Thursday, March 24, 2016

The Conundrums of Intersectionality: AAUP Draft Report on "The History, Uses, and Abuses of Title IX"

Today the American Association of University Professors (AAUP) released a draft Report: The History, Uses, and Abuses of Title IX.  They have asked for comments by April 15, 2016.

The Report provides an opportunity to examine the difficulty of balancing multiple laudable principles when, in the process of operationalization, they appear, if carelessly applied, to do damage to each other. The Report effectively considers the difficulties of harmonizing fairness where academic freedom, constitutional speech rights, due process, racial justice and gender equity meet. That harmonization is difficult enough--but when it is mixed with corporatization, bureaucratic cultures, political agendas, and a perverse mania for wrongheaded assessment and accountability measures, the resulting cocktail is toxic indeed. Quoting Janet Halley, “Trading the Megaphone for the Gavel in Title IX Enforcement,” Harvard Law Review Forum, 103, February 2015, pp. 103-117, p.117), the Report (p. 36) notes: "Increasingly, schools are being required to institutionalize prevention, to control the risk of harm, and to make regulatory action to protect the environment. Academic administrators are welcoming these incentives, which harmonize with their risk-averse, compliance-driven, and rights-indifferent worldviews and justify large expansions of the powers and size of the administration generally.” This is not unique to Title IX; I have noted its effects in other aspects of administrative cultures at Penn State (eg, The Riskless University and the Bureaucratization of Knowledge: From "Indiana Jones" to Central Planning).

The Report is a step in the right direction, to be sure. But the enterprise of great cultural shifts, in the context of the university and even as the cultural basis of societal norms changes around us, may well be beyond the instrumentalism of both state and academy, or it may produce unintended effects.

The AAUP press release with links to the report and contact information for submitting comments and the executive summary of the report follows.

Monday, March 21, 2016

Embedding Diversity at Penn State: A Progress Report From the Penn State Joint Diversity Awareness Task Force

(Pix © Larry Catá Backer 2016))

It has been my great honor to serve as the Chair of the Penn State University Joint Diversity Awareness Task Force (JDATF).  JDATF was charged this past April by our Provost and the University Faculty Senate Chair to consider a number of important diversity initiatives at Penn State (Charge (PDF); Members).

Our work over the academic year has produced four reports with recommendations for substantial changes in a number of areas.  
Presented March 2016 for consideration April 2016:
1. US/IL Courses Survey--Legislative Recommendations
2. Diversity Best Practices
3. Moving Forward Embedding Diversity Policy

Presented February 2016 and Approved by the PSU Faculty Senate March 2016
One of these has already been considered and approved by the University Faculty Senate and awaits the President's decision.  The others will be considered by the Senate in the next several weeks.

This post provides an update on the work of the JDATF.  I have provided copies of the PowerPoints of the presentation of that update which was delivered on 21 March 2016 to the Penn State Academic Leadership Council and now more broadly shared. I welcome comment and further engagement.  We look forward to our Senate's review of our reports and hope for favorable action. In any case the reports as the final products of the work of the JDATF are worthy of consideration more broadly in their own right. 

Saturday, March 19, 2016

The American Law School: Crisis and Opportunities in the 21st Century

(Pix © Larry Catá Backer 2015)

American legal education is in crisis--that crisis is driven not by conceptual decay but by markets. Changes in markets--for law students, for law school graduates, for the consumption of legal academy knowledge by lawyers and judges, have changed the systemic foundations of contemporary American legal education--its organization model, its curriculum, conceits as an academic discipline embedded "in the world." The crisis, then, challenges the foundations of the contemporary legal education model --in its conceptual, institutional, and political aspects. Does this suggest a death spiral for the current one size fits all model of U.S. legal education? Does it point to a counter-revolution in the trends of legal education reform, inviting a typical panic response--the "Return to “Eden” strategy of coping with crisis--or to radical change? And what does that mean for the now decades old effort to internationalize the U.S. curriculum?

