The COVID Wars Continue at Penn State--A Tale of Two Senate Resolutions. . . and the Administration's Counternarrative

 

 

I have been following the sadly patched up disaster that has been the lurching progress toward what passes for policy at Penn State relating to the COVID pandemic (Pandemic and the University: "An Open Letter from Penn State faculty to the Penn State Administration and the Board of Trustees").  Not that any of this could be helped.  All of the actors in this drama have been prisoners (and happily so) of the logic of the positions they occupy since the start of this pandemic, and they frankly know no better than what they are are doing.  But a century from now that will be the epitaph of the first part of this century: here lies homo adminstratus incapable of agency other than to perpetuate the structures of power and culture into which they were willingly thrust. But administrators are not the only university actors trapped within the logic of the structures that they populate.  University faculty also perform to type. That is especially the case for the faculty representatives in its University Senate.  All people of good will--to be sure.  But also all necessarily trapped within the logic of their position and discourses of power and legitimacy which binds each to the other. Faculty also may merit an epitaph of their own: here lies homo complicitus who is trapped by the logic of Esau, famished and willing to sell his birthright to the administrator Jacob for a pot of stew (Gen 25-34).  

The Penn State Administration's choice to privilege the un-vaccinated using the discursive tropes of contemporary anti-discrimination for atmospherics, has produced something of a backlash. That backlash has been strengthened in part because Penn State leadership choices (unlike their usual cautious efforts to fall somewhere hidden in the middle of bench marked decision making) put them somewhere on the right side of the outlier curve. 

That has provided an opening for the University Senate, which to some extent has been formally marginally in the process of developing administratively "sound" policy, within the meaning universe of the university administrative community. The Senate has rushed through that opening.  It has called a special meeting of that body to vote on two resolutions, aptly named Resolution A and Resolution B--offering up of two related versions of a counter narrative, and plan of action, to that marketed by the university administration. 

Resolution A offers a counter approach to the administration's COVID planning for the Fall 20201 Semester. It calls for  an immediate vaccination mandate for eligible Penn State students, faculty, and staff and and demands that, until full vaccination can occur, that the university impose rules for universal mask mandates; twice weekly COVID-19 testing for individuals without proof of vaccination; and adherence to CDC recommendations.  

Resolution B serves the purpose of condemning the current administrative approach. It os based on the obvious--the faculty was cut out of the process of decision making. It then seeks an affirmative vote of NO CONFIDENCE  in the University’s COVID-19 Plan for Fall 2021. That s followed by a more meek request to be included in whatever revised decision making process might be triggered as a result of the vote.

That the university's leadership core takes this serious might be evidenced by a last minute appeal to the faculty in the form of an "open letter" signed by the University's president. It s a marvelous statement of its kind.  At the same time its discursive allegiance to the forms and sensibilities of the administrative milieu evidences both the increasing gap that is now apparent in the way that faculty and administration approach an issue, and as well the differences in the way that risk is valued by those who bear the risk but have no control over risk versus those who control the risk but effectively can avoid bearing the risk. 

The Presidents narrative is detached (though the words are meant to suggest caring, at least form a distance)  and Olympian.  It speaks from above conveying the sense of those burdened with the balancing of factors in a "greater game" of which the productive forces of the university (faculty, staff, buildings, services) play a role. The Senate narrative is risk based as well, but from the perspective of risk bearers the discursive form is more personal and more immediate. The Senate balances risk on their bodies; the administration bases its risk calculus on abstractions--important abstractions to be sure, but bloodless, ledger entries within ideological structures of compliance and accountability regimes.  That remoteness, of course, diminishes the micro risks of those who must bear responsibility for the operation of the ecologies of principles that the administration seeks to advance.  And it ignores the anger of a professional caste once central to the running of the university that increasingly is recast in hyper technical functionaries and transformed into live ingots that serve as one factor in the production of university welfare. 

But decide for yourselves. In the immediate term the issue is simple enough--what and how does the university value most among the factors the university administrators balance, ad whose voices count (and how) in that balancing. 

The text of the two Senate Resolutions. along with the text of the Presidential Open Letter follow.

Pandemic and the University: "An Open Letter from Penn State faculty to the Penn State Administration and the Board of Trustees "

Pix Credit HERE

 

 The COVID-19 Pandemic has brought out the best and worst among key institutional stakeholders.  It has accelerated trends that had been slowly working toward transformations of work, social, political, and cultural environments.  Most importantly COVID-19 brought into sharp focus the oppositions inherent in the organization of society and the way in which societal principles and objectives are privileged, weighed, and balanced against each other.

