Tuesday, May 30, 2017

When Universities Fail to Manage Abuse of Administrative Discretion the Courts Will Increasingly be Asked to Fill that Role

(Pix credit HERE)

I have been writing about the transformation of university governance from a rules based system to one in which rules are created to define increasingly broad ambit of administrative discretion (here, here, here, here, here, here, and here).  This widening of administrative discretion appears most pronounced at the middle tiers of university administration--at the level of university deans and unit chancellors. It appears to evidence two profoundly important trends.  The first is to shift effective governance power from faculty-dean collective governance models to a more hierarchical system in which middle manager deans reserve the authority to initiate and drive policy formation as well as implementation. The second is to change the character of accountability that manages to produce an expanding field of decisions that are effectively beyond the power of anyone (but perhaps the provost) to review. The result is a growing area of decision making authority in which deans may act with impunity. 

Impunity within an organization, of course, creates a legitimacy vacuum in the operation of an institution.  In the United States, at least for the moment, such structures without legitimate structures of accountability may expose themselves to the accountability structures of the state.  Generally that seepage of accountability out of the institution tends to wind up in the courts. And so, increasingly, one begins to observe a curious trend--the increasing willingness (necessity) of faculty (and eventually staff that is not unionized) to seek in the courts the protection (in the general law) of protection against abuse of discretion

This trend should be alarming.  It suggests institutional decay, at least with respect to the core structures of internal legitimacy, that once were more central to the operation of the university.  More specifically, as the university abandons effective remedial structures, individuals will seek remedies form more authoritative institutions. People may be excused for scoffing at the notion that impunity in administrative decision making (abandonment of effective remedy and failure to oversee administrative discretion based governance), and even at the very idea of the need for an effective abuse of discretion standard itself within structures of university rule systems.  They will be excused for finding implausible the suggestion that in the absence of effective university governance, its own stakeholders will seek "workarounds," and some sort of vindication, outside the structures of the university and its own administrative machinery. My sense, however, is that while initial efforts are likely to be rejected--the trend toward turning to the courts will only intensify as the transformation of the university becomes more pronounced (and as its structures become more hierarchical and impunity enhancing discretion based). 

The most telling evidence of these trends, and of the likelihood of the development of a judicially constructed standard for policing administrative abuse of discretion in the university, does not occur when these efforts are undertaken by faculty at lower ranked universities. It does start to have significant potential to affect the remedial structures of university governance when members of the university elite themselves begin to seek the protection of the courts. It is in this context that the lawsuit (filed March 23, 2017) against the Columbia University Law School (and its dean, Gillian Lester, Dean and Lucy G. Moses Professor of Law)  by one of its more prominent members (George P. Fletcher, Cardozo Professor of Jurisprudence).

This post includes some of the documents emerging from that lawsuit as well as a nice description of the issues recently posted by Paul L. Caron to his Tax Prof Blog.  The university's motion to dismiss the lawsuit provides an excellent gauge of the current position of "management," one that invokes incredulity at the notion of a faculty member running off to the courts in a fit of pique. But that incredulity, given the way the facts are described, ought not detract from a more dispassionate institutional analysis. Whether or not Professor Fletcher prevails, the case itself is another piece of evidence of the growing institutional failures of the emerging university discretionary governance model to adequately deal internally with the exercise and management of administrative discretion.  Professor Fletcher is likely not the last member of an elite institution to seek remedies where he can, and one day--sooner than institutions and their administrators may anticipate-- the courts will supply the remedial structures that universities increasingly fail to provide. 

Tuesday, May 30, 2017

George Fletcher Sues Columbia Law School For Age Discrimination, Says His Course Assignments May No Longer Allow Him To Teach One Semester Per Year For Full Pay

