Sunday, September 7, 2014

University "Codes of Responsible Conduct"--Fashionable Gesture, Radical Imposition of Obligations to Mutual Spying, or Traps for the Unwary?



(Pix (c) Larry Catá Backer 2014)

Ethics has become an increasingly import aspect of governance cultures in public and private institutions. Once a principal concern of economic enterprises and governments, universities have sought to inculcate cultures of "ethics" within their operating environment. The intensity of these efforts, like those of other public and private institutions, has intensified as the common cultures that serve to ground an understanding of the nature and character of ethics has fragmented.

But it is precisely because of this fragmentation of the grounding culture that efforts to memorialize the framework of ethical conduct has encountered difficulties. These difficulties sometimes produce ethical codes that may appear as generalized gesture. (e.g., University of Illinois Code of Conduct). They invariably are reduced to short hortatory statements that are sometimes burdened with double duty as mandatory rule (a role to which they are ill suited). In either guise, these codes sometimes may produce either traps for the unwary or appear to impose radical new obligations that may produce cultures of mandatory mutual spying rather than ethical cultures among the affected university stakeholders.

Many times these efforts are generated as a response to outside pressure--from regulators, governments or as a result of scandal that suggests some sort of moral failure among employees, athletics staff, administrators or trustees. Often times the determination to proceed with these efforts as well as the drafting and management of its development is conducted by administrators, either through administrative staffs or under cover of a committee well larded by individuals who are described as "representatives" of most of the important sectors of university stakeholders. Often, institutional representative organs, like a faculty senate, are given a brief and pro forma opportunity to comment on wording only after the Code is ready for imposition, an opportunity that is expected to produce no substantive change and timed to make it virtually impossible for effective consultation on the embrace of the policy or the premises for the construction of the Code in the first place. Still, even this nod ion the direction of engagement ought to be gratefully received with hopes that a more effective relationship might emerge--in the future.

This post considers a generalized "typical" product of this next generation "Code of Responsible Conduct". It suggests that Codes of this type, reversed engineered int he sense that they are generated in the usual case in what might be understood to be hermetically sealed environments in which inputs are carefully screened o conform to the expectations of the form of the final product, may create some substantial traps for the unwary and provide a wide space for discretionary discipline which in the hands of unethical administrators can be used as a cover to punish faculty and staff (and lower tiered administrators) indirectly. This is most likely with respect to Codes that impose a positive obligation to report "wrongdoing."  This is not to suggest that hortatory Codes are wasted efforts--indeed the opposite is true.  But the analysis that follows suggests that Codes that purport to add a mandatory element may prove more troublesome than helpful, even in the short run.

Saturday, September 6, 2014

A Statement on Civility From Administrative Elites at Penn State--Civility and Its Discontents in the Academy; Defining the Space and Terms of Debate Within or Beyond Social Norms

The issue of civility has become a more interesting subject for debate within and among universities.  No less so, it seems, among University administrators and their associated elites. I have written generally about the topic of civility within the academy in the past.  See HERE. Others have discussed the issue in the context of movements toward cultures of civility in other universities.  See The Order of Civility (Sept. 7, 2014).

The issue appears to have reached the highest levels of administration at Penn State.  I include below the "Dear Friends" letter on civility widely circulated and signed or affirmed by a large host of persons holding administrative or related positions at Penn State, a commentary by Onward State and the Penn State President's reply. 




(Pix (c) Larry Catá Backer 2014)

I would be curious to hear reactions beyond those in Upward State.  The letter can be understood from a variety of perspectives and might imply any number of things--but it is unclear whether the virtues of Kremlinology would be useful here.

I only note that beyond its signatories--among whom there was no doubt discussion of some sort, enough to satisfy its participants--I do not recall any discussion of the topic, nor any effort to engage the university community in the premises underlying its message or messages sought to be conveyed in these communications, worthy as they may be.  Beyond the basic and quite laudable notion, which ought to be embraced by all, that our social norms posit that social conventions on discourse are a necessary element in discussion among stakeholders in an organization, it is not clear whether respect requires more. It is less clear to what standards the excellent statements produced allude, or who would police them--it certainly ought to be troublesome if the power or prerogative to control the terms of debate and to judge participation for breaches of the boundaries of civility is vested unevenly among those involved in debate.  More troublesome perhaps might be a system of civil discourse grounded first in an invitation within a hierarchically arranged system for civil exchange  irrespective of place on the hierarchy and second an insistence that only those at the top of the hierarchy were authorized to set the tone, impose boundaries and judge the conformity of expression of those below to standards that they wholly control. It would be useful to consider the approaches of other institutions even as Penn State seeks to assume a leadership role in this area.

