Friday, March 17, 2017

Presentation: "Diversity in Legal Education: Considering the Hollow Spaces Between Speech and Action"





It was my great pleasure to participate on a great panel at Penn State Law recently. The panel, All in at Penn State Law: Addressing Diversity & Implicit Bias considered issues of diversity from a variety of distinct perspectives. It was organized by the Penn State Law Diversity Committee on March 16, 2017. The program was covered by Penn State's student newspaper, Daily Collegian (Katie Johnston, "Penn State Law hosts panel on diversity in legal education," The Daily Collegian March 16, 2017).

I spoke to issues of institutional implementation and accountability of diversity projects for law schools specifically and large research universities more generally. I started with a consideration of the 2010 ABA Report “Diversity in the Legal Profession: The Next Steps” especially as they relate to “Recommendations to Law Schools and the Academy (pp.17-25). This was used as a baseline for analysis. I then reflected on their consequences for Law Schools in light of the work of Penn State's Joint Diversity Awareness Task Force and their Reports of 2016 adopted by the Penn State University Faculty Senate in 2016.

The presentation PowerPoints may be accessed HERE.

The video of the presentation may be accessed HERE.

A summary of the presentation follows and may be downloaded HERE.

Monday, March 6, 2017

How Not to be a Dean--A Set of Perverse Lessons


Academic middle managers increasingly find themselves in a bind.  On the one hand they, unlike more senior administrators, tend to be drawn from the ranks of faculty (though nor necessarily of the faculty over which they have been given dominion) and have been socialized  deeply in academic faculty centered cultures.  On the other hand, the emerging cultures of administration--autonomous of and quite distinct from that of faculty centered cultures--require the cultivation of sensibilities that draw middle managers into an increasingly adversarial relationship with the factors in the production of unit wealth that faculty represent.  

Most successful middle managers navigate this contradiction in time honored fashion.  They develop a rhetorics of solidarity with their staff while at the same time embrace the cultures of administration and its quite distinct approach to the management of the production of students through a transnational  web of knowledge dissemination and production.  However, as the cultures of administration and those of faculty increasingly diverge, and as faculty itself begins to fracture along worker class lines (tenured and nontenured full time staff, fixed term faculty, research or teaching faculty, adjuncts and graduate assistants) the natural solidarity of middle managers toward their colleagues will dissipate as well. 

In that context, it may be necessary to begin to think about the ways that this fissure between deans and faculties now shows up in managerial techniques.  This post considers some of the most interesting and telling examples of the perhaps inevitable break between faculty and those charged with their oversight.It is put together as  a set of lessons for the young manager on the emerging rules of managing faculty , the effects of which are likely to be the opposite of what is intended. 

Let folly reign!

Tuesday, February 28, 2017

The Conundrums of Rank and Title at the University: Faculty Solidarity Versus Consumer Protection



(Pix © Larry Catá Backer 2017)


Universities worldwide have long dealt with the core issue of how an institution may convey information respecting individual faculty members.  The information that is conveyed relates to (1) rank, (2) status, and (3) function.  The information is usually embedded within what is commonly called the rank and titling of faculty within the university. Information conveyed by titling is directed to the community of academics and also to critical stakeholders (students, outside funding agencies, and others). 

This post considers briefly the complexities of titling faculty, revealing of the underlying issues that tend to make any real sort of principled construction of a coherent structure for titling faculty  unlikely.   It suggests that current efforts to reform issues of rank and title may not be able to avoid conflicts between principles of consumer protection and those of equity and solidarity among faculty workers.

Monday, February 27, 2017

Abuse of Discretion at the University: A Construction Built One Act at a Time

(Pix © Larry Catá Backer 2017)


I have been writing about the transformation of the scope and functions of middle level administrators at the university--either public or private (here, here, here, here).  I have been suggesting that the symptom that is much in evidence--the emergence of cultures of soft retaliation, personally directed but not in violation of the rules under that empower administrative action--hides its cause, the rapidly expanding scope of administrative discretion within ever more complex regulatory structures (here, here, here, here, here).  As these regulatory structures move from rules based to principles based structure--from commands to conditions of service (here, here, here, here)--the administrator charged it is operation becomes the receptacle of an increasing amount of discretion.  This discretion may be exercised in the administration of a unit with impunity--that is it may be exercised within a broad, and increasingly unreviewable, discretion that falls well within the scope of the authority with which the administrator has come to be vested.

