Measures for the Appointment and Management of Foreign Teachers (Draft for Solicitation of Comments) [外籍教师聘任和管理办法（征求意见稿）]

Pix Credit: Precarious times for foreign teachers in China.

The Ministry of Education of the People's Republic of China has distributed for comment （征求意见稿）  Measures for the Appointment and Management of Foreign Teachers [外籍教师聘任和管理办法]. Much of the legislation covers the usual issues in the usual fashion. With respect to these there are issues of efficiency and the connection between objectives and the administrative methods chosen to meet these objectives.  But these issues are little different from those facing an administrative apparatus anywhere. And the legislation represents the end of a process already well underway in 2019 (e.g., Precarious times for foreign teachers in China ("Another reason that authorities are cracking down on foreign teachers is ideological. China has long been wary of foreign influences in education, and in December 2016, Chinese President Xi Jinping reminded education leaders that, “Adherence to the Party’s leadership is essential to the development of higher education in the country”, emphasising the need to “build universities into strongholds that adhere to Party leadership”.")).

And indeed the two sets f provisions that are the most interesting for foreigners are those relating to the legalization of the policy of Part leadership over education. These merit sustained consideration.  The first is Article 5:

Article 5 (Specific Obligations) Foreign teachers shall abide by Chinese laws and regulations, abide by Chinese public order and good customs and professional ethics of teachers, and abide by the principle of separation of education from religion. The educational and teaching activities and contents implemented shall conform to China's educational policies and basic teaching principles. It is required that China’s national sovereignty, security, honor, and social public interests must not be harmed. [第五条 （特定义务）外籍教师应当遵守中国法律法规，遵守中国的公序良俗和教师职业道德，遵守教育与宗教相分离的原则，所实施的教育教学活动和内容应当符合中国的教育方针和教学基本要求，不得损害中国的国家主权、安全、荣誉和社会公共利益。]

The second are Articles 27-32 (Chapter 4 Supervision and Responsibility [第四章 监督与责任]).  Articles 27 and 28 establish an administrative structure for the supervision of the obligations imposed by law on relevant national and local governments. Article 27 requires the establishment of deep cooperation between the science and technology depart and the education departments of the State Council.  The Science and Technology Department is charged with sharing a list of foreign teachers, and the education department is required to deliver to the science and technology department lists of foreign teachers prohibited from employment "in real time." Article 28 charges the education administrative department of the local people’s government, the administrative department of science and technology, the entry-exit management agency of the public security organ, and other relevant departments shall strengthen the daily supervision of the employment of foreign teachers by educational institutions with the daily supervision (日常监管) of foreign teachers for violations of law relating to their hiring and work. 

Articles 29-32  then establish the parameters by which the Chinese Social Credit system is extended to foreign teachers in China. Article 29 requires that assessments relating to the foreign teacher's compliance with law, ethics, and quality of teaching be included in a national foreign teacher comprehensive information service platform.  Good social credit scores will ensure that regulatory hurdles relating to employment will be convenient. Article 30 then lists four key areas of activities that will reduce social credit scoring: (1) Serious academic misconduct; (2) Engaging in paid work in violation of regulations outside the appointed educational institution; (3) Dismissed in violation of the rules and regulations of the employment agency; and (4) Resigning without authorization after the appointment period has not expired [（一）有严重学术不端行为的；（二）在受聘任的教育机构以外违规从事有偿工作的；（三）违反聘任机构规章制度，被解聘的；（四）聘任期未满，擅自离职的。]. Lastly Article 31 lists those actions or activities that will result in dismissal of appointment. The resulting Social Credit score will require that such individuals be placed on a black list, which will make it impossible for educational institutions to hire them [教育机构不得聘任有前款情形的外籍人员担任外籍教师。]. The ten include:  

