Sexual Assault at the American Law Institute (ALI)--Intensified Controversy Over the Criminalization of Sexual Contact in the Proposed Revision of the Model Penal Code

(Pix © Larry Catá Backer 2015)

In 2012, the American Law Institute (in which I am a member), agreed to launch a revision of its famous and quite influential Model Penal Code to focus specifically on rising issues of "sexual assault and related offenses." The project It was acknowledged at the time that the issue of the decriminalization of certain conduct around sexual activity "deals with some of the most controversial matters on the current public agenda." (Richard L. Revesz, Director ALI in Forward ALI Model Penal Code: Sexual Assault and Related Offenses (Tent. Draft No. 2 (April 15, 20916). The project has been overseen by its reporter, Stephen J. Schulhofer and its associate reporter, Erin E. Murphy, both of NYU Law School. But it has been highly controversial as I reported last year (see, Sexual Assualt at the American Law Institute--Controversy Over the Criminalization of Sexual Contact in the Proposed Revision of the Model Penal Code).

The controversy is well evidenced by the history of this project before the ALI. In 2013, a draft on procedural and evidentiary principles applicable to the sexual assault provisions (¶ 213 of the Model Penal Code) and on collateral consequences of conviction was presented to ALI for discussion but no vote. For the 2014 ALI meeting, a tentative draft containing substantive material for discussion and an evidentiary section (proposed revision ¶ 213.7) for approval was submitted but no vote was taken. Again, for the 2015 meeting a draft on substantive and evidentiary material was presented for discussion but no vote. For its 2016 meeting, the ALI is asked to consider for approval two key provisions: ¶ 213.0(3) (definition of consent) and ¶ 213.2 (sexual penetration without consent).

Both proposals have produced some significant opposition--both to the specifics, and generally to the approach taken on the spirit of the revisions of Section 213 in its entirety. This post briefly discusses the context in which this highly controversial project is going forward and includes (1) National Association of Criminal Defense Lawyers, Memo Comments on Preliminary Draft No. 6, and (2) a two Memos (dated April 4, 2016 and May 12, 2016), signed by a number of ALI Members summarizing concerns about Draft No. 6 Revisions to the Sexual Assault Provisions of the Model penal Code.

This is a discussion that is quite relevant to the university.  It suggests that the federal government's efforts to legislate new forms of criminalization through its administrative powers under Title IX may indeed be subject to challenge.  It also suggests the extent to which the conversation about sexual mores--whether in the context of criminalizing behaviors or changing cultural norms--is far more complex that than the federal regulators would have it.  This suggests some caution for universities who seek governmental approval by all to quick compliance with standards that themselves may be controversial.

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The Consequences of Power/Responsibility Asymmetries: Administrative Power and Faculty Responsibility at the College of Saint Rose

As universities come under greater financial pressure, as the function and role of universities change, university administrations are showing themselves sometimes unequal to the task of responding to these challenges in an ethical and orderly way. 

It is easy to be a highly paid administrator during good times.  It is tempting to embrace the increasingly separate cultures of administrations during these good times.  The logic of administration at the contemporary university increasingly sees administrators as a privileges class with obligations to manage their resources, and the factors in the production of their "product".  These resource management cultures increasingly dehumanize and objectify labor--and especially the expert professional labor of faculty.

It comes as no surprise, then, that in the face of challenge, administrators seek to preserve their privileged position and to export their mismanagement--without any accountability for their decisions--onto the "factors" in the production of "product."  That process of redirecting responsibility is particularly ironic as it also serves as the culminating point of a process in which  administrations acquire all responsibility for decision making at the university but insist that all responsibility for the consequences of operation fall to the faculty.  The consequences are perverse: administration retains an increasing monopoly on decision making, but faculty increasingly bear the burden of accountability for these decisions.

It is this pattern--this perversity of accountability--that marks university administrative decision making in many institutions today.  It is in this light that one might consider the recent evaluation of the actions of administration in the College of Saint Rose in New York, which has been the object of an investigation by the Association of American University Professor (AAUP).  The press release and links to the report follow.

