Monday, December 28, 2015

Retaliatory Governance and the University: Considering Hypothetical Questions on the Discretionary Authority of Deans and their Effects

(Pix © Larry Catá Backer 2015)

To what extent do unit administrators contribute to rising cultures of retaliation in the contemporary public university?  To what extent  are faculty protected against the sometimes subtle use of discretionary authority to coerce behavior?  These are questions that are increasingly asked by faculty but rarely answered by senior administrators.

The usual discourse of accountability and constraints on administrative discretion tends to focus on senior administrators. But accountability issues at most public universities ought to extend beyond senior administrators. Though senior administrative organs adhere to formal policies that appear to constrain the behaviors of unit administrators (deans, chancellors, and other middle managers with direct supervision of faculties), it sometimes appears that they also seek to advance a blank-check governance policy for their unit heads (including deans, department heads and chancellors of campus organizations), in fact if not in form.  One might think that these de facto policy choices might well violate university ethics codes and they certainly diffuse accountability to the point where it is formally well structured but functionally dead. Yet the principal effect of these rules may be cover for protecting rising cultures of retaliation whose principal characteristic is tolerating substantially unconstrained discretion by unit administrators with respect to the management of their unit bounded only by complex whistle blower related anti retaliation provisions that do little to soften the retaliatory effects of lower level administrative decision making.

In many cases issues of accountability, transparency, complicity, retaliation and ethics are tied closely together. Nowhere is the connection between these stronger, perhaps, than when deans interact with their faculties, faculties that retain (at least formally) some shared governance responsibilities.

This post considers these issues in the context of a hypothetical that might be posed by university faculty organizations to their senior administrators.  It suggests the answers that these senior administrators ought to give, and, lamentably, those that they are likely to make.

Question 1) Can the Dean prevent us from asking questions of a department head candidate without administrative surveillance?
Question 2) a) Is it appropriate for a Dean to send out an e-mail encouraging faculty to sign a public letter/petition? b) Should a Dean be engaged in activism when it could alienate many faculty and stakeholders, c) Should a Dean be encouraging faculty to sign petitions, which that Dean can see and then, potentially, hold against faculty who did not sign the petition?

Question 1. Can the Dean prevent us from asking questions of a department head candidate without administrative surveillance?

As an issue of permissible assertion of power, the Dean can certainly prevent faculty form asking questions of a department head candidate without administrative surveillance.  And indeed, the dean can forego the farce of faculty engagement with the candidate entirely and appoint whomever she pleases--as long as she also pleases her superiors (to the extent they might be interested--and that varies form university to university). The department head wears the dean's collar.  She answers to her and is responsible, in part, for the pacification of the faculty under her charge and for whatever policy may be developed--at one university it has been phrased as "socialization". There are other terms.  Shared governance does not require faculty involvement in administrative hiring, just as it does not require faculty participation in faculty hiring (though there it is a closer question, even before the transformation of the university to its current cultural forms).  And it certainly does not require that an administrator extend the courtesy of private meetings with candidates--especially when such meetings might be used by faculty to undermine the image the dean is trying to paint or her agenda.

But naked assertions of power are not without consequences.  First they might adversely affect moral.  Faculty whose actual relationship with their administrative superiors are drawn so starkly may not like what they see--and as a consequence they might be harder to manage. Productivity might go down.  Key people may leave.  Senior people may intrude on the already tight schedules of senior administrators as they seek (usually in vain) to complain. And since management is the key objective--to get the faculty to behave as administrators want--then such an approach might be understood as counterproductive. More importantly, in this age of public image making--such naked assertions of power may not play well with marketing campaigns--or with those sometimes costly campaigns to paint an institution as committed to older values of governance, faculty focus, cooperation, engagement and the like.  The damage to reputation may be greater than the positive benefits of this form of governance.  But that depends on the objectives of deans and those to whom she reports.

On the other hand, naked assertions of power are precisely what is called for when an administration seeks to break a faculty.  This is not an unknown phenomenon. There are any number of reasons--faculty that are proving to be too influential in university affairs, a unit marked by internal fracture, a faculty that will not "take the hint" about administrative desires for changes in disciplinary or programmatic focus, the willingness to pander to the vision of a dean without the burden of acquiring faculty buy-in, etc. The object is to break the spirit without formally breaking binding rules. There is an element of bad faith--of deception--in the use of this tactic, that might not survive well respected codes of ethics, but which are well tolerated within business (and now university) governance environments. In some instances senior administrators may be complicit in green lighting dean's efforts to undermine faculty power.  This is especially important where faculty stand in the way of senior administration and decanal plans.  In cases where traditional constraints of shared governance become inconvenient, then shared governance will be undermined, rather than respected and faculty further engaged.

