AAUP Investigative Report on the Dismissal of Professor Melissa Click From the University of Missouri--Of Process and Speech Acts in the University

(Colleen Flaherty, "A Firing With Consequences," Inside Higher Education, May 19, 2016).

The AAUP released its investigative report touching on the actions taken against Professor Melissa Click by the University of Missouri in the wake of the protests at the University of Missouri.  The decision is a very narrow one.  As reported in Inside Higher Education:

AAUP does not argue that Click’s actions toward two student journalists during an on-campus protest in the fall were protected by academic freedom. Rather, the association argues that in failing to adhere to established disciplinary procedures in her dismissal, the university compromised academic freedom for all. (Colleen Flaherty, "A Firing With Consequences," Inside Higher Education, May 19, 2016).

Brief comments follow along with the AAUP Press Release.

Challenging University Approaches to Sexual Assault: Time to Reassess University Approaches in Light of the the ALI's Rejection of Proposed Changes to its Model Penal Code?

(Pix © 2015 Larry Catá Backer)

The sexualization of conduct, and its management, has become an important element of the discourse of rights, and of human dignity in American society.  Such sexualization, and its punishment, extends from the most egregious conduct traditionally suppressed (rape) to conduct that in another era might have been annoying but hardly criminal (wedgies). It is viewed by some as a battleground for gender equality, and for others, as a means for using the state to effect substantial changes --and to harmonize norms respecting--a broad range of conduct that is deemed sexual and with respect to which there is substantial controversy in society. But as important, that discussion of sexualization is also tied to a number of related issues, from the legal effects of individual interactions, to the complexity and degree to which such conduct might be minutely regulated, to the standards of liability, and to the procedural protections of both parties in disputes touching on sexualized conduct. My thoughts may be found here. 

This post considers the effect that the recent actions by the elite American Law Institute--in rejecting changes to the criminal statute on Sexual Assault in its Model Penal Code--may have provided a basis for seriously reconsidering the conventional university constructions of sexual violence rules adopted uncritically and at the instance of the federal education bureaucracy. 

Sexual Assault at the American Law Institute (ALI)--Intensified Controversy Over the Criminalization of Sexual Contact in the Proposed Revision of the Model Penal Code

(Pix © Larry Catá Backer 2015)

In 2012, the American Law Institute (in which I am a member), agreed to launch a revision of its famous and quite influential Model Penal Code to focus specifically on rising issues of "sexual assault and related offenses." The project It was acknowledged at the time that the issue of the decriminalization of certain conduct around sexual activity "deals with some of the most controversial matters on the current public agenda." (Richard L. Revesz, Director ALI in Forward ALI Model Penal Code: Sexual Assault and Related Offenses (Tent. Draft No. 2 (April 15, 20916). The project has been overseen by its reporter, Stephen J. Schulhofer and its associate reporter, Erin E. Murphy, both of NYU Law School. But it has been highly controversial as I reported last year (see, Sexual Assualt at the American Law Institute--Controversy Over the Criminalization of Sexual Contact in the Proposed Revision of the Model Penal Code).

The controversy is well evidenced by the history of this project before the ALI. In 2013, a draft on procedural and evidentiary principles applicable to the sexual assault provisions (¶ 213 of the Model Penal Code) and on collateral consequences of conviction was presented to ALI for discussion but no vote. For the 2014 ALI meeting, a tentative draft containing substantive material for discussion and an evidentiary section (proposed revision ¶ 213.7) for approval was submitted but no vote was taken. Again, for the 2015 meeting a draft on substantive and evidentiary material was presented for discussion but no vote. For its 2016 meeting, the ALI is asked to consider for approval two key provisions: ¶ 213.0(3) (definition of consent) and ¶ 213.2 (sexual penetration without consent).

Both proposals have produced some significant opposition--both to the specifics, and generally to the approach taken on the spirit of the revisions of Section 213 in its entirety. This post briefly discusses the context in which this highly controversial project is going forward and includes (1) National Association of Criminal Defense Lawyers, Memo Comments on Preliminary Draft No. 6, and (2) a two Memos (dated April 4, 2016 and May 12, 2016), signed by a number of ALI Members summarizing concerns about Draft No. 6 Revisions to the Sexual Assault Provisions of the Model penal Code.

This is a discussion that is quite relevant to the university.  It suggests that the federal government's efforts to legislate new forms of criminalization through its administrative powers under Title IX may indeed be subject to challenge.  It also suggests the extent to which the conversation about sexual mores--whether in the context of criminalizing behaviors or changing cultural norms--is far more complex that than the federal regulators would have it.  This suggests some caution for universities who seek governmental approval by all to quick compliance with standards that themselves may be controversial.

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The Consequences of Power/Responsibility Asymmetries: Administrative Power and Faculty Responsibility at the College of Saint Rose

As universities come under greater financial pressure, as the function and role of universities change, university administrations are showing themselves sometimes unequal to the task of responding to these challenges in an ethical and orderly way. 

It is easy to be a highly paid administrator during good times.  It is tempting to embrace the increasingly separate cultures of administrations during these good times.  The logic of administration at the contemporary university increasingly sees administrators as a privileges class with obligations to manage their resources, and the factors in the production of their "product".  These resource management cultures increasingly dehumanize and objectify labor--and especially the expert professional labor of faculty.

It comes as no surprise, then, that in the face of challenge, administrators seek to preserve their privileged position and to export their mismanagement--without any accountability for their decisions--onto the "factors" in the production of "product."  That process of redirecting responsibility is particularly ironic as it also serves as the culminating point of a process in which  administrations acquire all responsibility for decision making at the university but insist that all responsibility for the consequences of operation fall to the faculty.  The consequences are perverse: administration retains an increasing monopoly on decision making, but faculty increasingly bear the burden of accountability for these decisions.

It is this pattern--this perversity of accountability--that marks university administrative decision making in many institutions today.  It is in this light that one might consider the recent evaluation of the actions of administration in the College of Saint Rose in New York, which has been the object of an investigation by the Association of American University Professor (AAUP).  The press release and links to the report follow.