Wednesday, July 18, 2018

Thoughts on Mass Tenure Revocation at Vermont Law School in the Shadow of the Market and Beyond Shared Governance

(Pix © Larry Catá Backer 2016)

The decision by the Vermont Law School to terminate the tenured positions of more than half of its faculty (precise numbers rumored but unavailable as of the date of this posting) and then to rehire some as contract faculty at presumably lower cost (to the Vermont Law School anyway) has been circulating for a number of days now.
Fourteen out of 19 members of the Vermont Law School faculty lost tenure on July 1 as part of a restructuring effort at the South Royalton institution. . . . Professors said they were informed of the decision to revoke tenure in a private meeting with McHenry and Academic Dean Sean Nolan. Faculty members were told they could choose to continue teaching another year under a new contract or they could opt for six month contracts with varying teaching requirements and salaries, or they could leave. Tenured faculty were required to sign a non-disclosure and non-disparagement agreement, prohibiting them from speaking to anyone except their spouses. The agreement prohibited faculty from making derogatory remarks about Vermont Law School and its administration. (Katy Savage, "Vermont Law School revokes tenure for 75 percent of faculty," VTDigger 15 July 2018)
The reactions are what might be expected, though surprisingly muted (see, e.g., here, here, here, here, and here). In the end, after the hand wringing and acrimony, the substance of this action will likely remain undisturbed. "If the reports are accurate, Vermont has essentially acted as if tenure does not exist. This could potentially raise questions about whether Vermont is in compliance with ABA standard 405, but it is unclear how assertive the ABA or site visit teams will be in enforcing those standards." (How secure is tenure? (Michael Simkovic)).

For this post I offer some brief thoughts on what is likely to be a very useful and evolving addition to the toolkit of administrators as they continue the hard task of commodifying and capitalizing education within what is still nostalgically referenced as "the university." The focus is not on the lawyering of protection for those faculty with respect to whom tenure has been made a mockery, though one clothed in the delightfully unctuous ululations of administrator speak. Rather the reflections here focus on the ways in which these actions evidence more generally a perhaps significant changes of power relations within an institution in which the notions of traditional shared governance has withered away.  The character of that withering away is itself of interest, as the successful de-professionalization of the faculty has opened the way for their replacement in governance by an emerging corps of professional administrators only some of whom are drawn from their ranks who (ironically) remain protected by tenure. 


One gets a better sense of the trajectory of governance by decoding the language of power, at least the language that power uses to communicate to others. In this case, the explanation offered by the Vermont Board of Trustees may be instructive.
Colleen Connor, chair of the school’s Board of Trustees and counsel at GE Power, said in a separate statement, "Recognizing that the future of law schools in the U.S. is changing, we have put our energies into working with the administration to design a model for the future of Vermont Law School that adapts to the changing market while continuing to deliver on our mission."

The school believes “the best path forward is through restructuring our instructional model,” she said. “As difficult as this process is, we feel confident in the end, Vermont Law School will be a stronger, more vibrant institution that is sustainable in the long term and that continues to meet our mission of an exceptional legal education, producing leaders and being a pre-eminent environmental law school.” (Colleen Flaherty, Restructuring Tenure Away, Inside Higher Education 26 June 2018).
Let's take this one phrase at a time, with a little help from the markers of our popular culture to make things clearer:

 a.   The "6th Sense" of the Board of Trustees. "Recognizing that the future of law schools in the U.S. is changing": The phrase appears to be passive but is actually active.  It suggests the need to respond to changing conditions, but also reminds readers that it is for the board alone to both recognize that change is occurring and to determine its scope and vector.  Of course, there is no need to explain either the nature of the change or the direction of the trend. Moreover, there is a reaffirmation of passivity in the face of change--a variation of the administrative fig leaf that is increasingly invoked, variations of the "market made me do it." (e.g., here). This relieves the board of personal responsibility, or rather masks the quite deliberate control of interpretation by way of mysterious and uncontrollable market forces that only they can see and against which they must respond.

  (Star TrekS3 E21 "The Cloud Minders")
b. A faculty of Troglyte working-class miners:"we have put our energies into working with the administration." This one is obvious and quite deliberate.  In a hierarchy of the sort that is now becoming the standard template for administration, power flows downward but in rank order.  The board of trustees works with the administration but the faculty is nowhere to be seen.  Nor should they be.  Faculty are now the objects on which the board operates--a profit or loss center depending on how one looks at the accounting. And, of course, it reinforces the reality of shared governance as optics: in the face of a substantial threat to the university, it is to the administrators alone that the highest leadership turns. There is very little more telling than the meaning of this quite ordinary phrase.

(Pix credit, the Red List)
c. We don't build monuments to ourselves any more; we design institutions: "to design a model for the future of Vermont Law School." This at least has the benefit of providing fair notice.  The old system has been rejected, and tenure (as we will see) along with it.  It serves as a description of the consequences of the first two phrases: "times have changed" PLUS trustee/administrator decision making" EQUALS all current principles and presumptions no longer bind in the effort to meet objectives (which are f course the sole province of the Bard and the administration). The future model of the Vermont Law School in this case may require sweeping all old assumptions, protections and relationships away.  That is legitimate because, it is unstated, principle and structure are always subordinate or dependent on ·changing futures" as divined in the self reflexive worlds of the board and the administrative suite. While the ideas make sense, of course, little effort was expended to consider whether (perhaps because it served none of the protagonist's interests) the run up to this phrase was a delightful exercise in inverting cause and effect, or in inventing a false (though useful) causality. None of that is important before the imperative: we will have us a new model!

