Tuesday, September 29, 2015


It Doesn’t Matter Until It Does

“Why do we need to write that down?  We’ve done it that way for years!”

Well, yes.  But if you get hauled into court, you’ll wish you had written it down.

The case of the University of Kansas student whose tweets initially got him expelled, until the expulsion was overturned on appeal, is just the latest lesson.  The short version is that the student in question apparently tweeted some pretty awful comments about an ex-girlfriend who was also a student there.  The University expelled him, fearing a “hostile environment” claim -- understandably -- but did so under a policy that didn’t really speak to the case.  He won on appeal, not because the tweets were misinterpreted, but because the policy was.  

This is why administrators sometimes insist on what seems like pedantry.  Well-crafted guidelines written in advance and followed conscientiously are far easier to stand on in court.  

Obviously, there are limits to what can be reasonably anticipated.  Seinfeld fans will remember when George Costanza had sex with the cleaning woman on his desk at the office, and got fired for it.  When confronted, he said there wasn’t a rule specifically forbidding sex with the cleaning woman on his desk.  No rule can anticipate everything, and it’s unreasonable to ask it to.  Some elasticity in language is necessary in order to prevent absurdity.   And any rule with elastic language will lend itself to some level of judgment.  Even well-drawn borders won’t eliminate borderline cases.

But if you can base the judgment calls on something written and relatively specific, you’re much less likely to lose when challenged.  You’re also much less likely to fall into decisionmaking based on your own biases, conscious or unconscious.  The awkwardness of explicit rules can take them out of knee-jerk intuition territory.  Sometimes, that’s good.  Intuitions hide many sins.

Actually wordsmithing policy requires a funny blend of forward and backward looking.  You need to be able to look forward, in the sense of “what happens if we’re challenged on….”  And you need to be able to look backward, as in “what scenarios seem to pop up the most…”

The really challenging part is trying to anticipate, and close off, loopholes by which people with other agendas will try to “game” the policy.  Loosely, that means using the letter of the law against its spirit.  Because they will.  It’s a frustrating fact of life, but there it is.  That’s where experience matters.  You’ll never make a policy airtight -- as someone once said, nothing is foolproof because fools are so clever -- but failing to pay attention to this step will only lead to tears.  And this, oddly enough, is where the good sports who are willing to help are often the least useful guides.  They aren’t the types to game systems, so they don’t come up with the angles.  If you can find a good “white hat hacker” to help craft policy, do it.  Skipping this step will result in you painting yourself into a corner, rewarding bad behavior as a direct result of good intentions.  

I’ll reserve judgment on the case of the Arizona student, but it’s a healthy reminder of a basic truth.  Policymaking can be tiresome, but losing in court is more so.  Policy doesn’t matter until it does.

Program note: due to a family commitment, the blog will skip a couple of days.  It’ll be back on Monday.

Very nicely written. Good point.
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