Diversity at Penn State: Reports of the Joint Diversity Awareness Task Force--Moving Forward Embedding Divesity Policy--Advisory/Consultative Report

(Pix © Larry Catá Backer 2016)

It has been my great honor to serve as the Chair of the Penn State University Joint Diversity Awareness Task Force (JDATF). JDATF was charged this past April by our Provost and the University Faculty Senate Chair to consider a number of important diversity initiatives at Penn State (Charge (PDF); Members). Our work over the academic year has produced four reports with recommendations for substantial changes in a number of areas.

Presented March 2016 for consideration by the PSU Faculty Senate April 2016:

1. US/IL Courses Survey--Recommendations (Legislative; and Advisory/Consultative)
2. Diversity Best Practices
3. Moving Forward Embedding Diversity Policy

Presented February 2016 and Approved by the PSU Faculty Senate March 2016

4. Moving Forward

Each of the next several posts will provide links and the text of the reports to be considered by the Penn State Faculty Senate on April 19. An "after action" report will follow Senate action on the 29th--action which I hope will be positive.

This post includes the Report, Moving Forward Embedding Diversity Policy, which was prepared by our Substantive Policy Recommendation  Sub-Committee.

Diversity at Penn State: Reports of the Joint Diversity Awareness Task Force--Diversity Best Practices--Advisory/Consultative Report

(Pix © Larry Catá Backer 2016)

It has been my great honor to serve as the Chair of the Penn State University Joint Diversity Awareness Task Force (JDATF). JDATF was charged this past April by our Provost and the University Faculty Senate Chair to consider a number of important diversity initiatives at Penn State (Charge (PDF); Members). Our work over the academic year has produced four reports with recommendations for substantial changes in a number of areas.

Presented March 2016 for consideration by the PSU Faculty Senate April 2016:

1. US/IL Courses Survey--Recommendations (Legislative; and Advisory/Consultative)
2. Diversity Best Practices
3. Moving Forward Embedding Diversity Policy

Presented February 2016 and Approved by the PSU Faculty Senate March 2016

4. Moving Forward

Each of the next several posts will provide links and the text of the reports to be considered by the Penn State Faculty Senate on April 19. An "after action" report will follow Senate action on the 29th--action which I hope will be positive.

This post includes the Report, Diversity Best Practices, which was prepared by our Policy Coordination Sub-Committee. 

Diversity at Penn State: Reports of the Joint Diversity Awareness Task Force--US/IL Courses Survey--Legislative Recommendations

 

 (Pix © Larry Catá Backer 2016)

It has been my great honor to serve as the Chair of the Penn State University Joint Diversity Awareness Task Force (JDATF). JDATF was charged this past April by our Provost and the University Faculty Senate Chair to consider a number of important diversity initiatives at Penn State (Charge (PDF); Members).

Our work over the academic year has produced four reports with recommendations for substantial changes in a number of areas.

Presented March 2016 for consideration by the PSU Faculty Senate April 2016:

1. US/IL Courses Survey--Recommendations (Legislative; and Advisory/Consultative)

2. Diversity Best Practices
3. Moving Forward Embedding Diversity Policy

Presented February 2016 and Approved by the PSU Faculty Senate March 2016

4.  Moving Forward 

Each of the next several posts will provide links and the text of the reports to be considered by the Penn State Faculty Senate on April 19.  An "after action" report will follow Senate action on the 29th--action which I hope will be positive.

This post includes the Report, US/IL Courses Survey--Legislative Recommendations, prepared by our Technical Issues Sub-Committee.

AAUP’s Annual Report on the Economic Status of the Profession, 2015–16

The American Association of University Professors announced the publication of the AAUP’s Annual Report on the Economic Status of the Profession, 2015–16. The report, published in the March-April issue of Academe, includes the results from our annual Faculty Compensation Survey.  Salary transparency is one of the most important elements of administrative discipline in a culture, like that of the United States, in which employers have been able to shroud their salary and pay decisions in secrecy, "for the protection of employees."

March-April 2016 (The Compensation Survey) Volume 102, Number 2 . The March-April issue is available for download as a pdf. There are two choices (AAUP member login required for both versions): A .pdf formatted as a spread for online viewing or A printer-friendly pdf. This year, some materials are being published online only. They are not in the print issue or the .pdfs listed above, but you can download them here: Online-Only Feature: Innovative Faculty Research, by John Barnshaw; Additional survey report tables ; Appendices, which contain listings for individual institutions.

