COVID-19 and the University: If you Run the University Like a Commercial Enterprise Don't Be Surprised When Your Customers Sue You for Lack of Service--Brandmeyer v. Regents

Students Sue CSU, UC Systems Over Refunds Of Campus Fees

University propaganda departments have for years nurtured the myth that they can at once be hard headed businesses and at the same time the champions and protectors of some sort of ideal non-commercial Elysian space in which students and faculty might romp in the glorious fields of knowledge creaiton and dissemination undisturbed by the machinery that keeps that enterprise running.

It was both a grand illusion and one increasingly belied by the ways in which university administrators from middle mangers (deans and the equivalent) to high level central administration officials began, like cannibal mice, to gnaw away at the foundations of an institution that for a time  held that dual vision together. In the name of hard headedness a generation of administrators (many though not all of them once academics (though to call them that after a few years in administration is to stretch the concept beyond recognition, especially as they began to see themselves as a distinct social element in the ecology of the university, see, e.g., here) have engaged, among other things,  (1) in the deprofessionalization of the faculty and the substitution of technology enhanced (cheaper and higher profit) learning for increasingly creaky traditional methods of delivery and engagement, (2) in the expansion of the business of the university to include a number of different profit centers (dorms, parking, summer camps, etc,); (3) move from a learning centered to a compliance and risk mitigating fundamental operating mode in which administrators became more valuable (and less fungible) than faculty; and (4) like banks and airlines (two other hard headed businesses in their retail operations)  in the fracturing of pricing models so that students were faced a number of fees beyond tuition, room and board for "value added" services. 

The university was at its best in its rationalization of these revolutionary transformations.  Most successful was their ability to convince everyone that there was no transformation at all--the university was no different than it was in the 1960s, except perhaps that its appointments were more luxurious and its techniques more "up to date." Yet these transformations were not inexpensive (except of course for faculty whose existence constantly depressed the ability to use university income for other, and perhaps, higher, purposes. 

Faculty has been particularly slow in learning the lessons of the modern university and obtuse about the way in which it has transformed their position within this business.

Customers, especially students, however, have learned these lessons much better.  Now COVID-19 has made that lesson learning much more visible.  While the university can shift the "cost" of operations to its faculty and staff, it will find it harder to do so with its students.

Students filed class-action lawsuits against the University of California and California State University systems Monday, demanding refunds of student fees in light of campus closures. The students are suing for a reduction of on-campus services because of the COVID-19 pandemic, but will not sue for the cost of tuition or housing. “University of California’s decision to transition to online classes and to instruct students to leave campus were responsible decisions to make, but it is unfair and unlawful for University of California to retain fees and costs and to pass the losses on to the students and/or their families,” the lawsuit states. The suit was filed on behalf of Claire Brandmeyer, a UC Davis student who left campus in mid-March. The students are suing for refunds of student fees such as the $1,128 UC-wide Student Services Fee paid by UC students, as well as other campus-specific fees. (Students sue UC and CSU systems, demand refunds amid COVID-19 campus closures).

Universities had been more willing to prorate dorm and related costs; but not activities fees. "The universities have been more receptive to refunding or discounting campus dorms, residences and dining plans. UC System President Janet Napolitano outlined in a letter to the legislature, that, “UC is providing students prorated refunds on their housing and dining services agreements in the event they choose to leave on-campus housing" (Students sue California universities over fees lost amid pandemic).

The Complaint in Brandmeyer v. Regents follows below. This is not the only action filed. "To date, higher education institutions the likes of Drexel, the University of Miami, Cornell, Pace, Columbia, Liberty University, Arizona’s state colleges, Vanderbilt and Fordham University have been hit with potential class action litigation over their apparent failure to issue refunds for the COVID-19-shortened Spring 2020 semester." (California Universities Owe Fee Refunds for Pandemic-Shortened Semester, Class Action Suits Say [UPDATE]).

From the American Association of University Professors--A Rich Collection of Articles and Reports from its Summer 2019 Bulletin

The Bulletin of the American Association of University Professors is published annually as the summer issue of Academe. This year's Bulletin features academic freedom and tenure investigative reports, college and university governance investigative reports, a report on the assault on gender and gender studies, a statement on dual enrollment, and annual reports and other business documents. Follow the links in this email or read the entire issue at https://www.aaup.org/issue/summer-2019-bulletin.

