Tuesday, July 15, 2014

Rule By Administrative Task Force--End Running the Institutional Voice of the Faculty and Undermining Shared Governance

(Pix (c) Larry Catá Backer 2014)

One of the most interesting issues facing universities, as institutional actors, is the future of shared governance, especially in the effectiveness of shared governance with the institutional voice of the faculty. Universities have sometimes succumbed to the temptation of invoking formal institutional structures to mask efforts (deliberate or unconscious) to undercut the role of faculty in university governance. (Backer, Larry Catá, Between Faculty, Administration, Board, State, and Students: On the Relevance of a Faculty Senate in the Modern U.S. University (February 10, 2013)). 

The increasing resort to university task forces, in lieu of engagement with shared governance partners provides a case in point. These task forces, usually composed of administrative functionaries or their representatives, reporting directly to the highest levels of university administration, and including specially designated faculty, chosen for their expertise or from a stable of "usual suspects", have tended to produce recommendations and action plans that avoid the need to engage faculty representatives in those key areas of policy formulation and implementation at the core of shared governance.  Though task forces serve a useful purpose, the composition and deployment of this specific form fo task force ought to cause concern. 

This post considers the way this may occur by positing a hypothetical decision by a university administration in a "conventional"  public university to establish two task forces--a sexual assault and harassment task force and a health care and benefits advisory task force--and their potential consequences for faculty shared governance at the institutional level.  These task forces can be used to co-opt internal discussions of institutional responses to internal governance matters as well as to short circuit internal engagement with external pressures for institutional change. The former is exemplified by "benefits" task forces; the latter by sexual assault task forces. 

The bottom line is simple enough to grasp--the more an administration "engages" its stakeholders through task forces, the less likely there will be an appropriate engagement by the institutional voice of the faculty in those areas now pre-empted by task force mandates. Where administrations seek to govern through task forces, they maintain the appearance of shared governance but eliminate its effect precisely because they control access to membership, the scope of their mandates, and the framework of debate.   Though task forces serve useful purposes, they ought not to be substituted for engagement with the representatives of the faculty and faculty voices that administrations (and boards) may not think to hear. 

Sunday, June 1, 2014

Part I--University of Texas at Austin; Tracking Social Media Policies in U.S. Universties and Its General Implications

(Pix (c) Larry Catá Backer 2014)

I have been following the development and roll out of the social media policy imposed by the Kansas Regents on its university system. The unfortunate history of the Kansas social media policy has led to to consider the issue of social media policy in other universities in the United States. To consider the implications and scope of the issues raised nationally, I am undertaking a series of posts that examine the social media policies of U.S. universities. 

These posts highlight the social media policies of United States universities.  The object is simple: (1) to catalog; (2) make policies more accessible, and (3) provide a  basis for comparison and discussion.  There will be little initial attempt at  analysis, though I will point out some unique or significant features.  The principal objective is data harvesting, comparison and increasingly analysis of the broader implications of these policies layered on atop the other to produce a dense mille-feuille of policy with substantial broader implications.

The nature of that effort was described in the Series Introduction.

This post considers the social media policy of the University of Texas--Austin.

Introduction: Tracking Social Media Policies in U.S. Universties and Its General Implications

(Pix (c) Larry Catá Backer 2014)

I have been following the development and roll out of the social media policy imposed by the Kansas Regents on its university system.  (e.g., Surveillance and Control: The Kansas Regents Social Media Policy; Administrative Discretion, Employee Obligation, Citizen Duty, Human Dignity and the Possibility of Systemic Corruption).  This is part of a larger project that considers the extent to which universities, as a species of employer in the United States, are seeking to control the work and non-work speech of the people hires for service (e.g., On Administrative Overreaching: Threats, Social Media, and Academic Freedom, April 23, 2014;  Export Controls and the Control of Speech On University Campuses and By Faculty Abroad--On the Complicity of Universities and Government to Monitor and Restrict Access to Speech and Speakers, March 24, 2014; "The Tweeting Professor": A Parable About the Price of Speech Made in the Service of Others, July 3, 2013). And that, in turn touches on a broader project that I have undertaken--to explore the huma rights obligations of universities under international law and norms (e.g., More Penn State Wellness Programs in the News and From the Bottom Up, Aug. 12, 2013).

