Monday, July 11, 2011

Ask the Administrator: Discretion and Discrimination

A longtime reader writes:

I've noticed that in your posts you often (in passing) mention lawsuit risks, it seems usually having to do with behavior that can be construed as discrimination against one protected minority or another. Most recently on June 29th you wrote about "Teach" begin unsystematic in trying to catch and punish cheaters, a policy which probably leads to "disparate impact". I'm definitely guilty of this, and more generally in my teaching I tend to resolve problems ad hoc. If somebody needs an extension on an assignment (or is already late with it), or if someone needs to miss an exam (or already missed it) I decide what to do based on the circumstances and the student. I'm generally strict on paper but lenient in practice, but the specific accommodations I arrange vary. I understand there's some risk to running a class this way, but how serious is the risk? How often do lawsuits arise from this kind of teaching style? I certainly enjoy teaching much more when there are fewer systematic policies and procedures to deal with, and based on student evaluations and test scores I'm a pretty popular and successful teacher in my department, so I think this style has something to be said for it. Maybe it's only very egregious disparities in treatment that are really risky?

First, the obligatory caveat: I’m not a lawyer.

That said, there’s no way to do this job for an extended period without becoming acquainted with a few aspects of relevant law. Discrimination law is one of those.

The rule of thumb I’ve followed, successfully thus far, has been that most vaguely reasonable policies will be upheld, as long as they’re applied evenhandedly. Uneven enforcement is where you can easily get into trouble. If you can be shown to have applied a rule arbitrarily and capriciously, to the detriment of someone in a protected class, you are in a world of hurt.

Of course, one person’s “arbitrary and capricious” is another person’s “discretion.” And that’s where things get sticky.

It’s easy to err on the side of Dilbert, and to reduce administrators to rule-bound automatons. When I talk to the college attorneys, that’s usually the strategy they prefer. This approach has the virtue of consistency, and it establishes a kind of minimum threshold for intelligence. As long as you’re going by the book, you won’t generally be any dumber than the book.

The problem is that the book doesn’t cover everything. Last week’s case of the tenured professor who got to keep his job after exposing himself to an underage girl shows the limits of the “by the book” approach. You couldn’t possibly think of every single thing someone could do wrong, nor could you imagine upfront every possible combination of extenuating or aggravating circumstances. It could not be done. There has to be some elastic language in the rules to cover unforeseen events; by definition, that means there has to be some discretion in the enforcement of those rules. Discretion in enforcement is a necessary precondition for just outcomes. Without discretion, it’s easy to fall into spirals of absurdity.

Discretion relies on what Aristotle called “practical wisdom.” In a recent book by that name, Barry Schwartz and Kenneth Sharpe outlined case after case in which fear-based rule-following led to obviously stupid outcomes, and used those cases to argue for a renewed appreciation of the role of discretion in decision making. “Zero tolerance” policies that result in a kid getting suspended from school for a week for carrying aspirin in her purse are direct results of a distrust of local discretion. The fear of arbitrary individual power leads, oddly enough, to arbitrary depersonalized power. Someone needs to be empowered to stop the madness.

Since it’s difficult to specify in advance what the precise boundaries of discretion should be, courts have adopted a “disparate impact” standard. In other words, rather than trying to suss out what someone was thinking, they try to suss out the impact on the ground. Does your flexibility extend only to white students, or is it distributed evenly? If it’s the latter, you should be fine; if it’s the former, you’re in trouble, and rightly so. If you’re not sure, you might want to start keeping track; if you notice a disturbing pattern, you should ask yourself some hard questions.

Actual danger of lawsuits varies by local legal and political climate. In my observation, there’s little correlation between the merits of an argument and the likelihood of a lawsuit, so it can be tough to predict. What I would not do is start, say, grading “defensively,” to avoid conflict. Instead, I’d go with evenhandedness as a general rule, and I’d encourage you to document the reasons for any exceptions you make. That way, if you’re challenged later, you can demonstrate what the basis for your exercise of discretion was. (“I always drop the lowest quiz” is bulletproof; “she was really hot” isn’t.)

Good luck!

Wise and worldly readers, I suspect there’s much to be said on this one. Have you seen absurdities arise from overly-literal applications of broad rules? Alternately, have you seen discretion abused in serious ways?

Have a question? Ask the Administrator at deandad (at) gmail (dot) com.