(Pix credit HERE)
I have been writing about the transformation of university governance from a rules based system to one in which rules are created to define increasingly broad ambit of administrative discretion (here, here, here, here, here, here, and here). This widening of administrative discretion appears most pronounced at the middle tiers of university administration--at the level of university deans and unit chancellors. It appears to evidence two profoundly important trends. The first is to shift effective governance power from faculty-dean collective governance models to a more hierarchical system in which middle manager deans reserve the authority to initiate and drive policy formation as well as implementation. The second is to change the character of accountability that manages to produce an expanding field of decisions that are effectively beyond the power of anyone (but perhaps the provost) to review. The result is a growing area of decision making authority in which deans may act with impunity.
Impunity within an organization, of course, creates a legitimacy vacuum in the operation of an institution. In the United States, at least for the moment, such structures without legitimate structures of accountability may expose themselves to the accountability structures of the state. Generally that seepage of accountability out of the institution tends to wind up in the courts. And so, increasingly, one begins to observe a curious trend--the increasing willingness (necessity) of faculty (and eventually staff that is not unionized) to seek in the courts the protection (in the general law) of protection against abuse of discretion.
This trend should be alarming. It suggests institutional decay, at least with respect to the core structures of internal legitimacy, that once were more central to the operation of the university. More specifically, as the university abandons effective remedial structures, individuals will seek remedies form more authoritative institutions. People may be excused for scoffing at the notion that impunity in administrative decision making (abandonment of effective remedy and failure to oversee administrative discretion based governance), and even at the very idea of the need for an effective abuse of discretion standard itself within structures of university rule systems. They will be excused for finding implausible the suggestion that in the absence of effective university governance, its own stakeholders will seek "workarounds," and some sort of vindication, outside the structures of the university and its own administrative machinery. My sense, however, is that while initial efforts are likely to be rejected--the trend toward turning to the courts will only intensify as the transformation of the university becomes more pronounced (and as its structures become more hierarchical and impunity enhancing discretion based).
The most telling evidence of these trends, and of the likelihood of the development of a judicially constructed standard for policing administrative abuse of discretion in the university, does not occur when these efforts are undertaken by faculty at lower ranked universities. It does start to have significant potential to affect the remedial structures of university governance when members of the university elite themselves begin to seek the protection of the courts. It is in this context that the lawsuit (filed March 23, 2017) against the Columbia University Law School (and its dean, Gillian Lester, Dean and Lucy G. Moses Professor of Law) by one of its more prominent members (George P. Fletcher, Cardozo Professor of Jurisprudence).
This post includes some of the documents emerging from that lawsuit as well as a nice description of the issues recently posted by Paul L. Caron to his Tax Prof Blog. The university's motion to dismiss the lawsuit provides an excellent gauge of the current position of "management," one that invokes incredulity at the notion of a faculty member running off to the courts in a fit of pique. But that incredulity, given the way the facts are described, ought not detract from a more dispassionate institutional analysis. Whether or not Professor Fletcher prevails, the case itself is another piece of evidence of the growing institutional failures of the emerging university discretionary governance model to adequately deal internally with the exercise and management of administrative discretion. Professor Fletcher is likely not the last member of an elite institution to seek remedies where he can, and one day--sooner than institutions and their administrators may anticipate-- the courts will supply the remedial structures that universities increasingly fail to provide.
Tuesday, May 30, 2017
The Complaint itself gives a good sense of the sort of culture of institutional management, and of the character of the everyday business of managing an educational institution that is now emerging. The complaint is grounded in circumstance, and in the connection of the "dots" of a series of administrative decisions that themselves suggest the way in which faculty are now managed in the production of offerings to student-consumers. In a sense, the complaint nicely suggests the mechanics of the management of institutions through layers of administrative discretion that makes it substantially difficult for its objects to find any place on which to anchor accountability. Curiously, it is unclear whether or to what extent he availed himself of the internal mechanisms for protesting actions at the uniersity. Although one can understand a reluctance to do so, or more likely, the unavailability of such a system for this sort of dispute.
Here the issue appears clear--the faculty member contends that the dean used her administrative authority to engage in a series of discretionary decisions that were directed to effectuating indirectly an objective that could not be directly ordered--the retirement of a faculty member whose arrangements with the university were no longer considered as useful as they once might have been.