But the right answer may not be the better answer--at least not the better answer when one considers principles of shared governance. Shared governance suggests the need for all members of a department to act in concert.  The role of the department head is ministerial, and to some extent vertically directed (she is an instrument of more senior administrators).  But at the same time she is meant to harness the productive forces of the department for the common good; she is meant to be the core of an organizational structure that centers faculty within the operation of a group focused on the delivery of knowledge and its production that is itself embedded within the larger context of the university as a whole.  But this is ideal.  The reality is somewhat different--department heads now stand between faculty and deans, whose interests can sometimes be quite adverse.  When those relationships become more vertical the department head begins to be understood more and more as a creature of the dean, even when she has sympathy for her department. When dean and faculty are working in harmony, the reality of these relations can be veiled; but in the case of conflict faculty come to understand the extent to which they have been de-centered in university administration. And, indeed, the question itself ought to highlight for the senior administrator, the extent of the growing unease in relations among deans and their faculties--more specifically the growing lack of trust by faculty in the good faith of middle level administrators who might view faculty engagement in the hiring process as interference. More than unease, the question itself suggests both tension and the realization that the interests of faculty and even middle level managers may in substantial respects be adverse.

It follows that the question goes to the issue of trust between a faculty and the administrators appointed to manage them.  And that, itself, points to a more fundamental tension between a model in which lower level administrators serve the represent the collective interests of faculty within the university or whether such officials represent the interest of senior administrators against the faculty.  Answering the question from power reveals more than the technically correct answer. That answer also reflects a shift from the former to the latter view mark the great transformation of university administration in the 21st century.

Yet the answer from power also reveals the deeper question buried within the seemingly innocuous question of faculty ability to question candidates without supervision: it is a question about retaliation.  The issue that the question raises--Can the Dean prevent us from asking questions of a department head candidate without administrative surveillance?--actually raises a more meaningful question: to what extent may faculty engage in governance (in this case touching on the selection of a low level administrator) without fear of retaliation?  And it is exactly retaliation, as a form of discretionary power without constraint, that underlies the issue. I have suggested the contours of the issue in the context of dean searches (see here).  That is the reason for the avoidance of surveillance.  That is the object of meeting without the dean or those who might report to her.  In a world in which there is sufficient trust between faculty and dean the question would be incomprehensible.  The question assumes meaning only because all read into it the problem--the exercise of discretion in decision making by the dean who may be motivated in part by the statements or actions of faculty who engage in the search process. If that is the case, then the answer to the question is grounded in the extent to which the structures of administration constrain exercises fo discretion in decision making that constitute or appear to constitute reaction--retaliation--to the engagement by faculty in the search process.

Anti-retaliation policies do not provide any useful set of institutional constraints on the exercise of administrative discretion. The Northwestern "University policy prohibits the taking of any retaliatory action for reporting or inquiring about alleged improper or wrongful activity." (here). The University of Pennsylvania, like other institutions, conflates anti-retaliation policy with its whistleblower policies--quite technical bureaucratic and narrow (Penn faculty, administrators, and staff shall not intimidate or take retaliatory action, as defined below, against any member of the University community or a relative of such a person who is an employee or student at the University, who makes a report of the type defined below in good faith and without malice.).  Temple University conflates its anti-retaliation policies to its commitment, generally, "to maintaining a work environment free from any form of unlawful discrimination or harassment" and tied to its whistle blower policies.  Penn State

I have already noted the difficulties of whistle blower provisions as a means of protecting faculty against whom administrators retaliate.  I have suggested that that while these provisions serve as a lovely gesture, it provides substantially less robust protection for employees seeking to use its provisions (here; see also here).  The problem is especially acute where, as at Penn State, employees, including faculty, are increasingly encouraged to serve administrators through whistle blowing mechanisms (see, e.g., here) that themselves tend to be traps for the unwary (see, e.g., here).
One of the most intractable issues related to retaliation-whistle-blower mechanisms is the inability of faculty and staff, on one side, and administrators, on the other, top communicate effectively with each other.  Part of the problem arises from perspective.  Administrators tend to focus on formal effectiveness of systems; they tend to gauge the utility of systems of reporting and protection against retaliation by the formal sufficiency of written policies, appropriately published to the university community.  Faculty and staff tend to focus on the functional effectiveness of whatever mechanism has been put in place by administrators. (Speaking Past Each Other About Retaliation at Universities--The Example of Penn State)
And indeed, that is the ultimate problem that this question unearths--that administrative responses to retaliation completely miss the mark.  While administrators (and government policies which administrators seek to implement internally) increasingly view retaliation as a issue tied tio whistle blowing--to reporting administrative wrongdoing, faculty increasingly have come to understand retaliation as the unconstrained use of administrative decisions making informed by faculty engagement in shared governance. It is in this later form that the issue of retaliation, implied in the question, remains unaddressed. 

