Friday, April 27, 2007

 

I'll Sue!

Over at Profgrrrrl's, there's a discussion going on about a student threatening to sue over a grade she didn't like. The student followed the normal appeals process, lost at every step, and is now threatening a civil action to get either a higher grade or monetary damages.

In seven years of deaning, I've literally lost track of the number of times I've been threatened with legal action. It's actually reached the deposition stage exactly once. I've been found guilty or liable exactly zero. I've never seen a professor successfully sued. In my experience, far more damage is done through the threat of lawsuits than through the actual suits themselves, since actual suits rarely develop.

There's a tremendous amount of ignorance and speculation about the law and the judicial system floating around. Some of it is probably the natural side effect of complexity – although I drive to work every day, I have only the vaguest idea how my car's engine works. (Admittedly, listening to Car Talk every week has helped a bit.) Some of it, I think, is the result of distortion through publicity. The occasional forehead-slapper of a case gets far more coverage than most, so if you aren't paying attention, you'll take the occasional wacky one as representative. (And yes, wacky ones do exist.) And a lot of it, I think, comes down to a fundamental category mistake most people make: they don't (or can't) distinguish process from substance. Put differently, they can't distinguish 'legal' from 'fair.'

From what I've gathered – and I'll admit right now that I'm not a lawyer – it's far more important to the courts that the basis of a decision be legitimate than that the decision itself be correct. If a professor can show that the components of a grade were clearly outlined on the syllabus and that they were followed as written, then it really doesn't matter if what you gave a C I would have given a B. Specific academic judgments of quality are part of a professor's job, and yes, they involve judgments. But as long as the process used to make those judgments is reasonable, you're in good shape.

(That means you could get in trouble if you didn't give criteria for grades, or if you included criteria you never disclosed. Criteria could be as simple as: 1st exam, 25%; 2nd exam, 25%, etc.)

The same holds for certain personnel decisions. Shortly before I left, Proprietary U did a round of faculty layoffs. I was in on some of the conversations about how to decide who to let go. (Notice the distinction between “conversations about how to decide who to let go” and “conversations about who to let go.” That's the key difference. If you have the second without having the first, you're in for a heap of trouble.) My contribution was to point out the page in the employee handbook that listed four criteria to be used in any layoff, and to develop a grid based on those criteria. (Surprisingly, nobody else thought to read the handbook.) When I explained to my admin colleagues that using relatively simple, pre-publicized criteria could avoid some nasty issues down the line, they went for it. When the faculty started to get jumpy and demand answers, I simply referred them to the four criteria, even going so far at one point as to photocopy them and hand them out at a meeting. Yes, there were still borderline cases where some judgments had to be made, but I could honestly say that the basis for the judgments was reasonable. (The weird side effect was that the HR director sent my grid to Home Office, where it was copied – names and numbers removed – and sent to the other campuses as the My Campus Model for layoffs. Not how I'd choose to be remembered, but that's how it goes.)

(The distinction between process and result collapses in certain discrimination cases, where a result can be taken as prima facie evidence of a corrupt process. At that point, the accused has to prove a negative. The wisdom of this exception I leave to the reader.)

The benefit to paying attention to this stuff upfront is that when you do, and somebody starts yelling “I'll sue!,” you can call the bluff. I've become very good at saying “the college attorney's name is x, and here's my card so you spell my name right.” I've had a few conversations with folks who've tried to intimidate me with legal jargon and/or threats, and have found that doing the process-thinking in advance makes it much easier to just keep doing what I need to do. To the uninformed, that process-thinking can look like paper-pushing or administrative makework. But it isn't. In fact, failing to do it puts everything else we do in jeopardy.

Bluff-calling works especially well with victim bullies. Since threats are their oxygen, the ability to ignore their threats is devastating.

Where this stuff breaks down is when an organization gets so conflict-averse that it tries to appease people who really don't have a case. Once you start down that path, there's no end to it. (Give the litigious student an 'A,' and every student will start threatening to sue.) If it were up to me, the legal system would be much quicker to dismiss many cases out of hand, so nobody would have to settle just to avoid the nuisance of going through the process. I'd also be a lot quicker to impose severe penalties for frivolous claims, since they amount to nothing more than attempted extortion by another name. But you work with the judicial system you have, not the one you want.

If the student threatens to sue, let her. Sometimes in this business you have to be the bad guy. If you don't have the stomach (or the integrity) for that, find another line of work.

I'm almost afraid to ask, but what's the silliest threat-to-sue you've received?





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