Expansion of Rules, Regulations and Due Process Procedures

As university enrollments and personnel continued to expand with the babyboom, administrators developed an ever-increasing number of rules and regulations to try and manage the changing campus environment. At the same time, a larger proportion of university personnel joined unions and collectively bargained over contracts. While in earlier periods there had been great reluctance by the courts to get involved in campus issues, during the 1970's the courts began to hear more campus-based disputes, and federal courts established a variety of new guidelines relating to internal grievance procedures on campus. These factors, along with increased student expectations of involvement in their education institutions and more careful monitoring of the “fairness” of procedures, began to have an influence on policy-making.

In response to these changes, during the 1970s, a “due process explosion” occurred on campuses, with many new policies being developed providing detailed grievance and disciplinary procedures aimed at protecting individual rights and checking administrative discretion (and fending off possible lawsuits). These changes gradually began to effect the feeling of life on campus. A 1978 article entitled "Who Killed Collegiality?" in Change magazine (Ryor 1978) argued that in fact the era of collegiality was being replaced by one of liability.

Marske and Vago (Marske and Vago 1980), examining the changes in the legal climate on campus, described the environment of the late 1970’s as follows:

The heterogeneous, impersonal and at times, almost alienated quality of the academic climate fosters the utilization of law to assert individual rights and settle grievances in academic situations. Students more and more come to view themselves as "consumers" of education, faculty operate under rules and regulations with regular contracts, and administrators work under a complex web of legal guidelines (p. 168).

A 1982 article entitled "The Legalistic Culture in American Higher Education" in College and University (Burnett and Matthews 1982) magazine further echoed this theme, lamenting the increasing legalistic nature of campus life. Other indicators of this shift in campus climate can be found in the increase beginning in the late 1970s of prepaid (i.e., student fee funded) legal services available on campus for students. Legal resources were also becoming more readily available to faculty as the AAUP began offering a liability insurance policy tailored to the needs of faculty in 1978-79. The National Association of College and University Attorneys (NACUA), founded in 1961 by a small group of attorneys providing legal advice and services to campuses, experienced its greatest period of growth during the late 1970s as well. NACUA grew because it helped coordinate legal resources and expertise among university administrators, who had been moving to establish in-house legal counsel, no longer able to function with occasional use of the expertise of a lawyer sitting on their board of directors. Nearly 1400 campuses (about 660 institutions), represented by over 2700 attorneys, comprise NACUA’s membership today. In the late 1970’s Stetson University began hosting a popular annual conference on Law and Higher Education to help university administrators keep up with the rapidly changing legal climate as it relates to universities. The Association for Student Judicial Affairs (ASJA) formed in 1987 as an offshoot of the Law and Higher Education Conference, to promote and support professionalism in the increasingly complex student judicial affairs area.

The Emergence of Campus ADR

As the laws surrounding higher education became more complicated, and the number of lawsuits brought against universities by students and faculty increased, interest began to grow in using alternatives to litigation to resolve conflicts. In addition to changes in the external environment such as decreasing enrollments and a tightening up of the economy, elements within academic culture supported the use of mediation as a form of dispute settlement. Central among these elements is the tradition of collegiality and the value placed on reasoned persuasion.

One of the more visible early examples of experimentation with mediation on campus began in 1979-80 with the sponsorship by the New York branch of the American Arbitration Association of a new entity called the Center for Mediation in Higher Education. The Center functioned for about 5 years working to encourage the use of mediation to resolve disputes involving university administrations and staff or faculty. In 1980, the journal New Directions in Higher Education published a special issue on conflict management in higher education edited by Jane McCarthy, director of the Center for Mediation. (McCarthy 1980). The issue addressed primarily staff and faculty conflicts, but also included an article on a new campus mediation project (serving students) in the planning stages at the University of Massachusetts’s Legal Studies program, and an article on the current state of student grievance procedures.

McCarthy's 1980 article "Conflict and Mediation in the Academy" describes some of the thinking emerging at the time,

Many educators appear concerned about the prospect that the educational communities commitment to collegial governance and decision-making will be threatened as institutions are forced to choose between conflicting constituencies as competition for scarce resources escalates. Mediation can foster collegiality by encouraging disputants to identify common interests and work supportively to achieve mutually acceptable solutions. (p. 4)

The University of Massachusetts Mediation Project, that began in 1980-81 was one of the first of a growing number of distinct mediation efforts actually located on a campus. Other early efforts included the University of Hawaii, Oberlin and Grinnell Colleges. Most of the early programs served primarily students, but over time programs emerged that served the full range of the campus population. A national survey done in 1991 using snowball sampling methods (Warters & Hedeen, 1991) identified 35 campus mediation programs in the United States and Canada, a number which had grown rapidly from the approximately 18 programs that were known of in March of 1990. My August 1998 review of the field has identified 165 programs, and the number continues to grow. (See figure for trend)

The mid-to-late 1980s was a growth period in terms of the writing about campus conflict resolution approaches, and experimentation with various types of mediation efforts. In 1983, an intern at Community Boards Program in San Francisco wrote a working paper adapting the Community Boards model for use on college campuses (Sakovich 1983) , and in 1985, a manual entitled Peaceful Persuasion: A Guide to Creating Mediation Dispute Resolution Programs for College Campuses (Girard and others 1985) was published by the University of Massachusetts Mediation Project and the National Institute for Dispute Resolution, and Shubert and Folger's research on student grievance mechanisms is published in the Harvard Negotiation Journal (Shubert and Folger 1986). Information on mediation also began to appear in specialized publications for student affairs personnel such as the 1984 article "A Mediation Workshop for Residential Staff".(Knechel and others 1984) in the Journal of College Student Personnel Association, the 1985 chapter on "Mediation and Conflict Resolution" (Engram 1985) found in The Experienced Resident Assistant, and a 1986 article for student judicial affairs personnel (Beeler 1986). These kind of publications really helped spur the growth of on-campus mediation efforts.