(1) Words and deeds that damage China's national sovereignty, security, honor, and public interests;
(2) Being held criminally responsible;
(3) Obstructing the implementation of the education policy;
(4) Violating public security management such as taking drugs;
(5) Sexual assault or abuse of minors;
(6) Engaging in religious education or preaching illegally;
(7) Engaging in cult activities;
(8) Sexual harassment of students or other serious violations of China's public order and good customs, teachers' professional ethics and codes of conduct;
(9) Providing false certification information in the process of applying to teach in China;
(10) The total number of untrustworthy records specified in Article 30 of these Measures exceeds 3. [（一）有损害中国国家主权、安全、荣誉和社会公共利益的言行的；（二）被追究刑事责任的；（三）妨碍教育方针贯彻落实的；（四）有吸食毒品等违反治安管理行为的；（五）有性侵害、虐待未成年人行为的；（六）非法从事宗教教育或者传教的；（七）从事邪教活动的；（八）有性骚扰学生或者其他严重违反中国的公序良俗和教师职业道德、行为准则的；（九）在申请来华任教过程中提供虚假证明信息的；（十）本办法第三十条规定的失信记录累计超过3条的。].

 Lastly, Article 32 provides that educational institutions that fail either to ensure the proper operation of the social credit system (by facilitating negative activity) or hire a blacklisted foreign teacher will "be handled by the public security organs of the local people’s government at or above the county level."
 

For foreign faculty from liberal democratic states, the changes require a conscious sensitivity both to supervision, and to the measurement of conduct by reference to values and markers that are not the same as in many of their home states.  This is particularly true with respect to "(1) Words and deeds that damage China's national sovereignty, security, honor, and public interests" [（一）有损害中国国家主权、安全、荣誉和社会公共利益的言行的] and "(3) Obstructing the implementation of the education policy" [（三）违反聘任机构规章制度，被解聘的] if only because they may no way of understanding where the conduct boundaries or expectations are.  In those cases, it will likely fall to educational institutions to closely supervise and guide foreigner teachers in the conduct of their classes. It is also likely that educational institutions that contribute foreign faculty to the black lists will likely find their own social credit scores dangerous lowered, and in the worst cases, may find themselves on a black list as well (likely, at a minimum, prohibited from hiring any foreigners).

None of this, of course, ought to surprise. And in many cases the net result of the provisions will hardly be felt--other than with respect for the need to cultivate a greater sensitivity of the context in which teachers operate.  Still, even when teaching very young children, it will be necessary to be conscious that an offhand remark, or a reference to baseline principles and concepts that are cherished in a home country (and not really thought about as problematic) may be sensitive in the context in which it is heard.  It is the inadvertent act that poses the greatest threat. 

Of course, much of this would be ameliorated if it is possible t understand the analytics that will go into the social credit scoring for foreign teachers, and more importantly, the way that black lists are constructed, and the rules for getting off a black list.  None of that seems to be available currently. In a sense, then, the value of social credit in this case is to provide guidance necessary to adjust conduct.  Thus rather than produce regulatory guidance, authorities might be able to produce a guide to how scoring will be measured (the value of data and its identification) for purposes of Articles 30 and 31.

Moreover, in certain circumstances, the rules may provide substantial challenges for educational institutions and their foreign faculty.  This may be particularly true at the university and graduate levels in those areas that touch on professional education, business and some of the disciplines in the social sciences, especially where the issues touch on necessary aspects of globalization or are connected to foreign and comparative study.  It is likely that substantial regulation and soime waivers  and a waiver system will have to be greater in those respects--but the price will likely also be substantially greater supervision of those activities. As a result, it is possible that except for elite institutions, and those otherwise designated for that purpose, the scope and conduct of teaching by foreigners will change. At a minimum, national and local authorities would do well to provide more specific guidance to avoid a situation where the law itsef serves as a series of traps for the unwary (and those otherwise not guided by savvy educational sponsors).  Otherwise the result will be to reduce the presence and impact of foreign educators in China. In that respect it may be necessary to carefully consider the Communist Party Basic Line respecting "Reform and Opening Up" in the New Era (e.g., "The Party shall implement the strategy for  invigorating China through science and education")

The entire provision in the original Chinese along with a crude English translation follows. Interested individuals and entities  are encouraged to send their comments to the Ministry.

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]).

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 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. 

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. 