That balancing of principles, which are assumed to always be aligned, but which more often than not cannot be adequately reconciled, is more sharply drawn when health (individual, economic, and societal health) is affected by the weighing and balancing.  Less equitably, it appears to accelerate a trend  in which control of risk and risk bearing are increasingly detached. In the case of the university it manifests as a shift in the authority to control risk migrating to institutional administrators who bear little risk (for example in the context of health risks brought on by conditions of pandemic) but can impose risk on faculty, students, and staff whose exposure to risk for themselves and their families are essentially out of their hands. 

The Administrators at Penn State University provide a somewhat ordinary example of the sort of balancing that is being undertaken by the institutional governance apparatus of state and state affiliated universities, the way they value health risks that they do not bear, and the resulting allocation of risk and reward within university structures that privilege some actors in ways denied others.

 
Health guidelines



​As of June 28, masks are optional inside University buildings for individuals who are fully vaccinated. Unvaccinated individuals must continue to wear masks indoors at all times. If you want someone to wear a mask when interacting with you in your private office, you can request they do so, but cannot require it. It is important to note that those who are visiting designated health care environments must continue to wear masks indoors and maintain physical distancing regardless of vaccination status.

In individual offices, staff members may post this sign if they wish to request that people entering wear a mask.




Yes, unvaccinated individuals who have been in close contact with someone who is COVID-19 positive or suspected of having COVID-19 must quarantine for 7 to 10 days. They must quarantine for 10 days without testing if no symptoms have been reported during daily monitoring, or after seven days with a negative test on or after day five of quarantine and if they have no symptoms.




No. According to the CDC, fully vaccinated individuals do not have to be tested or quarantine but should monitor themselves for symptoms for 14 days. If symptoms develop, employees should contact their personal health care provider.




Employees can find detailed information and guidance on the Health Guidelines, Contact Tracing, and Quarantine and Isolation pages.




At this time, masking outdoors and physical distancing are not required. Fully vaccinated individuals are not required to wear face masks indoors, however, individuals who are not fully vaccinated are expected to wear face masks inside University buildings. Additionally, all individuals must wear a face mask while using public transportation, in accordance with CDC guidance, and in some additional settings such as when visiting on-campus health care facilities and when conducting in-person research involving human subjects.

Additional information about masking and physical distancing is available on the Health Guidelines page.

Not all schools similarly situated have chosen to balance the needs for operations (and its derivative outcome), the psycho-social imperatives of physical presence, religious convictions, political choices, and health in the peculiar way chosen by Penn State. See, e.g., Indiana University, whose decision to mandate vaccination (with limited exceptions for medical or religious reasons) was recently upheld by the courts).

Faculty have essentially been cut out of the process of policymaking.  They have been free to express their views of course.  And their organs of governance, reduced to rgans of expressions of opinion, have done just that.  But the University, like other administrative organs throughout liberal democratic collectives, like the United States, have chosen to treat this as a matter for which technical expertise is solicited (by invitation) from staff (in this case faculty), but it remains for the "grown-ups" (the administrator class to gather together to discuss and make decisions. This is not unusual post COVID.  But it nicely expresses the transformation of governance and the greater transformation of the university from a collective of professionals to a learning factory with overseers.  

Faculty, however, have not been content to lick their wounds--not at Penn State anyway.  A group calling itself the Faculty Coordinating Committee of the Coalition for a Just University have decided to organize themselves to put pressure on the university apparatus in more public and politically traditional ways.  They have drafted an "Open Letter" addressed to the University Administrative organs calling on the university to:

1. Require vaccinations
2. Continue masking and social distancing
3. Continue to conduct random surveillance testing
4. Maintain improved ventilation standards
5. Institute a more reasonable and flexible teaching and learning policy
6. Improve Penn State's mental healthcare resources

To date the letter has amassed over 650 faculty signatures and almost 600 signatures of students, staff, and others. It is not clear whether the Open Letter will produce any change in Administrative decision making.  I suspect that calculus will tend to underweigh faculty concerns but center values based decisions on the risk of liability or loss caused by assessments of COVID impact, along with the political cost of taking a particular decision (and its impacts on budget negotiations with the legislature.  It may also depend on the ideologies and politics of the Board of Trustees--but that is a black box (a subject for another day). More interesting, though, is the way that the Open Letter itself provides evidence of the way that Faculty shared governance has become something like a historical artifact that is retained for the gesture it represents to a historical period that is now receding fast.  