By the Spring of 1990 sufficient interest in campus mediation had developed to support a national conference, and in March of that year the first National Conference on Campus Mediation Programs was hosted by the Campus Mediation Center at Syracuse University. In subsequent years national campus mediation conferences were held at the University of Waterloo in Ontario, the University of Oregon, and at St. Mary's University in Texas. The annual campus mediation conference merged with the National Association for Mediation in Education (NAME) in 1994. NAME, which formerly focused on K-12 programs, expanded their mandate by establishing a Committee on Higher Education, including a regular newsletter section on higher education activities, and sponsoring a track of higher education workshops at their annual conference. In late 1995, NAME merged with the National Institute for Dispute Resolution (NIDR) to became the Conflict Resolution Education Network (CREnet). (Note that CREnet has now merged with the Society for Professionals in Dispute Resolution and the Academy of Family Mediators to form the new Association for Conflict Resolution (ACR). ACR has an education section that continues to support work at the college and university level. More information on ACR is available at http://www.acresolution.org.)

ADR in Collective Bargaining and Grievance Handling

The early-to-mid 1980's was also a period of increasing interest in the campus collective bargaining process, and how it might be made less adversarial. Robert Birnbaum’s 1980 book Creative Academic Bargaining: Managing Conflict in the Unionized College and University (Birnbaum 1980) is one example of this line of work. By the mid 1980s approximately a third of the professorial were represented by certified bargaining units in public and private, two and four year institutions. The majority of faculty collective bargaining agreements established grievance systems that culminated in the use of arbitration. The American Arbitration Association handles the bulk of these cases, with public relations employment boards (Herbs) and the Federal Mediation and Conciliation Service also being used to a lesser extent. In 1984 associates of the Center for Mediation in Higher Education published the book Managing Faculty Disputes (McCarthy and others 1984) encouraging the development of more flexible grievance systems that included mediation to help manage faculty conflicts. The AAUP also began to indicate support for mediation (Mussel 1988), on occasion involving representatives from their local chapter offices, who after review of a case, might assist in the mediation efforts.

The College and University Personnel Association (CUPA), whose membership of university HR administrators had doubled between 1966 to 1986 to include about 1250 institutions, began showing interest in the mid-1980’s in less adversarial ways to manage staff disputes. This is evidenced by articles such as “Taking the Conflict Out of Grievance Handling” (Cunningham 1984) found in their central journal. An edited collection published by CUPA in 1993 entitled Managing the Industrial Labor Relations Process in Higher Education (Julius 1993) included several essays on ADR such as "Dispute Resolution: Making Effective Use of the Mediation Process" (Margaret K. Chandler); "Mediation in the Resolution of Collective Bargaining Disputes" (Ira B. Lobel) and "Negotiating in an Anarchy: Faculty Collective Bargaining and Organizational Cognition" (Robert M. Birnbaum).

Student Grievance Systems

It was also during the 1980's that researchers began to explore the range and type of student grievance procedures in more detail. Folger and Schubert’s 1981 survey of 741 colleges and universities found that over half of the surveyed institutions had implemented some kind (formal or adhoc) of third party procedure for handling student initiated grievances. This research was followed up by Folger and Schubert in a smaller but more in-depth study of formal and informal conflict resolution mechanisms reported in the 1986 NIDR-sponsored manuscript Resolving Student Initiated Grievances in Higher Education. The National Association of Student Personnel Administrators (NASPA) published their survey of student academic grievance mechanisms in 1989 (Ludeman 1989), and the College Student Personnel Association published results of a longitudinal study in 1991 (Dannells 1991).

Responding to the increasing complexity of judicial affairs on campus the Association for Student Judicial Affairs was created in 1987 specifically to support campus judicial affairs staff. By 1994 the ASJA had passed a formal resolution supporting the use of mediation within student judicial affairs. More recently, in 1997, the ASJA established their On-Campus ADR Committee to encourage and support mediation efforts among ASJA members.

Page last updated 11/27/2005

A project of Campus Conflict Resolution Resources.
Supported by a FIPSE grant from the US Department of Education
and seed money from the Hewlett Foundation-funded CRInfo project.

Correspondence to CMHE Report
(Attn: Bill Warters)
Campus Conflict Resolution Resources Project
Department of Communication
585 Manoogian Hall
Wayne State University
Detroit, MI 48201.

Please send comments, bug reports, etc. to the Editor.

© 2000-2005 William C. Warters & WSU, All rights reserved.