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. 

Consider the issue in more concrete terms.  Penn State University has just developed a Diversity Statement (discussed here).  The Diversity Statement is addressed to the university and declares the university "committed to" and "accountable for" the specific objective of "advancing" three ideals--diversity, equity and inclusion "in all its forms".  This core obligation ("to advance") to which the university has declared a commitment and an intention to assess (itself?) is itself modified by further obligations "to foster" (inclusive excellence), "to leverage" (benefits of diversity), and "to engage"("all individuals to help them thrive").

Among the more specific techniques that are mentioned in this statement are two that appear directly to affect faculty.  The first provides: "We will educate our faculty, staff, and students to be social justice advocates, creatively providing curricula, programs, and environments that reflect the diversity of our communities, and elevate cultural awareness."  The second provides: "We will advance and build our workforce by assessing hiring practices and performance review procedures to attract, retain, and develop talented faculty and staff from diverse backgrounds."

Read broadly, the Diversity Statement appears to commit the university (in a way that might be assessed) to advancing diversity-equity-inclusion by fostering, leveraging and engaging certain ideals, a way of understanding benefit and all individuals.  This assessible commitment to advancing by  fostering, leveraging and engaging, may be realized, in part through certain specific activities, which the university might now, in an way that might be assessed, undertake--(1) education of faculty in social justice advocacy; (2) curricular, program and environments reform; (3) elevation of cultural awareness; (4) assessment of hiring practices and performance review procedures for specified ends. And one might assume that these broad, and no doubt valuable objectives, would be realized through the usual methods of university rule making with some nod, in whatever way that is now assumed to be sufficient, in the direction of shared governance and the usual processes of governance.

The end product of those efforts might then produce the sort of rules that move the university toward meeting its objectives--to which it has committed to advance in the Statement--and which manage and direct whatever discretion may be vested in administrative personnel for its implementation and operation. That is, the Statement does not create mandatory rules, but points normal rule making in a particular direction.  It does not appear to be an invitation for the exercise of administrative discretion that is not otherwise based on rules legitimately developed in accordance with the governance culture of the institution. And as a consequence, it is further assumed that employees will be protected in reliance on rules, neutrally applied, as the basis from which they might fashion their own conduct and determine what, precisely the university expects them in their role as employees (beyond which the authority of the university should, in accordance with principles of human dignity, diminish).
1. If an unit administrator--a dean of a college, for example--decides that it might be useful to apply these standards to her unit directly, and to reward faculty to appear to be enhancing the objectives of the Diversity Statement, as the unit administrator might understand them, what harm? Especially where a faculty seeks to do the right thing and to engage in the sort of issues and processes that might, in their view, advance their (or should it be the institutions?) commitment to diversity-equity-inclusion, why should a unit administrator not create the framework for rewarding such effort? And there is much to be said for these good intentions--all around. But from an institutional perspective these good intentions, in the absence of an appropriate rule framework, may produce more harm than good. First, in the absence of standards, an administrator's discretion to value this service or activity is unconstrained.  That may work well for the individual whose efforts are valued (in the personal value scale of the administrator) but works less well where the administrator tends to value the effort (for her own personal reasons) less than others.  That injects personal the personal to an extent in performance evaluations that might open the road to impunity  and abuse.  Second, such a inclination has an informal though quite strong regularity effect, but one in which all of the structures of rule making are avoided and the whims of an administrator substitute for the development of a consensus based institutional policy. Where an administrator gives credit for action X those assessed might be excused for seeing this not as an "extra" but as an implicit penalty for failing an engage in action X. True enough, the formal construction of this system  does not suggest this--but its effect will almost inevitably produce a "common sense" within a faculty that the failure to engage in "optional" activity X will reduce overall assessment. But that effectively shifts rulemaking power from its formal structures to the exercise of whim by an administrator--undercover of a hortatory standard directed to the institution as a whole.

2. What if the this exercise of discretion by a unit administrator is viewed as acceptable (though that itself should be troubling), but, for example, she determines that social justice advocacy has a very specific meaning. Here one encounters another problem, which the absence of rules and the broadening of discretion makes far worse. First, the exercise of discretion in this case would effectively force faculty who wished for a positive review to conform to the unit administrators definition of social justice advocacy and to contribute to its fulfillment. That effectively broadens the power of the unit administrator to control the way that faculty engage with the world around them in quite specific ways. It also suggests that she has the authority to penalize those faculty who do not share her view. Those faculty will either have to conform or risk a negative effect on their performance review. And again recall that her assessment here is based on her personal sense of the meaning and demonstration of social justice advocacy by her subordinates, without any regulatory or administrative oversight (recall again there are no rules and the only option for faculty would be to invoke the cumbersome and risky processes of Faculty Rights and Responsibilities). This becomes most problematic where the issues of social justice advocacy intertwine with significant social and political issues of general interest to the locality, state or nation. Here the possibilities of abuse of discretion are compounded--with neither regulatory referent nor effective process for protection against abuse. The university appears complicit in back door personal rule making through unit administrators in ways that substantially undermine any sense of rule of law at the institution and that itself constitute an excellent target for social justice advocacy in its own right.

3.  Of course it is possible, even likely, to sneer at analysis such as that offered above.  How can one put good intentions to bad effect?  Why might the exercise of discretion for a good cause worry one enough about abuse and a diminution of personal choice in the most intimate aspects of teaching, scholarship and service?  First, without institutional integrity in the construction and application of its rules, the institution itself will be incapable as a matter of principle, of actually engaging in anything remotely tied to diversity, equity or inclusion.  The use of these optional or hortatory standards as a platform for the broadening of administrative discretion undermines institutional legitimacy.  It also shifts authority from rules to personal preference that might make it difficult to point to an institutional standard of conduct.  Rather, the rule will be to conform to the idiosyncrasies of the administrator with disciplinary power.  But that is precisely the kind of regime that produces the loss of dignity that erodes the equity portion of the Standard in whose service it was constructed.   Second, the exercise of such arbitrary power will produce abuse.  But it will be a form of abuse that might be practiced with impunity and against which individuals will have little recourse.  Third, at its limit it can serve as a cover to chill those political, religious and societal rights that are the foundation of our system (and thus betray the public service mission of the university in a substantial way).   Fourth, as a result the university will experience the sort of resistance that is possible by a subordinated community--loss of morale,declines of productivity, undermining efforts forced onto unwilling individuals.  Such a regime is both costly to an institution and quite difficult to protect against once an institution makes a commitment to broad and unconstrained administrative discretion.

4.  Many universities ae unlikely to take this basic points of institutional operation seriously.  It is far easier to develop permissive or aspirational statements and then to devolve discretionary authority in line managers to use the techniques of management as a substitute for the creation and implementation of rules.  This can contribute to the sorts of cultures of administrative impunity that substantially undermines the legitimacy of leadership and the effective operation of the university.  But those long term concerns are usually sacrificed, in some institutions, for the appearance of short term ism. That is to be regretted because the principle objective sacrificed will likely be the aspirational norms built into such statements. 

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