Columbia University is battling allegations of age discrimination leveled by one of the elite school’s most prominent law professors.
Lawyers for the New York City-based university have asked a judge in Manhattan to dismiss a complaint brought by 78-year-old law professor George P. Fletcher, an influential scholar of criminal law.
Prof. Fletcher sued Columbia University and the dean of its law school in March, alleging that the administration was pressuring him to retire and giving favorable treatment to younger faculty members.
Lawyers retained by Columbia University filed a motion this week seeking to dismiss the suit. “There is simply no basis for that allegation, and none appears in the complaint,” their motion stated. ...
Prof. Fletcher has accused the Ivy League university and Columbia Law School Dean Gillian Lester of essentially plotting against him by making it harder for him to meet a teaching quota [of 10 credits]. For more than a decade, he says, he was able to accumulate enough teaching hours, while spending spring semesters abroad as a visiting scholar in Israel.
That arrangement, he contends, unraveled in January under the leadership of Prof. Lester, a former University of California, Berkeley, law professor who joined Columbia as dean in 2015. She told him he could no longer teach “Introduction to American Law,” citing weak student evaluations, among other performance concerns, according to his suit.
Prof. Fletcher says students overwhelmingly gave him positive reviews, but says the dean’s concerns were merely a pretext for putting his tenured status in jeopardy. He says he was assigned to teach an elective course that risked being canceled owing to low enrollment. ...
Lawyers for Columbia argued that the discrimination claim is too unsubstantiated to hold up in court. “[I]t is well settled (and common sense) that a university’s mere failure to accommodate a professor’s preferred course schedule does not give rise to a discrimination claim,” their motion stated.


The Complaint itself gives a good sense of the sort of culture of institutional management, and of the character of the everyday business of managing an educational institution that is now emerging. The complaint is grounded in circumstance, and in the connection of the "dots" of a series of administrative decisions that themselves suggest the way in which faculty are now managed in the production of offerings to student-consumers. In a sense, the complaint nicely suggests the mechanics of the management of institutions through layers of administrative discretion that makes it substantially difficult for its objects to find any place on which to anchor accountability. Curiously, it is unclear whether or to what extent he availed himself of the internal mechanisms for protesting actions at the uniersity.  Although one can understand a reluctance to do so, or more likely, the unavailability of such a system for this sort of dispute. 

Here the issue appears clear--the faculty member contends that the dean used her administrative authority to engage in a series of discretionary decisions that were directed to effectuating indirectly an objective that could not be directly ordered--the retirement of a faculty member whose arrangements with the university were no longer considered as useful as they once might have been.  

13.Fletcher  has  served  as  a  tenured  faculty  member  at  Columbia  for almost  thirty-four  (34)  years.   
In  that  time,  he  successfully  has  taught  a  variety  of  courses,  including  Torts, Criminal  Law, Comparative  Introduction  to  American  Law, Jurisprudence  of  War,  multiple seminars, and Introduction to American Law. 

14. Fletcher has made deep contributions to the Law School and its community in his time as Professor.  In addition to teaching various courses in both the J.D. and L.L.M. programs, he has been a prolific scholar and researcher.  Through his teaching and his written works, he has elevated Columbia’s credentials in the areas of torts and comparative and international criminal law. 

15. Fletcher has taught and cultivated generations of lawyers and law professors in his years  at  the  Law  School,  and  has  invested  innumerable  hours  in  developing  sophisticated  and challenging  coursework  for  his  students.   Among  his  former  students  and  protégées  are  current leading professors of criminal law in Israel, and a conference on his work has been scheduled at the  academic  college  of  Kiryat  Ono.    Fletcher’s courses  have  been  well-received,  and he consistently receives positive teaching evaluations from students in his classes. 

16. Fletcher persistently strives   to   adhere   to   all   administrative   expectations established,  both formally  and  informally, by  Columbia,  including  the  timely  preparation  of syllabi  for  classes;  providing  review  sessions  for  students  prior  to  exams;  and  creating  course content to ensure that classes meet American Bar Association requirements for course credit. 

17. In 2005, Fletcher entered into an arrangement with Columbia, whereby he would teach all his courses –and satisfy the conventional ten (10) point teaching quota to maintain his tenure –in the fall semesters.  Fletcher conveyed, and the Law School understood, that Fletcher would  spend the  spring  semesters  in  Israel, where  he  is  active  in  many  scholarly  programs, including at the Van Leer Institute, the Hartman Institute, the Institute of Advanced Studies, and the Hebrew University Law School. 

18. That arrangement worked successfully for Many years, with Fletcher continuously committing to teach at least ten (10) points each fall semester, and working in  Israel during the spring semesters. 

