Shadow Work in the University--Administrative Requirements as a Barrier to Productive Work at the University and a Suggested Response from Faculty at Cornell

(Cornell University, Report of the College of Arts and Sciences Committee on Streamlining Research Administration, 2015)

Existing and new policies run the risk of a hidden cost – increasing the time required by faculty and/or staff for compliance. While this cost may be justified by the risk or benefit underlying the policy, the gradual accretion of these small burdens decreases the productivity of both faculty and staff and that makes it more difficult to pursue the academic mission. Moreover, without examining the time required for compliance, it is impossible to fully understand the cost-benefit of any existing or new policy. (Cornell, Stay Informed)

This is how Cornell University, through the efforts of its faculty and the cooperation of its administrators, has sought to frame the issue of bureaucratic creep that has marked at least one aspect of the transformation of post secondary education as an industry in the 21st century. It is a reminder that administrative creep emerges because of the increasing task for risk management and transparency to outside constituencies and public regulators. It evidences an overlooked manifestation of administrative creep within the risk management university--the rise of responsibilities to feed the administrative machinery with data necessary to fuel the functioning of the administrative apparatus. (The Riskless University and the Bureaucratization of Knowledge: From "Indiana Jones" to Central Planning). At Cornell is is references as "Overzealous Risk Management, which paralyzes research function" (Report, 2015, p. 2).

Cornell has done more than document the way that the burden of a growing administration with an engorged portfolio has increasingly fallen to faculty.  There is a lesson here for many universities--and not just Research 1 institutions.  The most important lesson is one that touches on shared governance in risk management:

These faculty and staff stakeholders should not be called in as advisors in the development of the procedure. Rather, they need to be an integral part of the development process, with the power to prevent the procedure from being implemented until the group as a whole has come to consensus that the proposed procedure is both necessary and as efficient as possible. (Report, 2015, p. 8-9)

This post includes links to the relevant documents produced at and about the efforts to meet the challenge of shadow work at Cornell. 

Limiting Access to Faculty Organization Archives and Records--When Administrative Gatekeepers Abuse Their Authority and Undermine Shared Governance

(Pix © Larry Catá Backer 2016)

Universities are well known as great centers of knowledge production and dissemination.  Faculty tend to be at the center of the production of both.  But like other industries, administrators have increasingly assumed a larger role in the management of exploitation of knowledge production and dissemination by and through faculty to the greater glory of the institution.  In the process there has been an increasingly large distance created between those who produce university wealth (faculty) and those who manage those productive forces and their product (the administrator) who produces no wealth. 

Administrators produce a very different kind of knowledge than that produced by faculty. Administrators generate data from the productive work of others.  And that data is then used either to (1) increase the productivity of wealth producers (appropriating the entirety of such increases in wealth per productive unit to the institution and their greater glory) or (2) ensure the separation of the means of production of knowledge-wealth (faculty) from its control  (invested increasingly in an administrator class with no connection to knowledge production). 

Within these new forms of production and control--the ownership of information, especially the ownership of information relating to the wealth production of the university becomes among its most valuable commodities. It is valuable especially in the sense that it represents the ownership fo the power to control the wealth generation by the university and to direct its form and expression.  Information, then is power.  Information, in this sense, is power. 

This relationship between information, its control and power over an institution suggests bath the emerging hierarchical character of the university and the way that appropriation of control is used to reduce the role of knowledge producers to share in the governance of the university and in the control of their own knowledge production and dissemination. But this emerging relationship, as troubling as it may be int he context of shared governance, faculty de-professionalization, and the administrative control of a university becomes a tragedy when the same pattern is used by the administrators of a faculty organization against its own members. 

This post speaks to the issue, increasingly problematic of administrators of faculty organizations from access to the archives of their own institutions.  

Reflections on Human Rights Day: The University, Its Human Rights Obligations, and the U.N. "Stand Up for Someone's Rights! Campaign

(Mrs. Eleanor Roosevelt, (United States) holding a Declaration of Human Rights Pix © U.N. Photo Library)

On December 10, 1948, the United Nations adopted the Universal Declaration of Human Rights. To mark that anniversary, in 1950 the United Nations General Assembly passed Resolution 423 (V) (4 December 1950), inviting all States and interested organizations to observe 10 December of each year as Human Rights Day. To observe this celebration, President Obama proclaimed "December 10, 2016, as Human Rights Day and the week beginning December 10, 2016, as Human Rights Week. I call upon the people of the United States to mark these observances with appropriate ceremonies and activities." (Presidential Proclamation 9 Dec. 2016).