Note that the issue survives whatever one's position is vaccination policy or mask wearing, or physical presence at the university.  One does not have to be either pro or anti vaccination mandates, or pro or anti masking, or pro or anti physical presence to understand that the effective consequence here, evidenced by the process and impact of decision making, has shifted, perhaps permanently the role of faculty in governance, and certainly, has exposed the way and extent to which faculty is valued (in terms of risk to health, and the health of their families who may be affected) as a function of other objectives, goals, and principles, against which these may be weighed.  And in the process, those who are required to bear the risk, no longer actively involved in controlling it, become an object in the governance of an institution and its institutional value maximizing calculus. Even that is not necessarily a bad thing--the effort to hide this, and to pretend that one still lives and operates in accordance with principles and expectations now abandoned (effectively), though, is a bad thing if only because it suggests the cultivation of misperception.

The Call to Sign follows below along with the text of the Request to sign cover note.



 

The Transformation of University Governance and the Triumph of a Peculiar Ideology of Fiscalization in the American University

 

 

The American Association of University Professor (AAUP) has just announced publication of a set of quite interesting article in the Spring issue of its Academe Magazine..

The spring issue, which will be published in full in May, focuses on the campaign for a New Deal for Higher Education and builds on the work of Scholars for a New Deal for Higher Education, a group founded last year by Jennifer Mittelstadt. Follow the links below or visit https://www.aaup.org/academe to read more about the Scholars for a New Deal and the work of the faculty activists who are mapping out a new vision for the future of higher education.

Of particular interest is the "better late than never" observations of Michael Bérubé and Michael DeCesare in their Column: State of the Profession: Twin Crises. They offer a "blunt assessment as cochairs of the AAUP committee that investigated departures from AAUP-recommended standards of governance at eight institutions." From this they weave a set of observations of trends they deplore that combine the trajectories of fiscal stewardship and protection of health into a potent cocktail spiced by the principles (so current in contemporary administrative ideology) of nimble leadership and of the migration of stewardship and responsibility from a decentralized model built around engagement by university professionals and overseen by its administrators, to one in which the professionalization of administration has itself served as the basis for drawing all authority into the now separable administrative class governing the university. Far too late (the professorate is itself trapped by the logic of its own pretensions as firmly as administrators are trapped in the logic of their own caste)  they have come to realize the extent to which ideologies of governance to which they have been indifferent now serve as a powerful baseline for authenticating and legitimating decisions that effectively reduce faculty to factors in the production of goods (graduates and outside income) who are both fungible and whose employment is a function of institutional profitability as such things are measured by university administrators and driven by their boards. A de-professionalized faculty is one that is vulnerable to attack on its professional prerogatives. And yet over the course of a generation, faculty has done little to resist the incremental gnawing away of both its status and its prerogatives

Still, this lamentation is worth a careful read, if only for a glimpse at the state of affairs in university governance. But the time for lamentation has passed.  And that is the great pity and the great failing of this effort. University stakeholders are not in need of keening; they are in need of the organization of response, or a consensus that response is now impossible if the goal is to preserve the imaginary of an academic life world that is quickly receding into historical fantasy. It is in that context that the issue theme assumes its ironic character.

The Transfiguration of University Faculty Senates in the Shadow of Pandemic

 





 Pix: Catacomb of Saints Marcellinus and Peter on the Via Labicana.

University Faculty Senates in the United States continue to struggle to define their role within universities that increasingly function like large public administrative agencies. This emerging "university new era" governance framework is grounded in the professionalization of an administrator class and the de-professionalization of faculty. That shift has had profound effects both on the governance of the university as an institution, and on the way in which the role of faculty is understood as workers on sometimes enormous (and in some cases enormously wealthy) learning latifundia (some might suggest modern and more benign forms of knowledge encomienda).