The unfortunate history of the Kansas social media policy, and the lamentable choices that the Kansas Regents appear to have clung to (despite the better choices offered them by their own stakeholders) suggests that the issue of social media policy provides an important indication of the scope and extent to which employers, as a general matter, are now asserting control rights over the lives of individuals.  This trend is important to understand for its legal, social, civil and political implications. Generalized, it suggests the extent to which the institutionalization of power beyond the state, and complicit with it at times, is freeing institutions (like business, religion, and universities) from the constraints of state control (though not of management by the state as a new form of soft though effective governance)while increasingly abstracting individuals and reducing then to a bundle of  intangible rights and obligations (flesh made abstract) that are contingent on the needs and interests of institutional actors (abstractions made flesh). This all the more so, for example, as recent trends in labor policy suggest that the increasing loosening of constraints on employer power may have some effects that touch on fundamental economic, social, civil and political rights (e.g., Rob Wiley, Belarus Is Planning To Bring Back Serfdom, Business Insider, May 29, 2014).

The implications are substantial.  They may suggest the re-drawing of power relationships between institutions (like corporations) and political organisms (like the governments of states).  They may also suggest the ways in which law is being transformed from a system of commands (laws that proscribe or command behaviors) to one of management (rules that assess performance or subject one to discipline for failures to conform or comply with objectives based or relational targets that are assessed in a variety of ways).  That shift from command to management also appears to widen significantly the scope of discretion that might be exercised by "overseers", those individuals or institutional devices tasked to monitor and assess conformance with standards. That shift, in turns, may materially affect the way one comes to understand in new and potentially odd ways, the meaning and application fo concepts like "rule of law" "abuse of discretion" and the like. It furthers suggests the character of the privatization of power over the control of the behavior of natural persons, from the state to the employer, and thus the nature of of the bargain that can be struck when a natural person hires herself out for "service"--the implications of the control that an individual cedes upon the acceptance of payment for "service" and the extent of the "service" to be rendered one's master are also nicely evidenced by the scope of the power of the employer to control the extent of personal and other communication by one in the service of the university institution.  Finally, and most broadly, these polices suggest another consequence of the transformation of individuals into commodified abstractions and of institutions into abstractions made flesh-- corporate speech is increasingly liberated while that of individuals is increasingly regulated (and especially through the employment relationship with corporations) (cf. Backer, Larry Catá, The Corporation as Semiosis, 'Citizens United,' the Signification of the Corporate Enterprise and the Development of Law (February, 28 2012). CPE Working Paper No. 2012-2). That control matrix will likely have material consequences for the way in which we understand the extent and locus of the individual right to speech under the U.S. Constitution and international human rights law and norms (e.g., Backer, Larry Catá, An Institutional Role for Civil Society within the U.N. Guiding Principles?: Comments on César Rodríguez-Garavito and Tatiana Andia 'Business and Human Rights: Beyond the End of the Beginning' (March 11, 2014). Implementing the UN’s Guiding Principles on Business and Human Rights: A South-Initiated North-South Dialogue Brown University, February 20-22, 2014).

Thus, starting with this post, I will highlight the social media policies of United States universities.  The object is simple: (1) to catalog; (2) make policies more accessible, and (3) provide a  basis for comparison and discussion.  Thus, for example, despite its may lamentable policy choices, the Kansas Regents were good on transparency (in the form of information accessibility) but less successful on engagement (engagement transparency).  It is not clear that all universities even commence with this basic embrace of transparency in the construction and dissemination of their social media policies.  We will see. The principal objective is data harvesting, comparison and increasingly analysis of the broader implications of these policies layered on atop the other to produce a dense mille-feuille of policy with substantial broader implications.

I will be including a table of contents here with links:

Part I--University of Texas at Austin.

