Wednesday, August 13, 2008


Past Non-Practice

“Past practice” is a magical, if murky, phrase. It’s the status given, by default, to policies or practices carried out over time that never quite found their way into actual contracts or handbooks. It’s understood to have a binding power of its own, such that any change to an established ‘past practice’ needs to be negotiated or otherwise made explicit through proper channels. For example, even if the contract or handbook doesn’t say anything about a four-day teaching week, if everybody always got four-day teaching weeks, assigning someone a five-day teaching week would trigger a grievance based on past practice, even in the absence of anything in the contract saying it couldn’t be done. It’s akin to legal precedent, except that it’s often unconscious.

It’s a difficult concept to work with, since anything both old and unwritten will necessarily be subject to differing recollection. Over the years I’ve been in countless discussions in which different parties recalled the same ‘past practice’ differently, each with great conviction and moral fervor. Past practices also sometime outlive the contexts in which they originally made sense, but they don’t lose their quasi-binding power for that. They’re a way of giving moral force to “but we’ve always done it that way.”

Over the years I’ve made my peace with the concept of past practice, even with the obvious shortcomings and difficulty of application. (I’d rather be explicit and actually document what we do, but that’s me.) Now I’m wrestling with past non-practice.

A few seemingly great ideas have percolated up of late on campus. In looking into whether we can do them, I’ve run into several very confident “oh, we can’t do that”s. When I’ve asked why, there’s invariably a silence, followed by a variation on “we’ve never been allowed to do that.” When I ask why they weren’t allowed, I get variations on “long gone so-and-so never allowed that. I think it was based on a statute or something.”

This does not inspire confidence.

So I’ve gone to the union contract, the union leadership, the HR director, my counterparts at nearby cc’s, and folks with very long memories. Nobody can point to a rule that would actually forbid what we’re thinking of doing, nor can anybody explain why forbidding it would make any sense. In fact, most of our neighboring cc’s already do this, apparently without issue.

And yet, I keep hitting that same wall of theological rejection. It can’t be done, because it can’t be done, because it can’t be done. Someone told me so, and we’ve never done it, so there.


Wise and worldly readers – have you found effective ways to defeat past non-practice?

How about "Just Do It!"? "Easier to ask for forgiveness than ask for permission."? But I gather that you can't do it because the administration above you (Provost or President) are the problem, not the faculty. Who else could actually keep it from being done?

I don't know of any way to get a passive-aggressive administration to move.

Now if my reading of this is correct and the faculty have proposed a good idea that is in common practice in your state and the folks above you won't do it, the next option would be for the tenured among them to take it to the local paper so a reporter asks your boss instead of you.
Pitch it as a "pilot program" and provide incentives for those who participate.

If there is still resistance, and as ccphysicist suggests it's from above, answer how it ties in with whatever the school's front-and-center issue is. Are you battling student attrition? How will this help? Are you trying to cut costs in one area? How will this help?

Another suggestion-- bring someone in from one of the schools successfully doing this for a talk or to present on how x program has worked at their campus. Have them speak to the target audience you need to convince.

It's really hard to speak generally without knowing specifics.

Is this going to become an annual posting? I remembered you having a very similar "rant" a while back, so did the requisite search, and lo and behold... ""

Almost EXACTLY one year ago!

Coincidence--or have you had to sit through the same annual meeting?
You get farther with a kind word and a gun than you do with a kind word alone. The Capone protocol.
Unless you want incredibly detailed contracts that spell out the minutia of everyone's duties, past practice is a useful guideline.

One reason my present contract includes a clause about the timing of meal breaks is that some mid-level admin felt that placing one's lunch break at 8:45 in the morning was a reasonable thing to do. Teaching for over five hours in a row with only three 5-minute breaks to take a dump, grab food, and get to the other end of a crowded building was not fun.

Following past practice gives people a level of predictability in their jobs, a way of knowing what their duties and conditions will be.