Where once faculty were more centered within the governance of the university (and certainly within its colleges and departments), now de-profesisonalized, they are run like administrative agencies by bevies of (former) faculty eager to rise within the administrative state that the university has become. University administrations have become engorged with assistant, associate and special case deans; they have become the sum of departments that now manage virtually every aspect of academic life (1) as an aid to, (2) for the convenience of, and (3) because of the need for specialized administrative skills and attention in connection with, the processing of students through degree programs and the management of faculty. The later, no longer capable of self management because we have now come to believe they lack the skills. . . and certainly the time given their teaching and research obligations in frenetic competition in peer prestige markets on which their internal and external status depends), become objects of management.

And yet, like the institutions of Republican Rome after the establishment of the the Principate (and then the Dominate after the crisis of the 3rd century AD), the university's ancient institutions of shared governance, and the muscle memory of the rituals of an earlier age remain long after their effectiveness has passed into oblivion. Like the Roman Senate during the Principate (after the victory of Augustus Ceasar) University Faculty Senates assumed a consultative and consensus producing role in the years after the start of this century.  Penn State provided a good example of this general evolution, one in which the institutions of the Senate were respected even as its authority was being evacuated in favor of better managed administrative led special committees in which the real business of "shared" (and well managed) governance was being undertaken. 

But the COVID-19 pandemic may well have produced the crisis that may precipitate fairly rapid change along the trajectories described above.  That is, in the shadow of COVID-19 and its threat to the income and function of the university,  the pace and character of changes in the relationship between (de professionalized) faculty and (a rising corps of professional) administrators may move shared governance from the more benign forms of a Principate to those of a crisis entrenched and  much more bureaucratized and hierarchical Dominate.

These are the thoughts that came to mind as, along with other members of the Penn State University Community, I  received this message from the Chair of its University Faculty Senate:

Faculty Senate Newsletter

September 29, 2020

 

The University Faculty Senate will meet remotely on Tuesday, September 29, 2020, at 1:00 p.m. via ZOOM (link below). 

                                                

The Faculty Senate remains deeply committed to representing our faculty and student body during these challenging times. Numerous questions and concerns were raised at our recent plenary meeting on September 15, 2020 that could not be fully addressed due to time constraints. Events have continued to evolve, and we would benefit from continued and open conversation with all members of our community. In that spirit, the meeting will begin with an extensive Forensic to support a conversation about how we can best continue to meet our shared mission of teaching, research, creative activity, service and outreach for the Commonwealth of Pennsylvania across our campuses.   

The Senate will consider One Forensic Report entitled: The State of Penn State.

                                                                                   

Faculty Senate meetings are held via ZOOM. Please refer to the University Faculty Senate website for ZOOM connection instructions.

 

Members of the University community are welcome to attend this meeting.  Any member of the University community not a member of the Senate may request the privilege of the floor on any item of business already before the Senate.  Such a request must be made to the Chair, through the Executive Director, at least five calendar days before the meeting at which the individual wishes to speak. The Senate Agenda will be posted on the Senate website one week prior to each meeting and the Senate Record (minutes) will be posted approximately three weeks following each meeting. 

For information on submitting major, minor, option, or course proposals, view the Guide to Curricular Procedures. View The Senate Curriculum Report.

 

 Beth Seymour
Chair, University Faculty Senate

The message, and the meeting to come, may well illustrate more the changing face of faculty involvement in governance, than it might produce any sort of consensus or action that will have real effect on the way n which the university is governed in this emerging era.  It expresses not just a concern, but also an attempt, to preserve what is left of faculty authority against its erosion in the face of the imperatives of the consequences of crisis that may go to the viability of the ancient institution in contemporary times. It suggests as well, the forms of the rear guard actions that may well characterize the forms of retreat from authority that ay characterize the next several years in the new era of the university and its workers.  The form of the university faculty senate will certainly remain with us for some time to time.  What one makes of it, though, remains an import and open question.

The Senate Forensic document along with the "University Faculty Senate Resolution on Return to Work" follow below.

 

Diversity in Silence: A Look Back To Diversity Reform Now Forgotten at Penn State University

I have not commented on the recent, and potentially quite profoundly transformative, movements to center diversity generally, and the African American experience in particular, in the American University. Penn State University, like many other similarly situated university institutions, has now sought to intensely engage with the issues that have become once again passionately current in the United States.  On 10 June 2020, "Penn State President Eric Barron issued a statement . . . outlining steps the university will take to address instances of racism, bias, and religious intolerance within its community." (President Barron Outlines Penn State’s Actions Against Racism, Hate Speech).

