At the Borderlands of Ethics: Soft Retaliation and Unethical Exercises of Administrative Discretion

(Pix © Larry Catá Backer 2016)

Most universities now have fairly broad policies against retaliation.  In many cases they are tied to the emerging protections for whistle blowing (broadly understood including sometimes harassment, discrimination and sexual misconduct claims or reporting) (e.g., Ohio State, Indiana, Maryland, Rutgers, Chicago (here and here), criticized here, here and here).   Sometimes they are bound up in codes of conduct (see, e.g., here).

But this construct of retaliation protection tends to hide a more pernicious class of retaliation--retaliation that is clothed in the exercise of administrative discretion.  That retaliation is characterized by one principal characteristic--it refers to the exercise of administrative discretion against an individual motivated in whole or in part by personal animus rather than by institutional considerations. The dean who uses rules and discretion as an excuse to punish or otherwise discipline a faculty member who offends, opposes or otherwise fails to do the bidding of a dean is both a well known pattern in the academy and one well tolerated as part of the "rules of the game."  The effect can be pernicious--as evidence from recent actions within the scientific research activities of the US Department of Agriculture suggest (Steve Volk, "Was a USDA Scientist Muzzled Because of His Bee Research,"The Washington Post March 3, 2016)

This post considers some of the more common forms of the exercise of administrative discretion for personal rather than institutional reasons and suggests the possibilities that impunity on such personalized management be curtailed by reference to university ethics codes transparently applied.  

Faculty Assessment in the Shadow of Unconstrained Administrative Discretion--On the Problem of Aspirational Standards and the Arbitrariness Trap

(Pix © Larry Catá Backer 2016)

It has become fashionable within industry across the globe to adopt and embrace any number of hortatory standards.  These are meant to serve as a "message from the top" or to supply the foundation from which the expectations of business behavior--by the institution and its employees--is measured. But in many cases these are not meant as either mandatory or contractually specific requirement.  They are meant to serve to provide tone and color to the operations of an enterprise in distinction to the more specific, and specifically enforceable terms of employment agreements and operational handbooks and policies. 

This move toward standard adoption has been embraced with substantial enthusiasm, it seems, within post secondary educational institutions. One notes the adoption of aspirational standards--applicable to institution as well as to its stakeholders (principally employees but also students)--across a number of different aspects of university operations.  These include ethical standards, values standards, diversity standards, health and wellness standards and the like. 

While one can applaud the embracing of these standards for the sense they give about the values and opinions of enterprise communities, like those in a university, one might also wonder about the effect of these standards.  It is clear that they might be understood as aspirational.  But to the extent that an institution begins to build systems of behavior expectations from them, then the aspirational character of these efforts might be understood to transform into something else.  

Nowhere might this be more troubling than in the transformation of permissive or hortatory standards into factors that might be weighed, in the discretion of administrators, in the course of assessments of employees. This post considers some of the issues that might arise as a consequence and why the university might consider approaching these issues with substantially more care than they appear to be lavishing on it now. I consider two problems--the first is administrative discretion in making aspirational norms mandatory.  The second is administrative discretion in applying those norms to individual assessment. 

Diversity Statements in the Academy--The View From Penn State

(Pix © Larry Catá Backer 2016)

Diversity statements have become an important element in the governance of the university.  In the absence of a societal or legal consensus on norms and values, these statements represent a means of developing a coherent normative or values structure within which the expectations of conduct can be managed in the university. Not all universities have such statements, several prefer Action Plans, Strategic Plans, or incorporation within general university policy (Illinois, Washington). Others have adopted Diversity Statements through their regents (Michigan), or faculty organizations (Indiana) or within their units (Maryland, Northwestern, Minnesota), or from campus units (Minnesota-Duluth) or in administrative units (Rutgers) or in reaction to incidents (Rutgers) or more informally as statements from high officials (Chicago, Nebraska, Michigan State).  Still some universities have begun to frame structure their efforts through or in connection with such statements (e.g., Purdue, Maryland, Iowa, (within their Strategic Plan), Virginia, here, and here)

But the values inherent in Diversity statements have been maturing as well.  Their current expression tells us much about the values structures of universities in the context of its approach to inter-group relations within the university community.  It is worth considering, then, just what values are embedded in the concept of "diversity" and the manner in which it is to be embedded in university culture--and its governance structures.  

Penn State, a large multi-campus research university has just announced its adoption of a university diversity statement--Penn State Statement on Diversity, Equity, and Inclusive Excellence.  This post considers the Diversity Statement in its context and for what it may tell us about the future of such statements within university culture in the United States. What emerges is that, and consistent with approaches at other comparable universities, diversity at Penn State has moved from a focus on historically based racial and ethnic marginalization to a much broader application of the concept.

