Universities have, form time to time, made a big show if "taking a stand" against retaliation. But that sort of sloganeering only tends to obscure the realities of a system which is increasing the authority of administrators--especially middle and lower level administrators--to retaliate through the strategic use of their administrative discretion.
And that suggests the fundamental contradiction of the modern bureaucratized university: on the one hand the trajectory of institutional development appears to increase the scope of the exercise of administrative discretion by operating administrators (deans, and lower level officials). This is being undertaken by an increasing mania to "legalize" the structures within which administrative discretion can be exercised. It is the rare university today whose deans do not push for more "rules" to provide "certainty" to practices, but which effectively serve to regularize administrative authority to rule through decision making now ceded to them by"rule." Law or rule in this case does not serve as a cage of certainty and constraint, but rather as the constitution of the space within which administrative discretion may be exercised effectively without oversight or accountability. On the other hand, the university has increasingly adopted pseudo-cultural principles (ethics rules or the like) which they have projected onto their employees (faculty and staff) within which any protection for retaliation is limited to reporting wrongdoing (and here the principles come into play--in good faith) to augment the capacity of administrators to discipline others.
I have written about this before (At the Borderlands of Ethics: Soft Retaliation and Unethical Exercises of Administrative Discretion), that is, of the use of discretionary authority to punish faculty and staff who irritate or oppose their administrative supervisors (I can't bring myself to call them superiors for the false hierarchy of merit that might suggest). The problem, of course, is not one of an inherent evil on the role of administration, or in the good faith efforts of most people whose undertake the burden of administering complex institutions in a chaotic societal climate. Their task is hard enough and most undertake it well enough. I focus, instead, on the consequences of the construction of rule systems to enhance rather than constrains the worst of human nature. And in the process to contribute to a blindness that may affect everyone honestly trying to bear the burden of administration.
Ultimately, discretion without sound accountability structures makes a mockery of the legalization of university operations--and more importantly, it makes the jobs of those middle level administrators who are trying to exercise their discretion fairly and ethically that much harder. Those who give in to their darker natures become opportunist free riders on a system which inadvertently creates a significant space for protected unethical conduct. This is especially the case where the protections against retaliation are limited to reporting claims while accountability for indirect retaliation--through the exercise of strategic discretionary decision making may be undertaken essentially with impunity. See, The
Disciplinary University Factory--Faculty Discipline and
De-Professionalization as Officials move to Expand Faculty "Misconduct"
and Its Control
One sees the construction of this contradiction in the emerging policies--the legalization of discretion--adopted by prestigious universities. Examples follow below.
Consider this policy adopted by Indiana University Bloomington, last updated: 11-15-2016 :
Faculty Misconduct Policy
Scope
The faculty members covered by this policy shall include all Bloomington tenured and tenure-eligible faculty (including librarians). This policy also covers non-tenure track faculty as described in I.C. below.Policy Statement
Scope and Definition
- Commitment to tenure
Tenure is valued and protected by the university as stated in policy E-2 which recognizes the reciprocal obligations tenure entails: “The principle of faculty tenure imposes reciprocal responsibilities on the University as a body politic and on the faculty member. In order to meet its responsibilities to its students and to society, the University must attract and retain a faculty of outstanding quality. To that end the University safeguards academic freedom and economic security by its policy of faculty tenure. The faculty members, on their part, are obligated to maintain high standards of teaching, research, service, and professional conduct.” Dismissal (of a tenured faculty member) “shall occur only for the reason of (a) incompetence; (b) serious personal or professional misconduct; (c) extraordinary financial exigencies of the University.” The present policy sets forth procedures for reviewing cases where faculty members may be guilty of “serious personal or professional misconduct.” Except in cases of extraordinary financial exigency as defined in the Indiana University Bloomington policy on Creation, Reorganization, Elimination, and Merger of Academic Programs, no tenured faculty member shall be dismissed or sanctioned without following the procedures set forth in this policy. In certain circumstances detailed in section I.D, this policy requires following procedures set forth in separate policies mandated by federal laws and regulations. Review of cases of alleged, chronic and substantial incompetence shall also be processed under this policy.- Academic freedom and other university policies
The purpose of tenure is to protect and preserve academic freedom and to provide economic security. During a contract term, the same protections extend to faculty without tenure. Communication that is protected by the tenets of academic freedom is not misconduct. Indiana University supports the right of faculty members to speak and write on matters of public concern and to criticize policies and practices freely.