The crisis takes its character from the the source of its challenge in markets. Admissions of JD candidates have been trending down. Traditional high prestige jobs are trending down as well or holding stable even as the pool of graduates grows. Markets are both shrinking and changing, but the changes to not register on those metrics through which rankings are calculated. In the near term class sizes have shrunk in the face of the pressure of ranking.This produces substantial downward pressure on revenue and panic. That panic has produced predictions that even high tier schools may fail, attacks on academic freedom and tenuret may become more common (and persuasive), faculty terminations may be required, and research and teaching rethought. There has been criticism of for-profit law schools and a sense that even as the most elite schools may thrive (with a lock on high prestige students and labor market access), the rest will not. Those that survive will do so only through substantial subsidies from central university funds.

It was my great privilege to speak to a group of Japanese academics about my sense of the nature of the emerging "crisis" in American legal education. My thanks to Professor Hideto Fukudome, Department of University Management and Policy Studies, University of Tokyo, for organizing the event. The PowerrPoints of that presentation, The American Law School: Crisis and Opportunities in the 21st Century, follow. They may also be accessed HERE.

Monday, March 14, 2016

Proposing a Set of Guiding Principles for Operating Health Care Plans in the Contemporary U.S. University

(Pix ©Larry Catá Backer 2016)

There is a new orthodoxy in the development of benefits plans.  Universities now appear to march in lock step both with respect to the forms and the socialization techniques that they use to purchase and then market their "benefits" products to their captive consumers--the populations of employees who are given little choice and whose employment sometimes depends on their willingness to pretend they like the stuff they are made to consume.  Perhaps it is a function of the markets for benefit plans that have emerged over the last half century.  Universities, like larger corporations , tend to purchase either off the shelf "manufactured" plans, or they cobble them together from benefit programs peddled by professional plan designers and managers--the same industry to appears to sell benefit bits and pieces to every large enterprise in this country. 

There are benefits to buying manufactured plans, such as there are benefits to purchasing manufactured foods in the grocery stores.  First there tends to be a lot of them,.  They have long shelf lives.  They are easy to consume.  "Everyone" is consuming them--that is all one can talk about at gatherings of benefits plan consumers, the way the aisles of supermarkets are clogged with people whose carts are stuffed with manufactured consumables. And for the most part they are not very good for you in the long run.

That does not prevent people for engorging themselves on manufactured food.  It does nothing to prevent universities and enterprises from feeding off of these prepacked plans--and then try to sell them to their stakeholders usually using many of the strategies that have also been manufactured for that purpose by and with the aid of those selling the stuff in the first place. Eventually universities and enterprises, like people, come to believe what they have been sold, and become wholly dependent on these manufactured products.  That new normal makes alternatives--better and healthier in the long run--pricier and less available.  And that scarcity then becomes the greatest selling point for the perspectives (the ingredients) that are used to manufacture these products.  

As a consequences, as I have noted before (Benefits May Not Be Accessed!: Penn State and the Transformation of Benefits Policy in the Contemporary American Public University): (1) universities begin to think of themselves as insurance companies not institutions providing a benefit to employees with substantial positive effect on their operations; (2) the benefit itself is either viewed as a cost or profit center rather than as a value added to the operation and sustainability of the institution; (3) benefits are viewed as an instrument to manage the behaviors of employees on and off work; (4) plan administrators develop an obsession with cost--and indeed all benefits are increasingly viewed through the lens of cost and its mitigation--either by reducing access to payouts or by managing the behaviors of beneficiaries; (5) the ultimate aim, subconscious no doubt, is to view administrative objectives not in providing the best plan given fair valuation but to reduce the costs of the provisions of benefits while maintaining or increasing employee productivity.  The result is an odd situation in which the benefits of health care plans are undervalued and its cots overvalued--where costing is privileged as a driver of plan design and institutional benefit is subsumed within a leveling hyper focus on cost rather than value.That, of course, follows from the way in which manufacturers of plans tend to conceptualize the enterprise of health care construction, which is driven in part by its conceptualization by a financial side of the university house. These plans, then, get it half right. 