As has been the recent practice, for this year the United Nations adopted a specific theme and initiated a campaign: "Stand Up For Someone's Rights!" The Campaign is structured around the power of individual agency in protecting the human rights of others against individuals and institutions. The Campaign explains:

The time for this is now. “We the peoples” can take a stand for rights. And together, we can take a stand for more humanity. It starts with each of us. Step forward and defend the rights of a refugee or migrant, a person with disabilities, an LGBT person, a woman, a child, indigenous peoples, a minority group, or anyone else at risk of discrimination or violence. (Campaign website HERE). 

My observations about the 2016 Human Rights Day observation in the context of this campaign can be accessed HERE.

While it is fairly common to think about human rights in terms of the normative rights embedded in and forming part of the autonomous human person, and perhaps also of the resulting obligations of institutional actors--states, enterprises, religious institutions, and others to protect them,  one rarely thinks of the university in this regard.  Yet universities, like other institutions, have duties and responsibilities to protect and respect human rights to the same extent as other institutions--and perhaps more so in cases where the university is itself an instrumentality of the state. To fail to embed human rights within university administration violates not just law but likely the ethical and corporate responsibility that many universities have loudly proclaimed for their own.

This post considers some of the consequences for universities of undertaking an appropriate level of responsibility for human rights in its operation.  I have little illusion that universities will actually pay attention to their responsibility; like other corporate entities, they tend to respond either to the lash of law or to the preferences of the stakeholders on which they are most dependent (students as consumers of its services; employers as consumers of its product (students); and alumni  as providers of resources to maintain reputation status).   It is perhaps to them, then, that this point is directed.

On Being Student Centered--More than the Periodic Aspirational Message is Needed

(Pix © Larry Catá Backer 2016)

X's mom died of heart disease when she was 16, her father is disabled, and she is his custodian. X cares for her sister's kids when she needs to make extra money to put food on the table. Z's mother died in a car accident when he was 12, with no life insurance, his sister is disabled and he is her care giver in their small apartment. This is all they can afford; to make ends meet and because of the medical equipment required for care, he sleeps on the couch......Today is a bad day; no transportation.  X is lucky.  She managed to borrow a car, no insurance though. X is picking up Z, her study buddy Z so they can both get to class. Without their mutual support, they would be unable to survive the stress of their personal and academic lives. Both X and Z look to their faculty for support but expect nothing from those who run the institution. If our administration had half of the chutzpah of these students...... I am lost here....

These are the circumstances of a significant enough portion of the students who seek the fulfillment of the hope that is at the very center of the promise of post secondary education in contemporary American colleges. How does an academic institution practice being the sort of student centered place that the typical institution trumpets  from the lofty speeches of its administrators to the pages of its social media products? The answer, increasingly is that they may not.

This post considers the problem of being student centered for the contemporary American university and the growing chasm that separates administrative formalism of the concept (through rules and aspirational sentiments) as against its functional realization.

On the U.S. Department of Education Final Program Review Determination Re Penn State's Clery Act Compliance Before 2011 and Its Assessment of a $2.9 Million Fine

"This letter is to inform you that the U.S. Department of Education (Department) intends to fine the Pennsylvania State University (Penn State; the University) a total of $2,397,500 based on the violations of statutory and regulatory requirements outlined below." So begins the official notification, with justification and explanation, of the largest fine assessed to date by the federal government against a university for violation of that cluster of statute and regulation usually shorthanded as the Clery Act.   It is possible that the University will contest this fine, though it is hard to speculate on what grounds. That alone might be cause enough to think about the implications of this fine and its underlying causes, as American universities consider these ramifications for their own operations.

To some extent, the letter, and the action was not unexpected by the wider community in the United States. It was a long time coming--the investigation began almost five years before.  What is especially interesting is both the odd logic of the letter and what it suggests, not about Penn State's failures before 2011, but those of the government itself. Equally interesting, perhaps more so, is the determination of the university itself, in its heroic efforts to move forward, to seek to obliterate the past, one might think, as if it never happened. One can only end an analysis of action and reaction with a sense that the lessons learned may well have been the wrong ones--both for the United States, and for the university it has sought to make an object lesson to advance its own agendas. 