This emerging system of university governance, then, is founded on two great foundations.  The first is the legalization of conduct within the university.  All conduct is meant to be subject to rules and the rule systems are designed to be opaque.  Like the most arcane regulatory structures of the public administrative state, the volume of regulation within the university will be fractured (divided into a large number of distinct categories) and will be memorialized in a language increasingly open only to specialists.  In the public sphere that describes the relationship between lawyer, judge and law; within the university that describes the relationship between the administrator and the university's regulations. The second is the shift of authority for decision making and rule interpretation to a class of administrators through which the university may manage those who are necessary for its operation. This produces the construction of regulatory governance that vests interpretive discretion and the power to apply the rule solely in the hands of a hierarchically arranged administrative structure, in which each level is responsible only to itself and protected by a regulatory structure that is meant to protect the integrity of the system.

The resulting practices, perhaps some abusive, have not been well documented precisely because the framework within which they are committed have remained obscure.  Yet that documentation ought to be commenced, and the stories that suggest the mechanics and habits of discretion--its use and abuse within the university--ought to be told.  With this post I will try to give form to the many ways in which discretion may be exercised and abused.  I will leave it to the reader to determine the extent of abuse, but will call on others to share stories that may add to our construction of the actual operation of the discretionary administrative university of this century. All stories will be stripped of identifying information to serve as the faceless indictment of a practice that has until now been able to thrive in the shadows protected by an ignorance of the methodologies and tactics of the modern university.


Friday, February 24, 2017

Consequences of the Growing Divide Between the Ideal of the University and its Reality: Thoughts on the Unionization of Student Labor (Graduate Students and Athletes) in this Age of the Learning Factory

(Pix © Larry Catá Backer 2017)

There is a sort of culture war that is entering into a decisive stage within the American University. That culture war is most clearly exposed in the contrasting narratives about the character of the university. The culture war is marked by a great contest over the master narrative that defines the way in which people understand the university within our culture.

On one side stands the narrative of the traditional ideal of the university, painstakingly fashioned over the course of the last century.  It is an ideology nurtured on the notion of the university as a place where knowledge is produced and disseminated  by and under the supervision of an autonomous  professional faculty in accordance with the inherent logic of the academic disciplines within which knowledge production is organized.  Within this narrative of the ideal university, students acquire experience through supervised teaching and research under the direction of faculty. Within this narrative, individuals are seen as students (e.g., here).  On the other stands the narrative of the university as its emerging operational reality--a corporatized institution for the production of candidates for efficient insertion into global or local labor markets at the least possible expense, and one in which the university's stakeholders are increasingly understood as factors in the production of product (the employees) and funds (alumni contributions after insertion and tuition on the promise of insertion into targeted labor markets. Within this functionally framed institutional narrative, students are seen as service workers, contributing to a reduction in the cost of disseminating and producing knowledge for the market.  Within this narrative, individuals are seen as workers (e.g., here).

The conflicts between universities and their graduate students are shaped by these two quite distinct narratives. 
Caroline A. Adelman, a spokeswoman for Columbia, said that “Columbia — along with many of our peer institutions — disagrees with this outcome because we believe the academic relationship students have with faculty members and departments as part of their studies is not the same as between employer and employee.” (here).
And universities have been aggressive in seeking to quash the unionization effort (see, e.g., here). Graduate students tend to take a different view.  At Columbia they note:
“What we’re fundamentally concerned about isn’t really money,” said Paul R. Katz, one of the Columbia graduate students involved in the organizing efforts. “It’s a question of power and democracy in a space in the academy that’s increasingly corporatized, hierarchical. That’s what we’re most concerned about.” (here).
At Penn State they note something similar in recent efforts to begin the process of unionization, where the focus is on engagement and working conditions, especially those touching on benefits (see, e.g., here). At the University of Pittsburgh graduate students and faculty have moved forward in parallel efforts (see, e.g., here). The narrative focuses on the corporate model of labor exploitation in the learning factory.
Speakers at the news conference, including some individuals hoping to join the bargaining units, cited issues including fairness, job security, transparency and workplace justice as key themes of the effort. “We deserve to be recognized for our indispensable roles,” said Hillary Lazar, 37, a graduate student employee and a teaching fellow in sociology. “The University continues to profit off our labor.” (here).