I am partial to this definition of civility:
Civility is about more than just politeness, although politeness is a necessary first step. It is about disagreeing without disrespect, seeking common ground as a starting point for dialogue about differences, listening past one’s preconceptions, and teaching others to do the same. Civility is the hard work of staying present even with those with whom we have deep-rooted and fierce disagreements. It is political in the sense that it is a necessary prerequisite for civic action. But it is political, too, in the sense that it is about negotiating interpersonal power such that everyone’s voice is heard, and nobody’s is ignored. (Institute for Civility in Government
The difficulty, though, is that civility operates in this context only where there is an equivalence of power relationships, or robust systems of accountability and constraints on discretionary authority to construct a system of civility that  conforms to the model formally but which masks a regime of servility, one in which fear of reprisal or marginalization occupies an important place. In any case we should applaud the invitation to begin a discussion on the topic--and for that we can be grateful to those individuals identified in the "Dear Friends" letter. 

Perhaps this is a useful topic for a Senate forensic.


Wednesday, September 3, 2014

Resolution to Honor the Late Penn State Vice Provost W. Terrell Jones




(Terrell Jones)




It is with great sorrow that I report the recent passing of Terrell Jones, whose presence we will miss greatly here at Penn State.  To honor his memory the Penn State University Faculty Senate will consider the following resolution to honor Dr. Jones at its next meeting.

Tuesday, September 2, 2014

New Essays From the AAUP Journal of Academic Freedom


Apologies for the long silence. I have been absent far too long--duty called. But I am back now and things will be gearing up as we consider in more detail issues of social media, administrative bloat, electronic communications, the role of the board of trustees in a university and other interesting issues.

To get things started in a small way, I have included here links to a set of interesting articles that appear in the current issue of the AAUP Journal of Academic Freedom. This from their press release:

I’m pleased to announce that Volume Five of the AAUP Journal of Academic Freedom has just been published. This issue of JAF is focused on the intersection of electronic communications and academic freedom, specifically exploring the shifting landscape for academic freedom resulting from the proliferation of social media. Our intent with this issue is to examine how the advent of sites such as Facebook and Twitter blur the lines that separate areas of research expertise and broader public engagement, often leading to both a facilitation of and impingement on academic freedom.

The bulk of this year’s issue deals with various assaults upon academic freedom, most notably those originating from the increasingly techno-oriented world outside of the classroom that is now permeating the halls of academia. But we also devote a large portion of the issue to examining the systemic threats to our profession, whether it’s assaults on tenure, hiring, and the specter of corporatization that threatens to undermine the very ideals of higher education.

Links to the articles and brief descriptions follow:

Tuesday, July 15, 2014

Rule By Administrative Task Force--End Running the Institutional Voice of the Faculty and Undermining Shared Governance

(Pix (c) Larry Catá Backer 2014)


One of the most interesting issues facing universities, as institutional actors, is the future of shared governance, especially in the effectiveness of shared governance with the institutional voice of the faculty. Universities have sometimes succumbed to the temptation of invoking formal institutional structures to mask efforts (deliberate or unconscious) to undercut the role of faculty in university governance. (Backer, Larry Catá, Between Faculty, Administration, Board, State, and Students: On the Relevance of a Faculty Senate in the Modern U.S. University (February 10, 2013)). 

The increasing resort to university task forces, in lieu of engagement with shared governance partners provides a case in point. These task forces, usually composed of administrative functionaries or their representatives, reporting directly to the highest levels of university administration, and including specially designated faculty, chosen for their expertise or from a stable of "usual suspects", have tended to produce recommendations and action plans that avoid the need to engage faculty representatives in those key areas of policy formulation and implementation at the core of shared governance.  Though task forces serve a useful purpose, the composition and deployment of this specific form fo task force ought to cause concern. 