The IU policy on academic freedom (ACA 32) defines academic freedom as “full freedom of investigation.” This means not only freedom to investigate topics that are politically unpopular, but also the freedom to engage in high-risk research where results are neither immediate nor guaranteed. University and campus policies shall be observed, particularly those concerning equal opportunity, academic freedom, academic ethics, and discrimination.- Non-tenure track faculty
For the purposes of this policy, the Code of Academic Ethics will be interpreted to apply in its entirety to full time non-tenure track faculty. Alleged misconduct of non-tenure track faculty during the term of a contract of employment must be reviewed following the provisions of this policy. Proceedings shall follow exactly as for tenure track faculty. The policy does not cover instances of non-renewal of contract. Those may be appealed to the Faculty Board of Review as allowed in the Indiana University Bloomington Faculty Grievance and Review Policy (D-22).- Definition of serious personal or professional misconduct
Serious personal or professional misconduct is defined exclusively as an egregious violation of the Code of Academic Ethics. Misconduct or criminal activity outside the context of the University is misconduct if and only if it has a continuing adverse effect on any University program, or creates a hostile environment for any participant in such a program, whether on or off campus. Criminal charges within a political context must be viewed with great scrutiny since issues of academic freedom may be involved.
Some forms of personal or professional misconduct are governed by separate university or campus policies mandated by federal law, e.g., sexual misconduct or research misconduct (UA-03, ACA-30). In those cases, complaints will be heard under those policies and may not be brought again under this one.- Retaliation
Protections against retaliation are critical to the University community. Retaliation against anyone who has reported an incident of misconduct, provided information, or participated in procedures or an investigation into a report of misconduct, is prohibited by the University and will not be tolerated. Acts of retaliation include intimidation, threats, and/or harassment, whether physical or communicated verbally or via written communication (including the use of e-mail, texts and social media). Retaliation also includes any other acts that are intended or reasonably likely to dissuade a reasonable person from reporting incidents, providing information, or participating in procedures as described above, as well as adverse changes in work or academic environments or other adverse actions or threats. The University will take steps to prevent retaliation, and will impose sanctions on anyone or any group who is found to have engaged in retaliation in violation of this policy. Concerns about potential retaliation in connection with a report of misconduct should be reported to the VPFAA.
* * *
III. Procedures
- Standards of evidence, assumption of merit, and confidentiality
While these are not judicial hearings, the standard for evaluating a charge of misconduct is that there is clear and convincing evidence that misconduct has occurred. The burden of demonstrating misconduct will, in all cases, lie with the University. The parties’ representatives, the complainant, parties reviewing the case, and BFC staff are expected to maintain confidentiality about the case while it is pending and afterward. Failure to do so may be grounds for disciplinary action.- Complaint initiation and notification
- A written complaint shall originate with the Dean of the College or School or with the Vice Provost for Faculty and Academic Affairs (VPFAA). If a complaint names the VPFAA as having engaged in misconduct, the complaint shall originate with the Provost. In the event that a complaint is contemplated against the VPFAA, the Provost, or the President, and such person is also a faculty member, complaints against them shall originate as follows. If the complaint alleges misconduct by the Provost, the complaint shall originate with the President. If the complaint alleges misconduct by the President, the complaint shall originate with the Board of Trustees.
Several things may be worth noting.
The first is that the definition of Faculty misconduct is tied to notions of academic freedom and its constraints and that such constraints have now been reduced to a combination of broad principle and a list of 22 Specific Responsibilities, and a further 28 categories of personal misconduct on university property contained in the Code of Academic Ethics that now serves as the legal code of behaviors the violation of which can trigger discipline.
Second, the determination of such misconduct falls to the middle level administrators and their superiors (deans and the Vice Provost for Faculty and Academic Affairs) whose judgment, based on such investigation as they deem sufficient in their discretion, triggers discipline.