Similar disjunctions in narrative have produced efforts to unionize athletics as well (see, e.g., here), in which student athletes increasingly see themselves as factors in the production of university wealth while universities seek to cling to the ideal of the student athlete-scholar (e.g., here). The tensions has produced efforts to recognize the student aspects of their role but also the nature of their contribution to the "life" of the university (see, e.g., here).

This post reflects on the inevitability of these moves and their wider ramifications for the academy.  Starting with students and athletes, it is clear that the pattern is symptomatic of a larger change in the structures and logic of the academic enterprise that will likely produce some transformative changes,.  These are considered below.

Sunday, February 12, 2017

What is the University?: De-Centering Education in an Age of Risk and Regulatory Management


(Pix © Larry Catá Backer 2017)


People constantly ask variations of the question--What is the University? --usually as a rhetorical throat clearing to put forward some sort of ideological position that advances a particular agenda in the service of quite specific objectives.  That is to be expected, of course. But it is not the subject of this post.

Rather, the more interesting answer to this question ought to start with a more fundamental set of questions: (1) what are the objectives of regulatory society? and (2) how has the university changed to resemble and amplify greater society.  Asked in this way, the answer becomes much more interesting than the ideology-by-other-means discussion that tends to put off everyone but their advocates. 

The answer to these questions might be gleaned by the resources that universities increasingly devote--not to knowledge production and dissemination--but to the regulatory control of their stakeholder populations (students, faculty, staff and others that affect the university and its operations) either  for its own account or as a pass through institution administering privatizing regulatory demands of superior public institutions (usually state and federal governments). A recent communication from the President of Penn State University perhaps nicely illustrates the trend--not because it stands out but for precisely the opposite reason, for the way in which it reflects standard practice among universities, for the way it applies consensus within higher education about the regulatory role of the university. Indeed one might expect this to serve as a standard generic letter of its kind issued in some variation by many similarly situated high officials. It is for that reason that the communication is most interesting.

This post considers the larger societal consequences of the changes suggested, as a general matter and in common with other universities, by that communication.  The object is neither to condemn or praise the tend--but rather to notice them and consider what they might say about the character and function of the university generally in early 21st century America. The communication is reproduced below and is followed by some brief thoughts.

Sunday, January 29, 2017

The University and Immigration Policy--The Word from the AAU and Full Text of the Presidential Executive Order--“Protecting the Nation From Foreign Terrorist Entry Into the United States.”

(Pix © Larry Catá Backer 2017)

Universities have increasingly relied on foreign students.  There are a number of reasons beyond the obvious and important reason of financial need. Besides providing a substantial and sometimes premium priced income flow to universities, foreign students (and faculty) serve to more deeply connect the university to knowledge dissemination and production flows globally and to network  opportunity for students on a global basis.  In many ways, foreign students now serve as a key element in enhancing the competitiveness of American labor and its industry.  That competitiveness is not enhanced merely by the possibilities of creaming inherent in the current system encouraging mutually advantageous cross border educational opportunities, though these can be substantial.  More importantly is the way in which the presence of such foreign students and faculty substantially enhance the breadth of education for U.S: students. And, equally important, the presence of robust populations of foreign students and scholars  provides the United States an unparalleled opportunity to enhance its own image globally, to develop friends (many of whom may some day ascend to positions of power in their respective nations), and to develop global empathy for American culture and values--social, political, religious and economic. Foreign students and scholars can have a similar effect on American students, broadening their understanding of the world and making them better able to appreciate and navigate it many complexities. In all these respects, the encouragement of foreign students and scholars sits near the center of the teaching and research mission of mo0st universities.  

