(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.
Procedural rights decisions are among the hardest to make. First, they tend to be abstract. Second, they tend to occur in cases where the substantive allegations are not popular. And yet, far more than just substantive decisions, procedural cases are the most important means for ensuring the rule of law integrity of all of our systems of dispute resolution and more broadly of the delivery of just results in the application of institutional rules. Only procedural fairness stands between a legitimate system and a just society, ont he one hand, and those systems that are illegitimate precisely because they do nothing more than express the arbitrary will of those individuals in charge.
The issue of legitimacy is not to be underestimated--even within non-state institutions, like universities. Legitimate systems tend to be internalized by the population its serves. People comply and accept judgement precisely because they believe that the system conforms to basic notions of fairness. They trust a system in which they believe that rules, fairly developed, are uniformly and predictably applied. They give administrators and judges the benefit of the doubt in marginal cases and they expect, in return, that the system itself will respond to evolving notions of fairness in the application of its rules and in the administration of justice. And most importantly, people are willing to subject themselves to the processes under which rules are enforced when they believe that each of them, no matter how humble their position or how small their role within the institution, will be protected from abuse by judges or the more powerful members of the institution. And indeed, it is not for the powerful, but for the powerless that procedural fairness ought to be directed.
Illegitimate systems are neither socialized within the subject population--the faculty, staff and students of a university, for example--nor are they well embedded within its culture. Illegitimate systems have no allies. Like an army of occupation in a foreign land, the illegitimate system of administration of rules is viewed as something to be avoided and resisted. It may have top be endured, but there is little appetite to aid in its administration. Expect people to avoid invoking the system--except strategically--and expect little by way of cooperation. These are systems that are viewed as imposition form above--and in the service of the powerful. These are systems that are viewed as the means by which rules provide a structure for the exercise of administrative discretion. These are systems that are viewed as designed to institutionalize administrative abuse. In the long run they do not work well.
The fairness of process and its protections are not tested when applied to the most powerful within a community. Those individuals tend to be able to leverage their position to ensure at least some measure of protection--if not by fairness of process then by influence or power. It is not for the university president that process fairness must be protected--but for the lowest levels of staff and for the most vulnerable of faculty. Yet it is precisely in the highest profile cases, the cases where wrongdoing seems clear cut, or where a high official must appear to be in need of punishment--symbolic or personal--that the commitment to fairness is most often tested. Where guilt appears indisputable, where cultural norms and expectations are violated, where our core values are challenged--it is in those cases where there is a willingness to rush to conclusion; our righteous anger and the obviousness of the violation, appear to make observation of the niceties and the slowing pace of procedural rules both unnecessary and an impediment to justice. Yet it is precisely in those cases, and through those violations, that that protections of procedural fairness--the structural integrity of the processes that ensure that our values are protected as we seek to administer our institutional rules-- are most severely tested. We undermine our process protections for the vulnerable members by a willingness to suspend process in the easy cases.
And that, precisely was the issue, and the problem, in the context of the actions taken against Professor Click. Professor Click's actions excited a tremendous amount of passion (see here, and here). They were undertaken in the course of a quite divisive and contentious conversation about the state of the university and its interactions with its diverse population. It touched on fundamental elements of American political and social norms--the right of the press to inform in matters of public concern. (see here, here, here, and here). But what they did not elicit was much of a respect for the sort of process that the university had gone to some pains to create and had an obligation to apply for the protection of its members--precisely in the context where passions run high and the temptation to exercise power is at its strongest. That the University of Columbia community and its board failed in its duty is clear--it failed to protect the integrity of the system it was charged with overseeing. And it did so for the purest of reasons--to right what they had the authority to perceive and correct as a wrong to the university community. Yet they themselves wronged the university community in a most vital way--by weakening the integrity of the system itself.
And yet, these arguments tend to be viewed as abstract and remote--especially in the context of a palpable breach of the norms of an institution that appears to cry out for some correction. And to some extent, one must be sympathetic to that sentiment--it is necessary to ensure that university values are observed and that those who forget its rules be disciplined. But once the passions are allowed to win over the mind, once a shortcut to "justice" is permitted in an "obvious" cased, there is little to prevent its abuse in another case. This sort of passion driven short cut to justice opens the door to the sort of administrative abuse--into perhaps in this case but in those that rarely draw media attention--where those with administrative authority seek to cloak their personal agendas against others through the procedural shortcuts that high profile actions like those against Professor Click make possible (e.g. (1) The New Harassment--When University Administrators Use Allegations of "Harassment" and "Hostile Work Environment" Against Dissenting Faculty; (2) At the Borderlands of Ethics: Soft Retaliation and Unethical Exercises of Administrative Discretion; (3) Retaliatory Governance and the University: Considering Hypothetical Questions on the Discretionary Authority of Deans and their Effects).