Seems to me past non-practice is part of the same thing. Without knowing the specifics, it might be a way of avoiding having extra (uncompensated) work dumped on someone, avoiding liability/blame/responsibility for something, or institutionalized memories of something bad that happened that no one likes to (or is allowed to) talk about.
I think I just went through a similar scenario with some changes I wanted to make. I was quite clearly told, with great confidence, that what I proposed would not be accepted. So what I did was 1) diligently research to make sure there were no rules against what I wanted to do; 2) go to the relevant people one by one to describe the problem I was facing in such a way that my preferred solution was the most obvious one; 3) ask each person to suggest an appropriate solution.

The result was that the potential roadblocks to my preferred solution themselves suggested exactly what I wanted--the ultimate buy-in, since it became their idea instead of mine. Far from being resistant to the change from past practice, they became advocates for change.

This may not always work, and I suspect it's not far from what you have already tried, DD. It may well be that it worked for me because the stakes seemed relatively low (although the precedent now set could be used in a much broader way). It also may work better for someone midway in the hierarchy such as myself--I was working more or less with peers in the system, not superiors nor subordinates.

But if your personal position in the hierarchy is part of the problem, perhaps you could appoint a Dean's Homunculus to go forth and generate consent.
Hm. From your description, it sounds as if no one you talked to actually opposes the idea, but that everyone thinks someone else will oppose it. Am I right, or is this a particularly passive-aggressive form of resistance? If I'm right, can't you now respond to the "oh, we can't do that"s by saying, "Yes, we can: I've checked the rules and talked to all the relevant constitutencies, and they're on board."

The case is different if the innovation actually runs into concrete opposition from a constituency that feels its own interests are threatened. Then you need to win them over. But if you think they're being passive-aggressive, the line about other constituencies being on board with the change might force them to actually articulate their opposition. (Perhaps I am naïve, though!)

As you describe it, by the way, past practice is like the common law, only without the jurists.
I think you need to challenge the assumption that past practice is sacrosanct. When I served as a faculty union president, our union lawyers would always just roll their eyes when I brought them faculty concerns about the college deviating from past practice. As one of them put it somewhat dismissively, "Past practice and a buck gets you a cuppa joe". So past practice in itself doesn't have any compelling legal standing; the crucial question is whether the proposed initiative rubs against governance documents (faculty contract, college policies, state statutes).

We need to own up to the fact that we work in bureaucratic organizations. As Weber noted all those years ago, effective coordination of people in bureaucracies requires documented guidelines that all agree to follow. As a general principle, the less explicit the rules are, the less likely it is that a college will fulfill its mission. "We've always done it this way" is just not a viable governance strategy.
Anon 9:34 -- okay, that made me smile.

So, 'consistent' or 'redundant'? You make the call...
I agree with anonymous at 11:17 AM. In the past (when the world was different and different people were there) probably something happened which those with institutional memories either don't know about or don't want to talk about.

Or this new procedure/idea you want to implement will cause discomfort or inconvenience to someone at your college. So they use past practice to go against it.

I suggest you do what heather said, pitch it as a pilot program and let those who are most against it evaluate it with specific, written evaluation check sheets. Let those who might sign on to the procedure/whatever implement it. If it concerns grades or something permanent, ask for volunteers to do it, and if it fails, make sure their careers are not damaged. A pilot program could do that.

If there was a good reason for the past practice not being done, you will find it out soon.
If the opposition is really just psychological/habit, another approach is to find some semi-plausible reason that things are different now. "Oh, I know we never did this before, but with the 2006 IRS changes to accounting for consumable inventories, we're now legally able to do it, and I think it will really help." (Legal and accounting reasons are of course always plausible and usually impossible to argue about, but organizational ones can work, too. There's always _something_ different).

That way, everybody can feel good that they didn't implement this themselves before, while still being able to support it now.
What milo minderbinder said.

Past practices don't somehow automatically cancel management rights. An employer's not excercising a right in the past does not mean that right no longer exists.

This principle works the same way in the real world: The fact that someone has never exercised his/her right to criticize the President of the United States does not mean that s/he's lost the right of free speech/expression.

Management's right of assignment is something that's common in most collective bargaining agreements. Faculty members might have enjoyed four-day-per-week assignments for decades; however, management still has the right to schedule folks from Monday through Friday.

--union guy
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