Given the nature of events, and the very short time cohorts of students have an intense engagement with the university, for many this may seem new and long overdue.  For faculty, many of whom have been insulated from events increasingly shunted behind the closed doors of "leadership teams" and the closed cultures of emerging university bureaucratic practices, the extent of university efforts to confront issues of inclusion may well seem somewhat removed fro their lives--and certainly from the center of their shared governance experiences.  

For the ever growing administrative superstructure, and its increasingly distinct and remote operational ideologues, the issue of diversity has been treated as one of many on a large platter of issues , the importance of which might have been measured by the risk it poses.  The reason for that, of course, is that at the heart of emerging ideologies of university governance is the framing principle of risk avoidance, implemented through the application of the secondary principles of prevention, mitigation, and remedy. Every challenge to the university (that is to the stability of the governance of the institution, and the avoidance of threats as those are understood by university administrators) is understood only within the parameters of risk, and the riskiness of choices among prevention, mitigation, or remedial measures. Diversity issues--like campus drinking, the registration system, the allocation of student fees, and the smooth running of dormitories, parking spaces, and events--are conceptualized first as a normative challenge (goal) but one that must be assessed for the risk it poses and the value of adopting policies that focus on prevention, rather tan on mitigation and remedy.  It has been, in that sense, nothing special.

And yet, it would be a mistake to believe that there have not been efforts to change the way that senior officials approached the application of these governance parameters, even within the logic of what they perceive their operational function to be. 

One such effort to bring greater focus on diversity started in January 2013  under my leadership of the Penn State University Faculty Senate when at my invitation students addressed the Penn State University Faculty Senate about the issue. (Diversity Awareness Task Force: Statement to the University Faculty Senate January 29, 2013). Following that intervention a Joint Diversity Awareness Task Force was constituted including elements from the major stakeholders of the University. Its charge included:

· Bring a diverse group of administrators, faculty and students together to work collaboratively to engage in dialogue and provide recommendations to the University Faculty Senate and Administration to enhance diversity awareness in the University Community.
· Thoroughly investigate practices that will be most effective to increase diversity understanding among the student body.
· Provide recommendations to the Faculty Senate Committee charged with reforming the general education curriculum as a whole.

This post chronicles both the achievement of that remarkable committee over the course of several years--and the ultimate marginalization of its work--now so long forgotten that it is not even a memory within the administrative organs of the university, much less among its stakeholders. Those efforts are worth remembering if only as a cautionary take for the current group of individuals and institutional representatives now bent on a similar task. The principal lesson was one that I pointed out in 2014, even before the full set of Joint Diversity Awareness Task Force Reports was produced:

This response provides an excellent illustration of the approach to diversity at many institutions--engagement and oblivion.  This is all the more important because of it collateral result--Marginalization.  Even as the University devotes a tremendous amount of resources to its reconstruction of General Education, even as it focuses substantial public time to experiential learning and other important elements of a public education--the education and practice of diversity is buried and marginalized. . . . The expectations appear simple enough--provide a formally responsive forum for meeting, produce a report well received but avoid robust interconnection to the vital life of the university, and then move on with a sense of satisfaction of having engaged with diversity. (Diversity in Silence--The Joint Diversity Task Force Report at Penn State University Becomes Less Visible).

That chronicling was set out in a series of Reports produced by the JDATF over the course of several years.  Now long forgotten (and effectively inaccessible except by university faculty senators "For agendas or records prior to 2016-2017, please contact the Senate office. Faculty Senators may access Agendas and Records through the Senate Archives.") they are reproduced below.

Shifting the Employment Paradigm in the Shadow of COVID-19: "Open Letter to the Penn State Administration Regarding Plans for the Fall and the Response to COVID-19"

Pix© Larry Catá Backer, Flop, Needlepoint Pillow, Kuntshaus Zurich, displayed at the Museum of the Ohio State University Columbus

Like most universities of its type, Penn State University has been facing a number of substantial challenges  during the course of the initial phases of the COVID-19 pandemic.  Like most universities, like moved its classes online since March 2020, and has effectively closed its physical facilities during the most dangerous period of transmission of the disease. It has also brought most of their students and faculty home and forbidden travel, especially foreign travel, for a long period to come. Like most universities, it is wrestling with the issue of an Autumn term, balancing the needs of safety with the realities of institutional finance (and collaterally, the preservation of the value of traditional face to face instruction and the solidarity achieved by a community of students coming together in shared space).