The U.S. Government's letter may be accessed HERE.  

My thoughts follow along with the statement of high University officials follows and for background, the story as reported by the Associated Press.

Without Comment: "Jury orders Penn State to pay McQueary $7.3 million"

(Pix © Larry Catá Backer 2016)

This post requires no comment.  There are strong feeling on either side of this, and it is a small piece of a much larger puzzle that touches on the nature of the modern public university within the cultural transformations in early 21st century U.S. life.

"McQueary's award could grow larger in the coming weeks. Gavin still has to rule on his whistle-blower claim that Penn State ousted him from his $104,000-a-year assistant coaching job because he spoke out about Sandusky and school officials. . . . . Since 2012, the school has paid more than $93 million to settle claims from 32 Sandusky accusers, and university officials have acknowledged the school bears some responsibility to the victims of its former assistant football coach, who is serving a 30- to 60-year prison sentence for the sexual abuse of 10 boys." (Jeremy Roebuck, Jury Orders Penn State to Pay McQueary $7.3 Million, Pilly.com, Oct. 28, 2016).

I note only this: "On the Management of Scandal in the Modern University; Some Lessons and Insights for Times of Crisis" (July 13, 2016).

"We Know You Are Busy and Wanted to Avoid Burdening You With This" -- More Techniques that Undermine Shared Governance in the Contemporary University

(Brochymena, Pix © Larry Catá Backer 2015)

I have been considering the ways in which administrators undermine shared governance in effect without appearing to challenge the forms by which it is undertaken. Undermining shared governance rather than challenging the authority of faculty to engaged in shared governance avoids the politically costly effort to eliminate formal structures (and the discussions it might require). More importantly, it preserves faculty as a tool, a resource, for governance without having to acknowledge any governance authority beyond those wielded by administrators. One uses tools; one negotiates with governance partners.

I have posted thoughts of my list of the top ten techniques that administrations currently have deployed to undermine shared governance ("You Don't Have the Authority": Counting Down the Top Ten Techniques that Undermine University Shared Governance). I added a shorter list of honorable mentions ("We Abhor Retaliation But Expect Loyalty to Our Decisions" -- Techniques that Undermine University Shared Governance, the Honorable Mentions and the Deeper Issues they Reveal).  I noted then:

That the techniques are not necessarily developed to subvert shared governance for its own sake hardly absolves an administration that on the one hand heralds its embrace of shared governance and on the other engages in radical industry transforming actions that enhance structures in which faculty become "knowledge workers" on an assembly line the principal purpose of which seems to be the "production" of units (students) ready fr insertion in labor markets at a level commensurate with the reputation of the university itself. (Ibid.)

This post adds to the list of honorable mentions of techniques that did not make the original two lists. They are the synthesized expression of  experiences from a number of different institutions. 

1. "We Know You Are Busy and Wanted to Avoid Burdening You With This."
2. The Absent Administrator and Ghosting the Faculty Organization .
3. "We promise to get that information to you right away."

I will continue adding to the list, please send me additional techniques I might have missed (and perhaps prudently via personal email from a non-university computer using non-university provided internet service.

On the Proper Role of University Administrators as Members of a Faculty Senate: Do Voting Rights Subvert the Institution of Faculty Governance?

(Pix © Larry Catá Backer 2016)

University faculty organizations serve as the institutional voice of the faculty in the complex but important operation of shared governance. This role distinguishes universities from other corporate enterprises, and brings them closer to models of public organizations in which principles of democratic participation are essential for the legitimacy of the organization and its operations (e.g., On the Institutional Role of a Faculty Senate: Part 1(May 4, 2012)). 

The essence of the institutional character of faculty organizations is its role as a representative of the faculty and its perspectives.  That representative role can be preserved only to the extent that the faculty organization itself is controlled by and reflects the will of the faculty, especially in its relations with other stakeholders, principally the administration of the university. Under this model of shared governance, faculty, administration, and board of trustees are three distinct actors which together comprise the critical institutional elements of governance.

Yet in some public research universities, the representative role of the faculty organization has been challenged.  In some of these institutions, there has been efforts, sometimes successful, to include within the faculty organization a substantial number of voting members who represent the administration within the faculty organization itself.  This post considers the issue of administration membership within a faculty organization, its effects on shared governance, and advances a suggestion that recasts the role of the administration and its officials within a faculty organization. 

