The Magazine

Are Universities Above the Law?

For the sake of liberal education they shouldn't be.

Oct 27, 2008, Vol. 14, No. 07 • By PETER BERKOWITZ
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The gravamen of the unindicted lacrosse players' complaint is that "Throughout the crisis, Richard Brodhead (the President of the University) and other Duke officials consistently sacrificed the rights and interests of the accused Duke students in an effort to avoid embarrassment to Duke and to minimize criticism of its administration." The lacrosse players allege that, in violation of the university's own published antiharassment policies, Brodhead suppressed, discredited, and ignored exculpatory evidence; looked on passively as faculty and students conducted a campaign of harassment against the lacrosse players; and issued public statements and imposed disciplinary measures that were calculated "to impute guilt to the players and further inflame public opinion against them."

In late May, Duke University, represented by, among others, Washington lawyer Jamie Gorelick, filed a brief in support of its motion to dismiss, in which it contended that under North Carolina law student bulletins and faculty handbooks do not form enforceable contracts, and even if they do it is up to Duke to judge when the requirements of academic freedom override the promises made in them. To which the unindicted lacrosse players reply that Duke did indeed have a contractual obligation to "implement and enforce" the policies and protections outlined in its undergraduate student bulletin and faculty handbook; that such an obligation is confirmed by the very cases that Duke cites against the proposition; and that the lacrosse players' complaint raises no significant issues of academic judgment.

Courts are generally and properly reluctant to consider claims that involve a university's exercise of academic judgment--should a student have received an A or B? Did Professor Jones deserve promotion? But courts in general and North Carolina courts in particular have shown themselves prepared to examine whether universities have complied with specific promises, particularly where those promises do not implicate strictly academic judgments. This is the situation in the Duke case. Whether Duke published explicit promises in its student bulletin and faculty handbook to protect students from harassment and, in the event of serious accusations against them, to provide them a presumption of innocence and procedural rights guaranteeing a fair disciplinary process is a factual question, not one depending for its answer on academic training or expertise. So is the question whether Duke could have reasonably expected the students and their parents (who are paying upwards of $50,000 a year in tuition, room, and board) to rely on those promises.

Certainly courts will best serve universities' larger mission--the creation of a community devoted to the transmission of knowledge and the pursuit of truth--by compelling them to honor their formal promises of impartial treatment and their specific guarantees of fair process for students and professors alike. To hold otherwise would be to set universities above the law, transform administrators into dictators whose will on campus is the final word, and thereby undermine the rights on which the free and open exchange of opinion depends.

The lawsuit brought in New Jersey state court by lead plaintiff William Robertson, a Robertson Foundation trustee, against Princeton University in July 2002, is, after almost seven years, slated to go to trial on January 20, 2009. William Robertson, et al. v. Princeton University, et al. is a "donor intent" case of unprecedented magnitude. It threatens to cost the university an enormous sum: As of August 2008 the Robertson Foundation's endowment was worth approximately $900 million, which, at the time, represented about 6.5 percent of the university's $13.5 billion endowment.

William's father and mother, Charles and Marie Robertson, established the foundation in 1961 with a $35 million grant, then the largest gift by a private individual to a university. Charles, Princeton class of '26, served as the foundation's first chairman until his death in 1981. The 1961 certificate of incorporation provides for the foundation's board to be made up of three trustees designated by the Robertson family and four trustees designated by Princeton University, including Princeton's president. The foundation's purpose, according to the certificate of incorporation, is to support programs at Princeton's Woodrow Wilson School of Public and International Affairs for students pursuing government careers, particularly in international relations.