The closing of borders, the effect of the move to online teaching, the loss of revenue from operations over the summer and related to student services, and the fear of a drop in enrollment for the autumn term has many university high administrators worries.  Many university administration across the nation have been proactive in working through their worry. One of the most worrisome elements, it seems, is the cost of university operations.  And in the context where teaching and teaching services both account for a large portion of revenues and a sizeable portion of expense (without for the moment considering the drain on university resources of ever expanding compliance and other administrative bureaucracies) some high administrators have begun to target teaching resources as an area where pruning--predictive or anticipated pruning, may be undertaken with the greatest benefit to the fiscal integrity of the university (again without taking into account the revenue drain of its burgeoning bureaucracies).

It is in this context, as well, that Penn State University appears to have chosen to modify its relationship with its contract or fixed term faculty.  Having grown the percentage of fixed term faculty as against tenured or tenure line faculty for a generation, on the basis of all sorts of rationales, not the least of which was that fixed term faculty provide the university with flexibility in meeting and changing teaching demand more quickly and efficiently.  Of course, in the process fundamentally changed the character and protections of the teaching element of the university. 

Now the university appears to be seeking to deploy that power of flexibility proactively by changing a key contract term in the employment contracts of its fixed term faculty. More specifically, it has inserted sme language in their contracts: "This appointment can also be terminated on twelve weeks notice in the event of serious budget or enrollment challenges; all of which shall be determined by the university at its sole discretion." Even assuming that one might read some sort of rwasonablness or good faith constraints, the laguage effectively gives the university unfetterd authority to treat their contract faculty as disposable goods--disposable even before it might consider disposing of other things. Yet, the university would remind its fixed term employees, in the nature of the fixed term relationship.  Little solace to employees who until a few weeks ago conted their service, as well as their expectaiton of continuation, in years.

Simultaneously, the universty, like its peer institutions, has also been busy developing procedures, rules, and approaches to the operation of the institution for the Autumn term, none of which involved faculty to any substantial extent.  But that is hardly to be surprising.  The university, like virtually all others, has merely contributed it bit to a national trend that has reduced faculty shared governance to a vestigial form.  Faculty involvement has been bureaucratized--it is increasingly limited to ritualized post hoc consultation, and to the selection of favored symbolically representative faculty on administrative committees where the real governance of the university is undertaken. Within this new constellation of governance, the formal structures of the faculty have all but disappeared. But that has been something the direction of which has been well known even as those who warned of its trajectory were ignored and marginalized. 

Even the faculty now understands these realities.  And so faced with the tremendous challenge of university action with respect to which there has been little direct faculty input that is meaningful, and developed in a process notorious for its behind closed door development, a group of faculty has had to circulate a letter for mass signature as a means of conveying its own perspectives on anticipated actions by the university.  That letter-- Open Letter to the Penn State Administration Regarding Plans for the Fall and the Response to COVID-19--has been posted for signature.  And it has indeed garnered  a number of signatures. It is not clear where, in similar contexts across the nation, the formal faculty representative organization can play an effective role.

The letter, along with links to the original site where it is posted, follows as it appeared on 12 June 2020.  An active engagement with its contents is encouraged, as potentially the only sort of forum left to faculty increasingly cut out of a ritualized process of engagement tightly overseen by administrators  with the power to retaliate against expression they find 'threatening' or 'unpleasant.'

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. 

A Report From the Front Lines of the Transformation of the American University: Jacob Howland, "Storm Clouds Over Tulsa"

In April 2019, Jacob Howland, wrote a blistering analysis of the great institutional transformations that are occurring at the University of Tulsa. This was no ordinary Jeremiad by someone easily dismissed as a failure within the (teaching side) of the academy. Professor Howland is the McFarlin Professor of Philosophy and past Chair of the Department of Philosophy and Religion at the University of Tulsa where he teaches in the Honors Program as well as in philosophy.