The answer under ethics codes is less useful. That stems, in part, from the odd (and odd only because it excludes an important element of ethics within a university environment, perhaps because of the use of corporate ethics codes as baselines) focus of ethics codes on conflicts of interests and good behavior, rather than on the obligation of each stakeholder with respect to the stability and good order of a system of shared governance. Certainly, for example, under the University of Virginia Ethics Code, it is clear that asking the question about the limits of decanal power is protected from retaliation (Similar University of California Statement of Ethical Values).  But it is less clear that this would be the case under Penn State's values, for example (e.g., responsibility, integrity, etc.). Boston University's Code of Ethical Conduct suggests the constraint of fair dealing ("No Covered Party may take unfair advantage of another person through harassment, manipulation, abuse of privileged information, misrepresentation of material facts, or any other unfair practice.")--but it might be a novel application to use it to limit decanal authority in this respect.

Yet retaliation protection does not cover either the questions that might be asked of candidates during interviews, nor might it cover any effort to engage in the process of vetting candidates. In that respect the problem posed by the question is deeper--not merely with respect to the scope of engagement with administrative hires but also of protection against retaliation for engagement in that process at all. Under the circumstances in most universities, it is now unclear whether faculty would be protected against retaliation for comments made or questions asked of candidates at an interview. It makes little difference if faculty may question candidates without supervision when the candidate remains free to report to the dean about the conversations.  Indeed, one would suspect that the successful department head, now under the supervision of the dean, would do just that. Here shared governance  is shredded by the realities of the politics of the modern university.  This is not good news for faculty, who, through this question might better appreciate just how little power they have in the process of selection of administrators, and how dependent they are on good will.

But it also suggests that in the process of selecting administrators--and in the management of administrative personnel at these lower levels, it is politics rather than principle that might work best.  In this case  faculty authority over selection increases as faculty unity increases (that is as faculty become better able to operate as a block) and as that block action is clearly directed toward specific judgment criteria for administrative personnel. But it is also dependent on the extent to which senior administrators view a faculty group as valuable to the institution.  If faculty cannot evidence their collective value--in terms that administrators understand (and that is always the central difficulty of faculty who fail to understand that administrators do not judge value (unit productivity) the way faculty do (disciplinary prestige)).  Yet in proving that value, faculty may well become complicit in the undoing of their own authority within their disciplines. In each case, the price of faculty participation is a loss of autonomy and the further de-centering of faculty and disciplinary cultures within the university.  A very sad tale indeed.

A senior administrator asked this question would certainly be chagrined--for this precisely the sort of question that she would not want to answer if the object of the session in which such questions are raised is to preserve the sense of shared governance and joint mutually respectful efforts for the benefit of the university. She would likely feel ambushed if the question had not been vetted before the meeting of the faculty organization (to give her staff enough time to come up with an answer that could be precisely correct but not blunt).  But those reactions also suggest the power of the question and the reality of the bad news it suggests for faculty who still believe in robust effective shared governance at the unit level.  It suggests a reluctance of senior administrators to concede any power in faculty organizations  to even the mildest forms of accountability--the mere posing of difficult questions.  More generally it also suggests a growing reticence among senior administrators to avoid accountability downward--no administrator at a major research university (save with the exception of the University of Chicago) relish the idea of accountability to its internal stakeholders.-  And if a faculty organization serves as the forum for these questions it requires the sort of accountability that goes against the idea of using faculty organizations as carefully stage managed engagements that preserve the appearance of traditional shared governance.


Question 2: a) Is it appropriate for a Dean to send out an e-mail encouraging faculty to sign a public letter/petition? b) Should a Dean be engaged in activism when it could alienate many faculty and stakeholders, c) Should a Dean be encouraging faculty to sign petitions, which that Dean can see and then, potentially, hold against faculty who did not sign the petition?

