The University and Immigration Policy--The Word from the AAU and Full Text of the Presidential Executive Order--“Protecting the Nation From Foreign Terrorist Entry Into the United States.”

(Pix © Larry Catá Backer 2017)

Universities have increasingly relied on foreign students.  There are a number of reasons beyond the obvious and important reason of financial need. Besides providing a substantial and sometimes premium priced income flow to universities, foreign students (and faculty) serve to more deeply connect the university to knowledge dissemination and production flows globally and to network  opportunity for students on a global basis.  In many ways, foreign students now serve as a key element in enhancing the competitiveness of American labor and its industry.  That competitiveness is not enhanced merely by the possibilities of creaming inherent in the current system encouraging mutually advantageous cross border educational opportunities, though these can be substantial.  More importantly is the way in which the presence of such foreign students and faculty substantially enhance the breadth of education for U.S: students. And, equally important, the presence of robust populations of foreign students and scholars  provides the United States an unparalleled opportunity to enhance its own image globally, to develop friends (many of whom may some day ascend to positions of power in their respective nations), and to develop global empathy for American culture and values--social, political, religious and economic. Foreign students and scholars can have a similar effect on American students, broadening their understanding of the world and making them better able to appreciate and navigate it many complexities. In all these respects, the encouragement of foreign students and scholars sits near the center of the teaching and research mission of mo0st universities.  

It is thus with great interest, and some dismay, that universities have been following the recently announced Executive Order issued by the 45th President on January 27, 2017. Entitled  “Protecting the Nation From Foreign Terrorist Entry Into the United States” it has not yet been posted to the White House website but is available through many national news outlets (here, here, here, and here). The Executive Order (unnumbered yet) may be downloaded here. A critical annotation may be accessed HERE and another HERE.

The text of the Executive Order is long and its scope is quite broad and potentially far reaching.  It appears, beyond its most inflammatory provisions, to set the stage for substantial modification of the U.S. immigration laws--loosely understood as all of the administrative and legal apparatus managing the entry and exit of foreign nationals within the territory of the Republic for such purposes (including but not limited to immigration) as the Republic finds useful to itself. This in itself will be a contentious and potentially destabilizing conversation.

It is not directly focused on foreign students and scholars, though its breadth assures that all of them will be affected directly or indirectly.  It has proven controversial and generated substantial popular agitation and response. See here, here, here and here.  One court has sought to issue a nationwide ban on part of its enforcement(see here)--something may may prove harder to enforce than to declare (see here). What is clear is that the Executive Order has brought the issue of immigration generally and the governmental approaches to its management, already quite contentious, very much into the open--though it is unlikely to result either in consensus or stable resolution in the near term. See here, here, here and here.

Universities have responded as well.  See here, here, here here, here, and here. Some remain silent (see, e.g., here). And indeed, the Executive Order has begun to cause some disruption in the stable and growing relationships between universities, its students and scholars from abroad. See here, here, here, here here, and here. The Association of American Universities (AAU), a powerful university organization has also issued a statement, to which universities as a group are likely to adhere. In all cases, the response has been temperate--a recognition of the possibility that changes in entry policy might be negotiated as well as the recognition that the value of appropriately open borders is essential for the national self interest in its political, economic, social and educational projects.

The full text of the Executive Order follows, along with the Statement of the Association of American Universities (AAU).

Presentation on Shared Governance at John's Hopkins University

I was delighted to have been invited by the Johns Hopkins School of Education to deliver some remarks on the state of shared governance and the trajectories of the way forward. My thanks to Professor Christina Harnett, for organizing the event.

The PowerPoints of that presentation may be accessed HERE. Reflections on that conversation will be posted soon.

An Open Letter to a Hypothetical Vice President of Compliance--Faculty Productivity, Shadow Work and Policy Coherence in the Regulatory University

(Pix ©Larry Catá Backer 2017)

I have been speaking to issues of shadow work and the changing nature of expectations of faculty (e.g., here). I have suggested that ways that this affects faculty productivity by shifting focus form teaching, research and service to compliance and compliance related activities. This shifting can have a net zero effect only when faculty are implicitly asked to dig further into their private lives time to satisfy the increasing cravings of administrative bureaucracies within government and their mirror images within the university. At its limit, the growing movement toward compliance cultures without reducing teaching, service and research expectations creates both a burden and en effective and substantial reduction in the compensation of university personnel per hour of work extracted. That is hardly fair, though it may be legal. And ironically it may as well violate the ethics codes universities have been at pains to impose on faculties these last several years.

The movement toward compliance cultures is not malicious. It is a product a deep cultural changes that have created strong incentives to privatize public policy respecting cultural changes. And it expresses a strong change in social and political consensus respecting the role of the state (and institutions to which state policy objectives have been delegated) in using regulation, reporting and compliance as the means for managing and changing behaviors among the U.S. population. As a consequence, social behaviors are now constrained by a web of federal and state law, administrative regulations and university policy, and much of what constitutes compliance reflects discretionary administrative choices respecting the implementation of these webs of regulatory mandates.

This has strong implications for shared governance as well as the participation in the development and control of faculty productivity. The administrative regulations that tend to emerge from, through or in conjunction with  the compliance offices of universities tend to ooze out in ad hoc fashion and they tend to be justified in vague references to the need to comply with "applicable law or university policy". By that standard and in that process, there is no possibility of accountability and the scope of administrative discretion to justify anything by reference to their "right" to "interpret" value and unspecified standards has no constraint.  That is bad management for shared governance, but is is worse management for a university provost that has no ability to well manage her administrative units in an intelligent way.  

