Thursday, December 20, 2007
The unholy convergence of unaccountable tenure decisions; the up-or-out nature of tenure; anti-discrimination clauses; and adventuresome lawyers has given birth to this.
As the IHE story tells it, Peter Hammer was denied tenure at the University of Michigan. (As in most tenure systems, denial of tenure meant loss of job. He is now working at Wayne State University.) Hammer is gay, and Michigan law does not prevent discrimination based on sexual orientation. However, the University (eventually) decided that discrimination based on sexual orientation is against its own policies.
Hammer is charging the university with violating its own policies by denying him tenure based on his homosexuality. The university is saying that the tenure decision was based on Hammer's merits.
Here's the good part.
Apparently, Hammer and his attorney have taken to examining the published records of each of the faculty who voted against him, looking for evidence of anti-gay bias. They have also questioned the professors on a number of social issues, such as abortion, probing for evidence of conservatism. Hammer is quoted in the IHE story as saying:
The theory of the case is that you are dealing with this very strong combination of religion and family values. You've got to get inside somebody's mind and present it in a way that can be objectively verified. You are looking for something that is so often invisible and shrouded in secrecy. (emphasis added)
So they're looking at membership in churches that take anti-gay positions, membership in organizations with conservative agendas, and so forth.
I'll admit, this is impressive. Alert readers know my position on tenure, but even I couldn't have come up with something this good. Wow.
Tenure at the U of M, as in most places, is apparently decided by a whole bunch of people, and therefore by no one person. In this case, the vote was 18 to 12 for him, but he needed two-thirds to win. Dollars to donuts, if he had won by 21 to 9, the individual views of the 9 would not have come into question. Which means, I guess, that you're allowed to be hateful, as long as you're relatively isolated. Bias, apparently, is only an issue when it reaches critical mass.
I don't know Hammer or his work. Whether he deserved tenure or not, I don't know. But the issues raised by this case are mind-boggling. It would be easy to pick up the flag of one side (“homophobia is real and despicable”) or the other (“now we have thought police?”), but that would miss the point. Both sides are right. The nature of the tenure system drives this conflict. That's the real story.
Discrimination law is based on an epistemological mistake. As soon as the plaintiff can prove membership in a protected class (in this case, nobody disputes his claim of being gay), and can show some sort of harm (in this case, denial of tenure), the burden of proof shifts to the defense to prove that animus toward the protected class was not the basis for the decision. (Technically, they have to give a reason other than protected class membership for the decision, and prove that the reason is not a pretext.) There is no presumption of innocence; the defense actually has to prove a negative.
How, exactly, do you do that?
Ideally, you have 'bright line' rules and processes that don't lend themselves to subjective decisionmaking. (“Nobody gets tenure without a Ph.D.”) But if that sufficed, we wouldn't need tenure committees. The whole point of calls for openness and transparency is that subjective judgment is an inescapable necessity. (If that weren't the case, we'd never see votes of 18 to 12. They'd all be 30 to 0, or very close to it.)
In corporate settings, each hiring (or firing) decision is credited to or blamed on a single person (the "hiring manager"). If I fire Bob, and Bob takes issue with it, I'm accountable. It's true that you sometimes see class actions against entire companies based on broad patterns of bias, but each individual decision was made by a single person. (Companywide layoffs are another issue, since they aren't about individual merit.) Individual tenure cases, by contrast, are made by committees. In fact, they're often made by multiple committees, each with varying expectations of deference from the others.
So in a tenure case, an entire committee – or at least a plurality of sufficient size to win – has to be able to show that it wasn't motivated by the wrong ideas. And someone challenging that committee's decision would be well-advised, in a very short term sense, in trying to find proof otherwise. You would do that exactly the way that Hammer and his attorney are: dig through the paper trail, look for smoking guns or suspicious clues, and even infer individual views from group membership. For example, the Catholic church is opposed to the death penalty, so surely no Catholics support the death penalty, right? And given the Catholic church's position on homosexuality, surely having too many Catholics on the committee would amount to institutionalized homophobia, right?