 

Links follow: 

 

The Abusive University Administrator--Unfettered Discretion in the University and What the "Census Case" May Teach Us About Abuse

(Pix source HERE)

Those of you who follow my academic blog, Law at the End of the Day, have seen recent posting of PowerPoints through which I tried to synthesize the essence of the sub-systems that together make up the U.S. legal system.  In the process I have tried to capture for foreign lawyers the essence of the core values of American ideologies (of fairness and other baseline political principles), which are inscribed in quite different ways in the law.

One of the areas that struck my students as most curious was that of the ideologies and practice around administrative regulation.  The idea of discretion as a legal tool (outside of dictatorships and Marxist Leninist States) seemed curious. They might have treated those as political acts rather than the application of law. More curious still was the way that only recently, the Supreme Court reinforced a set of core principles through which the courts would review and if necessary overturn discretionary decisionmaking that appears to be arbitrary, capricious, or a hidden pretense.  They found it interesting to see the way that such principled constraints on exercises of discretion, even when undertaken by officials holding the highest appointed offices, could bve used to undermine important policy choices made at the highest levels of state. 

The case, of course, was the "Census Question" case: Department of Commerce v. New York, U.S. Supreme Court No. 18-966 Slip op. (Decided June 27, 2019). The PowerPoints may be accessed here.  And

What struck me more as I sought to lecture through this a as matter of public law--was the way that such constraints might well exposes the laww-less-ness of private administrators, and especially those in the academy.  Not to say that they are born bad; but merely to suggest, as the Supreme Court has just done in relation to the Secretary of Commerce, that no mere instrumentality of the administrative apparatus--public or private--ought to exist within an environment in which the core principles of fairness built into American law appear absent. 

This post considers the great principles of checks on administrative discretion and the principles underlying them (hopefully written simply and not for lawyers).  It then poses the question: to what extent do the great role models of the American Republic; to what extent to those institutions which put themselves out as the forms of social, political, and economic organization that embraces wholeheartedly the core values of this nation; to what extent to the people in control of that apparatus feel the weight of responsibility for their discretionary decisionmaking reinforced by principles and outside robust checks? 

I pose a null hypothesis--university administrators have no real constraints on the exercise of their discretion within the university that is effective, reliable, fair, or readily available to those against whom discretion is exercised. "The null hypothesis, H0 is the commonly accepted fact; it is the opposite of the alternate hypothesis. Researchers work to reject, nullify or disprove the null hypothesis. Researchers come up with an alternate hypothesis, one that they think explains a phenomenon, and then work to reject the null hypothesis." (See here). I would dearly love to see that null hypothesis disproven--and not by incantation from above. 

Without (Much) Comment: "Judge throws out ex-Penn State president’s conviction"

He shall take the two goats and present them before the LORD at the doorway of the tent of meeting. Aaron shall cast lots for the two goats, one lot for the LORD and the other lot for the scapegoat. Then Aaron shall offer the goat on which the lot for the LORD fell, and make it a sin offering. But the goat on which the lot for the scapegoat fell shall be presented alive before the LORD, to make atonement upon it, to send it into the wilderness as the scapegoat.  Leviticus 16:7-10

Two stories are worth consideration.  They mark the next stage of a morality tale that started with Pennsylvania's efforts to respond to the horrible events that eventually resulted in the conviction of a member of the Penn State Football coaching staff for immoral acts against children.   They remind us of the complicated relationship between the state, its institutions, and the people who populate both in the shadows of law and justice.

The stories touch on the recent decision by a judge to overturn the conviction of former Penn State President Spanier of his conviction for misdemeanor child-endangerment, the only charge that the state was able to secure a conviction in the long and tortuous process of finding administrators to bear the responsibility for failed institutional duty.  In commentary I note merely remarks made April 13, 2012: Penn State’s New Reality; Reflections by the Penn State 2011-2012 Fellows--Four Lessons Learned About University Governance in Crisis.