This post considers the way this may occur by positing a hypothetical decision by a university administration in a "conventional"  public university to establish two task forces--a sexual assault and harassment task force and a health care and benefits advisory task force--and their potential consequences for faculty shared governance at the institutional level.  These task forces can be used to co-opt internal discussions of institutional responses to internal governance matters as well as to short circuit internal engagement with external pressures for institutional change. The former is exemplified by "benefits" task forces; the latter by sexual assault task forces. 

The bottom line is simple enough to grasp--the more an administration "engages" its stakeholders through task forces, the less likely there will be an appropriate engagement by the institutional voice of the faculty in those areas now pre-empted by task force mandates. Where administrations seek to govern through task forces, they maintain the appearance of shared governance but eliminate its effect precisely because they control access to membership, the scope of their mandates, and the framework of debate.   Though task forces serve useful purposes, they ought not to be substituted for engagement with the representatives of the faculty and faculty voices that administrations (and boards) may not think to hear. 

Sunday, June 1, 2014

Part I--University of Texas at Austin; Tracking Social Media Policies in U.S. Universties and Its General Implications

(Pix (c) Larry Catá Backer 2014)


I have been following the development and roll out of the social media policy imposed by the Kansas Regents on its university system. The unfortunate history of the Kansas social media policy has led to to consider the issue of social media policy in other universities in the United States. To consider the implications and scope of the issues raised nationally, I am undertaking a series of posts that examine the social media policies of U.S. universities. 

These posts highlight the social media policies of United States universities.  The object is simple: (1) to catalog; (2) make policies more accessible, and (3) provide a  basis for comparison and discussion.  There will be little initial attempt at  analysis, though I will point out some unique or significant features.  The principal objective is data harvesting, comparison and increasingly analysis of the broader implications of these policies layered on atop the other to produce a dense mille-feuille of policy with substantial broader implications.


The nature of that effort was described in the Series Introduction.

This post considers the social media policy of the University of Texas--Austin.

Introduction: Tracking Social Media Policies in U.S. Universties and Its General Implications

(Pix (c) Larry Catá Backer 2014)


I have been following the development and roll out of the social media policy imposed by the Kansas Regents on its university system.  (e.g., Surveillance and Control: The Kansas Regents Social Media Policy; Administrative Discretion, Employee Obligation, Citizen Duty, Human Dignity and the Possibility of Systemic Corruption).  This is part of a larger project that considers the extent to which universities, as a species of employer in the United States, are seeking to control the work and non-work speech of the people hires for service (e.g., On Administrative Overreaching: Threats, Social Media, and Academic Freedom, April 23, 2014;  Export Controls and the Control of Speech On University Campuses and By Faculty Abroad--On the Complicity of Universities and Government to Monitor and Restrict Access to Speech and Speakers, March 24, 2014; "The Tweeting Professor": A Parable About the Price of Speech Made in the Service of Others, July 3, 2013). And that, in turn touches on a broader project that I have undertaken--to explore the huma rights obligations of universities under international law and norms (e.g., More Penn State Wellness Programs in the News and From the Bottom Up, Aug. 12, 2013).

The unfortunate history of the Kansas social media policy, and the lamentable choices that the Kansas Regents appear to have clung to (despite the better choices offered them by their own stakeholders) suggests that the issue of social media policy provides an important indication of the scope and extent to which employers, as a general matter, are now asserting control rights over the lives of individuals.  This trend is important to understand for its legal, social, civil and political implications. Generalized, it suggests the extent to which the institutionalization of power beyond the state, and complicit with it at times, is freeing institutions (like business, religion, and universities) from the constraints of state control (though not of management by the state as a new form of soft though effective governance)while increasingly abstracting individuals and reducing then to a bundle of  intangible rights and obligations (flesh made abstract) that are contingent on the needs and interests of institutional actors (abstractions made flesh). This all the more so, for example, as recent trends in labor policy suggest that the increasing loosening of constraints on employer power may have some effects that touch on fundamental economic, social, civil and political rights (e.g., Rob Wiley, Belarus Is Planning To Bring Back Serfdom, Business Insider, May 29, 2014).

