Post by Sadie Blanchard, Research Fellow Yale Law School
At the last session of this spring’s Seminar in Private Law, we considered dispute resolution in universities. The speakers were Jonathan Holloway, Dean of Yale College and Professor of African American Studies, History, and American Studies, and Mary Rowe, who teaches at MIT’s Sloan School of Management and was MIT’s Ombuds for over 40 years. In view of the tumult on campuses over the past year, it seemed apt to consider universities as part of our survey of dispute resolution beyond the state. What is distinctive about conflicts in this setting? What processes are best suited to resolve or manage them? Are protests evidence of a failure of dispute resolution, or are they a desirable or inevitable form of complaint?
Mary Rowe took up the role of Ombuds at MIT in 1973. Over the next forty-two years, she saw the university through great demographic shifts in its workforce and student population, including increased diversity of nationality, race, gender, religion, and sexual orientation. She began by identifying the two most important approaches she discovered for resolving disputes. The first was to bring people with similar complaints together for mutual support and empowerment. Such groups tended to take ownership of their issues and were usually able to work toward a resolution without her further intervention. The second approach was to provide a wide array of options, including specific self-help methods she developed. For example, two ideas that proved effective were to encourage people with complaints to keep a diary of the behavior that they wanted to see stopped and to write a letter to the alleged offender describing the behavior and asking that it be stopped. This idea arose after many meetings with complainants who did not want to formally complain because their only evidence was their word. The diary and the letter, either alone or in combination, were in most cases sufficient to bring about an end to the behavior that was the subject of the complaint.
Holloway discussed a passage from his book Jim Crow Wisdom: Memory and Identity in Black America Since 1940 focusing on the black experience in American universities and the rise of African American Studies departments. The history of African American Studies is not one of university administrators proactively deciding to add these departments. In response to the rise of black militancy after the assassination of Malcom X, universities began to bring in urban poor students, thinking that would solve the problem. Instead, it created new conflicts within the university. Undergraduates’ dissatisfaction with the university environment motivated a push for change, including the devotion of resources to study the African American experience. The form of protest varied from the violent to the peaceful. At Cornell, for example, student protestors armed themselves, occupied campus locations, and threatened administrators. At Yale, students worked inside the university administration and organized a conference that led to the formation of the African American Cultural Center.
Recent protests at elite universities can also be traced directly to increasing diversity of the student body in recent years, most notably internationalization, ethnic diversity, and socioeconomic diversity. This change represents an improvement. It also inevitably leads to conflict. Administrations are forced to ask themselves why they are bringing these students to campus, what they have to offer them, and how they will adapt to welcome these students.
Daniel Markovits observed that there seem to be two kinds of complaints or disputes in a university setting surrounding issues of diversity and inclusion. The first is broadly structural and addresses failures that offend against equality and dignity for a broader population. Those kinds of complaints may involve harm, burden, suffering, or wrong to individual university members, but the complaint can be articulated without reference to the harm to a particular individual. Another kind of dispute concerns behavior such as harassment or discrimination directed against an individual person. We might think that prevention of the harm is the best approach to the second kind of dispute. But perhaps constant dispute is the best approach for the first type because that is how this kind of issue gets raised and resolved. It also seems possible that the first kind of dispute gest resolved by resolving the second type. What is the relationship between these two types of disputes, particularly as it relates to prevention and capacity building within the university?
Holloway observed that diversity is a demographic while inclusion is an ethos. Inclusion is more difficult to secure. A place without disputes would be boring and intellectually moribund. But we also don’t want disputing for sport that undermines a community. If members of a university community can’t proceed from a commitment to an ethos that there is something that binds us together, then we have failed.
Rowe responded that no one grievance procedure can work on its own; a system is necessary. The categorization of disputes as structural or personal is interesting but not particularly helpful for an ombuds in deciding how to resolve issues brought to her. Many people come to ombuds with personal problems that are provoked by structural issues within the university, and addressing those personal problems often involves addressing the structural problems. A key role of an ombuds is to look for “telltale” personal issues that indicate broader underlying problems. To give a concrete demonstration, in the 1970s, she kept statistics on the problems brought to her and how they were resolved and found that four-fifths of them were fixed by a generic solution at no cost to the complainer in terms of having to confront or officially complain against another individual.
The conversation turned to disputing in good faith versus in bad faith, approaching people with decency, kindness, and a willingness to listen, and whether doing those things indicates a strategy of “managing” conflict, employed as a way to defuse and avoid addressing the merits of disputes. Holloway took exception to such a characterization of civility and decency. Rowe explained the history of the phrase “conflict management.” It began to be used in place of “conflict resolution” because of recognition of the need to identify and address underlying causes, not to prevent disputes at any cost. She extended Chester Pierce’s idea of “micro-aggressions” to the concept of “micro-inequities,” which she defined as “apparently small events which are often ephemeral and hard-to-prove, events which are covert, often unintentional, frequently unrecognized by the perpetrator, which occur wherever people are perceived to be ‘different.’” She posited that “micro-affirmations”—“tiny acts of opening doors to opportunity, gestures of inclusion and caring, and graceful acts of listening”—could help to counter unconscious bias.
A student asked what we mean when we speak of resolving a conflict. Does resolution mean acceptance of the result or some deeper satisfaction with the outcome? Holloway said that his role is to educate. He hopes in dealing with conflicts that the parties can learn how things went wrong, how to make them right, and to be more empathetic. Rowe said that would depend on the context. Different people desire different things in a resolution. There is a pragmatic consideration of whether behavior complained of stopped. In a survey of ombuds, she found that they look at promoting just outcomes, fairness, and the best solutions for the most people.
Rick Brooks asked whether there is something distinctive about the university as a place of disputes. We might celebrate disputes in this setting, particularly if we think they are what let us know there is real diversity. Should there be a specific way of handling disputes within the university because of its distinctive nature? Holloway responded that universities are distinct in that they are performative about creating a community and instilling an ethos. The core of the university community signals that it is a place where people come intentionally to be part of a community with a shared purpose.
Once again in this final session, the recurrent theme appeared of conflict and cooperation driving institutional change and formalization. This may be the most generalizable feature of private institutions in which disputes are resolved that was identified over the course of the term. Increased conflict in the university led to the rise of the university ombuds and other administrative units focused on issues of diversity and inclusion, academic departments and scholars devoted to studying the experiences of minorities and women, and not only rules addressing harassment and discrimination directly but arguably also more juridified governance of the relationships between universities and students, between faculty and students, and among students.
It was satisfying to conclude a semester in which we glimpsed a collection of cases of private dispute resolution—all unfamiliar, some exotic—by considering how the Seminar’s themes intersect with a familiar institution, the academy. When it resumes next spring, the Seminar in Private Law will take up consumer law.