19. On occasion, certain courses that Fletcher committed to teaching in the fall were subscribed in relatively low numbers, and Columbia canceled those offerings as formal courses.  In  those  instances,  Fletcher  was  not  penalized  for  the  cancellations,  given  that  he committed to teaching those courses and it was the Law School’s decision to remove them from the schedule.  Moreover,  Fletcher  would  instead  cumulate  teaching  hours  by  meeting  with  students,  Fulbright Fellows and visiting scholars in his office on a fixed schedule, rather than in a classroom format.

20. In 2016, however, the Law School changed its approach with respect to Fletcher. Defendants Undertake A Pattern Of Harassment And Disparate Treatment, In An Apparent Effort To Force Fletcher To Retire

21. Fletcher   and   the   Law   School   agreed in   2015 that Fletcher would   teach Introduction to American Law (“IAL”) in the fall semester of 2016.  IAL would  countfor  two (2) points out of the customary nine to ten (9 to 10) point teaching quota for tenured professors for the 2016-17 school year.  IAL is a mandatory course offering for LLM students, which means there  is  little  to no  chance  of  it  being  undersubscribed  and  therefore  cancelled  by  the  Law School. 

22. Fletcher  taught  IAL in  the  fall  of  2016 as agreed.   He  used  his  own  book, “American Law In A Global Context”, as the basis for the syllabus, without any objection from Defendants.    When  the  course  had  concluded,  approximately  ninety  percent  (90%)  of  the evaluations that were turned in by students gave the course, and Fletcher, positive reviews. Only three (3) students expressed that they were unhappy with the class.

23. Nevertheless, Katz began to harass Fletcher about purported issues relating to the course,  starting  in  late  fall  of  2016.   Until  that  point,  there  had  never  been  any  objection  to  the organization of Fletcher’s courses.

24. For instance, on October 16, 2016, Katz Sent Fletcher an email in which Katz set forth unsupported claims that Fletcher had failed to comply with administrative requirements for the IAL course,  such  as  late  submission  of the  syllabus  and  failure  to  provide  students  with feedback on their  exam performance.   Katz also complained that Fletcher had failed to respond in a timely matter to Katz’s emails, which was untrue. Katz  was  attempting  to  micro-manage Fletcher’s teaching of the class, including the content, and purportedly did so with Lester’s approval.    Upon  information  and  belief,  younger  professors  have  not  been  subjected  to  similar

25. Fletcher  responded  to  the claimed issues raised in Katz’s October 16 email and corrected  the  record  with  respect  to  each  one.   Fletcher also  reiterated  his  loyalty  to  the  Law School. 

26. Then, in January of 2017, Lester informed Fletcher that he would not be permitted to teach IAL in upcoming fall semesters.  Lester noted that The course previously was offered in only two sections, but acknowledged that “[g]iven the mandatory nature of [the] course for LLM students, a substantial enrollment would be guaranteed” even with three sections. 

27.Lester  claimed  that  the  decision to  remove Fletcher  from  the  course was “partly due  to  the  challenges  in  eliciting  [Fletcher’s]  compliance  with  some  basic  procedural  and substantive  aspects  of  the  course  and  partly  due  to  the  relative  weakness  of  the  student evaluations of [Fletcher’s] section.” 

28. As  Fletcher  informed  the  Law  School, Lester’s  claimed  justifications  for  the decision were false, and were mere pretext for removing Fletcher from the IAL course.  Fletcher complied with the procedural and substantive requirements for IAL, as he has with various other courses he’s taught at Columbia over his decades as a professor. 

29. Lester  further  stated  in  her  communication  in  January  of  2016  that  the  Law School would “like to go back to offering just two sections of Introduction to American Law, taught by the other instructors.”  The other instructors referenced by Lester are less qualified than Fletcher: for instance, they are not members of the American Academy of Arts and Sciences, to which Fletcher was elected in 2004.  Membership in the Academy is a primary measurement of prestige in law school circles, and is used in determining law school rankings.  Upon information and belief, the other two professors are ten (10) or more years younger than Fletcher.

30. Having  taken the IAL course away  from  Fletcher, Lester Stated that,  instead  of teaching IAL (which is a mandatory component of the LLM curriculum), Fletcher could teach an elective course on international and comparative criminal law. 

31. In  response,  Fletcher  stated  that  he  was  willing  to  teach  the  proposed  elective course, but noted that Columbia should assume responsibility in the event of low enrollment, as it  had  in  the  past.    In  other  words,  since Fletcherwas  fully  willing  and  prepared  to  teach  ten credit points’ worth of courses, it would not be fair for the Law School to reassign him to a class with  a  risk  of  cancelation, which would place Fletcher’s credit total and status with the Law School at risk. 