Economic Determinism and the University--Considering Voluntary "Early Retirement Packages" to Tenured Faculty

(Pix LarryCatá Backer 2016)

It is something of a national trend among American universities to offer variations of a standard form of "early retirement program," loosely modeled on those quite common in industry. A recent article in University Business nicely lays out the context and the economic politics of the tactic:

It’s an increasingly common move by campus officials during challenging economic times: voluntary retirement. Offering these incentives to faculty and staff provides a ready means of reducing personnel costs while not being seen as severe and traumatic as layoffs, salary reductions, and furloughs tend to be.

Although the details of such plans vary from one college to the next, they all rest on the potential for shrinking the workforce during times of static or declining budgets.

Even where employees will be replaced, costs may be lowered by using part-timers or hiring less experienced full-time personnel. New employees may also come with less expensive benefit packages than those negotiated in earlier eras. (Mark Rowh, Retiring Minds Want to Know How institutions are making voluntary retirement programs work  University Business (July/August 2012))

 This post considers the trend from the perspective of its collateral effects--first on the way this tactic is used increasingly to systematize fundamental changes in institutional character and operation, and and second on the faculty tempted to take the university up on its offer (academic freedom, and political rights). The "bottom line" is simple enough to state and implicit in the University Business article: the voluntary retirement device is an excellent way for administrators to avoid responsibility for significant change (furthering the "blame the system" mentality that has become standardized in university administrative cultures), but in a way that presents significant traps for the faculty tempted to take the university up on its usually much less valuable than advertised benefit. Faculty should be wary about accepting such "benefits", university faculty senate's should take a more aggressive position in examining the institutional effects of these programs, and university administrators should be held to a higher degree of account for using this indirect lever to remake the institution in a manner to their liking.

Unionization Comes to the Learning Factory: The Trustees of Columbia University in the City of New York and Graduate Workers of Columbia– GWC, UAW. Case 02–RC–143012 (August 23, 2016)

Once upon a time, the University was a well ordered enterprise for knowledge production and dissemination.  But it has fractured and been reconstituted along corporate lines as education has become a commodity and the university a factory for the production and deployment of revenue and influence. The two categories--faculty and students--have also fractured.  Faculty have been divided into distinct classes whose politics has substantially eroded both shared governance and the effective protection of academic freedom.   But students have fractured as well.  Where once students were the objects of knowledge dissemination, they are now broken into at least three categories.  The first are the traditional consumer of the university's educational commodity. The other two are deeply transformative.  The first are the student athlete--who provide a valuable source of revenue to the university as a corporate owner of talent exploited in markets for sports entertainment.  The second are student consumers who are also  employed in the knowledge production and dissemination business of the university--the research and teaching assistants who perform much of the lower status research and teaching at the university.  In this capacity they serve simultaneously as a consumer of product (leading to the award of a degree) and as a factor in the production of knowledge or of teaching revenue to the university. 

It should come as no surprise, then, that as the university in transformed into a business, its productive forces would seek the protection of law to enhance their positions as employees or otherwise as holders of valuable commodities (teaching and knowledge) that are inputs in the production of university revenues. For students, protection against exploitation and bargaining for the protection of their interests have taken the form of efforts to unionize--efforts that have been vigorously resisted by the university (as they might by any other business enterprise).   In the efforts to unionize student athletes see here, here, here and here. Indeed, with the 2015 decision of the National Labor Relations Board dismissing efforts of student athletes to forma  union, the idea of the dual status of students within the university--as consumers and as labor--appeared to be rejected.

But the efforts of graduate and undergraduate students to unionize appears to have succeeded where the student athletes failed.  In August 2016, the "National Labor Relations Board issued a 3-1 decision in Columbia University that student assistants working at private colleges and universities are statutory employees covered by the National Labor Relations Act." (NLRB Press  Release). The NLRB holding on Columbia University was clear:

Thus, we hold today that student assistants who have a common-law employment relationship with their university are statutory employees under the Act. We will apply that standard to student assistants, including assistants engaged in research funded by external grants. Applying the new standard to the facts here, consistent with the Board’s established approach in representation cases, we conclude (1) that all of the petitioned-for student- assistant classifications consist of statutory employees; (2) that the petitioned-for bargaining unit (comprising graduate students, terminal Master’s degree students, and undergraduate students) is an appropriate unit; and (3) that none of the petitioned-for classifications consists of temporary employees who may not be included in the unit. Accordingly, we reverse the decision of the Regional Director and remand the proceedings to the Regional Director for further appropriate action.