Backer and Haddad, "Philanthropy and the Character of the Public University" in Facilitating Higher Education Growth Through Fundraising and Philanthropy (Henry C.Alpin, Jr.m Jennie Lavine, Stromy Stark and Adam Hocker, eds., IGI, 2016)

Happy to announce the publication of "Philanthropy and the Character of the Public Research University: The Intersections of Private Giving, Institutional Autonomy, and Shared Governance", which appears in Facilitating Higher Education Growth Through Fundraising and Philanthropy 28-58 (Henry C.Alpin, Jr.m Jennie Lavine, Stromy Stark and Adam Hocker, eds., IGI, 2016).  It was a pleasure working on this with my co-author and former student Nabih Haddad.

The chapter examines the influence of philanthropy on the increasingly contested governance space of the public research university, and against the backdrop of academic integrity and shared governance.  It is done so by situating the analysis specifically on the relationship among  The Charles G. Koch Foundation, Florida State University, and the FSU economics department.   

The abstract follows. 

Loyalty, Obedience, and Cults of Personality in University Administration: Should a Tenured Faculty Member be Terminated Because She is Not Loyal to the Person of the President Even if She Serves the Institution?

It is a commonplace that most enterprises--economic, religious, social or educational--demand a certain basic level of loyalty from their employees.  This "loyalty" is of a substantially different kind than that demanded of directors--who owe a duty to act only in the best interests of the enterprise in their decision making.  As the great scholar of American corporations, Philip Blumberg, noted as long ago as1971, the American corporation has come to be understood as much as a social institution as economic one (e.g. here).  In a similar respect, the American university has also come to be understood as a social institution (with obligations to society and especially its wage labor markets) as an institution with the objective of creating and disseminating knowledge.  

Within that context duties of loyalty and obedience have featured more prominently in the discourse and expectations of institutions, especially of their employees.   But as recent events suggest, this move  has revealed an important issue that must be addressed--and addressed in accordance with American values.  That issue touches on the objects of loyalty and obedience: is an employee expected to serve the institution or is she expected to serve the whim of individuals who happen to serve an office within that institution?

This post considers the issue of employee loyalty, and the erroneous effort by university senior administrators to conflate loyalty to their persons with loyalty to the institution.  It suggests that such a conflation is both erroneous (and a breach of basic academic freedom rules when the issue of loyalty is not accompanied by disobedience) and opens a university board of trustees to charges of breaches of its own fiduciary duty. 

Leading by Example--Ethical Decision Making at Penn State; Guiding Questions and High Level Decision Making at the University

 (Penn State Values; ethical decision making model)

The President of Penn State University has recently and quite publicly announced an embrace of a final version of what is called the Penn State Values. There is no doubt that the entire university community applauds the culmination of what this senior administrator has described as a complex four year progress producing a document, and its values, which, though merely "aspirational in nature" are meant to "guide our actions and decisions as members of the Penn State community".   

The university president encourages everyone "to use and incorporate the Penn State Values in their activities, planning and discussions" for which it has developed toolkits, an ethical decision making model, and a set of guiding questions. The Penn State community is promised examples of the application of these values gleaned from what were called Town Hall meetings and will recognize ethical model citizens from among the university community. 

Most important, perhaps, the university president noted that these Penn State Values now form part of the core of "the recently approved University strategic plan, which is currently being implemented." And plans are in the works to "further integrate" these aspirational values "more fully into University life at all levels." 

This post considers this valuable exercise and considers its application to the working lives of senior leadership.  In a university, like other leading American public universities, in which senior leadership ought to be committed to leading by example in a transparent way that enhances accountability, Penn State values culture might provide a useful mechanism for better decision making at the highest levels of administrative life. 

Benefits May Not Be Accessed!: Penn State and the Transformation of Benefits Policy in the Contemporary American Public University

(Pix © Larry Catá Backer 2016)

To protect systems of benefits, benefits may not be accessed! That forms the core of the operational policy of the contemporary American public university.  The most successful benefit systems are those in which employees do not make claims; the ideal system, is one in which medical costs are shifted from plan to employee. A principal object of contemporary American universities is to socialize its employees into the belief that this premise is necessary and inevitable and that the ideal benefits program is one in which the recipient of the benefit pays its costs. And it is necessary and inevitable as universities transform themselves into insurance companies--adopting both the characteristics and behaviors of the more  forward looking leaders of that field of economic activity.

Penn State  provides a useful example of this national trend  that requires, as a necessary element, "socializing the current state of . . .  medical benefits and setting future direction on plan design and cost sharing."  This Post examines the nature and effects of this trend toward the transformation of benefits--from conception to operation within the contemporary American university.  

Part 1 Penn State Law: The Public Face of Diversity--The Example of Penn State

(Pix © Larry Catá Backer 2016)

Diversity has become an important element of operations at the American University.  It has become a priority for governance at most research universities.

At Penn State diversity has been embedded at the core of the strategic planning of the university on both pragmatic (demographics) and normative (morals) grounds. Among the challenges identified by Penn State in its project of enhancing diversity touches on communication--both to stakeholders nd the wider community (see, e.g., here). is  This post and those that follow will consider the public face of Penn State's diversity efforts.  It will look at the way that Penn State's units have embedded diversity in their communications by looking at diversity on the web sites of Penn State's units.  The purpose is simple--the way a university projects itself provides a good means of understanding how the university sees itself.  In light of the President's commitment, it would be useful to examine the way that diversity appears throughout Penn State.  This post provides a short introduction to the character of that public face from the top of the administrative hierarchy.  In the posts that follow, we will consider how each of Penn State's units projects its own image of its engagement with diversity in light of official and public face of diversity at Penn State.

