Academic Abstention

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 [Page 2]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).

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