The issues are far from a stable resolution.  Universities and their lobby will no doubt work the back rooms of legislatures, and the courts have yet to speak.  But it has become increasingly difficult for the university enterprise to run a business--athletic and knowledge based--without the obligation to recognize the character  and identity of its labor force. The fact that students might simultaneously serve in two capacities--as consumers of university products and as the labor used to produce that product--must be recognized and embraced. There are lessons as well here for faculty, especially as the university effectively dismantles shared governance and threatens academic freedom. 

The Press Release issued by the National Labor Relations Board follows along with links to the decision and the documents of the parties.  The decision--The Trustees of Columbia University in the City of New York and Graduate Workers of Columbia– GWC, UAW. Case 02–RC–143012 (August 23, 2016) can be accessed HERE. 

Central Planning and the University: What is So Bad About Administrative Management of Knowledge Production and Dissemination?

(Pix source here)

I have been studying the approaches of Marxist Leninist societies--businesses and governments--especially in the way in which institutions founded on Leninist principles with Marxist objectives relate to markets.  The traditional view of  such systems viewed markets with suspicion and sought to substitute an objectives based central planning apparatus--driven by a well trained and motivated bureaucracy--for the choice and efficiency structures of the market.  The idea was that better choices would be made and more efficient use of productive forces could be sustained.  But at its foundation was the Leninist notion that market driven choices were inherently ideologically tainted against which a bureaucracy of planners was necessary to avoid the errors of popular choice in the service of the construction (or preservation ) of a Marxist society.

That approach was transformed in the decades since the breakup of the old Soviet Union. Over the last 40 years two distinct approaches have arisen.  The more traditional Central Planning Marxist-Leninism continues to embrace at its core an anti-markets principle and the object of the state is to remake individuals to better suit the needs of central planning.  The other, Markets Marxism, increasingly embraces markets and markets based mechanisms as a means of social, economic and political progress compatible with the state's long term objectives.  In that case markets are the means used to achieve objects, as opposed to the traditional Marxism in which the objective was to avoid the market. (Discussed HERE).

Yet, one might ask, why would a site focused on university governance have any interest in Leninism and market ideologies? Because, it seems, universities in the West (and large western multinational enterprises) appear in the early 21st century to be the heirs and most vigorous centers of anti-market, central planning ideologies in both their operation and in the institutional cultures that they advance. The result, of course, is highly ironic where these institutions are meant to serve as the knowledge production foundation of political-economies founded on both principles of representative democracy and of markets.  But irony is the stuff of dinner parties.  There is real effect as well--internal central  planning in the knowledge production and dissemination industry substantially determines who decides what one learns, how on studies and what knowledge is produced. The power over those decisions has been shifting from individuals and from the stakeholders within the university, to bureaucracies asserting managerial controls through the exercise of administrative discretion. In centrally planned economies, the result is usually a substantial loss of productivity, a shifting of the focus of productive capability, and the loss of innovation.   Have American universities now adopted cultures of central planning or Markets Marxism as the basis for their operations? 

Just Because it is Legal Doesn't Make it Right--The Extension of University Control of Employee "Outside Business Activity"

(Pix © Larry Catá Backer 2016)

The evolution of the legal rules constraining the terms  through which labor may be purchased in the West had seen a long evolution--from villeinage and indenture (slavery for some) to service in the form of the sale of labor to a master who is empowered by law to manage and control the person whose services have been purchased.  That employment relation, that relationship between master and servant is hierarchical and personal in a way that the relationship between investor and enterprise is not--capital is invested but not purchased and performs no service beyond offering the value obtained and a forbearance of repayment for a time certain. Echoes of the the more comprehensive notions of service, and of the role of the servant, remain visible today in the scope of discretionary authority the law permits to a "master" to regulate the non working lives of employees to the extent it might interfere with its business and operations--as those are conceived by the employer. For at will employees, of course, the legal master-servant relation is to permit the master (though technically both have the power) to terminate employment for any reason--and in the master's case, to condition employment on a host of criteria, subject only to the constraints of other law, contract, or at the extreme, constitutional limitations. 

