At the Borderlands of Ethics: Soft Retaliation and Unethical Exercises of Administrative Discretion

(Pix © Larry Catá Backer 2016)

Most universities now have fairly broad policies against retaliation.  In many cases they are tied to the emerging protections for whistle blowing (broadly understood including sometimes harassment, discrimination and sexual misconduct claims or reporting) (e.g., Ohio State, Indiana, Maryland, Rutgers, Chicago (here and here), criticized here, here and here).   Sometimes they are bound up in codes of conduct (see, e.g., here).

But this construct of retaliation protection tends to hide a more pernicious class of retaliation--retaliation that is clothed in the exercise of administrative discretion.  That retaliation is characterized by one principal characteristic--it refers to the exercise of administrative discretion against an individual motivated in whole or in part by personal animus rather than by institutional considerations. The dean who uses rules and discretion as an excuse to punish or otherwise discipline a faculty member who offends, opposes or otherwise fails to do the bidding of a dean is both a well known pattern in the academy and one well tolerated as part of the "rules of the game."  The effect can be pernicious--as evidence from recent actions within the scientific research activities of the US Department of Agriculture suggest (Steve Volk, "Was a USDA Scientist Muzzled Because of His Bee Research,"The Washington Post March 3, 2016)

This post considers some of the more common forms of the exercise of administrative discretion for personal rather than institutional reasons and suggests the possibilities that impunity on such personalized management be curtailed by reference to university ethics codes transparently applied.  

This view that administrative discretion, however personally motivated, ought to be protected against discipline and accountability is in part motivated by the framework adopted to protect against discrimination, harassment and those who report wrongdoing (whistle-blowing).  Ironically, the thinking seems to be that precisely because these areas have been carved out as beyond the discretion of administration decision making--all other forms of the exercise fo discretion--no matter how personally motivated--may be tolerated. The result is perverse: the stronger the protection against specific exercises of discretion the wider the scope of discretion is permitted in those areas not specifically covered by the prohibition. As a consequence, administrators may be encouraged to treat their own units as personal rather than institutional domains--as long as they produce whatever result the central administrators seek, the means and methods used to produce them will not be subject to review. The limiting case, of course, is academic freedom (see, e.g., Michigan State, Penn State).

And yet complicity in such actions, and the impunity of masquerading personal animus in institutional administrative discretion increasingly ought to bump up against the embrace of ethical codes and decision making which these same institutions have rushed to embrace (discussed here).  At present they have not. Universities have been eager to impose their new ethical codes and behavior toolkits downstream onto a faculty, whose own vulnerability to an ethics-less discretionary decision making power in their institutional superiors remains unchecked and undisciplined by values or principles. Indeed, at Penn State, its Human Resources policies appear to incorporate some element of ethics in the framing of faculty rights and responsibilities ("professional ethics" Penn State HR 76), though in context it appears to exclude the ethics of personalized exercises of administrative discretion especially those that touch on "substantive academic judgment aspects of such matters as promotion, tenure, compensation, and evaluation of performance" (Penn State HR 76).

What are some of the more common forms of this soft retaliation:

1.  Administrators use a version of the "by the book" tactic sometimes used by public sector unions to pressure employers into workplace concessions (see, e g., here). In the administrative version deans may set an unrealistic "general rule" and then announce that waivers can be given upon application in individual cases.  In a by the book strategy, those faculty who advance decanal ambitions or curry favor tend to receive waivers--because of their relationship--and those who do not get no waiver.  This is a particularly useful tactic because it is so very hard to expose.  It is easy to cloth this sort of discretionary decision making in subjective factors.  It is hard to prove personal animus as the underlying intention or reason.  And it is very difficult to muster facts that may make a case for disparate treatment.  In those areas in which deans may be liable for such discretionary decision making--for example setting wages grounded on  gender bias--the evidentiary issues are difficult enough.  But where the issue involves mundane and subjective (but critically important factors in productivity--travel funds, research assistants,professional memberships and the like, the possibility of showing that decisions are made to further animus rather than to further institutional objectives, becomes nearly impossible. 

