Monday, May 06, 2024

Seeing the University More Clearly

David Pozen

Crisis can be clarifying. Recent events on campuses across the country have forced many of us to look more closely at how our own universities work. I have no special insight into most aspects of the Columbia protests or the administration’s response. But as someone who studies public law and nonprofit law, I have been struck by a number of legal-institutional forces that helped bring Columbia to its current conjuncture—all of which relate, in various mutually reinforcing ways, to the power of the president’s office.

1. Presidential Administration Comes to the University

For all the talk of how the modern university has been corporatized, neoliberalized, and so on, there hasn’t been as much attention paid to the ways in which it has been presidentialized.

The presidentialization of Columbia dates back well before the current moment. Our last president, Lee Bollinger, ran the university for over two decades. During his tenure, Bollinger oversaw the rise of a substantial administrative apparatus—the ten highest paid Columbia employees, apart from surgeons, are now all senior executives—as well as the creation of a dizzying array of research centers, policy institutes, and global programs that operate more or less independently of the academic departments. Bollinger’s office also launched countless smaller projects with discretionary funds. After the insurrection at the Capitol on January 6, 2021, for instance, he came up with the idea for a Constitutional Democracy Initiative (with which I am affiliated) and, within weeks, an impressive new outfit was up and running. Meanwhile, the most broadly representative body on campus, the University Senate, seemed to become less relevant with every passing year.

This basic dynamic is familiar to scholars of U.S. public law, who have long documented the growth of executive power relative to Congress and the growth of presidential power within the executive branch—what Justice Elena Kagan famously termed “presidential administration.” Under presidential administration, as Kagan describes it, regulatory activity increasingly becomes “an extension of [the president’s] own policy and political agenda.” This mode of governance has some real benefits, above all energy and efficiency. And President Bollinger did many valuable things for the university. Yet by the time he created a constitutional democracy initiative, Columbia’s own democratic life had withered considerably.

The stage was thus set for some of the most controversial moves made by Bollinger’s successor, President Minouche Shafik. Shafik has made a series of “bold” decisions without first securing community support. These include unilaterally revising event policies and calling the cops on student protesters in defiance of the senate executive committee’s unanimous opposition. If Shafik has broken with various specific campus norms, however, we should acknowledge that the brand of centralized leadership she brings to Columbia is nothing new, and on the contrary is precisely what is expected of a modern university president.

2. Faculty Just Work Here

Professors fortunate enough to have tenure may get the impression that they are pretty big deals on campus. They have extraordinary job security. They hold significant power over their students’ educations and career prospects. And the job description—publishing original research, applying for grants, giving lectures—doesn’t tend to select for or reward modesty. Within their classrooms and departments, full-time faculty exercise some meaningful agency and authority.

It therefore came as a rude awakening for many faculty members at Columbia to learn just how little decisional authority we collectively wield at the university level. When the senate executive committee opposed Shafik’s crackdown on the student encampment, she went ahead and did it anyway—and there was nothing, under the University Charter and Statutes, that the committee or its formidable chair Jeanine D’Armiento could do about it. The full senate then considered a censure resolution. Had it passed, this act of resistance likewise would have had only symbolic effect. President Shafik was hired by, serves on, and reports to the board of trustees, whose members are largely chosen by … the board of trustees. Faculty are on the outside looking in.

To simplify somewhat, we might say that professors are granted a number of basic rights within the university, including rights to free speech and due process and quasi-property rights in the job itself. Students and staff are granted a partially overlapping, though weaker, bundle of rights. What none of us have are governance rights against the trustees who really run the place. We enjoy various individual privileges and protections, but not the franchise.

Legal scholars and political scientists have a term for this sort of arrangement, too: liberal autocracy. Although self-perpetuating boards of trustees have long controlled universities like Columbia, the salience of this feature tends to fade during periods of relative harmony and prosperity. As the Columbia administration’s actions over the past six months became increasingly contentious, and increasingly detached from ideals of academic freedom, the autocratic character of our governance model came to the fore.

3. The Myth of the Endowment Buffer

While President Shafik has not been particularly responsive to the views of faculty majorities, she is often depicted as being highly attuned to the demands of major donors and rabble-rousing politicians (who have, in turn, started making Columbia-related demands on one another). The same is true of Shafik’s counterparts at peer schools. This point about donor and politico influence is almost too obvious to make, except that it conceals a puzzle. Columbia’s endowment is worth $14 billion. Even if the endowment has been poorly managed, as Adam Tooze recently demonstrated, isn’t that enough money in the bank to insulate the president from the most intrusive demands?