The master-servant relationship exits within the university as well.  For faculty, however, the operation of the master-servant relation has been constrained both by contract and by the scope of the interpretation of the twin principles of academic freedom and shared governance.  These have sometimes proven to be strong protection in the absence of statute or policy.  Other times, their protection has been somewhat less powerful.  Beyond the legal constraints lie a powerful policy conversation that has been shaping the societal consensus relating to the propriety of the exaction of conditions for work that touch on the non working life of the employee. These have tended to push toward a growing societal disapproval of the assertion of employer power reaching into the private lives of employees. At the same time, universities across the United States have sought to expand the boundaries of the definition--and thus the protection--of their interests in the intellectual prowess represented by the individuals whose services they have purchased for the provision of customary teaching, research and service duties.  Where once universities were principally concerned about the protection of its interests in the face of patents and related innovation and the opening of businesses by mostly scientists and engineers seeking to exploit ideas nurtured through the university, and to constrain the scope of professional practice by its lawyers, architects, musicians, etc., now the university seeks to control well beyond these simple and direct activities.  It is at the intersection of these two opposing societal movements that university policy relating to the control of faculty outside business activity meet.

Many of these issues have been dealt with relatively uniformly by contemporary large research universities across the United States.  This post considers one hypothetical example of this effort in that light and the Commentary of Professor Hypothetical in light of that effort.  It is a hypothetical example only; but it presents issues that touch on such efforts across the nation.  As a generic model it will be presented as the efforts of Public University (PU), a land grant University in the State of Republic,  in the development of a Labor Policy (LRX) that seeks to manage employee business activities in the context of a new model. 

On the Management of Scandal in the Modern University; Some Lessons and Insights for Times of Crisis

Scandals and litigation can have a substantial effect on the operations of the modern university. The long running efforts of Penn State University to meet and mitigate the effects of the prosecution of a former athletic employee for various acts of gross sexual misconduct provides the model template for the early 21st century large university.As such, the lessons that ought to be drawn should be of importance to university administrators and shared governance partners throughout the nation.

There are a number of lessons that can be drawn:

1. Such disruptions can be long lasting. It is difficult to reduce the "life span" of such events, and the risk of substantial mistakes increases the more strenuously administrators seek to shorten this life span through retrospectively short sighted decisions.

2. Information about events of national and public concern are nearly impossible to control. The harder the university works to control the flow and manufacture of information for distribution internally or externally, the more likely that it will have detrimental effects on moral and on the position of the university. Individuals and organizations, including state officials are likely to draw negative inferences from especially ham handed efforts to control either information flows or discussion.

3. Preserving the illusion of control tends to create unintended consequences.  It is an illusion to believe that scandals of this sort can be managed or controlled, especially by groups of senior administrators who do not have (given institutional cultures and the logic of their positions) a means of grasping rank and file sentiment.  The harder the effort to stage manage thought, to socialize employees, or to limit expression, the more likely that division between senior administrators and rank and file will grow, and that mutual trust will dissipate.  Ordinarily this is of little moment--but the consequences will be felt not in the context of the scandal but in virtually every other administrative program--from benefits reform to conflicts of interest and consulting initiatives. Trust, once lost, is hard to recover. 

4. The university's failure to account transparently for its expenses and objectives in meeting the scandal will also contribute to a reduction of trust  That reduction will focus on faculty and staff--who will view university efforts at cost reduction aimed solely at them much more suspiciously in the face of multiple millions of dollars spent to manage and deal with scandal related accountability issues.  To them, such cost reductions appears to amount to a cram down of the expenses of the scandal form the university to faculty and staff.  In effect, taken as a whole, university cost cutting in the face of a scandal tends to be understood as a faculty-staff subsidy of the costs of the scandal, a cost that appears to be passed through from the (rich) university to the (much less financially endowed) faculty and staff.

5.  That failure of transparency might well affect outside stakeholders as well--from the state in its budgeting processes, to alumni and local leaders who might also begin to worry about trust issues and the nature of their relation to the institution. 

6.  There are always unanticipated surprises in the course of resolving major scandals. In the effort to produce accountability new and sometimes quite burdensome information may come to light that might well complicate efforts at scandal crisis resolution.  

All university administrators must begin to better plan for and meet the likelihood of major crisis.  This is a difficult task, and one for which the university community itself must be prepared to be forgiving and patient as events unfold. Still, there is a need to better prepare for protecting the university community and the functioning of the university as it seeks to deal--ethically, transparently and forthrightly--with scandal.  That requires programs for both vigorous defense of false accusation and humble and forthright acceptance of responsibility.  Indeed, Penn State's Values would appear to mandate these as the basic principles of the university's own operations. And in any case they ought to serve as a baseline against which administrator decision making and conduct generally ought to be judged.

