“We Know You Are Busy and Wanted to Avoid Burdening You With This” — More Techniques that Undermine Shared Governance in the Contemporary University

I have been considering the ways in which administrators undermine shared governance in effect without appearing to challenge the forms by which it is undertaken. Undermining shared governance rather than challenging the authority of faculty to engaged in shared governance avoids the politically costly effort to eliminate formal structures (and the discussions it might require). More importantly, it preserves faculty as a tool, a resource, for governance without having to acknowledge any governance authority beyond those wielded by administrators. One uses tools; one negotiates with governance partners.

I have posted thoughts of my list of the top ten techniques that administrations currently have deployed to undermine shared governance (“You Don’t Have the Authority”: Counting Down the Top Ten Techniques that Undermine University Shared Governance). I added a shorter list of honorable mentions (“We Abhor Retaliation But Expect Loyalty to Our Decisions” — Techniques that Undermine University Shared Governance, the Honorable Mentions and the Deeper Issues they Reveal). I noted then:

That the techniques are not necessarily developed to subvert shared governance for its own sake hardly absolves an administration that on the one hand heralds its embrace of shared governance and on the other engages in radical industry transforming actions that enhance structures in which faculty become “knowledge workers” on an assembly line the principal purpose of which seems to be the “production” of units (students) ready fr insertion in labor markets at a level commensurate with the reputation of the university itself. (Ibid.)

This post adds to the list of honorable mentions of techniques that did not make the original two lists. They are the synthesized expression of experiences from a number of different institutions.

1. “We Know You Are Busy and Wanted to Avoid Burdening You With This.”
2. The Absent Administrator and Ghosting the Faculty Organization .
3. “We promise to get that information to you right away.”

I will continue adding to the list, please send me additional techniques I might have missed (and perhaps prudently via personal email from a non-university computer using non-university provided internet service.

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On the Proper Role of University Administrators as Members of a Faculty Senate: Do Voting Rights Subvert the Institution of Faculty Governance?

University faculty organizations serve as the institutional voice of the faculty in the complex but important operation of shared governance. This role distinguishes universities from other corporate enterprises, and brings them closer to models of public organizations in which principles of democratic participation are essential for the legitimacy of the organization and its operations (e.g., On the Institutional Role of a Faculty Senate: Part 1(May 4, 2012)).

The essence of the institutional character of faculty organizations is its role as a representative of the faculty and its perspectives. That representative role can be preserved only to the extent that the faculty organization itself is controlled by and reflects the will of the faculty, especially in its relations with othervstakeholders, principally the administration of the university. Under this model of shared governance, faculty, administration, and board of trustees are three distinct actors which together comprise the critical institutional elements of governance.

Yet in some public research universities, the representative role of the faculty organization has been challenged. In some of these institutions, there has been efforts, sometimes successful, to include within the faculty organization a substantial number of voting members who represent the administration within the faculty organization itself. This post considers the issue of administration membership within a faculty organization, its effects on shared governance, and advances a suggestion that recasts the role of the administration and its officials within a faculty organization.

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Economic Determinism and the University–Considering Voluntary “Early Retirement Packages” to Tenured Faculty

It is something of a national trend among American universities to offer variations of a standard form of “early retirement package, loosely modeled on those quite common in industry. A recent article in University Business nicely lays out the context and the economic politics of the tactic:

It’s an increasingly common move by campus officials during challenging economic times: voluntary retirement. Offering these incentives to faculty and staff provides a ready means of reducing personnel costs while not being seen as severe and traumatic as layoffs, salary reductions, and furloughs tend to be.

Although the details of such plans vary from one college to the next, they all rest on the potential for shrinking the workforce during times of static or declining budgets.

Even where employees will be replaced, costs may be lowered by using part-timers or hiring less experienced full-time personnel. New employees may also come with less expensive benefit packages than those negotiated in earlier eras. (Mark Rowh, Retiring Minds Want to Know How institutions are making voluntary retirement programs work University Business (July/August 2012))

This post considers the trend from the perspective of its collateral effects–first on the way this tactic is used increasingly to systematize fundamental changes in institutional character and operation, and and second on the faculty tempted to take the university up on its offer (academic freedom, and political rights). The “bottom line” is simple enough to state and implicit in the University Business article: the voluntary retirement device is an excellent way for administrators to avoid responsibility for significant change (furthering the “blame the system” mentality that has become standardized in university administrative cultures), but in a way that presents significant traps for the faculty tempted to take the university up on its usually much less valuable than advertised benefit. Faculty should be wary about accepting such “benefits”, university faculty senate’s should take a more aggressive position in examining the institutional effects of these programs, and university administrators should be held to a higher degree of account for using this indirect lever to remake the institution in a manner to their liking.

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Central Planning and the University: What is So Bad About Administrative Management of Knowledge Production and Dissemination?

I have been studying the approaches of Marxist Leninist societies–businesses and governments–especially in the way in which institutions founded on Leninist principles with Marxist objectives relate to markets. The traditional view of such systems viewed markets with suspicion and sought to substitute an objectives based central planning apparatus–driven by a well trained and motivated bureaucracy–for the choice and efficiency structures of the market. The idea was that better choices would be made and more efficient use of productive forces could be sustained. But at its foundation was the Leninist notion that market driven choices were inherently ideologically tainted against which a bureaucracy of planners was necessary to avoid the errors of popular choice in the service of the construction (or preservation ) of a Marxist society.