Assessment and Learning Outcomes Comes to Law Schools: Some Recent Scholarship

(Pix Nebamun viewing his geese and cattle; British Museum, 2018)

We live in a word of accountability, whose laws are implemented not through the coercive police power of the state but rather by the constant and repetitive process of assessment. That assessment, in turn, constitutes a data driven self reflexive system that both monitors and imposes orthodoxy through the choices made with respect to those data and that analytics on which judgment is rendered and consequences felt.

Faculty have assumed an interesting place within these cultures of monitoring and data driven assessment. In one respect the metrics used for assessment have consequences for their own evaluation; simultaneously, these metrics are at the center of emerging cultures of the assessment of faculty handiwork--the effect of their interactions with students. What could be more neutral than data driven analytics--especially ones whose parameters are chosen by those on whom they are imposed.  Assuming, of course, that there is real choice. And that, increasingly, may not be the case as regulators--whether public or private, increasingly use their authority to constrain and manage choices that can be made respecting the scope of assessment, its objectives and the objects of its analytics. that changes not merely the focus of the assessment-accountability exercise, the its purpose as well.

 

Whatever one thinks of these new approaches to accountability of the role of faculty to disseminate of knowledge to students; it has produced at least one benefit--the expansion of knowledge production to include assessment itself. This is especially the case in the context of legal education. The Winter 2018 issue of the Journal of Legal Education (JLE) takes an in-depth look at the revised ABA standards on assessment and learning outcomes. Links to the articles follow. Each is worth considering carefully.

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. 

Premio Anual “Construir Igualdad" Bases 2018/ Annual CIPDH Award for Inclusive Local Public Policies Conditions 2018

Con el objetivo de fortalecer aspectos considerados claves para la construcción de sociedades más democráticas, el CIPDH ha instituido el premio CONSTRUIR IGUALDAD, orientado a distinguir políticas públicas locales de Latinoamérica y el Caribe que se destaquen o se hayan destacado  en materia de inclusión y  no discriminación. [With the objective of strengthening key aspects for the construction of more democratic societies, the CIPDH has instituted the BUILD EQUALITY award, aimed at highlighting local public policies in Latin America and the Caribbean that stand out or have stood out in terms of inclusion and non-discrimination.] (Premio Construir Igualdad ).

El Centro Internacional para la Promoción de los Derechos Humanos (CIPDH) es el primer Centro de Categoría II de UNESCO en el mundo dedicado a la promoción de los derechos humanos. Establecido en la República Argentina en 2009, funciona como entidad descentralizada en el ámbito del Poder Ejecutivo de la Nación. En pertinencia con su misión basada en los principios de igualdad y no discriminación desde una perspectiva de equidad de género, diversidad e interculturalidad, toma la iniciativa de reconocer políticas públicas de igualdad y no discriminación en la región de América Latina y el Caribe (LAC), a través de la institución del Premio Construir Igualdad. (Premio Anual CIPDH a Políticas Públicas Locales Inclusivas; BASES 2018)

The International Center for the Promotion of Human Rights (CIPDH in its Spanish acronym) is the first Category II Center of UNESCO in the world dedicated to the promotion of human rights. It was established in the Argentine Republic in 2009 and it works as a decentralized body within the Executive Branch of this country. Pursuant to its mission, which is based on the principles of equality and non-discrimination from a gender equality, diversity and interculturality perspective, it gives recognition to public policies of equality and non- discrimination in the Latin American and Caribbean (LAC) region through the creation of the Construir Igualdad (Building Equality) Award. Annual CIPDH Award for Inclusive Local Public Policies CONDITIONS - 2018)

Las postulaciones se recibirán desde el 13 abril hasta el 15 de julio de 2018 a través de nuestra página web: www.cipdh.gov.ar/ construirigualdad.  Para mayor información consultar bases aquí, o comunicarse al correo electrónico: premio@cipdh.gov.ar 

Applications may be submitted from 13 April until 15 July 2018 through the dedicated web page: www.cipdh.gov.ar/ construirigualdad.  For more information please consult here: bases aquí, or otherwise email queries at: premio@cipdh.gov.ar 

Formulario para postulación

Bases y condiciones de participación

Terms and conditions of participation

Consultas al mail: premio@cipdh.gov.ar

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). 

