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 Language of Bureaucracy: Rostam J. Neuwirth, "Law in the Time of Oxymora A Synaesthesia of Language, Logic and Law"

I am happy to pass along news of the publication of Rostam J. Neuwirth, Law in the Time of Oxymora: A Synaesthesia of Language, Logic and Law (Routledge 2018). A rich work, it addresses the fundamental challenges to legal reasoning and legal logic and also open a broad debate on the consequences that these linguistic changes are likely to trigger. The relation of the project of reasoning to the transformation of the meaning and structures of communication within enterprises, and especially universities, may be quite useful. 

This from the publication materials (the abstract follows).

In the time of “alternative facts”, “Yanny and Laurel” or other oxymoronic phenomena, the “law and society” debate faces a plethora of serious challenges that are often framed in individual “law and … pairs”, like those of “law and technology”, “law and language” or “law and the senses” to mention but three. However, such dichotomous thinking underlying law at large is increasingly facing pressure from so-called “essentially oxymoronic concepts” and may no longer be able to deal with the pace of change and complexity in the real world.

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.

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

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

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

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

Call for Papers: Association for the Study of the Cuban Economy 28th Annual Meeting July 26 – 28, 2018

I pass along a call for papers for the upcoming annual meeting of the Association for the Study of the Cuban Economy to take place in Miami, Florida, 26-28 July 2018. There are three ways to submit a paper: (1) professional session; (2) student competition; and (3) student virtual sessions. Professional Sessions details here;  student competition details here; Student Virtual Session details here. 

SUMARIOS/ ENSAYOS/ PANELES
ASCE XXVII Conferencia Anual
26 de Julio – 28 de Julio de 2018
Requisitos

Sumarios, ensayos y/o propuestas de paneles deben describir trabajos originales relacionados con la economía de Cuba en un sentido amplio, incluyendo aspectos legales, sectoriales y sociales del desarrollo económico.

Los sumarios no deben exceder 250 palabras. Por favor, con el sumario, incluye una biografia de 150 palabras. Los sumarios y biografias se deben enviarse a través de correo electrónico a asce@ascecuba.org antes del 22 de mayo de 2017. Incluya la frase “CONFERENCIA ASCE SUMARIO” en el asunto del mensaje electrónico.

Se requerirá que los autores de los trabajos aceptados se inscriban en la conferencia.
Fechas Límites
Envío de sumarios: 22 de mayo 2018
Notificación de aceptación: 7 de junio 2018
ASCE XXVIII Conferencia Anual: 26 julio a 28 de julio de 2018
Borradores de los ensayos: 15 de julio de 2018
Los ensayos finales deberán presentarse para publicación: 15 de septiembre de 2018. Guia para las publiciones. Instrucciones adicionales en inglés (próximamente).

The call for papers with links may be accessed here (Castellano/English).

Call for Papers Announcement: The Transnationalization of Anti-Corruption Law

(Pix ©Larry Catá Backer 2018)

The ASIL Anti-Corruption Law Interest Group, Sciences Po Law School, and the Zicklin Center for Business Ethics Research of the Wharton School of the University of Pennsylvania are organizing an international symposium on the "Transnationalization of Anti-Corruption Law."

The conference will take place at Sciences Po Law School in Paris, France, on Thursday and Friday, December 6-7. Proposals are being accepted  until July 23.

The call for papers and contact details are available here and below

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).

Convocatoria Estudiantil Jorge Pérez-López 2018/2018 Graduate and Undergraduate Student Award Competition; Association for the Study of the Cuban Economy/La Asociación para el Estudio de la Economía Cubana

I am delighted to pass along informaiton about a student writing competition which has for some years formed an important part of the annual conference of the Associaiton for the Study of the Cuban Economy at its meeting in Miami, Florida at the end of July.

Please pass this along to your networks as appropriate. Informaiton in English or Español.

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.

Event Announcement: Os desafios da democracia e dos direitos socias no século XXI ("The challenges of democracy and social rights in the 21st century")

Happy to pass along word of what will be an exciting and quite important program: Os desafios da democracia e dos direitos socias no século XXI ("The challenges of democracy and social rights in the 21st century").

The main objective of the Seminar is to disseminate and debate the theoretical and practical production on Human Rights, Society and State in the Brazilian and Latin American context. In addition to bringing together national and foreign researchers, who are concerned with the issue of democracy and social rights, providing channels for dialogue and promoting the dissemination of scientific works.

The event is organized by the Post-Graduate Program in Law - MSc, from the University of Extremadura, Southern Brazil - UNESC, with the support of the UNESC Law Course. My thanks to

Prof. Dr. Yduan de Oliveira May Direito | PPGD | UNESC for organizing this important event.

More information follows in the original Portugese and English translation.