Abuse of Discretion at the University: A Construction Built One Act at a Time

(Pix © Larry Catá Backer 2017)

I have been writing about the transformation of the scope and functions of middle level administrators at the university--either public or private (here, here, here, here).  I have been suggesting that the symptom that is much in evidence--the emergence of cultures of soft retaliation, personally directed but not in violation of the rules under that empower administrative action--hides its cause, the rapidly expanding scope of administrative discretion within ever more complex regulatory structures (here, here, here, here, here).  As these regulatory structures move from rules based to principles based structure--from commands to conditions of service (here, here, here, here)--the administrator charged it is operation becomes the receptacle of an increasing amount of discretion.  This discretion may be exercised in the administration of a unit with impunity--that is it may be exercised within a broad, and increasingly unreviewable, discretion that falls well within the scope of the authority with which the administrator has come to be vested.

This emerging system of university governance, then, is founded on two great foundations.  The first is the legalization of conduct within the university.  All conduct is meant to be subject to rules and the rule systems are designed to be opaque.  Like the most arcane regulatory structures of the public administrative state, the volume of regulation within the university will be fractured (divided into a large number of distinct categories) and will be memorialized in a language increasingly open only to specialists.  In the public sphere that describes the relationship between lawyer, judge and law; within the university that describes the relationship between the administrator and the university's regulations. The second is the shift of authority for decision making and rule interpretation to a class of administrators through which the university may manage those who are necessary for its operation. This produces the construction of regulatory governance that vests interpretive discretion and the power to apply the rule solely in the hands of a hierarchically arranged administrative structure, in which each level is responsible only to itself and protected by a regulatory structure that is meant to protect the integrity of the system.

The resulting practices, perhaps some abusive, have not been well documented precisely because the framework within which they are committed have remained obscure.  Yet that documentation ought to be commenced, and the stories that suggest the mechanics and habits of discretion--its use and abuse within the university--ought to be told.  With this post I will try to give form to the many ways in which discretion may be exercised and abused.  I will leave it to the reader to determine the extent of abuse, but will call on others to share stories that may add to our construction of the actual operation of the discretionary administrative university of this century. All stories will be stripped of identifying information to serve as the faceless indictment of a practice that has until now been able to thrive in the shadows protected by an ignorance of the methodologies and tactics of the modern university.

Blocking Promotion:

At National University (a composite construct), the rules for tenure and promotion require that faculty be reviewed for tenure in their 6th year and with the grant of tenure be promoted to the rank of associate professor.  Thereafter, the rules provide for further promotion to the rank of full professor only after demonstration of work that evidences recognition of work at the national level.   

At National University, the promotion and tenure procedures consist of several levels of judgment and review: the department (or comparable academic unit); the the college; and the University. The initial review will usually take place at the level of the department and will focus on professional and scholarly judgments of the quality of the individual's academic work. Subsequent levels will bring broader faculty and administrative judgment to bear and will also monitor general standards of quality, equity and adequacy of the procedure used. At each level, the review process will reflect the competence and perspective of the review body.

National University contextualizes the qualitative standards for promotion through the exercise of contextual discretion, providing that though the tenure and promotion process is geared, narrowly and properly, to evaluating individual performance, the changing needs and priorities of the institution may also affect the decision to grant tenure or award promotion. Both equity and the long-range interests of the institution, however, require directing primary attention to University needs and priorities at the time of appointment and careful intermediate and longer range academic personnel planning.

But there have been rumors circulating for years that administrators at the local level will sometimes employ these discretionary standards to block the promotion of faculty who are viewed as troublemakers.  This authority is exercised unofficially.  In normal course, the local or college administrator would have a conversation with the potential candidate for promotion in which she would indicate her assessment of the viability of any promotion decision.  These conversations have been very useful in guiding candidates both as to timing and as to the content of their promotion folders.  They have also helped guide candidates on career choices.  Yet they could serve as a means of quietly halting efforts for promotion, especially where scandal is to be avoided but persons are to be prevented from moving forward.

It is within this context that a college administrator (CA) has told a rising associate professor (AP) that she would not approve any effort on his part to seek promotion to full professor.  Over the course of the previous half decade AP has been an energetic participant in the life of the unit.  That energy has sometimes caused him to oppose programs and strategies, with respect to which the university permits vigorous engagement under its shared governance rules, of both the CA and also his department head.  At times those objections have been taken up at the university level by the institutional faculty governance  organization. Senior administrators have been heard to grumble, at meetings of college administrators, that AP's objections have been quite irritating and that they wished there was a way of shutting him down. Senior administrators however have been frustrated because AP's actions have not violated university regulations, even when generously interpreted in favor of the university.  

It is in these circumstances that AP has indicated his intent to seek promotion to the rank of full professor. In support of that application he is prepared to proffer 26 articles published in refereed journals, most in level one or level two journals, one scholarly monograph, and a published collection of essays for which he served as editor published by a well knowledge international publisher of high level academic work. AP has been cited 369 times according to Google Scholar and his research has been featured in the national press. 

On the basis of this record, CA has indicated that she would block any effort to seek promotion because she indicated privately, AP's scholarship does not come close to the minimum standards at National University, a conclusion that on the facts is highly contestable. CA herself, when she was promoted to full professor a decade ago in the same unit (before being appointed its administrator) she and her co-authors had published 25 refereed journal articles (2 published only after the effective time of promotion) and 5 conference proceedings. Her total citations on Google amounted to 235. 

AP does not know what to so.  Were he to bring up the comparison his his portfolio with that of the CA, it is likely that his promotion would be rejected as an exercise of discretion at the college or university level--that is what he has heard. More worrisome is that there have been almost no promotions to full professor in prior five years. Everyone has been blocked on the basis of informal discretionary determinations that--when AP compared notes with his colleagues--suggested that the exercise of discretion varied wildly. In discussion with the CA about the lack of a clear path to promotion they referred again to National University policy and to the duty of administrators to apply the standards in a way that advanced the interests of the college and the university as the administrators determined.

What's the best strategy? Here appears to be an abuse of discretion that may be exercised with impunity and indeed perhaps with the collusion of those administrators superior to the CA.