It is thus with great interest, and some dismay, that universities have been following the recently announced Executive Order issued by the 45th President on January 27, 2017. Entitled  “Protecting the Nation From Foreign Terrorist Entry Into the United States” it has not yet been posted to the White House website but is available through many national news outlets (here, here, here, and here). The Executive Order (unnumbered yet) may be downloaded here. A critical annotation may be accessed HERE and another HERE.

The text of the Executive Order is long and its scope is quite broad and potentially far reaching.  It appears, beyond its most inflammatory provisions, to set the stage for substantial modification of the U.S. immigration laws--loosely understood as all of the administrative and legal apparatus managing the entry and exit of foreign nationals within the territory of the Republic for such purposes (including but not limited to immigration) as the Republic finds useful to itself. This in itself will be a contentious and potentially destabilizing conversation.

It is not directly focused on foreign students and scholars, though its breadth assures that all of them will be affected directly or indirectly.  It has proven controversial and generated substantial popular agitation and response. See here, here, here and here.  One court has sought to issue a nationwide ban on part of its enforcement(see here)--something may may prove harder to enforce than to declare (see here). What is clear is that the Executive Order has brought the issue of immigration generally and the governmental approaches to its management, already quite contentious, very much into the open--though it is unlikely to result either in consensus or stable resolution in the near term. See here, here, here and here.

Universities have responded as well.  See here, here, here here, here, and here. Some remain silent (see, e.g., here). And indeed, the Executive Order has begun to cause some disruption in the stable and growing relationships between universities, its students and scholars from abroad. See here, here, here, here here, and here. The Association of American Universities (AAU), a powerful university organization has also issued a statement, to which universities as a group are likely to adhere. In all cases, the response has been temperate--a recognition of the possibility that changes in entry policy might be negotiated as well as the recognition that the value of appropriately open borders is essential for the national self interest in its political, economic, social and educational projects.

The full text of the Executive Order follows, along with the Statement of the Association of American Universities (AAU).

Wednesday, January 25, 2017

Presentation on Shared Governance at John's Hopkins University



I was delighted to have been invited by the Johns Hopkins School of Education to deliver some remarks on the state of shared governance and the trajectories of the way forward. My thanks to Professor Christina Harnett, for organizing the event.

The PowerPoints of that presentation may be accessed HERE. Reflections on that conversation will be posted soon.

Friday, January 20, 2017

An Open Letter to a Hypothetical Vice President of Compliance--Faculty Productivity, Shadow Work and Policy Coherence in the Regulatory University

(Pix ©Larry Catá Backer 2017)


I have been speaking to issues of shadow work and the changing nature of expectations of faculty (e.g., here). I have suggested that ways that this affects faculty productivity by shifting focus form teaching, research and service to compliance and compliance related activities. This shifting can have a net zero effect only when faculty are implicitly asked to dig further into their private lives time to satisfy the increasing cravings of administrative bureaucracies within government and their mirror images within the university. At its limit, the growing movement toward compliance cultures without reducing teaching, service and research expectations creates both a burden and en effective and substantial reduction in the compensation of university personnel per hour of work extracted. That is hardly fair, though it may be legal. And ironically it may as well violate the ethics codes universities have been at pains to impose on faculties these last several years.

The movement toward compliance cultures is not malicious. It is a product a deep cultural changes that have created strong incentives to privatize public policy respecting cultural changes. And it expresses a strong change in social and political consensus respecting the role of the state (and institutions to which state policy objectives have been delegated) in using regulation, reporting and compliance as the means for managing and changing behaviors among the U.S. population. As a consequence, social behaviors are now constrained by a web of federal and state law, administrative regulations and university policy, and much of what constitutes compliance reflects discretionary administrative choices respecting the implementation of these webs of regulatory mandates.

This has strong implications for shared governance as well as the participation in the development and control of faculty productivity. The administrative regulations that tend to emerge from, through or in conjunction with  the compliance offices of universities tend to ooze out in ad hoc fashion and they tend to be justified in vague references to the need to comply with "applicable law or university policy". By that standard and in that process, there is no possibility of accountability and the scope of administrative discretion to justify anything by reference to their "right" to "interpret" value and unspecified standards has no constraint.  That is bad management for shared governance, but is is worse management for a university provost that has no ability to well manage her administrative units in an intelligent way.  

