Retaliation in the Bureaucratic University--the Uneasy Relationship Between Administrative Disciplinary Discretion and Protection Against Unethical or Strategic Retaliation

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.

The AAUP Will Now Investigate the Mass Terminations at Vermont Law School

(Pix © Larry Catá Backer 2016)

Some time ago I wrote about the implications of the mass terminations at Vermont Law School (Thoughts on Mass Tenure Revocation at Vermont Law School in the Shadow of the Market and Beyond Shared Governance). For that post, I offered

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. 

Like most scandals of its kind, the scandal appeared to have a very short half life.  It was just another marker on the road to the unwinding of the American university, and its re-constitution as a learning factory within which administrators could preside over a  large factory, not so much producing knowledge--as disseminating enough of it so that its objects might be successfully inserted in appropriate slots in the American wage labor markets. To that end, tenure is an impediment--a marker of a quite different and disappearing way of life that can no longer be justified within the emerging business model of the contemporary university.  

That business model, in turn, is increasingly a function of quite straightforward quantitative markers. These were once proxies for quality; they have now become the incarnation of the quality they were meant to measure. These proxies now tell the tale of the contemporary university, not just in the measure of its production, but also in its dissemination of knowledge and in the "results" that dissemination produces for its consumers.  The value of knowledge dissemination is measured the momentary connection between the knowledge consumer and the objective for which consumption is undertaken--employment. Value is measured over time, with particular emphasis on the value of an initial insertion into wage labor markets.  Value itself is measurable in money; it is measured in the present value of anticipated earning, and in rates of return to the university--alumni donations, and the value of networks through which future students may be successfully inserted in wage labor markets, for example. The value of the quality of earning is also measured by proxy--through a detailed classifications of the status of the employment which itself serves as proxies for the value of dissemination programs. 

The value of knowledge production is measured by dollars. It's impact is now understood as a species of "clickbait," the value of which is to enhance the clickable potential of that which follows, which relentless follows, with regard only to time. For if time is now money, then the efficient use of time is measured by the artifacts, by the measurable things, with which it may be filled--graduation rates, bar passage rates, employment rates, citation rates, production rates, grant award rates, invitation rates, mention rates, collaboration rates. Quality has become its proxy precisely because it is the proxy that is valued. And in this inversion emerges the new business model of the university.  The inevitable consequence will be a parade of variations on the theme so scandalously elaborated in Vermont.

Now the AAUP has announced that it will investigate this action at Vermont Law School. It is necessary in the way that rear guard action is necessary slow the speed of transformation. And to be sure, such transformation will affect those very few institutions designated as the nurseries of power. And the forms of production will remain vibrant, as the producers of knowledge--ever sensitive to incentive and market forces--will adjust the quality of their production to suit the times. That is as it should be; but to that end, the model grounded in tenure (and its protections) will become increasingly irrelevant, except at the margins. Still, long after it will have effectively ceased to serve much of a function, its mythology will continue to inspire those who will be recruited into the learning factories that are now emerging.  Fading institutions retain their form long after its substance has vanished.  

The announcement follows.   We should all look forward to its results. 

Gender on Campus--New Essays From Academe Magazine

My friends at the American Association of University Professors (AAUP) have just released the latest issue of their signature magazine--Academe.  There are some very interesting essays worth reading.  The specific focus for this issue is gender in the academy, and the conceptual context is intersectionality analysis (my recent take here on intersectionality analysis).

Here is what they had to say about the issue:

This issue of Academe uses the feminist concept of intersectionality to consider gender on campus in relation to race, class, and other categories that shape our understanding of higher education. Contributors reframe problems such as sexual violence, declining access to public education, the vulnerability of contingent faculty, and the exploitation of graduate student labor through the lens of intersectional solidarity.

The links to the features follow.

Without Comment: Judge Grants Mike McQueary's lawyers $1.7 million; had awarded McQueary nearly $5 million in November

(Pix credit HERE)

There is little need for comment here. . . . other than to remind people that sometimes the most important morality plays tend to unfold at the margins of larger events. And there is a great moral here, and perhaps substantial fodder for considering ethics over passion within university administrations, when large institutions facing events that pose substantial challenges.

On the Front Lines in the War on Tenure: Wayne State and the Changing Dynamics of Tenure in Knowledge Factories

(Pix © Larry Catá Backer 2017)

When universities loudly proclaim a desire to revoke tenure en masse, both the cat and the proclamation (as theatre covering motives and agendas) ought to be the subject of some consideration.  That was what came to mind as I read the recent quite public efforts of Wayne State University to shed a large number of its medical school faculty. "In a move rarely seen in academia, Wayne State University is trying to fire multiple faculty members depicted as abusing their tenure by doing as little work as possible" (here). Of course the rationale is absurd but in a way that reflects the disconnect between reality and administrators: had these faculty really done as little work as possible then it would not have been an abuse of tenure--the abuse comes when they work less than the minimum expected.  Of course the true of phrase might merely be bad writing. I suspect the writing is true, but the motives it exposes are not--that what it reveals is the effort to invert the standards of tenure to capture greater productivity to the university without any corresponding payment. 

This post considers the recent move by Wayne State to remove a large number of its tenured medical school faculty for non or under productivity in light of the two motives that may underlie both the move and the consequential weakening of tenure: (1) money and (2) labor flexibility.

Abuse of Discretion at the University: A Construction Built One Act at a Time

(Pix © Larry Catá Backer 2017)

I have been writing about the transformation of the scope and functions of middle level administrators at the university--either public or private (here, here, here, here).  I have been suggesting that the symptom that is much in evidence--the emergence of cultures of soft retaliation, personally directed but not in violation of the rules under that empower administrative action--hides its cause, the rapidly expanding scope of administrative discretion within ever more complex regulatory structures (here, here, here, here, here).  As these regulatory structures move from rules based to principles based structure--from commands to conditions of service (here, here, here, here)--the administrator charged it is operation becomes the receptacle of an increasing amount of discretion.  This discretion may be exercised in the administration of a unit with impunity--that is it may be exercised within a broad, and increasingly unreviewable, discretion that falls well within the scope of the authority with which the administrator has come to be vested.

This emerging system of university governance, then, is founded on two great foundations.  The first is the legalization of conduct within the university.  All conduct is meant to be subject to rules and the rule systems are designed to be opaque.  Like the most arcane regulatory structures of the public administrative state, the volume of regulation within the university will be fractured (divided into a large number of distinct categories) and will be memorialized in a language increasingly open only to specialists.  In the public sphere that describes the relationship between lawyer, judge and law; within the university that describes the relationship between the administrator and the university's regulations. The second is the shift of authority for decision making and rule interpretation to a class of administrators through which the university may manage those who are necessary for its operation. This produces the construction of regulatory governance that vests interpretive discretion and the power to apply the rule solely in the hands of a hierarchically arranged administrative structure, in which each level is responsible only to itself and protected by a regulatory structure that is meant to protect the integrity of the system.

The resulting practices, perhaps some abusive, have not been well documented precisely because the framework within which they are committed have remained obscure.  Yet that documentation ought to be commenced, and the stories that suggest the mechanics and habits of discretion--its use and abuse within the university--ought to be told.  With this post I will try to give form to the many ways in which discretion may be exercised and abused.  I will leave it to the reader to determine the extent of abuse, but will call on others to share stories that may add to our construction of the actual operation of the discretionary administrative university of this century. All stories will be stripped of identifying information to serve as the faceless indictment of a practice that has until now been able to thrive in the shadows protected by an ignorance of the methodologies and tactics of the modern university.