d. We get our marching orders from the market: "that adapts to the changing market while continuing to deliver on our mission." I have already suggested how the "market made me do it" trope is quite useful to the administrator class both as a means of avoiding responsibility for actions (they are passive actors in the great play of market forces whose heroics are measure by their ability to "keep the ship afloat" during stormy times of transition.  The maritime analogies are always interesting though beyond the scope of these comments. Here the leadership posits the usual binary--adapt to change while preserving some sort of core value (whether or not in recognizable form is unclear; besides the very notion of core value is another one of those discursive tropes whose utility also lies beyond the scope of this post).  Yet the power of the binary had already been shattered in the phrases that preceded this one.  And indeed, there is a certain none-sense at work here.  If one must change with the times, and those changes must be lead by the vanguard of board and administrators in the course of which all principles are open for review and change, then why is it that one would impede the logic and necessity of the change (the inexorable power of the market and changing societal forces) by a nostalgia for delivery of a mission that is itself (and must necessarily be) tied to the satisfaction of the market.  At best these are words meant to soothe--at worst they mislead.  In the end they reduce to a zero sum; cancelled out by the preceding phrases. . . . . unless the mission is merely to deliver some sort of commodity to some for of consumer at a price point which after expenses leaves something more than zero to the institution. Now THAT is a mission most boards can understand. Perhaps the idea is to leave room for increasing markets for income generation.  Here the reference might suggest the possibility of exploiting better a market for nostalgia to alumni (for money of course) by ensuring the illusion of the past even as good sound hard headed people "valiantly press forward to embrace the future" (or some other equally useful discursive trope). More on the mission below.

e. But of course, we had something clever in mind. . . .: "the best path forward is through restructuring our instructional model." Having effectively consulted with themselves (reporting has not made clear the extent to which formalities of consultation were performed or their effectiveness, or whether they were meant merely as window dressing), it becomes clear that a restructuring is necessary.  But note what is the object of the restructuring. It is limited to "our instructional model." Bathos or Narm? ("The trope name comes from Alexander Pope, who wrote Peri Bathous, Or the Art of Sinking in Poetry in 1727, in which he mocks the abuse of tropes and figures of speech by bad writers. In it, he notes that juxtaposing the serious and the trivial creates unintentional humor, which sinks serious poetry. As such, unintentional bathos is considered Narm." (here, for Narm here)). Now this might be quite odd, given the more comprehensive rationales advanced for the heroic actions of the leadership.  One might have thought that restructuring administrative cultures might be on the block, along with the cost-driven strictures of management that it has produced. Nowhere might one find a courageous imposition of more stringent fund raising among the board of trustees. And the list might go on. But none of this is the point--one might excuse the cynic who might see in this Bathos/Narm a quite conscious effort to wrap a quite specific agenda ("let's eliminate tenure. . . except for administrators) around the lofty language and quite culturally acceptable tropes as the pressure of the market. This may well be an instance of "Nate's Narm" (video HERE).

(House of Wax (1953) Vincent Price; pix credit here)

f. Difficulty is quite contextual: "As difficult as this process is, we feel confident in the end." Of course they do--they will remain through the restructuring essentially unscathed; those among us with a more cynical bent might think for an instance that this restructuring is a fancy way of ensuring the free riding of board and administrators the costs of which will be borne of those onto whom the difficult aspects of the restructuring can be exported. And, indeed, at Vermont it was interesting to note that even as faculty lost tenure, there was a suggestion that those who assumed administrative positions appeared to be safer ("Two professors in the administrative office — Nolan, who is vice dean for faculty, and Stephanie Willbanks, the first woman to be granted tenure at the college in 1986 — retained tenure, Teachout said." (Katy Savage, "Vermont Law School revokes tenure for 75 percent of faculty," VTDigger 15 July 2018)).One wonders, as well (one always wonders this on the private sector) about the effects of all of this financial trauma on the salaries and work related productivity metrics of those spared from bearing the difficult consequences of restructuring.

("Batman and Robin (1997) pix credit here)
g. Even platitudes have metrics: "Vermont Law School will be a stronger, more vibrant institution that is sustainable in the long term and that continues to meet our mission of an exceptional legal education, producing leaders and being a pre-eminent environmental law school." This last bit is a mouthful.  And it is meant to be. Here one packs together the entirety of the "mission" which the board will heroically undertake to operationalize in a way that is compatible to the market. But what is this mission? Well, there are a few key (now buzz) words that help one get at this: "exceptional legal education;" "produce leaders; " and "pre-eminent environmental law school." Marvelous. Yet one wonders about the efforts made to measure efforts toward this mission.  Certainly, each of these terms are definable (however much one may quibble with definition, and one ought to of course); each can be measured;  there are sufficient data to make that measurement robust; and together they might provide the metrics necessary for an analytics of responsibility against which the board and their administrators might be assessed. Of course, and here one might speak generally and not specifically about the situation in Vermont, administrators and the board are usually far too busy creating all sorts of analytics to measure and assess faculty (quite useful especially during epochs of restructuring).  They may tend to be far more "qualitative" when it comes to measuring the performance of their own; and they may find it difficult not merely to judge but also to act decisively against administrative officials and board members who do not live up to expectations (which can also be created, produced from data analytics and judged). Of course, for the moment, one reads whatever into each of those terms; and that makes it even easier to make those choices that please their makers without much fear of other than an atmospheric accountability.  


  1. I suggest the faculty define their view of the problem and suggest alternatives. This essay strikes me as a petulant bleat from a group who has elected not to be responsible for the long term interests of the entity, thought they had managed to insulate themselves from reality, and now offer criticism and not alternatives.

    Larry Weber

  2. How do you get rid of tenure that someone already has? If you can do that did they every have tenure?

  3. Wow. Brilliant take-down! Never seen this kind of preening blather so well explained.

  4. I'm an incoming JD student at Vermont Law School and am quite disturbed by this news. Not sure what I can do, other than voice my concerns.