Compliance and the Cult of Personality in University Administration: Administrators and the "Army of Survivors" of Athletic Sex Scandals

(Pix © Larry Catá Backer 2018)

Once again the institution of the university--that newly refurbished battleship of compliance headed by heroic bands of well paid administrators  whose offices, so well larded with officials of all sorts of descriptions charged with the constant and comprehensive surveillance of university personnel and activities (other than those, perhaps, of the administrator class)--finds itself embroiled in scandal.  I am not speaking of the consequences of that scandal--in this case of the man who abused numerous young women who trusted him and who is now facing a lifetime in prison.  Rather I am speaking to the scandal of the university itself as the great exemplar of the compliance institution par excellence. I am speaking to the failure--again--of what has been sold to the public by university boards of trustees, by the political classes, and by  fat layers of well paid non-academic administrator "experts," as a university cultures built on compliance and deep surveillance, of monitoring and reporting, led by  "herioic" university presidents sitting astride their all-seeing mechanisms of control, of reporting, of surveillance, of socialization, and of record keeping.  

The model of administration that the political, economic, and intellectual classes have fashioned of the university over this past generation has resulted in the monstrosities that one sees emerging across the nation.  Bloated institutions that are more machine than human centered institutions, it is not clear exactly what it is that these factories are meant to produce other than stability, good order, and the manufacture of a product that can be consumed as it is produced.  And this new ordering is fueled by the cultivation of a cult of personality around university leadership and their managers; as if by virtue of their high salaries and august positions within hierarchically arranged employment relationships, they embody the university itself. The construct is simple and straightforward: (1) a high salaried leader (or sometimes leadership) who become the incarnation of the university--their heroic leaders whose vision, drive and charisma give life to the institution and lead it to new heights; (2) an aristocratic bureaucracy detached from from the operational hierarchies of production, whose role is to protect the institution and its leaders and to discipline the productive forces of the university through risk reduction compliance regimes; (3) a legitimating structure of "rule of law" regulations that actually legalize systems of administrative discretion against abuses of which there is little remedy.  This model is the most efficient way of coordinating the institution of the university with that of enterprises and the state to produce a useful interlocking governance mechanism.  

That combination of cult of personality around "leaders" and an institutional framework grounded in compliance as a bureaucratic organism has proven to be quite useful in managing the smaller irritations of institutional life--at great expense and against the increasingly fungible bottom layers of the academic employment pool.  It has not, however, proven particularly useful when deployed against itself--when it is tested against its greatest challenge--to monitor, report and contain reprehensible behavior at the highest levels.  Time and again, it now seems, over the last decade certainly, the most elaborate machinery elites create to enforce and socialize compliance with consensus norms can do little to protect us against the depredations of the elites themselves. It is not for nothing that the worst scandals of the last decade have tended to involve people at the higher levels of the machinery designed to contain their excesses and bad conduct.  And yet universities built on cults of personality and on aristocratic bureaucracy will inevitably fail to meet the objectives these elaborate and expensive institutional machines were meant to manage.   

Harsh words but to some extent well deserved. They are not targeted at a particular institution or a particular individual. Rather they reflect thoughts about general social and institutional movements throughout academia that show up along a broad spectrum of related behaviors  in many institutions. That prompts the hope that it may be time to consider dispassionately the model so dear to those with money and the power to shape the institution of the university.  That this will be done is unlikely, but that it ought to be attempted--and by without conflict of interest, is a hope that is worth retaining.  What we will get is more of the same.  The elite will sacrifice a President (the downside of cults of personality) and put up another along the same model--after a wrenching period of formal self examination that will produce even more aristocratic bureaucracy and precious little effective protection against the people now more empowered than ever to protect us against themselves. Reporting on a recent event that prompted these very general thoughts follows. 

Shared Governance and the Managerial Character of Faculty in the Evolving University: Dueling Amicus Briefs From University of Southern California v. National Labor Relations Board, No. 17-1149 (D.C. Cir. 2017)

(Pix © Larry Catá Backer 2018)

University administrations have, quite correctly, sought to have it both ways.  On the one hand they continue to peddle the narrative of the idealized university of autonomous professionalized faculty deeply involved in the governance of the academic mission of the institution.  On the other hand they have increasingly moved to administer a very different reality where behind the slowly fading institutional veils of faculty involvement in governance has been created a factory environment in which the university serves increasingly as a means of preparing its tuition payers for insertion into increasingly well designated portions of the global wage labor markets.  For some elite universities the factory produces (and protects the status) of the highest level jobs at the pinnacles of the governmental and non governmental institutions of power. (For my discussion of this trend see, "The University in the Age of the Learning Factory: Dueling narratives in the culture war around higher education," here, and here)

