Thursday, September 2, 2021
Kevin Oates (Temple), Professor Defend Thyself: The Failure of Universities to Defend and Indemnify Their Faculty, 39 Willamette L. Rev. 1063 (2003):
University professors going about their daily activities of teaching, researching, and writing rarely consider the possibility of being sued. To the extent that the concept of potential liability does cross their minds, educational professionals undoubtedly comfort themselves in the realization that since their activities are job-related, the school that employs them is obligated to provide a defense and indemnity in any suit stemming from those activities.
Given the ever-increasing litigious nature of American society, the instances of college faculty members being sued are likely to increase. The American Association of University Professors (AAUP) has recognized this trend. With an increase in suits against faculty members comes the corresponding question of who will ultimately bear the financial burden of attorneys' fees and monetary judgments? The belief that universities will gladly "step up to the plate" in defense of their employees in cases where the allegations against the employees arguably relate to their job duties is belied by the schools' conflicting interests. The interests served by denying a defense and indemnity to their faculty members include universities (1) insulating themselves from the cost and potential liability of university employees' actions and (2) avoiding involvement in controversial issues. The conflict between the interest of the faculty employee and the interest of the university employer highlights the need for clarification of the legal duties a university owes its faculty members. The difficulties faculty members often encounter when requesting a defense and indemnity from their university employer raises the question: What factors affect whether a college or university has a duty to provide a defense and indemnity to its faculty members?