennsylvania v. EEOC, 493 U.S. 182 (1990).
- Wong v. Regents of University of California, 93 Cal. Rptr. 502 (Cal. Ct. App. 1971).