To this end the character of utility of the faculty has changed dramatically.  And that transformation has especially evident for institutions that are been designated to serve the "lower" levels of the wage labor markets.  It has changed both the character of teaching, the connection between knowledge production and knowledge dissemination (in ways that will have long term impacts on both--the character of which has yet to be fully understood),  and has changed the way the university values faculty production. Tenured faculty are expensive--both in the allocation of their time,  and in the way that tend to be less flexible objects of production (in the sense that they cannot be easily moved from one form of production (e.g., German studies) to another (e.g. engineering) to suit value maximizing (to the university) change sin the demand for labor inputs (e.g. students). Contract faculty are eminently flexible in the sense that they might be kept forever if suitable but can also be shed when necessary.  Their time can be adjusted to suit the teaching research mix needs of the institution and while they can be easily disciplined if they annoy their managers (with the ultimate power to choose to not renew a contract).

These issues are not confined to the writings of an academic posting to a blog but has increasingly appeared at the center of litigation designed to acquire recognition in law for the vast changes in the realities of the relationship between emerging classes of faculty and university administrators. At issue is an effort for courts to reconsider the premise narrative of the university that lay at the foundation of the germinal cases (of a generation ago) which based a conclusion that faculty were managerial employees on an increasingly abandoned premise that the old shared governance system deeply and effectively embedded them within university governance.

A recent case worth noting is University of Southern California v. National Labor Relations Board, No. 17-1149 (D.C. Cir. 2017).  The case represents a challenge by the university to a decision of the National Labor Relations Board that determined that USC's contract faculty were not managerial employees.  This post includes the amicus brief of the American Association of University Professors in that case as well as the AAUP Press Release relating to the case which takes one side of the narrative argument (and points to the legal effects of the changes to the university since 1980).  It also includes the amicus brief of the American Council on Education, an industry group representing university administrations and their boards.

The most interesting parts of both arguments, produced by some of the finest advocates on both sides of the issue, is the way that the arguments highlight the extraordinary transformation of the both the notion of "shared governance" in the university and the context in which it can be exercised.  Both sides exclaims that the other "does not understand shared governance" (AAUP Brief pp. 11-28; ACE Brief pp. 18-27)--the reality is that both understand quite well--but the conclusions to be drawn are as highly contested as is the size of the conceptual divide between traditional and contemporary ways of understanding the university itself. Both sides seek to leverage that reality--the AAUP by suggesting that change has altered legal reality and the ACE by suggesting that the changes do not alter the underlying relationships among faculty and administration.

Yet the case, and the arguments, would have been incomprehensible when the original legal rule was pronounced in 1980.  And the reason has little to do with the understanding of shared governance (and its "mis-understanding;" though that is what all sides hope to keep centered in the judicial proceedings. Rather, and something both sides might downplay, is not that shared governance has changed but that the character of faculty have changed--and that change ought to produce legal consequences (but it also produces substantial challenges to faculty solidarity). And indeed, it might be possible to understand the nature of changes to shared governance not merely as a function of changes in university administration, but also as a function of changes in the composition of faculty.  Faculty who are not protected by tenure and whose contract may be terminated by administrators are in a fundamentally different position with respect to governance than tenured faculty.  The Industry association seeks to make the best case for the continued application of the rule which can apply equally to tenure and non tenured faculty (the difference in the character of the employment relationship would not change the underlying normative principle supporting it); the AAUP argues that the underlying normative principle, as well as context, has now changed so dramatically that the original premise framework just does not work for this new class of faculty. Whatever happens, this will not be the last case in which university stakeholders will seek to bend the law to their own views of the reality of the university in this age of great changes. 