Some of the implications of these insights may be discerned by a reading of the surprising and continuing events revolving around the horrible Sandusky related scandals.  The first is a recent article from the Washington Post (Will Hobson and Cindy Boren, "New Court Documents Suggest Others at Penn State knew of Jerry Sandusky Abuse," Washington Post, July 12, 2016) which may be accessed HERE.  The second is a message from the University President. These are presented without comment in keeping with the request of the Penn State President set forth below.

Rearguard Actions--AAUP Censures Missouri (Columbia) and Takes Other Action at its Annual Meeting

On June 18, 2016 the American Association of University Professors (AAUP) took a number of actions relating to conduct by university officials. Among the most important, the AAUP voted to censure the University of Missouri (Columbia) and St Rose University of NY for violation standards of academic freedom and tenure.

This from its Press Release:

Censure and Sanction Actions

Washington, DC—Today, delegates to the 102nd Annual Meeting of the AAUP voted to place the College of Saint Rose in New York and the University of Missouri (Columbia) on the AAUP’s list of administrations censured for violating standards of academic freedom and tenure. The annual meeting also voted to remove from the censure list two institutions that had taken the necessary steps to address the AAUP’s outstanding concerns: Metropolitan Community College in Missouri and Grove City College in Pennsylvania. Grove City College had been on the censure list since 1963, longer than any other institution. However, the annual meeting did not approve a conditional removal of the University of Illinois at Urbana-Champaign from its censure list.

I have written about the action against the University of Missouri (here) and the University of Illinois (here). The actions evidence the scope of the battleground that defines emerging relationships between university administration--increasingly bureaucratic, self referencing and remote from its faculty--and faculty, increasingly de-professionalized and torn between global movements in disciplinary interests and the market oriented programming of universities and their outside stakeholders. Where once the object was to flesh out and broaden the space within which the professional competence of faculty was recognized and the self regulation of faculty through their own communities of scholars in their fields was understood as the primary instrument of discipline, now the focus increasingly is on building walls to protect faculties who are no longer viewed as the superior authority with respect to the knowledge they produce or the structuring of its dissemination.  Administrators have sought to transfer authority for both knowledge production and the structure of its dissemination (coursers and majors) from disciplinary communities of scholars to markets for knowledge consumption (labor markets and the institutions that seek to develop and exploit knowledge and to make use of the students produced for consumption within labor markets). Though the language of university administration and the AAUP remains locked in that of the normative structures of the 1980s, the world in which these contests are undertaken have changed (e.g., here and here).

The Press Release follows along with links to the original investigating committee reports.

Challenging the Ordering of Markets for Academic Prestige: On the Business of Academic Conferences, Status Hierarchies and the Markets for Knowledge Production and Dissemination

(Pix (c) Larry Catá Backer 2013)

I have written before on the ways in which markets for academic prestige, and for sorting academics within informal "ranks", have become routinized and institutionalized over the last 30 or so years in their current form. In Ordering Markets for Academic Knowledge Goes Global: Pablo Lerner on "Foreign Influences and 'Law Reviews Rankings' in Israeli Legal Scholarship "I suggested methodologies for knowledge production valuation within institutions that sought to capture some of the intrinsic value of the thing produced, even when measured extrinsically.  The problem, of course, is the nature of the market for knowledge.

The production of knowledge, especially among academics, is not simply offered for consumption.  Like all consumables, it is judged and valued in the market within which it is offered.  And again, like other consumables, the judging of academic knowledge products has become standardized, and its assessment routinized in ways that  both make it easier to understand what one is buying and also makes it more likely that all products will resemble each other. 

One of the principle external consequences of this market for academic production, is that much of what is produced is predictably the same--and the market likes it that way.  Another is that producers are judged  (tenure and promotion) by their fidelity to the packaging (law review articles and books) and content standardization (its fidelity to the generally shared normative presumptions of the leading practitioners in the field) features of  knowledge commodities.  To that end, assessment structures are required not merely for the academic, but also for the secondary structures within which her status is itself assessed. (Cf. Backer, Larry Catá, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15, 2007).