The first step toward coherent and constraint in compliance is  information.  This post includes an open letter that may be sent to an appropriate compliance officer with the purpose of gathering the sort of basic information necessary to begin a discussion about compliance in an intelligent way--both with respect to discretionary choices made and with respect to the consequences of compliance as faculty shadow work. The open letter follows.  Feel free to send to your own compliance office and report back on results. 

Moving Beyond University Expropriation and Control of Faculty "Outside Business Activities" --a Proposal for a Rule that is Simple and Fair

(Pix © Larry Catá Backer 2016)

In Just Because it is Legal Doesn't Make it Right--The Extension of University Control of Employee "Outside Business Activity"  I considered the way that the most pernicious aspects of the master-servant relationship tolerated in U.S. law has been creeping into the relationship between the university and its faculty.  That creeping  has been embedded in increasingly exploitative "conflict of commitment" and "Management of Teaching Services" rules that universities have begun to use as a means of controlling the productive capacity of its employees even beyond the scope of their contract periods. Three distinct aspects were noted: (1) Many research 1 universities have begun to seek to claim for themselves not just the fruits of the labor they paid for in hiring staff, but also to control and exploit all faculty productive capacity even beyond contract term periods.  (2) At the same time, the university has begun to see in their faculty an extension of their brand--the objectification of the human being who serve as faculty..in a way that reduces them to factors in the production of university reputation ONLY, and thus amenable to control by the university at all times as if they were other sorts of property. (3) Lastly, the university sees in the aggregated work activities of faculty an enormous  source of data that could be better exploited and thus view  rules regulation work beyond that compensated through university contracts as a valuable information asset to be harvested. 

These trends have not occurred in a vacuum. There is no disputing that individuals have taken advantage of the porous nature of the teaching-university relationship. These include multiple simultaneous full time teaching producing, in the most egregious cases multiple simultaneous tenured appointments. Outside consulting during the academic year can become so excessive that it interferes with compensated expectations for research, teaching and service. Outside activity might conflict with the interests of the university directly (I take as more hysterical, strategic, and overblown university efforts to create prophylactic rules that extend conflict beyond direct and substantial conflicts between faculty activity and university interests).

It has been in that context that universities have sought to protect their legitimate interests--and investment--in their faculty. And usually that has produced badly drafted and overblown regulatory efforts, usually drafted by lawyers or administrators with little experience regulatory drafting but enthusiastic to extend university authority to the full reach of the law. The result has been characterized by overreaching that at times might suggest that the now popular university ethics rules do not apply to its own regulatory activities. Worse, these regulatory efforts tend to become complex baroque affairs to collapse into incoherence by weight of their own overwrought cleverness--none of which provides real substantive benefit to the university. Compare typical variations on the conflict of interest, conflict of commitment and outside teaching and consulting policies: University of Georgia; University of Washington; University of Texas; University of Utah; University of Maryland; and Purdue University.

That is regrettable. But fairly easy to fix IF (the university is willing to take a reasonable position and faculty are willing to engage in outside activities judiciously and in good faith. To that end a simple rule that is easy to understand and easy to implement, a rule that is easy to monitor and apply might be the most useful mechanism to balance the interests of university and faculty- That simple rule ought to be respectful of the faculty's right to employ his own productive forces when he is not rendering service to the university, while protecting the university in its legitimate expectation that its employees will not shirk. The easiest approach is to provide a simple safe harbor rule for faculty consulting and teaching outside the university, one that is entirely focused on those time periods when the faculty member is employed by the university (usually under a 9 month contract), but relinquishes control when the university does not pay its faculty for services. At the same time, such a simple rule ought to be generous in permitting the university to harvest data about such activity--to the extent that such data is shared with those contributing information.

I have produced a model that is geared for Penn State but is easily applicable to other major research universities.  It follows.  Comments and reactions welcome.  For a variation See Michigan State University.  For an alternative consider Harvard's Statement.

Killing Shared Governance From the Bottom Up--How Middle Level Administrators Kill University Shared Governance

(Pix © Larry Catá Backer 2017)

"As you know, it was only because of my kindness and indulgence that I allowed you to accept a grant that afforded you a buy out of your courses last year. I should tell you that this really put me out; I had to go to the trouble of finding substitutes for you just so that you could do this research funded by the grant rather than teach. Reluctantly I also lose you because of your duties as an elected member of the University Faculty Governance Organization. There is nothing I can so about that. But I will insist that those duties are in addition to and should be undertaken only after you have complied with all of the service and committee work that I need to impose on you. That is your primary job. So you figure out how to fit in your University service; I have a unit to run. I still need you to fulfill your service responsibilities to this unit first, which include advising students, serving as a peer observer of teaching for faculty, and serving on unit committees as I assign you. And be sure to remember that your year end evaluation for me will be weighted heavily in favor of your unit service.

For faculty elected to university service--especially university level faculty organizations--hypothetical emails like this are not unusual.  And they effectively shut down effective service on university faculty organizations.  And that, in turn, helps kill university shared governance.  It is not destroyed by high level decisions based on principled objectives--shared governance is killed by the exercise of lower level administrative discretion by middle and lower level managers eager to protect their "resources" and to punish, through the exercise of that discretion, those of their "staff" who presume  to provide service outside their unit.