Revoking PhDs: Questions But No Answers Around the Value of Transparency, Robust Research Communities, and the Construction of Culpability for Senior Researchers

It was reported that a "U of Arizona professor’s Ph.D. is withdrawn after her findings on violent video games are questioned. Some wonder why her mentor and co-author, a senior scholar, has not shared the blame." Colleen Flaherty, "Revoking a Doctorate," Inside Higher Education (September 1, 2017). Ms. Flaherty reports:

Ohio State University took the extraordinary step of revoking a graduate’s doctorate last week. Now her future at the University of Arizona, where she is an assistant professor of communication, is unclear. Jodi Whitaker’s problems started in 2015, after scholars in two countries noticed irregularities in the data in her 2012 paper on video games. The study in Communication Research, called “‘Boom, Headshot!’ Effect of Video Game Play and Controller Type on Firing Aim and Accuracy,” found that playing a violent video game improved real-life shooting skills. Initially, it was something of a boon for both Whitaker, then still a graduate student at Ohio State, and her co-author and dissertation committee chair, Brad J. Bushman, the Margaret Hall and Robert Randal Rinehart Chair of Mass Communication there. That’s because Bushman served on President Obama’s committee on gun violence and his research challenges what he calls myths about violence, including that violent media have a trivial effect on aggression.

But Patrick Markey, a professor of psychology at Villanova University -- whose own findings on video games clash with Bushman’s -- soon challenged the paper, as did Malte Elson, a postdoctoral researcher in educational psychology at Ruhr University Bochum in Germany. Together they alerted the Committee of Initial Inquiry at Ohio State to what they called irregularities in some of the variables of the data set. The values of questioned variables could not be confirmed because the original research records were unavailable, according to Communication Research, which in 2016 decided that a retraction was warranted.

Bushman was cleared of wrongdoing by Ohio State, but he agreed to the retraction. He also agreed to the retraction of another paper in which Whitaker was not involved -- one finding that watching violent cartoons inhibits children's learning -- earlier this year, as reported by Retraction Watch. Data on a second 2016 paper by Whitaker and Bushman (on which Bushman was the lead) also have been corrected; that study found that "catharsis beliefs" attract people to violent video games.

But Whitaker, the 2012 paper’s lead author, was found responsible for the errors. And Ohio State’s Board of Trustees voted unanimously last week to revoke her doctorate, granted in 2013.

With the strong caveat that I am not privy to the evidence adduced nor to the proceedings, here are some initial thoughts on potentially important implications that may flow from this altogether sad events:

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).

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. 

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 »

On the Penn State NCAA Sanctions Settlement--What Might it Mean for North Carolina . . . and the NCAA?

(Pix (c) Larry Catá Backer 2015)

This today from Penn State News:

Board of Trustees approves terms of proposed NCAA lawsuit settlement
January 16, 2015

UNIVERSITY PARK, Pa. – By a unanimous vote, the Penn State Board of Trustees today (Jan. 16) approved the terms of a proposed settlement of the lawsuit relating to the Endowment Act. According to the settlement, the July 2012 Consent Decree between Penn State and the NCAA has been dissolved, and all punitive sanctions eliminated.

Under the terms of the new agreement:
$60 million will be dedicated in Pennsylvania to helping children who have experienced child abuse and to further prevent child abuse. Of the $60 million, the Commonwealth will receive $48 million to help provide services to child victims. Penn State will use $12 million to create an endowment that will be a long-term investment in expanding our research, education and public service programs to help eradicate child sexual abuse. All parties agree strongly that caring for victims and providing support for programs that help address the problem of child sexual abuse is of paramount importance.
The compromise restores 112 wins to the Penn State football program.
All other punitive sanctions also have been eliminated.

This post includes the statements of Penn State University's President and the Chair of its Board of Trustees.  Some comments then follow, not on what this means for Penn State--that is fairly obvious.  Instead I focus on the potential consequences of this agreement for the NCAA and its current investigations into scandals at other universities. 

On the Limited Promise of Whistle Blower Protection Statutes for University Employees--Narrow Scope and Traps for the Unwary

 (Pix (c) Larry Catá Backer 2014)

We were recently informed (because the Federal government required such disclosure if for no other reason; e.g. 41 U.S. Code § 4712(d);  Notice of Implementation of Pilot Program for Enhancement of Employee Whistleblower Protections Notice Number: NOT-OD-14-068, March 7, 2014) as follows:

Congress has enacted new whistleblower protections effective July 1, 2013. The enhanced protections apply to any employee of a federal grant recipient such as Penn State who works on a federal grant, subgrant or subcontract. The statute (41 U.S.C. §4712) states that an "employee of a contractor, subcontractor, grantee [or subgrantee] may not be discharged, demoted, or otherwise discriminated against as a reprisal for 'whistleblowing.'" More information (as summarized by the National Institute of Health) can be found at http://grants.nih.gov/grants/guide/notice-files/NOT-OD-14-068.html.