The Prissy University and Academic Naughty Words--The AAUP Files an Amicus Brief in Buchanan v. Alexander NO. 3:16 - CV - 41 (5th Cir. on appeal)

(Alex Morey, "Teresa Buchanan Uncensored: How an Innovative Educator Created Top Teachers and Got Fired for It, Fire," Jan. 22, 2016 )

“I got fired for what they called ‘sexual harassment,’” Buchanan said of her 2015 termination, but there were no allegations she “harassed” anyone, sexually or otherwise. Rather, LSU took action because of some of the language Buchanan used in course instruction with her adult students. “Everything that they accused me of had to do with things that I had said as part of my teaching methods,” said Buchanan, noting that no student ever accused her of sexually harassing them. Rather, her approach was designed to enable new teachers cope with teaching in the real world, and doing so at some times involved the use of harsh language.  (Alex Morey, "Teresa Buchanan Uncensored: How an Innovative Educator Created Top Teachers and Got Fired for It, Fire," Jan. 22, 2016 )

The modern university has tended to become a safe space--but not in the way that term is commonly understood.  The safety of the university space is ensured through emerging programs of compliance driven in turn by the socialization of a riskless environment.  And cultures of risk negating behaviors include not merely forbidding hiking clubs to hike (here) or researchers to explore (here) but it seems it now also includes constraining teaching and teaching innovation through the broadened use of social control mechanisms, including, in most interesting ways, the otherwise important and necessary  regulatory architecture for the suppression of sex harassment on campus.   Increasingly, this policing of risk, in the form of compliance, has begun to affect the shape and scope of tenure and academic freedom (here). 

It is at the intersection of these trends that one finds Teresa Buchanan, a faculty member at LSU who was terminated after the university determined that her teaching methods constituted harassment ("LSU said in a statement released Thursday through spokesman Ernie Ballard that the university is confident the action it took against Buchanan was appropriate. “We take our responsibility to protect students from abusive behavior very seriously, and we will vigorously defend our students’ rights to a harassment-free educational environment,” the statement added." here). And yet it was those very methods that appeared to have made her teaching a success judged by the standards of the university. An interesting conundrum appears as a consequence, one situated at the intersection of ancient values and now apparently of zero sum dignity considerations. 

This month [June 2015], Louisiana State University fired—outright fired—a tenured professor of education, Teresa Buchanan, ostensibly for creating a “hostile work environment” via sexual harassment. Her infraction? Allowing profanities to pass from her tenured lips, and unleashing a single ill-advised bon mot about sexual intercourse. . . . For all this, after an 11-hour hearing, a committee of Buchanan’s peers concluded that she be officially censured (which is not the same as “censored,” except in this case it is), and never use “potentially offensive language” in the classroom again. But the LSU administration found that already-Draconian punishment insufficient. Buchanan actually got fired. (Rebecca Shuman, "Academia’s P.C. Brigade Has Started Policing the F-Word. That’s Taking It Too Effing Far," Slate June 2015)

The LSU Faculty Senate condemned the action (here for the resolution of the LSU Senate seeking the censure of senior administrators and the reversal of the decision). The AAUP censured LSU (here). Buchanan sued (complaint here) and lost in the lower courts (see here). To the delight of the LSU Administration the case was dismissed in January 2018 (report here). The case is currently on appeal before the 5th U.S. Circuit Court of Appeals.

This post includes links to the brief filed by AAUP in support of Professor Buchanan's appeal. The issues touch on a core area of transformation of the university and its relationship both to the production of knowledge and toward its producers within a regulatory and institutional environment that tends to prefer performance to the average and a homogenized product that can be sold without substantial risk or pain.  One can't blame the university--they believe they are in the business of producing individuals qualified for insertion into wage labor markets. Yet, the university might still be condemned for the choices that led them to those beliefs and practices.  Teaching professionals also believe they are engaged in producing individuals better suited to live lives that maximize their value to society and to the student. To that end a bit of experimentation and risk taking may be necessary.  Where one draws the lines is now one of the more important issue framing the way in whcih one understands tenure and academic freedom in the contemporary university.