32. Lester  would  not  provide  Fletcher  with  any  assurance  in  this  regard.    To  the contrary, she told him that “we will treat this course in a manner consistent with our usual policy, which  is  that  we  reserve  discretion  to  cancel  classes  that  draw  very  low  enrollments.    I  am hopeful that  all of  your  offerings will  generate sufficient enrollment to go ahead, but if they do not I cannot guarantee that they will not be cancelled.” 

33. Thus, it was made clear to Fletcher that, despite his willingness to teach ten (10) credits worth of courses, he might nevertheless come up short due to the Law School’s unilateral elimination  of  those  credits.   In  an  effort  to  prevent that  outcome,  he  proposed  that  he  be assigned  to  teach  a  different  mandatory  course,  such  as  Torts –a  subject  matter  in  which  his well-earned and well-known expertise is publicized by Columbia on its website. 

34. Columbia  declined that  proposal,  stating  that  Fletcher  would  have  to  substitute IAL  with  an  upper-year  elective–which,  again,  would  place  him  at  risk  of  having  his  course under-enrolled and ultimately cancelled.  Lester also wrote to Fletcher that if that “option is not acceptable to you, we will have to revisit the arrangement whereby you load all of your teaching into one semester, or we will need to discuss moving to a fractional appointment.”

35. Taken  together,  this  series  of  communications  from  Defendants  over  the  past several months have placed new terms and conditions upon Fletcher’s continued tenure as a  Professor  at  the  Law  School.   Rather  than  allowing  Fletcher  to  teach a  mandatory  course  to ensure  that  he  earns  the  full  ten  (10)  credit  points  that  he  is  willing  and  able  to  earn,  the  Law School  has  placed  his  credit  total,  and  therefore  his  tenure,  directly  at  risk  and  subject  to Defendants’ unilateral discretion.

36.Moreover, the threat of moving Fletcher to a “fractional appointment” confirms what was already apparent: that Defendants improperly are attempting to force Fletcher to retire.  Defendants  have  been harassing  Fletcher  with  false  and  unsupported  complaints  about his teaching procedures, in the first instance–and worse, actually have removed him from a course and have threatened his tenure based on those fabrications. 

37. Meanwhile, upon information and belief, faculty members who are much younger than   Fletcher   have   had   real,   and   more   egregious,   administrative   shortcomings   in   their performance.  Those younger faculty members nevertheless have been allowed to keep teaching mandatory classes, with virtually guaranteed enrollment and annual teaching credits.

The "truth" of this allegation, or the Professor's ability to marshal sufficient evidence to prevail in his lawsuit, remains to be seen.  But what does emerge on initial reading is the question--why is this in court?  There must be a better way to deal with these issues.  And indeed, there ought to be a better way.  It is possible to envision an institutional context in which cultures of operation and strong connections between faculty and middle level administrators would tend to provide the constraints for the exercise of discretion and the instruments through which abuses of discretion might be corrected early in the process of decision making.  And there ought to be better and more effective institutional mechanisms for resolving these issues around discretionary decisions--along with a workable standard for testing abuses of discretion.  Yet the lawsuit itself suggests the absence of all of this. And the implausible burden now transferred to an institution--the courts--ill suited to exercise the remedial authority that the university has effectively ceded away. 

Only part of this is captured by the university--which relies on the wisps of the mythologies of the no-longer-contemporary university to suggest that the Professor's complaint has no business in a court. The university relies on a formal argument--no formal employment action has occurred (yet)--and a legal argument, that no age discrimination has resulted from the cascade of discretionary decisions that led to the Professor's complaint. Indeed, the university suggests that the Professor's allegations do not readily fit within the structures of remedy available under law. And they do have a point, generally speaking.  The law was not intended to provide a space within which these abuses of administrative discretion were meant to be resolved.

But that leaves no place where such accountability could be placed.  Shared governance structures have effectively disappeared as an effective space within which such complaints might be resolved--and resolve din a way that enhances common cultures of work within the academy. And that, itself, will eventually produce a change in the relationship between the university and its faculty as units of productive activity no longer confident in their ability to police discretion, but unable, for the moment, to figure out where such accountability might be lodged.

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