The implications are substantial.  They may suggest the re-drawing of power relationships between institutions (like corporations) and political organisms (like the governments of states).  They may also suggest the ways in which law is being transformed from a system of commands (laws that proscribe or command behaviors) to one of management (rules that assess performance or subject one to discipline for failures to conform or comply with objectives based or relational targets that are assessed in a variety of ways).  That shift from command to management also appears to widen significantly the scope of discretion that might be exercised by "overseers", those individuals or institutional devices tasked to monitor and assess conformance with standards. That shift, in turns, may materially affect the way one comes to understand in new and potentially odd ways, the meaning and application fo concepts like "rule of law" "abuse of discretion" and the like. It furthers suggests the character of the privatization of power over the control of the behavior of natural persons, from the state to the employer, and thus the nature of of the bargain that can be struck when a natural person hires herself out for "service"--the implications of the control that an individual cedes upon the acceptance of payment for "service" and the extent of the "service" to be rendered one's master are also nicely evidenced by the scope of the power of the employer to control the extent of personal and other communication by one in the service of the university institution.  Finally, and most broadly, these polices suggest another consequence of the transformation of individuals into commodified abstractions and of institutions into abstractions made flesh-- corporate speech is increasingly liberated while that of individuals is increasingly regulated (and especially through the employment relationship with corporations) (cf. Backer, Larry Catá, The Corporation as Semiosis, 'Citizens United,' the Signification of the Corporate Enterprise and the Development of Law (February, 28 2012). CPE Working Paper No. 2012-2). That control matrix will likely have material consequences for the way in which we understand the extent and locus of the individual right to speech under the U.S. Constitution and international human rights law and norms (e.g., Backer, Larry Catá, An Institutional Role for Civil Society within the U.N. Guiding Principles?: Comments on César Rodríguez-Garavito and Tatiana Andia 'Business and Human Rights: Beyond the End of the Beginning' (March 11, 2014). Implementing the UN’s Guiding Principles on Business and Human Rights: A South-Initiated North-South Dialogue Brown University, February 20-22, 2014).

Thus, starting with this post, I will highlight the social media policies of United States universities.  The object is simple: (1) to catalog; (2) make policies more accessible, and (3) provide a  basis for comparison and discussion.  Thus, for example, despite its may lamentable policy choices, the Kansas Regents were good on transparency (in the form of information accessibility) but less successful on engagement (engagement transparency).  It is not clear that all universities even commence with this basic embrace of transparency in the construction and dissemination of their social media policies.  We will see. The principal objective is data harvesting, comparison and increasingly analysis of the broader implications of these policies layered on atop the other to produce a dense mille-feuille of policy with substantial broader implications.

I will be including a table of contents here with links:

Part I--University of Texas at Austin.

Monday, May 26, 2014

Surveillance and Control: The Kansas Regents Social Media Policy; Administrative Discretion, Employee Obligation, Citizen Duty, Human Dignity and the Possibility of Systemic Corruption

I have been following the progress of events in the Kansas state university system, as its Regents struggle to develop a reasonable and coherent social media policy respectful of the human dignity and citizenship rights of its employees while protecting the limited but legitimate interests of the university (e.g., A Malediction for Academia--The Kansas Regents and the New Social Media Policy--Docility and Servility Against Academic Freedom and the Need for Contractual Protection (12-29-2013); Kansas Social Media Policy to be Reconsidered; Does a Segmented Approach to Academic Freedom Follow? (1-5-2014); The Rising Price of Speech on Campus (March 10, 2014); Proposing a Set of Social Media Policy Guidelines For Penn State University (March 17, 2014)).


 From Peggy Lowe, Strict Social Media Policy Approved By Kansas Board Of Regents, KCUR, May 14, 2014; "Critics of the social media policy stand during part of Wednesday's Kansas Board of Regents meeting in Topeka to demonstrate their opposition. Credit Stephen Koranda / KPR").

