Volume 6, Number 1, Nov 2005
Alternative Dispute Resolution
at Public Colleges
Overcoming the Hurdles
It is a common complaint among public college trustees and administrators that the processes for dealing with student, employee and outsider conflicts are too legalistic and formalistic. That complaint has considerable merit, but the mere voicing of it has no practical effect other than, perhaps, momentary emotional release.
The wise trustee and administrator looks for ways to move beyond the complaint, to a solution. That solution may be found in a system of alternative dispute resolution. For such an alternative system to be successful, however, it may not turn a blind eye to the issues of due process and free speech. Rather, it must be designed to preserve the rights of students, employees, and outsiders.
To overcome the due process hurdle, the alternative system may either (1) merely supplement the traditional, formalistic procedures, rather than replacing them or (2) provide the elements of due process that the traditional procedures are designed (however awkwardly) to provide. The second option presents a particularly thorny challenge to the college's legal counsel. The right to due process does not mean that no employee may be fired or that no student may be dismissed. It simply means that certain basic guarantees regarding notice, an opportunity to be heard, and decision-making by an unbiased party, must be met. The traditional, formalistic procedures were designed by lawyers to provide these guarantees. It will take some creative legal thought to work them into an alternative system that replaces the traditional models.
To overcome the free speech hurdle, the alternative system, while it may require that all parties comply with confidentiality requirements concerning matters of personal concern, must be designed to avoid squelching the exercise of freedom of speech on matters of public concern. The right to free speech does not mean that everyone on campus can say just anything at any time. Protected speech is only that speech that touches on public concern and is spoken in ways that are not unduly disruptive. An alternative dispute resolution system can be designed to meet this right, but it cannot be a casual effort.
Robert Joyce is a Professor of Public Law and Government at the UNC School of Government in Chapel Hill. He specializes in school law and higher education law and is former editor of the School Law Bulletin. This article was originally presented as a talk to the Association of Community College Trustees at their 2005 annual conference.
 Pugel v. Board of Trustees of the University of Illinois,
378 F.3d 659 (7th Cir. 2004)
 Crue v. Aiken, 370 F.3d 668 (7th Cir. 2004)