Monday, May 26, 2014

Surveillance and Control: The Kansas Regents Social Media Policy; Administrative Discretion, Employee Obligation, Citizen Duty, Human Dignity and the Possibility of Systemic Corruption

I have been following the progress of events in the Kansas state university system, as its Regents struggle to develop a reasonable and coherent social media policy respectful of the human dignity and citizenship rights of its employees while protecting the limited but legitimate interests of the university (e.g., A Malediction for Academia--The Kansas Regents and the New Social Media Policy--Docility and Servility Against Academic Freedom and the Need for Contractual Protection (12-29-2013); Kansas Social Media Policy to be Reconsidered; Does a Segmented Approach to Academic Freedom Follow? (1-5-2014); The Rising Price of Speech on Campus (March 10, 2014); Proposing a Set of Social Media Policy Guidelines For Penn State University (March 17, 2014)).

 From Peggy Lowe, Strict Social Media Policy Approved By Kansas Board Of Regents, KCUR, May 14, 2014; "Critics of the social media policy stand during part of Wednesday's Kansas Board of Regents meeting in Topeka to demonstrate their opposition. Credit Stephen Koranda / KPR").

At the end of 2013, the Kansas Board of Regents, responding to a wave of bad press that met their initial ham handed effort to control the social media activities of university employees, declared that they would constitute a committee made up of senior administrators, faculty and staff to reconsider the issue. (Kansas Social Media Policy to be Reconsidered; Does a Segmented Approach to Academic Freedom Follow? (1-5-2014)). That committee came up with what appeared to be a reasonable policy, respectful of the human dignity rights of individuals and the material interests of the university.  (Available HERE: Social Media Work Group Draft Policy (.PDF)).  It appeared for a while that this draft policy would serve as the basis for a revised Regents' policy in Kansas. 

But this was not to be. "But Logan and two other regents differed with a working group proposal that the social media policy be scrapped and replaced with an advisory policy on proper use."Kansas regents stick with social media policy for universities, The Kansas City Star, April 17, 2014). And thus, the "Kansas state attorney general approved a revised policy that states any employee at a public university in the state can be fired over improperly using social media, raising questions that their First Amendment rights are being infringed upon."  ("Social media posts could get Kansas university employees fired," Foxnews, May 21, 2014 ("One of the elements of the new policy that has legal experts confused is the part that says a faculty member can face disciplinary action for "speech contrary to the interests of the university.")).  

Monday, May 12, 2014

On the Limited Promise of Whistle Blower Protection Statutes for University Employees--Narrow Scope and Traps for the Unwary

 (Pix (c) Larry Catá Backer 2014)

We were recently informed (because the Federal government required such disclosure if for no other reason; e.g. 41 U.S. Code § 4712(d);  Notice of Implementation of Pilot Program for Enhancement of Employee Whistleblower Protections Notice Number: NOT-OD-14-068, March 7, 2014) as follows:
Congress has enacted new whistleblower protections effective July 1, 2013. The enhanced protections apply to any employee of a federal grant recipient such as Penn State who works on a federal grant, subgrant or subcontract. The statute (41 U.S.C. §4712) states that an "employee of a contractor, subcontractor, grantee [or subgrantee] may not be discharged, demoted, or otherwise discriminated against as a reprisal for 'whistleblowing.'" More information (as summarized by the National Institute of Health) can be found at http://grants.nih.gov/grants/guide/notice-files/NOT-OD-14-068.html.
On the verge of exuberance over this new set of protections, I took a moment to carefully consider the scope of this protection and the framework within which it might be asserted.  What I found, as I have found before in other context (e.g., Backer, Larry Catá, The Sarbanes-Oxley Act: Federalizing Norms for Officer, Lawyer and Accountant Behavior. St. Johns Law Review, Vol. 76, pp. 897-952, 2002) is that whistleblower statutes continue to be constructed more as gesture than as a functionally effective set of protections for workers.  This new set of "protections" little different from the pattern already well established in federal law provides the appearance of protection that masks a narrow scope and a set of traps for the unwary.