Are Risk Algorithms the New Leaders of the 21st Century American University?: The Riskless University and the Veiling of Discretion

Mockery is the sincerest form of criticism. And there was mockery aplenty directed toward the leaders of Penn State University.  And that leadership now appears to have moved from the office of its titular administrative heads to another place, that is from the individuals designated as the lead officers of the university to the risk and compliance algorithms of the university (and the individuals who tend them), which now appear to have assume the highest authority at the university. That, at least, is what we appear to be told in the way in which some decisions are now made at American universities.  

This should come as no surprise; nor is the issue unique to any particular university.  As universities shift to a corporate model, and as the authority over education and student programs shifts from faculties and departments to central administration and non-teaching administrators, it should come as no surprise that cultures of risk aversion in internal governance should move to the center of the educational mission of the university. What is more interesting, though is that this shift is not merely about moving from one set of individuals to another set--distinguished by experience and their relationship to the actual work of education (rather than in the management of human resources in institutional settings).  Rather it is about the shift in governance from people driven cultures of administration to data driven cultures in which administrative discretion is not exercised (and abused) by individuals, but rather built into the algorithms that now serve to mask the exercise of discretion within the more neutral sounding relationships of data organized into relational.  

The recent decisions by the leadership algorithms of Penn State (not of course by those administrators who serve those decision makers) to disband three ancient student clubs because their activities were too dangerous  provide a nice but generalized example of the trend that affects all universities. In the process, the necessity and character of shared governance, of consultation, and of the role of human beings in the administration of the university  has changed substantially as well. This ought to be a matter of general concern to those who think about the trajectories of university (and more generally of institutional governance).

Hollowing Out Governance--Thoughts on the Emerging Structures of Governance at the Unit Level: Bureaucratization, Information Asymmetries and Control

(Px © Larry Catá Backer 2018)

One of the most interesting trends of the last decade or so has been the way in which the edifice of robust shared governance has been carved out.  What was once a structure vibrant with engagement (although always to some extent asymmetrical) now appears as magnificent as before, though hollowed out of any real content. 

One gets  areal sense of this not at the university level--where the grand strategies of bureaucratization have already become a normal element of operation, whose premises appear unremarkable even to those most deeply and adversely affected by them.  Rather it appears in its most acute forms in the operation of sub-units of the university--colleges and large departments--whose governance structures remain outwardly a shining beacon of shared effort, but which have effectively been hollowed out. 

This post includes some thoughts on the nature of that process of hollowing out and its consequences.  A future post considers the effects. The view is pessimistic; it is not clear that the antique model on which these structures once operated well can be saved except as echoes of themselves now most useful as a veil behind which real power is exercised through increasingly bureaucratized administrative apparatus with no real connection to faculty other than to understand them as factors in the production data useful to the assessment machinery of the university as a whole.  Yet what emerges as well is the certain knowledge that faculties will adjust to changing conditions, at least in order to survive.  And they will thrive, if only by changing the meaning and methods of that term. Still, it is worth chronically the transformation of a governance order that once was fully embraced by a dynamic culture and that now is quickly losing even status as a memory. Still, there may be something distasteful in using antique terms, rich in history and practice, to describe the new realities to which they have little functional connection.

Disciplining Orthodoxy in the Neo Liberal Academy: What Amy Wax and George Ciccariello-Maher Can Teach Us About the State of the Market-Place of Ideas in the Academy

(Pix  Larry Catá Backer 2018)

I recent Wall Street Journal essay authored by Professor Amy Wax noted

There is a lot of abstract talk these days on American college campuses about free speech and the values of free inquiry, with lip service paid to expansive notions of free expression and the marketplace of ideas. What I’ve learned . . . is that most of this talk is not worth much. It is only when people are confronted with speech they don’t like that we see whether these abstractions are real to them. (What Can’t Be Debated on Campus)

Professor Wax, of course, was writing about what she had learned in the wake of the publication of an essay she authored with Professor Larry Alexander (“Paying the Price for the Breakdown of the Country’s Bourgeois Culture”) which also lamented the state of affairs in academia that this aftermath reveals. This essay resonated with an earlier piece of reporting about the resignation of Professor Ciccariello-Maher from Drexel University,  noting that "Staying at Drexel in the eye of this storm has become detrimental to my own writing, speaking, and organizing." (here).