This second question is, in many respects, presents a variation fo the fundamental question at the heart of Question 1--the complicity of senior administrators in constructing or tolerating  cultures of retaliation or of the possibility of retaliation as a technique of managing faculty.  The three parts of this question all relate to a central issue--the many ways in which deans may coerce faculty.  That is, each of these questions highlight the pervasiveness of retaliation in cultures in which lower and middle level administrators acquire authority over faculty that is disproportionate to the sharing of obligations for the operation of a unit. That the question is asked at all ought to horrify senior administrators.  That they might have no answer grounded in university core values (as noted above) ought to be of substantial concern.  The question itself serves as an indictment of a system, nor current in many universities, in which the discretionary conduct of officials is tolerated as long as it doesn't cross a line within a system in which those who are burdened with the adverse effects f these discretionary powers also have the burden (at substantial cost) to protect their "rights".It is in this sense that universities have perpetuated systems of low level retaliation even as they proclaim their intolerance of gross (and rare) examples of grand gesture retaliation.

The standard answer one would expect from the hypothetical senior administrator could sound something like this: After a thank you for the question, the senior administrator would suggest  that (1) deans in the ordinary course might exercise their discretion in these matters especially where these are meant to further the objectives of the unit; (2) that faculty are free to exercise their rights to protest informally to the deans and thereafter to seek formal avenues of protest provided under the university's rules; (3) that deans are not expected to operate in a manner that eliminates adverse faculty reactions--deans have to make decisions that are sometimes unpopular with some faculty; (4) that there is a difference between encouragement and compulsion and that faculty always remain free to decline and (5) faculty are protected against retaliation where they can show that a decanal decision that adversely affects them directly resulted from a refusal to sign "voluntary" petitions or engage in optional decanal activism.

This answer would be comforting in part.  It conveys very well worn understandings of the need for administrative discretion in running a unit as well as a reaffirmation of the autonomy of faculty in the context of these discretionary programs.   But while the answer provides all of the necessary formal assurances, the functional reality can eviscerate any positive message conveyed by such a formally correct answer.

First, it is in reality not easy for individuals to go on record as unwilling to join an effort that to which a dean has publicly committed.  It is even harder for individuals not yet tenured and thos eon renewable contract.  Even if there is no retaliation, there is a memory.  And that memory may necessarily change relationships in subtle--and lawful--ways.  These subtle changes can make a difference in the way in which discretionary decisions are approached--should additional money be made available for support, what inferences should one draw from evaluations, etc.  Even if this were not the case (and it is likely the case) it is difficult to assure individuals that no such reaction would ever occur.  And in any case that assurance would be impossible to make.

Second, the question itself suggests what ought to be an appalling lack of accountability of deans to senior administration.  That deans have this authority, exercised in their discretion, without supervision ought to be troubling.  That they exercise their discretion in this way with senior administration approval is even more troubling. That suggests a perversion of governance that at its limit ought to suggest ethical issues.  On the other hand, this sort of activity is already well present in the university.  The United Way rives suggest that from even the most innocuous beginnings something quite bold can emerge, especially where there are no principles developed that create borders between benign efforts, like United Way, and efforts that may be more difficult to justify.  This is especially the case where these "soft" efforts might touch on matters dealing with diversity issues--and on the power of traditionally marginalized groups to resist these voluntary efforts., or where they might be controversial   What does one do about the dean who circulates a petition in support of the anti-Israel BDS movement?

Third, it is true enough that deans are responsible for the proper running of their unit.  That obligation necessitates decisions that may not be popular form time to time.  But actions that are consistently unpopular, that neither reflect faculty opinion nor any effort to seek buy-in of any quality, suggests the dangers of such bromides.  An unhappy faculty makes for an unproductive or less productive unit--and that ought to cause senior administrators some concern.  Unfortunately though, that concern usually translates into some of form "blame the faculty game," though on occasion unit administrators may be counseled. Still faculty discontent about these discretionary "requests" ought to raise a red flag--with someone who has accountability authority.  At the moment there are neither flags nor, apparently concern about this sort of behavior.  And certainly no effort to regularize rules for the assertion of this sort of discretionary power.