The Essay is remarkable for a number of reasons beyond the lamentation about the way in which university programs are being transformed, and the relationship of the university to its athletic and professional programs. Equally interesting to readers ought to be the way in which such transformation has been occurring without the substantial participation of the faculty. That has substantial ramifications. It evidences the continuing transformation of the education side of the university.  First it is no longer necessarily the principle undertaking of an institution--the production of athletic events and professionals readily who might be inserted into higher end portions of the wage labor markets might now be as important, if not more so. It also suggests again that markets rather than knowledge drive the business of education, and that the business of knowledge production is deeply tied to its direct power to generate revenue. While that is well known, the shift from long term to short term calculation  is less well appreciated, though its effects on the way in which American business has been shaped is well known.  Now those birds have come home to roost in the academy.  It also suggests the way that cultures of administration, rather than cultures of knowledge production and dissemination have now come to dominate the operation of the university.  The effects are profound. And apparently in the case of the University of Tulsa, the effects might not be economically viable.

But that opens the real question behind the essay--for whom is the university operated, whose interests does it serve, and to what ends is it run.  One answer may be the trustees and large foundations  who are willing to fund enterprises to please themselves irrespective of the economic (much less academic) consequences? Ironically, while this reduces the role of faculty (and the influence of the academic.side of the house to irrelevance, to a passive object of production), it also reduces administrators to a more servile role (they also perform for their masters). This ultimately provides the most interesting insight of the essay (for me at least)--is it possible that the real transformation of the American academy is not in the shifting of authority from faculty to administrators, but in the transformation of the academy itself from a self-controlled institution, to one in which authority has shifted outward. We know where some of that authority has leaked out--to the state (regulatory authorities can be as fickle and capricious as any patron, and even more politically motivated).  But authority appears also to have leaked to foundations and other actors  whose control of money increasingly shapes the academy form the outside (without preference for political ideology, just financial power politically exercised). Those are some of the ideas that swirled through my head as I read the essay.  But I leave it to readers to make what sense they can from the essay.       

His Essay, Storm Clouds Over Tulsa, was published in City Journal and appeared 17 April 2019.  It is reproduced (without the embedded pictures) below.  The original may be access here.

On the Battlefield of Shared Governance--Maricopa Community College and the Shift from Ideas to Faction in Shared Governance

(Pix © Larry Catá Backer 2019)

Shared governance appears to have acquired a political patina.  And that is unfortunate--especially since the labels that are used to describe combatants tends to veil rather than illuminate the agendas and ideologies of the combatants.  The field of battle, of course, is that cluster of practices and principles we have come to describe as "shared governance." The conventional liberal-conservative divide appears to have formed around the binary--"for" or "against" shared governance. Those binaries infect not merely analysis of the evolution and protection of shared governance, but induce even the most well meaning to clothe themselves in these labels.

More's the pity for the way it tends to shift the focus from the construction and reconstruction (or perhaps dismantling) of shared governance to the more mundane issues around fidelity to political faction and its orthodox expression of "positions" with respect to "hot button" issues. Indeed, the shift from ideas to faction  points to the difficulties of discussing shared governance under current conditions.  Ideological conservatism could as easily embrace a robust defense of traditional shared governance and champion the protection of the continued professionalization of the profession, grounded in the notion of classical ideals around the production and dissemination of knowledge whose economics are driven by (the communally) shared value of of both.  Factional conservatism can adopt a corporatist stance, viewing education as an industry and its professorate as assembly line workers producing objects (graduating students and outside funded research commodities). Conversely liberal factionalism can easily descend into the sort of totalitarian orthodoxy that seeks to impose quite specific catechisms within the academy and views its academics as instruments for the propagation of a specific gospel. Ideological liberalism can easily foreground issues around the community of academics with respect to whom the process of professionalized knowledge production and dissemination might flourish in way that advance a core vision of the arc of progress of both.

There is a complementarity between liberal and conservative factionalism, as well as between ideological liberalism and conservatism.  One cannot help noticing that, over the course of the last generation, the ways in which the key stakeholders in the governance and ideological construction of the university have tended more and more to favor the factional stance and to marginalize (that is to reduce to empty sloganeering) the more nuanced and important debates around the ideology of the university (as opposed, of course, to the ideology of specific bits of knowledge or judgments which now masquerades as institutional ideologies of knowledge).  

It is in this frame of ideological mind that one approaches the AAUP's excellent work in the case of Maricopa Community Colleges (the report of which may be accessed here).  The transformation of the debate about shared governance from its ideology to its politics--and certainly around what passes for Republican Party politics in Arizona ought to be telling (Report: @ "C. Political Aspirations of Board Members as Motivation").