The Press release with links follows.

The Conundrums of Intersectionality: AAUP Draft Report on "The History, Uses, and Abuses of Title IX"

Today the American Association of University Professors (AAUP) released a draft Report: The History, Uses, and Abuses of Title IX.  They have asked for comments by April 15, 2016.

The Report provides an opportunity to examine the difficulty of balancing multiple laudable principles when, in the process of operationalization, they appear, if carelessly applied, to do damage to each other. The Report effectively considers the difficulties of harmonizing fairness where academic freedom, constitutional speech rights, due process, racial justice and gender equity meet. That harmonization is difficult enough--but when it is mixed with corporatization, bureaucratic cultures, political agendas, and a perverse mania for wrongheaded assessment and accountability measures, the resulting cocktail is toxic indeed. Quoting Janet Halley, “Trading the Megaphone for the Gavel in Title IX Enforcement,” Harvard Law Review Forum, 103, February 2015, pp. 103-117, p.117), the Report (p. 36) notes: "Increasingly, schools are being required to institutionalize prevention, to control the risk of harm, and to make regulatory action to protect the environment. Academic administrators are welcoming these incentives, which harmonize with their risk-averse, compliance-driven, and rights-indifferent worldviews and justify large expansions of the powers and size of the administration generally.” This is not unique to Title IX; I have noted its effects in other aspects of administrative cultures at Penn State (eg, The Riskless University and the Bureaucratization of Knowledge: From "Indiana Jones" to Central Planning).

The Report is a step in the right direction, to be sure. But the enterprise of great cultural shifts, in the context of the university and even as the cultural basis of societal norms changes around us, may well be beyond the instrumentalism of both state and academy, or it may produce unintended effects.

The AAUP press release with links to the report and contact information for submitting comments and the executive summary of the report follows.

Embedding Diversity at Penn State: A Progress Report From the Penn State Joint Diversity Awareness Task Force

(Pix © Larry Catá Backer 2016))

It has been my great honor to serve as the Chair of the Penn State University Joint Diversity Awareness Task Force (JDATF).  JDATF was charged this past April by our Provost and the University Faculty Senate Chair to consider a number of important diversity initiatives at Penn State (Charge (PDF); Members).

Our work over the academic year has produced four reports with recommendations for substantial changes in a number of areas.  

Presented March 2016 for consideration April 2016:

1. US/IL Courses Survey--Legislative Recommendations

2. Diversity Best Practices
3. Moving Forward Embedding Diversity Policy

Presented February 2016 and Approved by the PSU Faculty Senate March 2016

4.  Moving Forward 

One of these has already been considered and approved by the University Faculty Senate and awaits the President's decision.  The others will be considered by the Senate in the next several weeks.

This post provides an update on the work of the JDATF.  I have provided copies of the PowerPoints of the presentation of that update which was delivered on 21 March 2016 to the Penn State Academic Leadership Council and now more broadly shared. I welcome comment and further engagement.  We look forward to our Senate's review of our reports and hope for favorable action. In any case the reports as the final products of the work of the JDATF are worthy of consideration more broadly in their own right. 

The American Law School: Crisis and Opportunities in the 21st Century

(Pix © Larry Catá Backer 2015)

American legal education is in crisis--that crisis is driven not by conceptual decay but by markets. Changes in markets--for law students, for law school graduates, for the consumption of legal academy knowledge by lawyers and judges, have changed the systemic foundations of contemporary American legal education--its organization model, its curriculum, conceits as an academic discipline embedded "in the world." The crisis, then, challenges the foundations of the contemporary legal education model --in its conceptual, institutional, and political aspects. Does this suggest a death spiral for the current one size fits all model of U.S. legal education? Does it point to a counter-revolution in the trends of legal education reform, inviting a typical panic response--the "Return to “Eden” strategy of coping with crisis--or to radical change? And what does that mean for the now decades old effort to internationalize the U.S. curriculum?