This got me thinking more generally about the way that academics are embedded in the production of knowledge and in their role as guardians of authority and legitimacy in . It is always interesting to see how the marketplace of ideas is being managed by its guardians.  It is even more interesting to see exposed its disciplinary character where orthodoxies clash for dominance within the idea factories that the university appears to have become. More interesting still has been the way that the academy has overtaken the Church and other norm producing institutions as the priesthood for those basic principles (not the premises underlying them to be sure--those are rarely debated) for the orderly management of the institutions of state, of society and of good order and proper thinking.    

As Professors Wax and Ciccariello-Maher might have inadvertently noted, Philadelphia, once the cradle of the core principles on which this Republic was founded centuries ago, may once again appear to serve as cradle, this time of a "New Era" ideological order, one which, ironically enough, is grounded on the alignment of core global market principles with the development and management of idea sets deemed suitable for mass consumption by ordinary people and authoritative enough for use in justifying economic, political, social and religious activity buy those in control of such institutions. One gets a sense of this new markets based working style for speech by considering the course of academic factional fighting involving quite distinct ideological-political academic camps.

Brief thoughts on this theme follows. The object is not to weigh in on the value or merits of whatever ideas have been causing contrioversy (and job related troubles) for faculty. There are more than enough of my colleagues eager for that job.  Rather the object is to think a little more deeply about the structures of managing knowledge and the communities that produce this commodity that appear to be giving form to and providing the rules of engagement for this important sector of production. One has already seen some of the realignments in the field of political speech by institutions (e.g., here).  One now sees emerging the bones of the new rules of production in the academic sector.
 

Flora Sapio: "Thoughts on the Globalized University and the Logic of the Nation-State as an Ideal Form"

(By Laurentius de Voltolina - The Yorck Project: 10.000 Meisterwerke der Malerei. DVD-ROM, 2002. ISBN 3936122202. Distributed by DIRECTMEDIA Publishing GmbH., Public Domain, https://commons.wikimedia.org/w/index.php?curid=160060)

In The Globalization of University Education and Interference in the Domestic Social and Political Orders of States: Considering Chinese and Australian Approaches, I explored some of the political ramifications  in China and Australia relating in large measure to the management and use of higher education and the projection of ideologies of knowledge and to control of interpretation abroad. Some reference was made to Chinese efforts and to Australia's National Security Legislation Amendment (Espionage and Foreign Interference (Bill 2017). I suggested the way that these sorts of engagements "move quickly, then, from a "thing" (knowledge and learning) to values, interpretation, management and ideology.  We move from the collection and deployment of data bits to (1) power (who determines what may be learned; and what is taboo),  and (2) form (what may be learned; the form does this knowledge take)."

Flora Sapio has been kind enough to offer further reflections on the themes raised.  Her essay, Scattered Thoughts on the Globalized University and the Logic of the Nation-State as an Ideal Form, follows below.

The Globalization of University Education and Interference in the Domestic Social and Political Orders of States: Considering Chinese and Australian Approaches

(By Laurentius de Voltolina - The Yorck Project: 10.000 Meisterwerke der Malerei. DVD-ROM, 2002. ISBN 3936122202. Distributed by DIRECTMEDIA Publishing GmbH., Public Domain, https://commons.wikimedia.org/w/index.php?curid=160060)