13.Fletcher has served as a tenured faculty member at Columbia for almost thirty-four (34) years.In that time, he successfully has taught a variety of courses, including Torts, Criminal Law, Comparative Introduction to American Law, Jurisprudence of War, multiple seminars, and Introduction to American Law.14. Fletcher has made deep contributions to the Law School and its community in his time as Professor. In addition to teaching various courses in both the J.D. and L.L.M. programs, he has been a prolific scholar and researcher. Through his teaching and his written works, he has elevated Columbia’s credentials in the areas of torts and comparative and international criminal law.15. Fletcher has taught and cultivated generations of lawyers and law professors in his years at the Law School, and has invested innumerable hours in developing sophisticated and challenging coursework for his students. Among his former students and protégées are current leading professors of criminal law in Israel, and a conference on his work has been scheduled at the academic college of Kiryat Ono. Fletcher’s courses have been well-received, and he consistently receives positive teaching evaluations from students in his classes.16. Fletcher persistently strives to adhere to all administrative expectations established, both formally and informally, by Columbia, including the timely preparation of syllabi for classes; providing review sessions for students prior to exams; and creating course content to ensure that classes meet American Bar Association requirements for course credit.17. In 2005, Fletcher entered into an arrangement with Columbia, whereby he would teach all his courses –and satisfy the conventional ten (10) point teaching quota to maintain his tenure –in the fall semesters. Fletcher conveyed, and the Law School understood, that Fletcher would spend the spring semesters in Israel, where he is active in many scholarly programs, including at the Van Leer Institute, the Hartman Institute, the Institute of Advanced Studies, and the Hebrew University Law School.18. That arrangement worked successfully for Many years, with Fletcher continuously committing to teach at least ten (10) points each fall semester, and working in Israel during the spring semesters.19. On occasion, certain courses that Fletcher committed to teaching in the fall were subscribed in relatively low numbers, and Columbia canceled those offerings as formal courses. In those instances, Fletcher was not penalized for the cancellations, given that he committed to teaching those courses and it was the Law School’s decision to remove them from the schedule. Moreover, Fletcher would instead cumulate teaching hours by meeting with students, Fulbright Fellows and visiting scholars in his office on a fixed schedule, rather than in a classroom format.20. In 2016, however, the Law School changed its approach with respect to Fletcher. Defendants Undertake A Pattern Of Harassment And Disparate Treatment, In An Apparent Effort To Force Fletcher To Retire21. Fletcher and the Law School agreed in 2015 that Fletcher would teach Introduction to American Law (“IAL”) in the fall semester of 2016. IAL would countfor two (2) points out of the customary nine to ten (9 to 10) point teaching quota for tenured professors for the 2016-17 school year. IAL is a mandatory course offering for LLM students, which means there is little to no chance of it being undersubscribed and therefore cancelled by the Law School.22. Fletcher taught IAL in the fall of 2016 as agreed. He used his own book, “American Law In A Global Context”, as the basis for the syllabus, without any objection from Defendants. When the course had concluded, approximately ninety percent (90%) of the evaluations that were turned in by students gave the course, and Fletcher, positive reviews. Only three (3) students expressed that they were unhappy with the class.23. Nevertheless, Katz began to harass Fletcher about purported issues relating to the course, starting in late fall of 2016. Until that point, there had never been any objection to the organization of Fletcher’s courses.24. For instance, on October 16, 2016, Katz Sent Fletcher an email in which Katz set forth unsupported claims that Fletcher had failed to comply with administrative requirements for the IAL course, such as late submission of the syllabus and failure to provide students with feedback on their exam performance. Katz also complained that Fletcher had failed to respond in a timely matter to Katz’s emails, which was untrue. Katz was attempting to micro-manage Fletcher’s teaching of the class, including the content, and purportedly did so with Lester’s approval. Upon information and belief, younger professors have not been subjected to similaroversight.25. Fletcher responded to the claimed issues raised in Katz’s October 16 email and corrected the record with respect to each one. Fletcher also reiterated his loyalty to the Law School.26. Then, in January of 2017, Lester informed Fletcher that he would not be permitted to teach IAL in upcoming fall semesters. Lester noted that The course previously was offered in only two sections, but acknowledged that “[g]iven the mandatory nature of [the] course for LLM students, a substantial enrollment would be guaranteed” even with three sections.27.Lester claimed that the decision to remove Fletcher from the course was “partly due to the challenges in eliciting [Fletcher’s] compliance with some basic procedural and substantive aspects of the course and partly due to the relative weakness of the student evaluations of [Fletcher’s] section.”28. As Fletcher informed the Law School, Lester’s claimed justifications for the decision were false, and were mere pretext for removing Fletcher from the IAL course. Fletcher complied with the procedural and substantive requirements for IAL, as he has with various other courses he’s taught at Columbia over his decades as a professor.29. Lester further stated in her communication in January of 2016 that the Law School would “like to go back to offering just two sections of Introduction to American Law, taught