This post considers the scope of this new protection  for employees of universities who work on a federal grant, subgrant or subcontract and the traps they resent for people who mistakenly believe they "whistleblow" under its protection. It suggests that while this provision serves as a lovely gesture, it provides substantially less robust protection for employees seeking to use its provisions. 

Wednesday, April 23, 2014

On Administrative Overreaching: Threats, Social Media, and Academic Freedom

I have also proposed policy changes for universities, at least respecting social media.  (Proposing a Set of Social Media Policy Guidelines For Penn State University (March 17, 2014)).

(Pix (c) Larry Catá Backer 2014)

But the problem not only persists but appears to be increasingly embedded in university governance cultures. It seems that the answer for many university administrators faced with controversy in political and social spaces that are traditionally dynamic is to (1) declare a broad authority to regulate, (2) produce regulations to confer an unconstrained discretion on administrators charged with carrying out its "objective", and (3) treat these regulations as trumping academic freedom, shared governance and the personal and human rights of the regulated class. While their motives, from an institutional perspective, are rational, their application becomes obsessively irrational. 

These issues were recently nicely discussed by academic and social commentator Glenn Harlan Reynolds, a University of Tennessee law professor.  Professor Reynolds suggests a combination of culturally institutional paranoia plus isolation may account for the problem.  I think that he is basically correct but that the culprit is the system in place to reward institutional paranoia in the form of rigidity and risk aversion. Until  universities stop being rewarded for producing (and universities stop rewarding) the administrators described in the article, this problem will only increase.

Tuesday, April 22, 2014

Wellness Wars and High Deductible Plans--A University Obsession With Substantial Consequences Including for Shared Governance

(Pix (c) Larry Catá Backer 2014)

The Report of the Penn State University Health Care Task Force has been circulated. The HCTF devoted much space, necessarily, to a critical examination of the University’s Wellness Plan roll out last year (e.g., The New Eugenics--The Private Sector, the University, and Corporate Health and Wellness Initiatives; The Wellness Wars Continue--A Task Force is Constituted and the Institutional Role of the Faculty is Reduced in Function).

But the Report also spotlighted an important element of the University’s benefits strategy that escaped much notice–high deductible benefit plans. This post considers some issues that faculty might examine as they turn from the Wellness Plan to this other strategic move on the benefits front that is a common strategy employed by universities as they seek to deal with the issue of benefit plan cost containment.

As many universities continue to buy ideas from their stables of benefits consultants (the rate and use of which and their benefits compared to their costs remaining substantially well hidden from any form of accountability), one idea has begun to resonate well--high deductible benefits plans.  These plans have much that is desirable in benefits plans--they offer the appearance of coverage and deliver less.

Sunday, April 20, 2014

The State of Diversity at Penn State--An Interview With Leaders of the Joint Diversity Task Force

(Pix (c) Larry Catá Backer 2014)
Issues of diversity have become an important element of engagement among stakeholders at Penn State--especially our students who have been driving current efforts (e.g., Diversity Awareness Task Force: Statement to the University Faculty Senate, January 29, 2013).  Upon petition by students before the University Faculty Senate, and with Senate support, a Joint Diversity Awareness Task Force was appointed (discussed at Diversity in Silence--The Joint Diversity Task Force Report at Penn State University Becomes Less Visible). Its work includes involvement in the university's recent complex efforts to reform Penn State's General Education programs.

The members of the JDATF have been working hard move Penn State's diversity project forward.  I recently sat down with the three co-chairs of the JDATF - Dr. Patreese Ingram, Dr. Karyn McKinney, and Brian Aynardi - to discuss the work of the committee one year after being charged.  The notes of our interview and responses to my questions are set out below.

Tuesday, April 15, 2014

The Wellness Wars Heat Up--Of Lawsuits and Corporate Wellness Programs Pitting Moral Rights Against Legal Power

Universities tend to lag behind their corporate "brothers" and "sisters" in the corporate world.  Mostly it is a matter of re-framing governance cultures.  But also it is that corporations tend to be governance and institution organization leaders--universities follow, and somewhat timidly.  There is good reason--the university is a vastly different form of industry (in culture and organization and governance).