Third, notice to the faculty member is triggered no later than the time that a formal disciplinary proceeding is commenced. (Compare the University of Missouri System Rules). It is likely that there may be some possibility of involvement by affected faculty before then, but there is no obligation to bring faculty into thew process. The possibility f creating incentives toward an adversarial approach may be hard to avoid.
Fourth, retaliation is meant to protect the reporting of misconduct to the appropriate administrator. With respect to that reporting individuals appear to be protected.
Fifth, But there is nothing in the rule that protects faculty from the misconduct of administrators who might otherwise use their discretionary authority, including the authority to bring these actions, as a means of retaliating against a faculty member whose conduct has irritated them, or whom they do not like, or who need to be forced out of the faculty, and the like. That, of course, produces a large governance gap between the protections of the Code of Academic Ethics and the administrative actions of administrators driven by strategic motives. See, The
New Harassment--When University Administrators Use Allegations of
"Harassment" and "Hostile Work Environment" Against Dissenting Faculty.
Sixth, that contradiction does not provide for easy answers. The broader the scope of discretionary authority and the greater the number of actions delegated to administrator oversight and decision, the easier it is to mask intent in the ordinary course of administration. That suggests that it is the system rather than the administrator, that sits at the heart of the potential corruption made possible by the form of its construction. So much discretion without any effective grounding in robust accountability, makes it easy for administrators to hide behind their discretion to mask the exercise of intention that otherwise would itself violate the Code of Academic Ethics.
Please note--my purpose is not to suggest that there is something especially noteworthy about the approach of Indiana University. Quite the reverse--this code serves only as a proxy for any number of similar ones now being adopted by many similarly situated universities. For others see, e.g., UC Berkeley; Ohio State; Michigan State; It is neither better nor worse than others, and the intentions of its drafters were perfectly reasonable and well-intentioned. It is, for the type, a well drafted effort that captures what was in good faith intended. But that is the problem--in the effort to solve one problem, the drafters might well have exacerbated a number of others--not because they wanted to , but because the premises on which these policies are built are themselves well infused with the fundamental problem of the exercise of discretion in increasingly administrative institutions.
For earlier work see, Abuse of Discretion at the University: A Construction Built One Act at a Time. For further reading:
Sixth, that contradiction does not provide for easy answers. The broader the scope of discretionary authority and the greater the number of actions delegated to administrator oversight and decision, the easier it is to mask intent in the ordinary course of administration. That suggests that it is the system rather than the administrator, that sits at the heart of the potential corruption made possible by the form of its construction. So much discretion without any effective grounding in robust accountability, makes it easy for administrators to hide behind their discretion to mask the exercise of intention that otherwise would itself violate the Code of Academic Ethics.
Please note--my purpose is not to suggest that there is something especially noteworthy about the approach of Indiana University. Quite the reverse--this code serves only as a proxy for any number of similar ones now being adopted by many similarly situated universities. For others see, e.g., UC Berkeley; Ohio State; Michigan State; It is neither better nor worse than others, and the intentions of its drafters were perfectly reasonable and well-intentioned. It is, for the type, a well drafted effort that captures what was in good faith intended. But that is the problem--in the effort to solve one problem, the drafters might well have exacerbated a number of others--not because they wanted to , but because the premises on which these policies are built are themselves well infused with the fundamental problem of the exercise of discretion in increasingly administrative institutions.
For earlier work see, Abuse of Discretion at the University: A Construction Built One Act at a Time. For further reading:
--Speaking Past Each Other About Retaliation at Universities--The Example of Penn StateThe 2005 AAUP Report may be accessed HERE: Faculty Misconduct and Discipline (2005)
--Retaliatory Governance and the University: Considering Hypothetical Questions on the Discretionary Authority of Deans and their Effects
--"We Abhor Retaliation But Expect Loyalty to Our Decisions" -- Techniques that Undermine University Shared Governance, the Honorable Mentions and the Deeper Issues they Reveal
-- At the Borderlands of Ethics: Soft Retaliation and Unethical Exercises of Administrative Discretion
-- University "Codes of Responsible Conduct"--Fashionable Gesture, Radical Imposition of Obligations to Mutual Spying, or Traps for the Unwary?
-- Hollowing Out Governance--Thoughts on the Emerging Structures of Governance at the Unit Level: Bureaucratization, Information Asymmetries and Control
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