by the other instructors.” The other instructors referenced by Lester are less qualified than Fletcher: for instance, they are not members of the American Academy of Arts and Sciences, to which Fletcher was elected in 2004. Membership in the Academy is a primary measurement of prestige in law school circles, and is used in determining law school rankings. Upon information and belief, the other two professors are ten (10) or more years younger than Fletcher.30. Having taken the IAL course away from Fletcher, Lester Stated that, instead of teaching IAL (which is a mandatory component of the LLM curriculum), Fletcher could teach an elective course on international and comparative criminal law.31. In response, Fletcher stated that he was willing to teach the proposed elective course, but noted that Columbia should assume responsibility in the event of low enrollment, as it had in the past. In other words, since Fletcherwas fully willing and prepared to teach ten credit points’ worth of courses, it would not be fair for the Law School to reassign him to a class with a risk of cancelation, which would place Fletcher’s credit total and status with the Law School at risk.32. Lester would not provide Fletcher with any assurance in this regard. To the contrary, she told him that “we will treat this course in a manner consistent with our usual policy, which is that we reserve discretion to cancel classes that draw very low enrollments. I am hopeful that all of your offerings will generate sufficient enrollment to go ahead, but if they do not I cannot guarantee that they will not be cancelled.”33. Thus, it was made clear to Fletcher that, despite his willingness to teach ten (10) credits worth of courses, he might nevertheless come up short due to the Law School’s unilateral elimination of those credits. In an effort to prevent that outcome, he proposed that he be assigned to teach a different mandatory course, such as Torts –a subject matter in which his well-earned and well-known expertise is publicized by Columbia on its website.34. Columbia declined that proposal, stating that Fletcher would have to substitute IAL with an upper-year elective–which, again, would place him at risk of having his course under-enrolled and ultimately cancelled. Lester also wrote to Fletcher that if that “option is not acceptable to you, we will have to revisit the arrangement whereby you load all of your teaching into one semester, or we will need to discuss moving to a fractional appointment.”35. Taken together, this series of communications from Defendants over the past several months have placed new terms and conditions upon Fletcher’s continued tenure as a Professor at the Law School. Rather than allowing Fletcher to teach a mandatory course to ensure that he earns the full ten (10) credit points that he is willing and able to earn, the Law School has placed his credit total, and therefore his tenure, directly at risk and subject to Defendants’ unilateral discretion.36.Moreover, the threat of moving Fletcher to a “fractional appointment” confirms what was already apparent: that Defendants improperly are attempting to force Fletcher to retire. Defendants have been harassing Fletcher with false and unsupported complaints about his teaching procedures, in the first instance–and worse, actually have removed him from a course and have threatened his tenure based on those fabrications.37. Meanwhile, upon information and belief, faculty members who are much younger than Fletcher have had real, and more egregious, administrative shortcomings in their performance. Those younger faculty members nevertheless have been allowed to keep teaching mandatory classes, with virtually guaranteed enrollment and annual teaching credits.
The "truth" of this allegation, or the Professor's ability to marshal sufficient evidence to prevail in his lawsuit, remains to be seen. But what does emerge on initial reading is the question--why is this in court? There must be a better way to deal with these issues. And indeed, there ought to be a better way. It is possible to envision an institutional context in which cultures of operation and strong connections between faculty and middle level administrators would tend to provide the constraints for the exercise of discretion and the instruments through which abuses of discretion might be corrected early in the process of decision making. And there ought to be better and more effective institutional mechanisms for resolving these issues around discretionary decisions--along with a workable standard for testing abuses of discretion. Yet the lawsuit itself suggests the absence of all of this. And the implausible burden now transferred to an institution--the courts--ill suited to exercise the remedial authority that the university has effectively ceded away.
Only part of this is captured by the university--which relies on the wisps of the mythologies of the no-longer-contemporary university to suggest that the Professor's complaint has no business in a court. The university relies on a formal argument--no formal employment action has occurred (yet)--and a legal argument, that no age discrimination has resulted from the cascade of discretionary decisions that led to the Professor's complaint. Indeed, the university suggests that the Professor's allegations do not readily fit within the structures of remedy available under law. And they do have a point, generally speaking. The law was not intended to provide a space within which these abuses of administrative discretion were meant to be resolved.
But that leaves no place where such accountability could be placed. Shared governance structures have effectively disappeared as an effective space within which such complaints might be resolved--and resolve din a way that enhances common cultures of work within the academy. And that, itself, will eventually produce a change in the relationship between the university and its faculty as units of productive activity no longer confident in their ability to police discretion, but unable, for the moment, to figure out where such accountability might be lodged.