(Idea for fledgling administrators out there: convert to Unitarianism. If membership in a Catholic church establishes a presumption of, say, homophobia, then obviously membership in a Unitarian congregation would establish a presumption of openness to diversity. Unitarian Universalism: A Great Career Move! But wait...there's not supposed to be a religious test for public employment. So you can be held liable for having employees in the wrong churches, but you can't hire for the 'right' ones. The mind reels.)
Compounding matters is the up-or-out nature of tenure. There's no middle ground in a tenure case. You either get your job for life, or you hit the bricks. Up or out. So a divided committee still has to reach an all-or-nothing decision, and the results of that decision are assumed to be permanent.
I simply don't know how you combine 'proving purity of motive' with 'committees of thirty.' Proving a negative for a single person is dicey enough; proving it for thirty people is simply impossible. And while it would be easy to caricature Hammer as the PC police, he's only doing what the incentives of the tenure system make it rational for him to do. He's guilty only of playing the game well.
The game is the problem.
Unaccountable power will be abused. Committees defeat accountability. Do the math.
Expect to see more cases like this. Personally, I prefer the presumption of innocence to a need to “get inside somebody's mind.” And I prefer accountable decisionmakers making decisions with expiration dates. The tenure-committee-as-star-chamber model is as outmoded as tenure itself.
Or we can stick with an unsustainable tradition, and paper over the reality gap with ad hominem attacks ("homophobe!" "thought police!") on those who fall into the gap anyway.
Also, discrimination law is civil, so, as I understand it, who has the burden of proof doesn't matter much; the jury makes its decision based on a "preponderance of the evidence", i.e. whether the claim is more likely than not, not "beyond a reasonable doubt" as in a criminal case. So to defend a case like this, you just have to bring forward reasonable evidence that the the guy wasn't all that good. I assume with this many negative votes there were some bad outside letters, in particular.
In my discipline, I'm aware of only one successful suit of this kind. In that case, the department had tenured the last dozen or so candidates, who were all men, and then denied tenure to a woman. Which looked bad, to say the least.
What's a better argument is that the lawsuit itself (and the discovery process) will shape how higher ed administrators make all personnel decisions, not just on tenure. Some administrators will surely ask their faculty to turn what are currently hard-structured votes (in some places) into advisory votes only (since then the decision-making will be in the hands of only one person). Some faculty will agree to it, fearing a repeat of the Hammer case's discovery process, and others will say, "Heck, no, we're reserving our authority, and we acknowledge the risks."
I also think the dichotomy between the corporate world and the academic one is to some extent false. There may be more of a paper trail involved in academic tenure cases, but in many instances, the Dean or Provost or President must ultimately sign off on the matter. I.e., an individual who can be linked to an individual decision. Many successful corporate discrimination cases are based on a broad pattern of discrimination across the company regardless of whether one HR person actually gets officially credited with the hiring/firing decision.
Isn't there also a tenure review board at Michigan? The IHE piece doesn't touch on it.
One thing the piece does mention is some comments skeptical of Hammer's case's potential for success, including this comment from the head of the AAUP Department of Academic Freedom, Tenure, & Governance, Jonathan Knight:
"Jonathan Knight, who leads investigations of tenure and academic freedom cases for the American Association of University Professors, said he had never heard of a case like Hammer’s. He predicted that Hammer would have a tough time and worried about the implications of the arguments being made. 'In theory, there is no reason to believe that a person holding a particular personal view is incapable of making a judgment on the merits of appointment or tenure,' he said. 'The very tough proposition here is how does one establish a nexus or plausible relationship between what an individual practices in his personal life or scholarship, and the judgment of the scholarship for the tenure candidate, especially if there is no smoking gun in the sense of commentary to suggest a bias toward a particular approach to scholarship.'