It is precisely when procedural shortcuts seem so "right" that they are most dangerously "wrong." It is precisely when they appear unnecessary that their necessity becomes indisputable. It is exactly when an institution appears most able to render just results without procedural fairness that one ought to protect the structures of fair process hardest--even at the cost of failing to do justice against an offending individual. One should much more worried about an institution that believes it is entitled to pick and chose when it should apply its own rules of fairness--that is, when it should be subject to the same rules as others--than about any single individual instance of bad conduct. For an individual offense cannot cause as much harm as an offense by an institution against all of its stakeholders. And that is a hard lesson indeed, when the passions seek justice against an individual for a physical act and cannot grasp the tragedy embedded in the abstract misdeeds of the institution purporting to satisfy popular sentiment.
The issue of legitimacy is not to be underestimated--even within non-state institutions, like universities. Legitimate systems tend to be internalized by the population its serves. People comply and accept judgement precisely because they believe that the system conforms to basic notions of fairness. They trust a system in which they believe that rules, fairly developed, are uniformly and predictably applied. They give administrators and judges the benefit of the doubt in marginal cases and they expect, in return, that the system itself will respond to evolving notions of fairness in the application of its rules and in the administration of justice. And most importantly, people are willing to subject themselves to the processes under which rules are enforced when they believe that each of them, no matter how humble their position or how small their role within the institution, will be protected from abuse by judges or the more powerful members of the institution. And indeed, it is not for the powerful, but for the powerless that procedural fairness ought to be directed.
Illegitimate systems are neither socialized within the subject population--the faculty, staff and students of a university, for example--nor are they well embedded within its culture. Illegitimate systems have no allies. Like an army of occupation in a foreign land, the illegitimate system of administration of rules is viewed as something to be avoided and resisted. It may have top be endured, but there is little appetite to aid in its administration. Expect people to avoid invoking the system--except strategically--and expect little by way of cooperation. These are systems that are viewed as imposition form above--and in the service of the powerful. These are systems that are viewed as the means by which rules provide a structure for the exercise of administrative discretion. These are systems that are viewed as designed to institutionalize administrative abuse. In the long run they do not work well.
The fairness of process and its protections are not tested when applied to the most powerful within a community. Those individuals tend to be able to leverage their position to ensure at least some measure of protection--if not by fairness of process then by influence or power. It is not for the university president that process fairness must be protected--but for the lowest levels of staff and for the most vulnerable of faculty. Yet it is precisely in the highest profile cases, the cases where wrongdoing seems clear cut, or where a high official must appear to be in need of punishment--symbolic or personal--that the commitment to fairness is most often tested. Where guilt appears indisputable, where cultural norms and expectations are violated, where our core values are challenged--it is in those cases where there is a willingness to rush to conclusion; our righteous anger and the obviousness of the violation, appear to make observation of the niceties and the slowing pace of procedural rules both unnecessary and an impediment to justice. Yet it is precisely in those cases, and through those violations, that that protections of procedural fairness--the structural integrity of the processes that ensure that our values are protected as we seek to administer our institutional rules-- are most severely tested. We undermine our process protections for the vulnerable members by a willingness to suspend process in the easy cases.
And that, precisely was the issue, and the problem, in the context of the actions taken against Professor Click. Professor Click's actions excited a tremendous amount of passion (see here, and here). They were undertaken in the course of a quite divisive and contentious conversation about the state of the university and its interactions with its diverse population. It touched on fundamental elements of American political and social norms--the right of the press to inform in matters of public concern. (see here, here, here, and here). But what they did not elicit was much of a respect for the sort of process that the university had gone to some pains to create and had an obligation to apply for the protection of its members--precisely in the context where passions run high and the temptation to exercise power is at its strongest. That the University of Columbia community and its board failed in its duty is clear--it failed to protect the integrity of the system it was charged with overseeing. And it did so for the purest of reasons--to right what they had the authority to perceive and correct as a wrong to the university community. Yet they themselves wronged the university community in a most vital way--by weakening the integrity of the system itself.