At the end of 2013, the Kansas Board of Regents, responding to a wave of bad press that met their initial ham handed effort to control the social media activities of university employees, declared that they would constitute a committee made up of senior administrators, faculty and staff to reconsider the issue. (Kansas Social Media Policy to be Reconsidered; Does a Segmented Approach to Academic Freedom Follow? (1-5-2014)). That committee came up with what appeared to be a reasonable policy, respectful of the human dignity rights of individuals and the material interests of the university.  (Available HERE: Social Media Work Group Draft Policy (.PDF)).  It appeared for a while that this draft policy would serve as the basis for a revised Regents' policy in Kansas. 

But this was not to be. "But Logan and two other regents differed with a working group proposal that the social media policy be scrapped and replaced with an advisory policy on proper use."Kansas regents stick with social media policy for universities, The Kansas City Star, April 17, 2014). And thus, the "Kansas state attorney general approved a revised policy that states any employee at a public university in the state can be fired over improperly using social media, raising questions that their First Amendment rights are being infringed upon."  ("Social media posts could get Kansas university employees fired," Foxnews, May 21, 2014 ("One of the elements of the new policy that has legal experts confused is the part that says a faculty member can face disciplinary action for "speech contrary to the interests of the university.")).  


Monday, May 12, 2014

On the Limited Promise of Whistle Blower Protection Statutes for University Employees--Narrow Scope and Traps for the Unwary


 (Pix (c) Larry Catá Backer 2014)

We were recently informed (because the Federal government required such disclosure if for no other reason; e.g. 41 U.S. Code § 4712(d);  Notice of Implementation of Pilot Program for Enhancement of Employee Whistleblower Protections Notice Number: NOT-OD-14-068, March 7, 2014) as follows:
Congress has enacted new whistleblower protections effective July 1, 2013. The enhanced protections apply to any employee of a federal grant recipient such as Penn State who works on a federal grant, subgrant or subcontract. The statute (41 U.S.C. §4712) states that an "employee of a contractor, subcontractor, grantee [or subgrantee] may not be discharged, demoted, or otherwise discriminated against as a reprisal for 'whistleblowing.'" More information (as summarized by the National Institute of Health) can be found at http://grants.nih.gov/grants/guide/notice-files/NOT-OD-14-068.html.
On the verge of exuberance over this new set of protections, I took a moment to carefully consider the scope of this protection and the framework within which it might be asserted.  What I found, as I have found before in other context (e.g., Backer, Larry Catá, The Sarbanes-Oxley Act: Federalizing Norms for Officer, Lawyer and Accountant Behavior. St. Johns Law Review, Vol. 76, pp. 897-952, 2002) is that whistleblower statutes continue to be constructed more as gesture than as a functionally effective set of protections for workers.  This new set of "protections" little different from the pattern already well established in federal law provides the appearance of protection that masks a narrow scope and a set of traps for the unwary.

This post considers the scope of this new protection  for employees of universities who work on a federal grant, subgrant or subcontract and the traps they resent for people who mistakenly believe they "whistleblow" under its protection. It suggests that while this provision serves as a lovely gesture, it provides substantially less robust protection for employees seeking to use its provisions. 


Wednesday, April 23, 2014

On Administrative Overreaching: Threats, Social Media, and Academic Freedom


I have also proposed policy changes for universities, at least respecting social media.  (Proposing a Set of Social Media Policy Guidelines For Penn State University (March 17, 2014)).

(Pix (c) Larry Catá Backer 2014)


But the problem not only persists but appears to be increasingly embedded in university governance cultures. It seems that the answer for many university administrators faced with controversy in political and social spaces that are traditionally dynamic is to (1) declare a broad authority to regulate, (2) produce regulations to confer an unconstrained discretion on administrators charged with carrying out its "objective", and (3) treat these regulations as trumping academic freedom, shared governance and the personal and human rights of the regulated class. While their motives, from an institutional perspective, are rational, their application becomes obsessively irrational. 

These issues were recently nicely discussed by academic and social commentator Glenn Harlan Reynolds, a University of Tennessee law professor.  Professor Reynolds suggests a combination of culturally institutional paranoia plus isolation may account for the problem.  I think that he is basically correct but that the culprit is the system in place to reward institutional paranoia in the form of rigidity and risk aversion. Until  universities stop being rewarded for producing (and universities stop rewarding) the administrators described in the article, this problem will only increase.