Globalization happily came to the university with the establishment of strong globalist principles at the end of the 20th Century. But the "Globalization Revolution" (like the Marxist Revolution that preceded it by a century) did not immediately result in the withering away of the state. That has produced a contradiction and a controversy, generally for the advancement of a coherent global system of norms and more specifically for the evolution of education. The contradiction arises because global values might at times conflict with traditional and national customs, norms and ways of seeing (explaining) the world in a context in which the state must effectively contradict itself in the training of its youth. The controversy arises from the use of the avenues of globalized education as an avenue for the extraterritorial projection of the education vision/mission of a state outbound into other states. Thus education globalization can serve to develop its own values consonant with the developing of norms, mores and outlooks at the international public and private spheres, it can be used to displace, challenge or develop national and traditional ways of understanding and explaining the world on which national societies are ordered, and it serves as a means to project national values outward.  Each has manifested itself simultaneously in the operation of university education systems globally. 

But now these three trends are beginning to have political effects.  This post briefly considers the glimmerings of those effects in China, and then considers the way that Australia is now contemplating regulation grounded in the protection of its sovereignty against foreign manipulation. These suggest the contradictions between a growing sentiment at international levels that education is an essential tool for managing the substantial interplay between the construction of law-based legitimacy and the control and management of the substance, and mechanisms for the development, of social and cultural norms (2017 Report of the Special Rapporteur (A/72/523), ¶ 92), the use by states of education to perpetuate their own customs, traditions and values, and the use of globalization by states to project their national values abroad through education projects. 

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. 

From the AAUP: Resources Against Targeted Online Harassment

The American Association of University Professors (AAUP) has recently considered the wave of activity touching on the social media and online interactions of faculty with other stakeholders both within the public sphere and in the university itself. 

Over the last year, targeted online harassment of faculty has emerged as a significant threat to academic freedom. Fueled by websites such as Professor Watchlist, Campus Reform, and College Fix, campaigns of threats and harassment are directed against faculty members for what they are reported to have said in the classroom or posted on social media. (here)

AAUP has developed materials that speak to this targeting of faculty by those who may disagree with faculty views,writings or other work.   To that end it has developed an online Case Letters from the AAUP:A look at four of the recent harassment cases where the AAUP has intervened to protect academic freedom.

This post includes links to AAUP resources for faculty who believe they may be the target of harassment set out in a press release from the AAUP, which follows.  Also below the AAUP's one page "What You Can Do About Online Targeted Harassment." The AAUP is also interested especially in assaults against faculty on the cntemporary political left.  Its latest edition of Academe includes several articles that provide useful insights whatever the political source of attack.

Higher Education Trends for 2018: Relfections on " Saddle Up: 7 Trends Coming in 2018" Plus Six of My Own

(Pix © Larry Catá Backer 2018 ("The Chariot" Visconti Tarot))

It has become something of a ritual for  people to engage in prediction--what I call the oracular function of influence or drivers--in virtually all sectors of production, including the higher education industry.   Prediction serves a variety of functions--it draws attention to specific issues; it helps order these issues into hierarchies of importance; it helps to frame the narrative, that is the way in which such issues are understood and discussed; it provides a window on the issues that those in control of the affected institutions are worried about--it reveals institutional fears;  and of course it enhances position of those in the business of prediction within the webs of influence in the sectors in which they are embedded (or through which they are trying to make a living). 

Julie A. Peterson and Lisa M. Rudgers (co-founders of Peterson Rudgers Group, a consulting firm focused on higher education strategy, leadership and brand) recently considered a set of important trends in the higher education business for 2018--"Saddle Up: 7 Trends Coming in 2018," Inside Higher Education (2 Jan. 2018). This complemented their oracular efforts of 2017 (trends coming for 2017).  Their predictions are worth considering carefully. They hit the mark in several important ways: (1) identification of key issues that university officials will likely confront; (2) the way in which such official will likely approach the issues and their "resolution"; and (3) the narrative around the issues from out of which an understanding of how to think about these issues are developed.  Identification, response, narrative control are the three key elements that will define  the administrative "to do" list and control the orthodox way of understanding, thinking about and speaking to those issues. 

This post briefly considers the seven issue identified by Peterson and Rudgers and then offers additional trends that will have a high impact on the education business in 2018.