"Knight added that 'if an attitude toward a group, a movement, an idea is throught (sic) to disqualify one about a person’s candidacy, then the door is flown wide open to introducing political or extraneous factors in [removing people from reviews for] hiring or tenure decisions.' A plaintiff like Hammer 'needs to show a connection' or an involvement that clearly would have the impact of 'tainting the decision.'"
Finally, though, I think the phrase, "The game is the problem" is itself a bit of a problem. First, the tenure system is not the only issue here--you also have the way discrimination lawsuits are handled (though this perhaps isn't one). Also, though, I can't help--based on so little information--retain some objectivity: maybe Hammer is right. If that is the case, I think he, too, would argue that "the game is the problem," meaning a quite different game than tenure.
DD, ultimately I don't know that you really have anything to worry about here.
It's also my understanding is that courts are reluctant to overturn tenure decisions, but we shall see.
My own feeling about tenure is similar to Winston Churchill's famous comment about democracy -- that it is the worst system of governance, except for all the other ones.
As topometropolis notes, part of the rules of "the game" for many of us is that anything but a unanimous tenure decision looks suspicious. 18 to 12? 21 to 9? Those numbers look horrible. Where I teach and work as an administrator, we could handle 29 to 1 or 28 to 2, with the 1 or 2 dissenters coming off as folks who might have a personal beef with the candidate (of course, we'd consider why they voted against; but usually cases that lack this kind of collective dissent are based on personal rather than personnel issues). But we wouldn't feel good at all about an 18-12 or 21-9 vote.
This doesn't say Hammer has a good case or not. And we do have to take Jonathan Knight's point seriously as the real test of "the game." That is, "the game" in question is about the less-than-perfect legal system, not the less-than-perfect tenure system.
Federal discrimination laws aren't as arbitrary as you think AND the burden of proof isn't on the defense, it's still on the plaintiff. At least at the federal and state (in CA) level you need a clear chain of evidence - statements made, emails, actions. How do I know this, my husband has worked at the EEOC as a legal intern. Being in a protected class and having harm come to you is not enough. He and his colleges were constantly explaining this to individuals as well as explaining the need for evidence of bias.
Unfortunately, he had to work against attitudes like "As soon as the plaintiff can prove membership in a protected class (in this case, nobody disputes his claim of being gay), and can show some sort of harm (in this case, denial of tenure), the burden of proof shifts to the defense to prove that animus toward the protected class was not the basis for the decision." This is just not true. It wasn't just administrators like yourself who had the misconception re the EEOC, but actually plaintiffs who came in for everything from "my boss is being mean" to "my supervisor raped me and HR didn't care." The rape was investigated (by the EEOC and the police) and the company sued, the boss being mean, well you're boss can be mean all they want, your boss can fire you, your boss can complain about almost anything, it's when your boss shows clear evidences bias (punishes say African Americans for violating the dress code but no one else, which is why HR is always getting on people about applying the rules uniformly, then there is no bias)that there is a problem.
This complaint would be laughed out of the EEOC and the kind of investigation you're describing would never fly and is possibly discriminatory in its own right.
I'm not a dean (or anyone else in a position to do anything about this), so I'm not sure just how blasphemous any of my proposed solutions would be. Blah blah, grain of salt, blah blah.
The first solution that springs to mind for me is limited/modified transparency. Candidates do their whole application thing, the committee makes their decision, and the answer is brought to the candidate. For the people on the committee, if the answer is yes, they continue to do whatever it is people do with their decisions now. (Seal them, toss them, don't write them down, whatever)
If the answer is a no, however, they write an opinion. Like when the Supreme Court decides on something.. you have your answer, and you have dissenting opinions (and sometimes some other clarifying writing), only mandatory. Dissenting opinions are open for review and must be kept for a certain amount of time (a year? enough time for someone to make a case, assuming good faith and everything else), but unless there's a court order, names are stripped when you show them to the candidate.
Forcing people to put their opinions into writing helps clarify things (and cynically, should reduce your liability; most people will find diplomatic ways to couch their bias if they know it can be seen... and even if they don't, then you have a clear person to scapegoat for it). Having things potentially available helps mollify people inclined to complain, and gives you a PR leg up because you're being proactive about potential complaints. Having names stripped and only negatives recorded/open means that you have a viable argument that you're not eviscerating the process or opening it up to unnecessary internal strife.