Along with others, I have suggested the consequences of rmeasurement--and asessment--within systems  constructed specifically to permit a continuous and self reinforcing system of hierarchy and protecting the privileges of "leading" groups within disciplines ("Defining, Measuring and Judging Scholarly Productivity: Working Toward a Rigorous and Flexible Approach," 52(3) Journal of Legal Education 52(3):317-341 (2002) (examining, in part, the way that discussion od scholaraship and its produciton is skewed by other issues, principally the objectification of scholarship goals)).

Two items suggest that what appeared to be a stable environment for such markets may be coming to an end. One, in English from Duncan Green appearing on an LSE Blog,  Conference rage: How did something as truly awful as panel discussions become the default format? touches on the organization and hierarchies of the performances through which knowledge is disseminated to the academic community. . .and others. The second, in Spanish, an open letter from Roberto Breña, El Colegio de México, is in the form of an open letter to the leadership of the Latin American Studies Association on the deficiencies of the structures of contemporary conferences for academics in a recognized "field" of study. Part of both follow along with my brief comments.

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.

Read more »

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.

Diversity at Penn State: Reports of the Joint Diversity Awareness Task Force--Moving Forward Embedding Divesity Policy--Advisory/Consultative Report

(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 by the PSU Faculty Senate April 2016:

1. US/IL Courses Survey--Recommendations (Legislative; and Advisory/Consultative)
2. Diversity Best Practices
3. Moving Forward Embedding Diversity Policy

Presented February 2016 and Approved by the PSU Faculty Senate March 2016

4. Moving Forward

Each of the next several posts will provide links and the text of the reports to be considered by the Penn State Faculty Senate on April 19. An "after action" report will follow Senate action on the 29th--action which I hope will be positive.

This post includes the Report, Moving Forward Embedding Diversity Policy, which was prepared by our Substantive Policy Recommendation  Sub-Committee.

Diversity at Penn State: Reports of the Joint Diversity Awareness Task Force--Diversity Best Practices--Advisory/Consultative Report

(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 by the PSU Faculty Senate April 2016:

1. US/IL Courses Survey--Recommendations (Legislative; and Advisory/Consultative)
2. Diversity Best Practices
3. Moving Forward Embedding Diversity Policy

Presented February 2016 and Approved by the PSU Faculty Senate March 2016

4. Moving Forward

Each of the next several posts will provide links and the text of the reports to be considered by the Penn State Faculty Senate on April 19. An "after action" report will follow Senate action on the 29th--action which I hope will be positive.

This post includes the Report, Diversity Best Practices, which was prepared by our Policy Coordination Sub-Committee. 

Diversity at Penn State: Reports of the Joint Diversity Awareness Task Force--US/IL Courses Survey--Legislative Recommendations

 

 (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 by the PSU Faculty Senate April 2016:

1. US/IL Courses Survey--Recommendations (Legislative; and Advisory/Consultative)

2. Diversity Best Practices
3. Moving Forward Embedding Diversity Policy

Presented February 2016 and Approved by the PSU Faculty Senate March 2016

4.  Moving Forward 

Each of the next several posts will provide links and the text of the reports to be considered by the Penn State Faculty Senate on April 19.  An "after action" report will follow Senate action on the 29th--action which I hope will be positive.

This post includes the Report, US/IL Courses Survey--Legislative Recommendations, prepared by our Technical Issues Sub-Committee.

AAUP’s Annual Report on the Economic Status of the Profession, 2015–16

The American Association of University Professors announced the publication of the AAUP’s Annual Report on the Economic Status of the Profession, 2015–16. The report, published in the March-April issue of Academe, includes the results from our annual Faculty Compensation Survey.  Salary transparency is one of the most important elements of administrative discipline in a culture, like that of the United States, in which employers have been able to shroud their salary and pay decisions in secrecy, "for the protection of employees."

March-April 2016 (The Compensation Survey) Volume 102, Number 2 . The March-April issue is available for download as a pdf. There are two choices (AAUP member login required for both versions): A .pdf formatted as a spread for online viewing or A printer-friendly pdf. This year, some materials are being published online only. They are not in the print issue or the .pdfs listed above, but you can download them here: Online-Only Feature: Innovative Faculty Research, by John Barnshaw; Additional survey report tables ; Appendices, which contain listings for individual institutions.

The Press release with links follows.

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.

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

4.  Moving Forward 

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. 

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.

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.