On the verge of exuberance over this new set of protections, I took a moment to carefully consider the scope of this protection and the framework within which it might be asserted.  What I found, as I have found before in other context (e.g., Backer, Larry Catá, The Sarbanes-Oxley Act: Federalizing Norms for Officer, Lawyer and Accountant Behavior. St. Johns Law Review, Vol. 76, pp. 897-952, 2002) is that whistleblower statutes continue to be constructed more as gesture than as a functionally effective set of protections for workers.  This new set of "protections" little different from the pattern already well established in federal law provides the appearance of protection that masks a narrow scope and a set of traps for the unwary.

This post considers the scope of this new protection  for employees of universities who work on a federal grant, subgrant or subcontract and the traps they resent for people who mistakenly believe they "whistleblow" under its protection. It suggests that while this provision serves as a lovely gesture, it provides substantially less robust protection for employees seeking to use its provisions. 

"The Tweeting Professor": A Parable About the Price of Speech Made in the Service of Others

Parables are short tales that help reinforce cultural norms and expectations, and in the process may reveal deeper truths about the characters, the storyteller and the framework within which both story teller and hearer are expected to relate to the materials.  In traditional societies they can serve as powerful teaching tools, which along with rituals and elaborate rules producing a mimicry of established action reinforce and direct cultural sensibilities and produce the basis for understanding and protecting right conduct, thought and action. There is a rich scholarship in parable, especially as relates to Abrahamic religions. (e.g., Gowler, David B., What They are Saying About Parables? (New York: Paulist Press, 2000).

(Pix "Food for Thought" (c) Larry Catá Backer 2013)

Parables are sometimes most powerful when they can be fashioned from out of current events that directly relate to or are drawn from the audience to whom they are directed.   And so it is with academics and academic culture in a world that values speech but which may extract a price for its use when it might be deemed owned by another, in this case the university specifically and the academic community whose legitimacy may be affected.  But it is also a parable that suggests that the highest price of speech is paid by those who choose badly (within current cultural constraints) when they seek to avoid payment.

I offer here a parable of speech in the academy which I might call "The Tweeting Professor".  The Parable is crafted from recent stories written by Adam Martin ("NYU Professor Immediately Regrets Fat-Shaming Potential Students," New York Magazine, June 3, 2013); Nick DeSantis ("Professor Apologizes for Tweeting That Fat Students Won’t Finish Dissertations", Chronicle of Higher Education June 3, 2013); Paul Baskin ("In Reversal, NYU Investigates Professor Who Tweeted on Obese Ph.D. Students" Chronicle of Higher Education June 11, 2013);  and Karen Wentworth, UNM Institutional Review Board Makes Determination on Miller, UNM Today, Jul 1, 2013).

A Critical Endorsement of the Past Chairs Statement Regarding the Freeh Report and NCAA Consent Decree

During the course of the University Faculty Senate Meeting held Tuesday August 28, 2012 (e.g. Faculty Senate August 24 Meeting Agenda) Kim Steiner an eminent former Chair of the University Faculty Senate introduced a  "Statement by a Group of Past Chairs of The Pennsylvania State University Faculty Senate Regarding the Freeh Report, the NCAA Consent Decree, and Their Academic Implications August 28, 2012." On motion made at the end of the meeting, the Senate will consider endorsing this statement at its October 2012 meeting.

 (Pix (c) Larry Catá Backer 2012)

I have given this Statement sustained and serious consideration, analyzing it critically.  There is much in that Statement that is worthy of serious consideration, but there are also important lacunae that weaken the analysis and misdirect its focus. Putting aside questions of the utility of this exercise (e.g. Statement of Senate Chair Made at the Aug 28, 2012 Meeting), I conclude that I will support the motion for Senate endorsement of the Statement at the October 201232 meeting.  This post includes a copy of the Statement and my critical assessment. 

FAQs About the Accreditation of Penn States--The Word From the Middle States Commission on Higher Education

As can be imagined, the Middle States Commission on Higher Education action against the accreditation status of Penn State, a global 50 university, has raised eyebrows and elevated stress.

(Pix (c) Larry Catá Backer 2012)

In order to minimize the inflammatory nature of its action, perhaps, the Middle States Commission on Higher Education has issued a FAQs about their action against Penn State.  This is reproduced below.
Traditional information about the accreditation may be accessed HERE.