But not, it seems, when it comes to the structuring of benefits--especially wellness programs.

(Pix (c) Larry Catá Backer 2014)

I have been following the wellness wars at Penn State for its valuable lessons about the transformation of stakeholder and governance relations within the university, and for what it tells us about the changes in universities culture about its willingness to control the non-work lives of its employees in the name of revenue protection (e.g., The New Eugenics--The Private Sector, the University, and Corporate Health and Wellness Initiatives).  As Penn State awaits the report of its Wellness program task force (e.g., The Wellness Wars Continue--A Task Force is Constituted and the Institutional Role of the Faculty is Reduced in Function), it might be well learn what one can when the wellness wars heat up in the corporate world.

What the corporate world is now beginning to experience is that when it crosses deeply held cultural lines--when it treats employees as property over which it can assert increasing control, when it seeks to control the non-working lives and choices of employees, for example--in ways that are alien to basic cultural and political (though perhaps not legal) premises on which this democratic Republic is founded, then there is likely to be a reaction.  In the courts, usually, but not always. 

And so we have this: Jillian Berman and Hunter Stuart,  CVS Sued Over Controversial Wellness Program, Huff Post Business, March 20, 2014, parts of which follow.  What is most interesting in the reporting is the way in which employees invoke moral and personal rights and employers counter with legal power.  In this sort of contest, the employer may win in the short run, but their legally permissible actions will tend to undermine the system that makes their operation possible in the long run.

Sunday, April 13, 2014

Who is the Real Drag on University Revenues? The AAUP Reports that Rates of Pay Increase Faster for Administrators than Faculty or Staff

There is a specter haunting the opinion-fueled reality that is the "sense" that there is a crisis in higher education. That spectral presence howls to any who would listen (and there are many) that the great driver of cost increases for universities are "staff" salaries--faculties and others who are a necessary evil (the chief engine in the "production" of university product--tuition paying graduating students).

This specter feeds on "numbers"--that collection of data that when appropriately packaged appears to --definitely-- suggest a single and privileged view of the "reality" of the "price" of education--the need to pay people to do it. That vision is made manifest through a simple calculus. When one aggregates the full cost of the provision of salary and benefits to staff against all of the other costs of operating a university, then those costs tend to dwarf the others. But that says little more than that faculty and staff constitute the largest factor in the production of revenue. It both states the obvious but in a way that suggests something more. And indeed it could suggest the opposite of the purpose for which is is trumpeted--that the larger the percentage of faculty/staff cost, the larger the university and the greater its aggregate revenues.

More interesting but less often used are measures of productivity. These are less often used because the obligations of faculty are not just to churn out class contact time. Faculty are also leveraged by the university to produce prestige (and thereby increase the "quality" of revenue from higher status students, and as a draw for students from other states) and to generate revenues through grant income. More difficult still is quantifying "free" time, the time universities expect faculty to perform that nebulous duty: service. Because these measures are hard to assess, most universities either engage in acts of dissimulation--they reduce faculty productivity to student contact related time (and thus create a tension between internal expectations of productivity and public measures thereof).

More interesting still, if our aim is to measure burdens on revenues, might be to shift the assessment gaze from faculty/staff toward administrators. Thus, for example, a very different picture of "drags" on revenue generation appear when one compares aggregate increases in salary/benefits for faculty against aggregate increases in salary/benefits for administration and athletic personnel. This generates a host of issues--from the assessment of administrative productivity (a measure that universities might appear to be as eager to resist as these institutions have been enthusiastic about applying sometime incomplete or misleading measures to faculty productivity for public consumption). Indeed, if faculty salary/benefits have been substantially flat for the last several years, while those of the administrative and athletic personnel have been increasing and increasingly substantially above the rate of inflation, then it might be possible to conclude that the greatest drag on the growth of marginal revenue lies with administrators and athletics personnel rather than with faculty/staff.