That approach was transformed in the decades since the breakup of the old Soviet Union. Over the last 40 years two distinct approaches have arisen. The more traditional Central Planning Marxist-Leninism continues to embrace at its core an anti-markets principle and the object of the state is to remake individuals to better suit the needs of central planning. The other, Markets Marxism, increasingly embraces markets and markets based mechanisms as a means of social, economic and political progress compatible with the state’s long term objectives. In that case markets are the means used to achieve objects, as opposed to the traditional Marxism in which the objective was to avoid the market. (Discussed HERE).

Yet, one might ask, why would a site focused on university governance have any interest in Leninism and market ideologies? Because, it seems, universities in the West (and large western multinational enterprises) appear in the early 21st century to be the heirs and most vigorous centers of anti-market, central planning ideologies in both their operation and in the institutional cultures that they advance. The result, of course, is highly ironic where these institutions are meant to serve as the knowledge production foundation of political-economies founded on both principles of representative democracy and of markets. But irony is the stuff of dinner parties. There is real effect as well–internal central planning in the knowledge production and dissemination industry substantially determines who decides what one learns, how on studies and what knowledge is produced. The power over those decisions has been shifting from individuals and from the stakeholders within the university, to bureaucracies asserting managerial controls through the exercise of administrative discretion. In centrally planned economies, the result is usually a substantial loss of productivity, a shifting of the focus of productive capability, and the loss of innovation. Have American universities now adopted cultures of central planning or Markets Marxism as the basis for their operations?

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Just Because it is Legal Doesn’t Make it Right–The Extension of University Control of Employee “Outside Business Activity”

The evolution of the legal rules constraining the terms through which labor may be purchased in the West had seen a long evolution–from villeinage and indenture (slavery for some) to service in the form of the sale of labor to a master who is empowered by law to manage and control the person whose services have been purchased. That employment relation, that relationship between master and servant is hierarchical and personal in a way that the relationship between investor and enterprise is not–capital is invested but not purchased and performs no service beyond offering the value obtained and a forbearance of repayment for a time certain. Echoes of the the more comprehensive notions of service, and of the role of the servant, remain visible today in the scope of discretionary authority the law permits to a “master” to regulate the non working lives of employees to the extent it might interfere with its business and operations–as those are conceived by the employer. For at will employees, of course, the legal master-servant relation is to permit the master (though technically both have the power) to terminate employment for any reason–and in the master’s case, to condition employment on a host of criteria, subject only to the constraints of other law, contract, or at the extreme, constitutional limitations.

The master-servant relationship exits within the university as well. For faculty, however, the operation of the master-servant relation has been constrained both by contract and by the scope of the interpretation of the twin principles of academic freedom and shared governance. These have sometimes proven to be strong protection in the absence of statute or policy. Other times, their protection has been somewhat less powerful. Beyond the legal constraints lie a powerful policy conversation that has been shaping the societal consensus relating to the propriety of the exaction of conditions for work that touch on the non working life of the employee. These have tended to push toward a growing societal disapproval of the assertion of employer power reaching into the private lives of employees. At the same time, universities across the United States have sought to expand the boundaries of the definition–and thus the protection–of their interests in the intellectual prowess represented by the individuals whose services they have purchased for the provision of customary teaching, research and service duties. Where once universities were principally concerned about the protection of its interests in the face of patents and related innovation and the opening of businesses by mostly scientists and engineers seeking to exploit ideas nurtured through the university, and to constrain the scope of professional practice by its lawyers, architects, musicians, etc., now the university seeks to control well beyond these simple and direct activities. It is at the intersection of these two opposing societal movements that university policy relating to the control of faculty outside business activity meet.

Many of these issues have been dealt with relatively uniformly by contemporary large research universities across the United States. This post considers one hypothetical example of this effort in that light and the Commentary of Professor Hypothetical in light of that effort. It is a hypothetical example only; but it presents issues that touch on such efforts across the nation. As a generic model it will be presented as the efforts of Public University (PU), a land grant University in the State of Republic, in the development of a Labor Policy (LRX) that seeks to manage employee business activities in the context of a new model.

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Challenging University Approaches to Sexual Assault: Time to Reassess University Approaches in Light of the the ALI’s Rejection of Proposed Changes to its Model Penal Code?

The sexualization of conduct, and its management, has become an important element of the discourse of rights, and of human dignity in American society. Such sexualization, and its punishment, extends from the most egregious conduct traditionally suppressed (rape) to conduct that in another era might have been annoying but hardly criminal (wedgies). It is viewed by some as a battleground for gender equality, and for others, as a means for using the state to effect substantial changes –and to harmonize norms respecting–a broad range of conduct that is deemed sexual and with respect to which there is substantial controversy in society. But as important, that discussion of sexualization is also tied to a number of related issues, from the legal effects of individual interactions, to the complexity and degree to which such conduct might be minutely regulated, to the standards of liability, and to the procedural protections of both parties in disputes touching on sexualized conduct. My thoughts may be found here.

This post considers the effect that the recent actions by the elite American Law Institute–in rejecting changes to the criminal statute on Sexual Assault in its Model Penal Code–may have provided a basis for seriously reconsidering the conventional university constructions of sexual violence rules adopted uncritically and at the instance of the federal education bureaucracy.
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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

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.

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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.

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

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.

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

The Penn State Law School has suffered substantial erosion of rank over the last several years. This post suggests the context in which that might be understood.

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; .http://www.slideshare.net/LarryCatBacker/crisis-and-challenge-in-american-legal-educaton

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