In Anticipation of NCAA Sanctions Against Penn State: Asymmetric Process in the Service of Gesture

It appears to remain as true today, as it has in every age, that emotional issues tend to put tremendous pressure on systems built to provide people with an assurance of fair process consistently applied.  The horrendous crimes for which Mr. Sandusky has been convicted is now producing its perhaps equally important and necessary secondary effects--these targeting the institutions that made it possible for Mr. Sandusky to act virtually unimpeded.  

(Pix from Possible Penalties for Penn State, Onward State, July 22, 2012)

On Monday, the NCAA will add to the mix by announcing a set of sanctions against Penn State.  The sanctions decisions, like those of the Paterno statue, come fast on the heels of the Freeh Group Report.  That Report, for reasons unknown, appears to be taken more and more as some of "Truth" that may be unquestioningly accepted, perhaps based on some sort of blind faith in the individuals who produced it, or perhaps as a matter of convenience, and without any sense of a need to test the findings of the Freeh Group Report or wait for the conclusion of judicial or other proceedings where accused or implicated are given the opportunity to respond.  This is a difficult exercise, especially in periods, like this one.  Circumstances appear to call for swift action because of the nature of the crimes committed and its offense against law and moral standards. But the danger has passed, and a rush to judgment merely substitutes one kind of danger for another. The call of emotion is excusable in children; but we are not children.  We each in our own way are expected to serve our university, community and society precisely in those hard cases where the temptation to eviscerate process in the service of emotional release runs deep.  

Yet these are neither ideas nor values that trouble those who are paid to do better at the NCAA.  Its leaders are poised to impose sanctions without even the minimal due process protections of a Committee on Infractions hearing.  Hysteria and strategic calculation are sufficient to overcome duty and principle, it seems.  Sad.  And the satisfaction of the mob appears to be  reward enough.  Sadder still.  

Though they are formally scheduled to release their decision on Monday, by Sunday afternoon, ESPN was reporting leaks of the likely sanctions.  The ESPN report is set out below in relevant part--the emphasis from the original are mine.  What the reader may find most extraordinary is the irony. . . . the case against Penn State's administration in the Freeh Group Report centered on the willingness to cede virtually all authority over athletics to a small, unchecked, and unaccountable group of university leaders. The NCAA appears to be doing exactly the same thing in order to end-run process and race to judgement for reasons unknown.

Reflections on the Verdict in Commonwealth v. Sandusky

President Rodney Erickson has released a  Message from President Rodney Erickson on Sandusky trial verdict, Penn State Live, June 22, 2012, that I referenced in a prior post. The focus of the university has been, as it should, on the victims, the procedural fairness of the investigation and trial, the societal issue of child sexual abuse, and in the wake of the verdict, on making things right.  These are critically important areas of concern that ought to top the university's immediate agenda.  

But these events, and its lessons, also touch on broader themes that ought not to be lost. Speaking for myself, I briefly reflect on some of these broader institutional lessons and challenges that ought, as well, not be forgotten, as the university moves forward.

Sandusky Verdict In--Guilty of 45 of 48 Counts

(Pix from Kevin Johnson, Sandusky convicted on 45 of 48 charges in sex-abuse case, USA Today, June 22, 2012)

"Former Penn State assistant football coach Jerry Sandusky has been found guilty of 45 out of 48 counts of child sexual abuse involving 10 victims." (Kevin Johnson, Sandusky convicted on 45 of 48 charges in sex-abuse case, USA Today, June 22, 2012).

What follows is the statement the university released (Statement From Penn State, ESPN.com,  June 22, 2012).

Without Comment: Ex-Penn State Officials May Face More Charges

The trial of Jerry Sandusky has started.  See Colleen, Jerry Sandusky Trial: The Major Players, ABC News, June 11, 2012. (For Penn State's Statement at the start of trial CLICK HERE).

(Pix of Messrs Curley, Spanier and Schultz 

from Ex-Penn State officials may face more charges, Today--MSNBC, June 11, 2012)

But the attention of public officials and private litigants may now shift to members of the administrative apparatus of the university. This morning, MNS-NBC aired on its Today Show a segment on possible developments that might lead to more scrutiny of and possible charges against Penn State officials.  Reproduced below are the transcript of the Today Show segment and the University's response.