The crisis takes its character from the the source of its challenge in markets. Admissions of JD candidates have been trending down. Traditional high prestige jobs are trending down as well or holding stable even as the pool of graduates grows. Markets are both shrinking and changing, but the changes to not register on those metrics through which rankings are calculated. In the near term class sizes have shrunk in the face of the pressure of ranking.This produces substantial downward pressure on revenue and panic. That panic has produced predictions that even high tier schools may fail, attacks on academic freedom and tenuret may become more common (and persuasive), faculty terminations may be required, and research and teaching rethought. There has been criticism of for-profit law schools and a sense that even as the most elite schools may thrive (with a lock on high prestige students and labor market access), the rest will not. Those that survive will do so only through substantial subsidies from central university funds.

It was my great privilege to speak to a group of Japanese academics about my sense of the nature of the emerging "crisis" in American legal education. My thanks to Professor Hideto Fukudome, Department of University Management and Policy Studies, University of Tokyo, for organizing the event. The PowerrPoints of that presentation, The American Law School: Crisis and Opportunities in the 21st Century, follow. They may also be accessed HERE.

Proposing a Set of Guiding Principles for Operating Health Care Plans in the Contemporary U.S. University

(Pix ©Larry Catá Backer 2016)

There is a new orthodoxy in the development of benefits plans.  Universities now appear to march in lock step both with respect to the forms and the socialization techniques that they use to purchase and then market their "benefits" products to their captive consumers--the populations of employees who are given little choice and whose employment sometimes depends on their willingness to pretend they like the stuff they are made to consume.  Perhaps it is a function of the markets for benefit plans that have emerged over the last half century.  Universities, like larger corporations , tend to purchase either off the shelf "manufactured" plans, or they cobble them together from benefit programs peddled by professional plan designers and managers--the same industry to appears to sell benefit bits and pieces to every large enterprise in this country. 

There are benefits to buying manufactured plans, such as there are benefits to purchasing manufactured foods in the grocery stores.  First there tends to be a lot of them,.  They have long shelf lives.  They are easy to consume.  "Everyone" is consuming them--that is all one can talk about at gatherings of benefits plan consumers, the way the aisles of supermarkets are clogged with people whose carts are stuffed with manufactured consumables. And for the most part they are not very good for you in the long run.

That does not prevent people for engorging themselves on manufactured food.  It does nothing to prevent universities and enterprises from feeding off of these prepacked plans--and then try to sell them to their stakeholders usually using many of the strategies that have also been manufactured for that purpose by and with the aid of those selling the stuff in the first place. Eventually universities and enterprises, like people, come to believe what they have been sold, and become wholly dependent on these manufactured products.  That new normal makes alternatives--better and healthier in the long run--pricier and less available.  And that scarcity then becomes the greatest selling point for the perspectives (the ingredients) that are used to manufacture these products.  

As a consequences, as I have noted before (Benefits May Not Be Accessed!: Penn State and the Transformation of Benefits Policy in the Contemporary American Public University): (1) universities begin to think of themselves as insurance companies not institutions providing a benefit to employees with substantial positive effect on their operations; (2) the benefit itself is either viewed as a cost or profit center rather than as a value added to the operation and sustainability of the institution; (3) benefits are viewed as an instrument to manage the behaviors of employees on and off work; (4) plan administrators develop an obsession with cost--and indeed all benefits are increasingly viewed through the lens of cost and its mitigation--either by reducing access to payouts or by managing the behaviors of beneficiaries; (5) the ultimate aim, subconscious no doubt, is to view administrative objectives not in providing the best plan given fair valuation but to reduce the costs of the provisions of benefits while maintaining or increasing employee productivity.  The result is an odd situation in which the benefits of health care plans are undervalued and its cots overvalued--where costing is privileged as a driver of plan design and institutional benefit is subsumed within a leveling hyper focus on cost rather than value.That, of course, follows from the way in which manufacturers of plans tend to conceptualize the enterprise of health care construction, which is driven in part by its conceptualization by a financial side of the university house. These plans, then, get it half right. 

Yet it is possible to conceive of healthier alternatives to the manufactured  for profit plans that are peddled by the industry in which universities shop for the benefits they mean to bring "home."  The purpose of this report is to recommend core principles for the design of university health care plans. It offers four key principles that university benefit plans should embrace to make them better--to avoid the deleterious effects of the proffered for profit variations on manufactured benefit products, for something that adds value to the university as well as for the employee.