Yet it is possible to conceive of healthier alternatives to the manufactured  for profit plans that are peddled by the industry in which universities shop for the benefits they mean to bring "home."  The purpose of this report is to recommend core principles for the design of university health care plans. It offers four key principles that university benefit plans should embrace to make them better--to avoid the deleterious effects of the proffered for profit variations on manufactured benefit products, for something that adds value to the university as well as for the employee.

Thursday, March 10, 2016

The New Harassment--When University Administrators Use Allegations of "Harassment" and "Hostile Work Environment" Against Dissenting Faculty

Issues of harassment on the basis of sex, sexual orientation, race, religion, and other legally protected categories have been at the forefront to news in academia of late.  The events at the University of California at Berkeley involving a faculty member in the department of astronomy and the dean of the Law School are only the latest in a string of reminders of the importance of protections against harassment and hostile work environments (see here and here).  Yet, these instances of abuse underline not just the individual acts but also the ill effects and abusive potential that results from the disparities in authority in those relationships that make such conduct harder to avoid.

But universities are also institutions where shared governance plays a vital role in university administration and where ideas are intended to be developed, challenged and debated as part of the process of knowledge making and dissemination. 

It is in this context that while one understands and most laud the use of harassment protections as a shield against societally disapproved conduct, one might wonder: to what extent might administrators use allegations of harassment and hostile environment against faculty members dissenting in discussion of policy or suggesting that policy is unsound or in violation of other rules? 

This post considers that issue.  

It suggests that the use by administrators of harassment and hostile environment, given in power relationships between administrators and their faculty, some of whom they might have the power to terminate directly (fixed term faculty for example)  is itself inherently subject to abuse and in some circumstances might itself constitute acts contributing to a hostile work environment for which the administrator ought to be disciplined.  The tragedy here, of course, is that administrators may make these allegations with impunity and faculty claims of hostile environment following the use of these tactics will tend to be ignored.  It is a tragedy because--at the point that an administrator resorts to these tactics and faculty make their counter claims--such actions indicate the kind of departmental or unit crisis that calls for senior administrative interventions that are rarely invoked and for which senior administrators appear to be poorly equipped.

Monday, March 7, 2016

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.  

Wednesday, March 2, 2016

Faculty Assessment in the Shadow of Unconstrained Administrative Discretion--On the Problem of Aspirational Standards and the Arbitrariness Trap

(Pix © Larry Catá Backer 2016)

It has become fashionable within industry across the globe to adopt and embrace any number of hortatory standards.  These are meant to serve as a "message from the top" or to supply the foundation from which the expectations of business behavior--by the institution and its employees--is measured. But in many cases these are not meant as either mandatory or contractually specific requirement.  They are meant to serve to provide tone and color to the operations of an enterprise in distinction to the more specific, and specifically enforceable terms of employment agreements and operational handbooks and policies. 

This move toward standard adoption has been embraced with substantial enthusiasm, it seems, within post secondary educational institutions. One notes the adoption of aspirational standards--applicable to institution as well as to its stakeholders (principally employees but also students)--across a number of different aspects of university operations.  These include ethical standards, values standards, diversity standards, health and wellness standards and the like. 

While one can applaud the embracing of these standards for the sense they give about the values and opinions of enterprise communities, like those in a university, one might also wonder about the effect of these standards.  It is clear that they might be understood as aspirational.  But to the extent that an institution begins to build systems of behavior expectations from them, then the aspirational character of these efforts might be understood to transform into something else.  

Nowhere might this be more troubling than in the transformation of permissive or hortatory standards into factors that might be weighed, in the discretion of administrators, in the course of assessments of employees. This post considers some of the issues that might arise as a consequence and why the university might consider approaching these issues with substantially more care than they appear to be lavishing on it now. I consider two problems--the first is administrative discretion in making aspirational norms mandatory.  The second is administrative discretion in applying those norms to individual assessment.