And yet, these arguments tend to be viewed as abstract and remote--especially in the context of a palpable breach of the norms of an institution that appears to cry out for some correction. And to some extent, one must be sympathetic to that sentiment--it is necessary to ensure that university values are observed and that those who forget its rules be disciplined. But once the passions are allowed to win over the mind, once a shortcut to "justice" is permitted in an "obvious" cased, there is little to prevent its abuse in another case. This sort of passion driven short cut to justice opens the door to the sort of administrative abuse--into perhaps in this case but in those that rarely draw media attention--where those with administrative authority seek to cloak their personal agendas against others through the procedural shortcuts that high profile actions like those against Professor Click make possible (e.g. (1) The New Harassment--When University Administrators Use Allegations of "Harassment" and "Hostile Work Environment" Against Dissenting Faculty; (2) At the Borderlands of Ethics: Soft Retaliation and Unethical Exercises of Administrative Discretion; (3) Retaliatory Governance and the University: Considering Hypothetical Questions on the Discretionary Authority of Deans and their Effects).
It is precisely when procedural shortcuts seem so "right" that they are most dangerously "wrong." It is precisely when they appear unnecessary that their necessity becomes indisputable. It is exactly when an institution appears most able to render just results without procedural fairness that one ought to protect the structures of fair process hardest--even at the cost of failing to do justice against an offending individual. One should much more worried about an institution that believes it is entitled to pick and chose when it should apply its own rules of fairness--that is, when it should be subject to the same rules as others--than about any single individual instance of bad conduct. For an individual offense cannot cause as much harm as an offense by an institution against all of its stakeholders. And that is a hard lesson indeed, when the passions seek justice against an individual for a physical act and cannot grasp the tragedy embedded in the abstract misdeeds of the institution purporting to satisfy popular sentiment.
__________
Dear AAUP member:
The AAUP today released an investigative report concerning the action taken on February 25, 2016, by the board of curators of the University of Missouri system to dismiss Melissa Click, an assistant professor of communication, from the faculty of the University of Missouri. Professor Click was dismissed on charges of misconduct without being provided the faculty hearing called for under both the university’s regulations and the AAUP’s recommended standards.
From 1973 to 1980, the University of Missouri was on the AAUP’s list of censured administrations. As a result of the MU administration’s successful efforts to remove the censure (accomplished in 1980), the university’s faculty dismissal policies—disregarded by the curators in Professor Click’s case—closely adhere to AAUP-recommended standards.
The investigating committee visited Columbia, Missouri, on March 22 and 23 to meet with administrators, faculty leaders, and Professor Click. In accordance with AAUP procedures, the investigating committee submitted its draft report to the principal parties with an invitation for comment and corrections of fact. Comments received were taken into account in preparing the final version of the report.
The report concludes:
• While the investigating committee cannot exclude the possibility that a review of the case by a representative faculty body might have produced a result similar to that reached by the curators, the committee is not convinced that Professor Click’s actions, even when viewed in the most unfavorable light, were adequate grounds for her dismissal. The AAUP maintains that adequate grounds for dismissal must be related, directly and substantially, to the fitness of faculty members in their professional capacities as teachers or researchers.
• By denying Professor Click an adjudicative hearing of record before a duly constituted faculty body, the board of curators violated basic principles of academic due process. These principles exist for the purpose of safeguarding academic freedom, and thus, the board of curators’ action set a dangerous precedent that threatens the academic freedom of all faculty members at the University of Missouri.
• In terminating the appointment of Professor Click, effective immediately following the denial of her appeal, the board of curators violated widely accepted principles of academic due process, which require that, in cases of dismissal for cause not involving moral turpitude, a full-time faculty member with more than eighteen months of service will receive salary or notice of at least one year.
• The board of curators’ unilateral action usurped the traditional role and authority of both the faculty and campus administrators under principles of shared governance and thus failed to adhere to the recommendation in the AAUP’s Statement on Government of Colleges and Universities that governing boards should “undertake appropriate self-limitation.”
• While there is no definitive evidence that the board of curators did not act upon its stated motives, there is reason to suspect that grounds other than Professor Click’s actions were the real cause of her dismissal. By threatening budgetary and other consequences and openly demanding the summary dismissal of a faculty member, members of the Missouri legislature exerted undue political interference in the case of Professor Click, and the threat of such illegitimate interference continues.
• In light of the board’s action against Professor Click and in the context of legislative threats to the institution and unresolved administrative turmoil, academic freedom and shared governance at MU are endangered.
At its June 3–4 meeting, the AAUP’s Committee A on Academic Freedom and Tenure will decide whether to recommend that the Association censure the MU administration. Censure can be imposed only by vote of delegates to the annual meeting, which occurs this year on June 18. (You can register here.)
Read the report at http://www.aaup.org/report/University-Missouri.
Cordially,
Henry Reichman, Chair
AAUP Committee A on Academic Freedom and Tenure
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