2.  Related to the "by the book" forms of soft retaliation are the use of discretion to deny permission.  Deans have discretionary authority with respect to consulting activity,  teaching at other institutions, and visiting at other institutions (unpaid leaves).  It is common to grant permission.  But it is also possible to use this authority to approve to do the opposite--and so personal reasons. For example at Penn State the standard for approval -- "is appropriate in relation to the performance of the faculty member's regular University duties" -- provides a very broad scope of discretion that is not otherwise constrained in a way that makes it possible to guard against administrative abuse.

3. Scheduling has been a classic tactic for soft retaliation.  In some units it becomes an open secret that Professor X is being punished by senior unit officials because she always winds up with an odd schedule of classes--she invariable gets the class assignments very early in the morning (when she sought a different time for class) or the least equipped classroom space, or classes are scheduled to conflict with service (especially for example service in faculty organizations).  The "punishment, considering everything, is usually mild--there is no substantial damage to always being scheduled for the 7 AM class, with a 10 hour break between that class and the next.  But it does have two important effects worth noting. The first is the way it undermines morale and in that way might contribute to poorer job performance (and poorer evaluations--the gold standard for soft retaliation regimes).  Second, it sends a very public signal of administrative displeasure that is not lost on colleagues.  It may thus affect unit morale and (more importantly) chill actions that might produce similar punishment. 

4. The most important form of soft retaliation involves the perversion of the assessment process.  Assessment is important, and useful--when undertaken fairly and to advance institutional standards in an ethical manner.  It becomes more useful as a technique of the assertion of personal power when administrators distort its outcomes to advance personal agendas.  Most people have stories--the dean who evaluates a faculty member as deficient in scholarly production the year a book is published with a leading global university press; the strategic use of student evaluations (even better when accompanied by semester long campaigns to undermine the faculty member in the eyes of students  before evaluations are submitted); the strategic use of committee work to undermine teaching or research; the decision to expand assessment vehicles (in class observation etc.) to assess for problems.  More important, of course, is the subjective judging of all of the factors that make up an evaluation.  The essence of that exercise of discretion is virtually impossible to review--except in the cases of obvious and quite egregious misconduct.  But it is precisely the non-obvious but effective misconduct that tends to produce the most damage--damage to the integrity of the administrative system and of the sense of ethics in the operation of the university that over time will substantially degrade the utility of that unit to the university.

5.  An important sub set of the assessment process--what I call socialization through soft rules.  Let me give an example: a dean notes that attendance at weekly lunch time workshops is entirely optional, and then either negatively assesses those who don't attend or rewards those who do.  At some point it becomes clear that a policy that is formally optional is functionally mandatory.  I have spoken about the bad faith of this tactic before and ironically enough in the context of ethics (here).  It is no less unethical when undertaken through university wide programs. 

6. How might ethics help? Administrators with no guidance for the exercise of discretion are administrators out of contro9l  That might suit the unscrupulous university official--one more interested in result than in the quality of that result for the long term.  Disciplining the exercise of discretion is essentially an exercise in applied ethics. Until senior university officials are willing to impose the discipline of ethics--and to impose it in ways that count (administrator assessment and transparency in decision making), unethical decision making and the exercise of discretion for personal advantage will continue to be exercised with impunity.  And that ought to constitute unethical failure to lead by senior university officials. Penn State provides at least a rudimentary basis for disciplining discretionary decision making.  It's ethical decision tool kit might most usefully be applied first, to provide a methodology for administrative decision making in the units. More importantly, this toolkit is most effective when the administrator can publicly justify decision making on the basis of a specific application of these ethical "guiding questions" in ways that can be reviewed and assessed. 

7. In the absence of this sort of innovation the current state of discretion offers no more comfort than what can be provided by the occasional ethical administrator.  It in in the long term best interests of the university--especially one that seeks to lead by example, and one with a public mission--to ensure that its gets its own ethical house in order at the higher levels before it starts to engineer the behaviors of subordinate stakeholders. Administrative discretion and the regimes of soft retaliation that can be practiced with impunity weaken the university, make a mockery of academic freedom and substantially undermine shared governance.  There is no reason to subsidize bad behavior.  There is even less to substitute the personal desires of administrators for the institutional necessities of a university's welfare maximization. It may well be time for a conversation about this.  I suspect it will be a long time coming.