The first step toward coherent and constraint in compliance is  information.  This post includes an open letter that may be sent to an appropriate compliance officer with the purpose of gathering the sort of basic information necessary to begin a discussion about compliance in an intelligent way--both with respect to discretionary choices made and with respect to the consequences of compliance as faculty shadow work. The open letter follows.  Feel free to send to your own compliance office and report back on results. 

Thursday, January 19, 2017

Moving Beyond University Expropriation and Control of Faculty "Outside Business Activities" --a Proposal for a Rule that is Simple and Fair

(Pix © Larry Catá Backer 2016)


In Just Because it is Legal Doesn't Make it Right--The Extension of University Control of Employee "Outside Business Activity"  I considered the way that the most pernicious aspects of the master-servant relationship tolerated in U.S. law has been creeping into the relationship between the university and its faculty.  That creeping  has been embedded in increasingly exploitative "conflict of commitment" and "Management of Teaching Services" rules that universities have begun to use as a means of controlling the productive capacity of its employees even beyond the scope of their contract periods. Three distinct aspects were noted: (1) Many research 1 universities have begun to seek to claim for themselves not just the fruits of the labor they paid for in hiring staff, but also to control and exploit all faculty productive capacity even beyond contract term periods.  (2) At the same time, the university has begun to see in their faculty an extension of their brand--the objectification of the human being who serve as faculty..in a way that reduces them to factors in the production of university reputation ONLY, and thus amenable to control by the university at all times as if they were other sorts of property. (3) Lastly, the university sees in the aggregated work activities of faculty an enormous  source of data that could be better exploited and thus view  rules regulation work beyond that compensated through university contracts as a valuable information asset to be harvested. 

These trends have not occurred in a vacuum. There is no disputing that individuals have taken advantage of the porous nature of the teaching-university relationship. These include multiple simultaneous full time teaching producing, in the most egregious cases multiple simultaneous tenured appointments. Outside consulting during the academic year can become so excessive that it interferes with compensated expectations for research, teaching and service. Outside activity might conflict with the interests of the university directly (I take as more hysterical, strategic, and overblown university efforts to create prophylactic rules that extend conflict beyond direct and substantial conflicts between faculty activity and university interests).

It has been in that context that universities have sought to protect their legitimate interests--and investment--in their faculty. And usually that has produced badly drafted and overblown regulatory efforts, usually drafted by lawyers or administrators with little experience regulatory drafting but enthusiastic to extend university authority to the full reach of the law. The result has been characterized by overreaching that at times might suggest that the now popular university ethics rules do not apply to its own regulatory activities. Worse, these regulatory efforts tend to become complex baroque affairs to collapse into incoherence by weight of their own overwrought cleverness--none of which provides real substantive benefit to the university. Compare typical variations on the conflict of interest, conflict of commitment and outside teaching and consulting policies: University of Georgia; University of Washington; University of Texas; University of Utah; University of Maryland; and Purdue University.

That is regrettable. But fairly easy to fix IF (the university is willing to take a reasonable position and faculty are willing to engage in outside activities judiciously and in good faith. To that end a simple rule that is easy to understand and easy to implement, a rule that is easy to monitor and apply might be the most useful mechanism to balance the interests of university and faculty- That simple rule ought to be respectful of the faculty's right to employ his own productive forces when he is not rendering service to the university, while protecting the university in its legitimate expectation that its employees will not shirk. The easiest approach is to provide a simple safe harbor rule for faculty consulting and teaching outside the university, one that is entirely focused on those time periods when the faculty member is employed by the university (usually under a 9 month contract), but relinquishes control when the university does not pay its faculty for services. At the same time, such a simple rule ought to be generous in permitting the university to harvest data about such activity--to the extent that such data is shared with those contributing information.

I have produced a model that is geared for Penn State but is easily applicable to other major research universities.  It follows.  Comments and reactions welcome.  For a variation See Michigan State University.  For an alternative consider Harvard's Statement.