Fourth, the formal right to refuse discretionary requests may be illusory.  It has been noted that such refusals, to the extent they are noted, is information that is neither forgettable nor is there any assurance that it is not absorbed in some manner.  For vulnerable groups especially the dangers of changing the relationship with deans is too risky.  Even assuming that most deans act ethically, one is never quite sure that a particular request made by a particular dean in a particular instance will not constitute that circumstance in which relations will be adversely affected. If a dean is interested enough in a project to go to the trouble of seeking faculty voluntary sign in, she may be passionate enough to recall who supported her and who did not in that effort.  To put faculty in that uncomfortable position, especially the vulnerable faculty--is in itself something that carries with it at least the appearance of ethical problems.

Fifth, these are the sorts of discretionary actions that tend to be understood as formally permissible, but which give the the appearance of overreaching.  But it does more than that, it chills faculty autonomy, and appears to meld decanal discretionary activity with university policies.  From the perspective of a fixed term faculty member there may be little effective difference between a voluntary petitioned circulated by a dean and a mandatory directive form university authorities.  To the extent that deans use this for the advancement of personal agendas it is not clear that, even in the absence of retaliation fears, the action is always ethical.

Sixth, and most important, the protections against retaliation are also largely illusory.  First, retaliation is difficult to prove.  Even making the connection between the action (failure to sign the petition) and the retaliation (loss of support, no contract renewal, etc.) may be impossible to make.  Second, all administrative decisions involve complex balancing of multiple factors.  Retaliation claims grounded in proof that retaliation connected to particular actions were the principal cause of the adverse action does not reflect the reality of decision making by deans. Third, placing the burden of proving retaliation on faculty  creates a substantial time and cost barrier to claims. Such a system privileges administrative decision making and burdens challenges to those decisions (even when undertaken for illicit motives). That invariably means that the system is already structured to make retaliation claims costly. And risky--there is no guarantee of winning a claim.  That itself may produce greater danger for the faculty member who interposes an unsuccessful retaliation claim Fourth, a system that is operated through the formal structures of retaliation claims is essentially a failed and inefficient system.  Or perhaps better put, it gives rise to a system that tolerates a certain level of retaliation as the optimal rate by pricing successful retaliation claims high enough to make it likely that faculty will sit on their rights. This is not unique to retaliation claims but serves as the foundation for many tort claims in U.S. common law. But the fact that this approach is good common law does not mean it provides an optimal internal governance model for the university. It suggests that retaliation is a necessary part of the operation of the university and that it can be tolerated within "reasonable" limits, limits determined by the costs of asserting a retaliation claim.


Both questions, then, present the administrators to whom they may be posed, with a difficulty.  Both touch on core issues of retaliation at the heart of the operation of the university.  The first looks to issues of retaliation when faculty seek to engage in shared governance activities, even of the most conventional sort.  The second touches on issues of retaliation where faculty are given a formal option to exercise discretion but where it is clear that the exercise of such discretion might have consequences. In either case retaliation touches on the ordinary exercise of everyday discretion and of the everyday operation of an academic unit.  The retaliation considered is one that tends to remain hidden, or unrecognized within formal structures of protection developed by universities to serve their interests--as anti-corruption devices that looks to the university's but not the faculty's interests. 

It is likely that these are questions they would seek to avoid.  They are likely to react in two unexceptional ways; (1) in anger and then using that anger to deflect the question, usually by suggesting (in a self interested way) that they had been ambushed by the question and that therefore it would be unfair to require them to answer; or (2) reference the formal systems of protection for excessive exercises of administrative discretion outlined above.

The first indicates vanity of the most sordid sort--of the kind that indicates an administration in which the individual ego appears to have been conflated with an administrative role.  That sort of response is all too common and is to be regretted when it emerges.  But it does have the advantage--as technique--of providing a means of deflecting answers. Administrators might seek to provide the usual formally truthful responses.  That such a position might be taken raises issues of ethics and good faith. Surely, even if asked of an administrator unprepared ot answer, the appropriate response ought to be something like this: "Many thanks for an excellent and thoughtful question.  I need time to think through an answer.  I promise to deliver my response to you shortly."

The second renders administration complicit in the corruption of its academic units--in the evisceration of ruyle of law operation within units, in favor of a system of largely unconstrained administrative discretion in the ordinary business of running a unit.  The university remains ever more vigilant about systemic corruption, about the abuse of authority and the breaching of rules by administrators, but only when such conduct is adverse ot the institutional interests of the university.  It appears indifferent when this corruption touches on the interests of its subordinate units--and especially its faculty and staff.  And that complicity in that corruption may well eventually undermine the integrity of the institution as a whole.    

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