... would that work? Is there something in the tenure process I'm missing there?
My point about the game being the problem referred to a couple of factors. First, the fact that nobody is actually accountable for the tenure decisions. Decisionmakers who aren't accountable can be a lot more arbitrary than those who are. When you have a committee of thirty, the only way to get accountability is to do the kind of fishing expedition/witch hunt that Hammer is doing.
Second, tenure is up or out. In a borderline case, you can't give a couple more years to see where the dust settles. This is inherent in the system. When you have borderline or ambiguous cases, you have to decide definitively anyway.
Evilbunnytoo -- that's the way the law is written. Whether the EEOC actually enforces the law as written is a separate issue. I hope you're right that it exercises a little more wisdom than the law's drafters did.
Mag -- one of the first things lawyers tell you is never to say more than you need to say. I'd expect to see college attorneys draft boilerplate to meet the legal requirement, with the real reasons remaining opaque. It is an interesting concept, though.
You're right, the initial law doesn't set everything down, but my understanding is that the subsequent court decisions have help to really narrow down what is and isn't discrimination and what kind of evidence was needed to prove various kinds of discrimination.
I often joke to hubby that with our knowledge of various employment law vagaries (though I am not a lawyer, but I've worked in other areas which touch on employment law) we ought to hire ourself out as consultants on how to fire people, because really, it is quite easy to fire anyone despite their protected class status if you do it right and without discrimination. It's just that so many people have misconceptions about what being in a protected class means or worse, they don't document anything, including disciplinary actions (thus you get a real jerk who was on his/her way out and has been constantly disciplined, but only informally via "chats" and "verbal warnings" and so when you fire them it looks like you did it all of a sudden-like to an outsider, when really the employee has been a problem for a long time).
As far as the investigation for "evidence of conservativeness" going on should raise the warning flag for any good HR rep or University lawyer as this is really close to discrimination or harassment on the basis of religion.
I never once came across that while studying employment law in law school, while researching employment law cases for clients at my university's legal aid clinic, or during my two year stint at the EEOC.
I suggest to you that are falling prey to the unfortunate canard most administrators and HR reps fall to: you are attacking a strawman version of EEO laws rather than addressing the actual language of the laws or the case law.
Not granting tenure or removing someone with tenure requires careful documentation, but it SHOULD. What would the alternative be? As Kevin has pointed out--via Winston Churchill--tenure is not the best system, but it is the least evil of many other possible evils.
As someone who's been a union grievance chair for years, I've often thought about offering training for adminstrators on how to fire a bad teacher (which would take about 15 minutes), but naaaah, I'm not gonna go there.
Yeah, I figured that would be a problem. But I think it could be handled with a few flexible boilerplate forms - four or five core criteria (checkboxes; a candidate should have X of these Y criteria to be considered... could include years at institution, course load, degree type, etc.; mostly quantifiable), a handful of optional but nice criteria (check as many of the following as apply... participation, extra course load, positive feedback, whatever), with space for comments under each. At the bottom, a Y/N box for recommendation to support tenure.
If "no" is checked, a short-answer essay section follows, with explicit tie-ins to the checkboxes before. ("Which section(d) do you feel the applicant fails to qualify in? Check as many as apply.) Each one gets followed by an "Explain." Your lawyers get to vet the language if they really want to, and everything looks neat on paper.
Of course, actually getting people to use it would be rather like pulling teeth, I think.
I thought the most amazing thing about the Hammer story was Michigan's first set of legal arguments (which I understand to have been dropped in their most recent filings), which is to say they argued that the nondiscrimination guidelines were just guidelines, and thus didn't need to be followed. Not the most impressive of defenses from a university.
It's all B.S. and I'm happy to be heading out of there.
Not that your university isn't in the throes of BS, but that particular term has a very specific meaning.
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