The object is not just to get a sense of the collective self projection of this important issue an an important an influential university.  It also serves to see the extent to which diversity can be administered in a coherent manner throughout a large and complex institution.  Do all units approach the issue the same way? Do all units share the same approaches to diversity as the central administration suggests they should?  What are the variations in approaches?  These and other related questions will be posed and considered.  Comments, suggestions, and additional insights are welcome as we work through the theory and practice of diversity at major institutions.

This post starts with Penn State Law.

The Table of Contents may be accessed HERE.

Introduction: The Public Face of Diversity--The Example of Penn State

(Pix © Larry Catá Backer 2016)

Diversity has become an important element of operations at the American University.  It has become a priority for governance at most research universities.

At Penn State diversity has been embedded at the core of the strategic planning of the university on both pragmatic (demographics) and normative (morals) grounds:

Building diversity at Penn State isn’t just good for business and environmental richness -- it’s a moral imperative, said President Eric Barron today (March 20) during an in-depth review of the demographics and 2020 census projections for Pennsylvania and the United States.

“It’s our obligation as a public institution of higher education to teach the people in our communities, in our state, in the nation, and increasingly at Penn State, students from around the world,” Barron said in his address to the Board of Trustees.

Diversity/demographics is one of six topics declared by Barron as major talking points of his presidency. Barron presented numerous slides worth of data describing demographic projections for 2020, University-wide demographics for students and faculty/staff as of fall 2014, and snapshots of the demographics in 20 statewide recruitment areas.

 Barron said he sees three imperatives: moral, educational and business. The University has a duty to teach all people, a diverse campus is a richer learning environment, and a welcoming and inclusive campus responding to changing demographics is crucial in attracting students.

“At many universities, diversity is an assigned responsibility,” he said, “when in fact, we won’t be successful unless it is everybody’s job.”

Penn State’s diversity will need to grow if the University is to mirror the racial makeup of Pennsylvania and beyond, according to Barron. (Barron stresses demographics', diversity’s importance in future of Penn State, Penn State News, March 20, 2015)

Among the challenges identified by Penn State in its project of enhancing diversity touches on communication--both to stakeholders and the wider community (see, e.g., here). is  This post and those that follow will consider the public face of Penn State's diversity efforts.  It will look at the way that Penn State's units have embedded diversity in their communications by looking at diversity on the web sites of Penn State's units.  The purpose is simple--the way a university projects itself provides a good means of understanding how the university sees itself.  In light of the President's commitment, it would be useful to examine the way that diversity appears throughout Penn State.  This post provides a short introduction to the character of that public face from the top of the administrative hierarchy.  In the posts that follow, we will consider how each of Penn State's units projects its own image of its engagement with diversity in light of official and public face of diversity at Penn State. 

The object is not just to get a sense of the collective self projection of this important issue an an important an influential university.  It also serves to see the extent to which diversity can be administered in a coherent manner throughout a large and complex institution.  Do all units approach the issue the same way? Do all units share the same approaches to diversity as the central administration suggests they should?  What are the variations in approaches?  These and other related questions will be posed and considered.  Comments, suggestions, and additional insights are welcome as we work through the theory and practice of diversity at major institutions.

Contents

Introduction
Penn State Law 

Breaking New Ground: Emotional Support Animals in American Universities; Is it Time for a Change in Policy at Penn State?

(Pix © Larry Catá Backer 2016)

It would have been quite unremarkable for universities to ban all but a limited number of service dogs from campus only a few years ago. It would have been quite extraordinary for the university to permit animals otherwise. There was a constant tension between students who sought to sneak small pets into dorms, faculty who would bring pets to their offices, and bureaucrats waving policies grounded in their sense of risk assessment and safety (and more likely an easy sense of the limits of propriety).

It is with some interest, then, that these anti-animal policies have come face to face with an increasing sensitivity to the needs of accommodation of people--and to the growing understanding of the critical role of animals in human health and social functioning. But even in the face of these changes, universities have been reluctant to change their own policies, now deeply ingrained. And thus it is only through the threat of litigation--and by the government--that universities now appear to be bending their stubborn unwillingness to embrace new knowledge and apply it to their own operations.

The initial battleground was Kent State University. The object of interdiction were “emotional support dogs.” The field of battle was a courthouse where the issue of university intransigence would be tested against the constraints of federal civil rights law; a civil rights lawsuit was brought by the U.S. Justice Department alleging discrimination against students with psychological disabilities. The result was a settlement through which the university will agree to allow these service animals in student housing at Kent State University, which has settled a civil rights lawsuit brought by the U.S. Justice Department claiming the school discriminated against students with psychological disabilities.

This post includes a recent news account of the action. It then suggests how the Kent State settlement might be a useful basis for reconsidering  university rules on service animals, considering in this context the example of Penn State.