The AAUP Press Release and the text of the Rport (plus its addendum) follows 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. 

From the AUP: Academic Freedom and Tenure: St. Edward’s University (Texas)

Even as the nature of university education change, and its forms and functions along with it, there is sometimes some reassurance from knowing that things never change. But reassurance is only short lived, In the case of university administrators with thin skins and no appetite for criticism, shared governance continues to be increasingly incompatible with governance models that are based on hierarchy whose principal mission is compliance and risk mitigation. It is with that in mind that the AAUP presents yet another casualty in the long slow decline of shared governance and its transformation into something else.

The recently circulated Press Release announces:

Calling general conditions for academic freedom and governance at St. Edward’s University in Austin, Texas, “abysmal,” a report we released today found credible the claims of three faculty members that their criticism of administrative decisions led to actions against them. Two of the faculty members, both tenured, were suddenly fired in their twelfth year of service. The third was not reappointed after her fifth year on the tenure track, ostensibly for financial reasons.

An AAUP investigative committee found that administrators had violated the academic due process rights of all three faculty members. The committee also noted that “fear and demoralization” are widespread among the faculty at the university.

Read the full report here.

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. 

Scandal, Culture Change, and Discipline at USC: The Emerging Roles of Bureaucracies, Faculty, and Litigation in Institutional Risk-Compliance Regimes

Universities, like other large institutions, have been plagued by scandal related to sexual misconduct.  Among the latest institutions facing significant disruption on the basis of an alleged wrongful failure of administrators to prevent or remedy (through for example appropriate working systems of monitoring and mitigation) such sexual misconduct  is the University of Southern California.  USC is now in the midst of the consequences of "a growing scandal over abuse of students by a campus gynecologist, George Tyndall, and other incidents in which the university is perceived to have failed to act on misconduct by powerful officials." (Scott Jaschik, USC President Will Step Down, Inside Higher Education 29 May 2018). 

This post considers the way that such scandals have now acquired their own patterns of response.  It suggests the way that for large institutions, mere reliance on institutional reporting and monitoring systems, even those combined with robust complaint avenues, are rarely sufficient to produce a robust and effective response (See,On the Management of Scandal in the Modern University; Some Lessons and Insights for Times of Crisis; for earlier reflections in other institutions see, e.g., here, here, here, here, here).  Accountability might be far more effective with a strong and well developed system of both internal and external stakeholder action, one that makes it more difficult for senior administrators to seek shelter within their self reflexive managerial cocoons.  For internal action, the protections of tenure academic freedom are essential. For external sanctions, a robust social media and news establishment is essential for communicating complaints to the larger markets in which the university operates and on which it is dependent (made up of alumni, donors, regulators and students). 

In the Spirit of Folly --A Primer for University Faculty Assessment

Academic faculty review-assessment season is once again upon us. This is the time of year when all of the pious recitations about shared governance and the like are bent to the economic (and sometimes strategic) agendas of the university and the unit head. It is a reminder that while governance is shared, power is not. And, of course, where substantial subjective administrative discretion is veiled within what appears to be standards and guidelines, academic reviews serve as a great point in the annual cycle to discipline threats, control conformity, and signal the outer bounds of acceptable behaviors. None of this is new--it is true that pieties around the process have metastasized as the scope of discretion has grown, and that the data driven assessment has made the subjective process appear more "neutral" by shifting the locus of discretion from data to the parameters around which data is gathered and assessed--but the hunger for strengthening the cloak of respectability does appear to have intensified over the last decade.

Academic review now suggests the spirit of folly in its architectural sense: "a building constructed primarily for decoration, but suggesting through its appearance some other purpose, or of such extravagant appearance that it transcends the range of garden ornaments usually associated with the class of buildings to which it belongs." (HERE).  And indeed, the architecture and rituals of review nicely evidence the folly of institutional architecture as it has been emerging recently.  It is in that spirit of folly, then, that I offer a manual for folly in academic review gathered over the years from a wide variety of sources and representing variations of folly from around the world.  These are drawn entirely from stories heard over the years and are fictional in character--any similarities to actual persons and events are wholly unintentional.

Here, then, In Praise of Folly ("An oration, of feigned matter, spoken by Folly in her own person. . . . Prepare therefore to be entertained with a panegyrick, yet not upon Hercules, Solon, or any other grandee, but on myself, that is, upon Folly."). Let the spirit of folly reign!