The leading treatment of this issue in the legal literature is Henry Hansmann’s 1990 article “Why Do Universities Have Endowments?” Among Hansmann’s answers to his titular question is that a large endowment may “serve to protect a university administration … from the need to cater too closely to the desires of those who ultimately provide the institution’s income—whether they be students, private donors, or the government.” The endowment, that is, provides a financial buffer not just against unexpected economic shocks but also against unwelcome external pressures of all sorts. In theory, this looks like one of the best arguments against universities spending a significantly higher percentage of their endowments each year.

In practice, however, the argument turns out to be mistaken, or at least to be in need of serious qualification. What it misses is the sociology of the modern endowment. Over the past generation or so, having a large endowment has become something more than a means to support longstanding institutional goals; it has become an end in itself, a key measure of a university’s prestige and its president’s performance. And because most philanthropists don’t like to fund boring old operating budgets, expanding the endowment is often accomplished through conditional gifts for enticing new endeavors, as reflected in the proliferation of extra-departmental centers, institutes, and programs referred to above. Once launched, these non-tuition-receiving entities—and all the jobs, faculty fiefdoms, and student opportunities that come with them—only tend to increase the demand for ongoing donations.

The endowment, in short, always needs to keep growing, according to the logic of those who run and rate elite universities, which means that major donors always need to be cultivated while their political patrons are placated. This dynamic degrades the endowment’s capacity to serve as a buffer against populist and plutocratic pressures alike. At the same time, the fundraising and grandstanding pressures that it creates further fuel the presidentialization of the university.

4. Legal Pluralism and Student Speech

In the senate executive committee’s recent compendium of actions taken by the administration “that have harmed Columbia University” (pp. 23-24), several of the items involve the failure to utilize “long-established disciplinary processes.” With regard to the past few months, at least, the charge is not that the administration bypassed existing processes altogether or that it misapplied any particular process. The charge is that the administration routed student protesters’ cases to certain disciplinary channels, rather than others, on the expectation that those channels would mete out swifter or sterner punishment. How could this be possible when Columbia’s governing documents contain no emergency clause and when everyone at Columbia is subject to the same Rules of University Conduct?

The answer is that individuals at Columbia may be subject to three other sets of rules as well: the Standards and Discipline Policy, the Equal Opportunity and Affirmative Action Policies and Procedures, and the Interim University Policy for Safe Demonstrations (adopted this February). It is no easy task to figure out how these policies relate to one another. After weeks of studying this issue, a law school working group led by Jeremy Kessler produced a 12,000-word forensic analysis on which I have drawn. The most problematic policy this year has been Standards and Discipline, both because it employs broader definitions of harassing and discriminatory speech than do the Rules of University Conduct and because it grants fewer procedural protections to the accused. In an Orwellian twist, this policy is administered by the Center for Student Success and Intervention (CSSI), which helps students flourish by denying them representation in a process that could lead to their expulsion. Shafik’s shenanigan, according to the University Senate, was to start charging student protesters under the Standards and Discipline Policy, instead of the Rules of University Conduct, so as to punish them more efficiently.

In engaging in this bit of legal arbitrage, the university administration toggled between not only different procedural frameworks but also different normative visions of student speech and discipline. The Rules of University Conduct were adopted after the convulsive campus protests of 1968. They aim to secure a wide berth for political expression and to stave off content- or viewpoint-discriminatory administrative responses. In other words, they embody a liberal speech regime, which President Bollinger came to personify. The CSSI, by contrast, was established in 2022 and places greater emphasis on shielding vulnerable students from discriminatory harassment while promoting “students’ holistic well-being” and values of “Justice, Equity, Diversity & Inclusion.” It embodies a moral-therapeutic regime.

President Shafik’s critics suggest she has weaponized CSSI and its ethic of safetyism against pro-Palestinian protesters. Her defenders believe she has enlisted it appropriately in the cause of combatting antisemitism. Either way, it’s important to see that the administration quietly asserted the authority to redirect more and more cases to a particular sort of disciplinary regime, which many experienced as unfamiliar and unfair, and that this was made possible by the emergence of inconsistent legal orders within the university.

5. Title VI Theater?

The same tension between free speech and antidiscrimination values that Columbia’s rules try to negotiate is also, of course, a larger fault line in American law. While the First Amendment privileges political expression, Title VI of the Civil Rights Act of 1964 requires universities that receive federal funding to stamp out “harassment” and “hostile environments” based on race, religion, and national origin. In recent months, Jewish and Israeli students have sued or filed administrative complaints against Columbia for violating Title VI, as have Palestinian, Arab, and Muslim students.

Shortly before she summoned the NYPD to Hamilton Hall last Tuesday, President Shafik’s office sent multiple messages to the Columbia community stating that the Gaza Solidarity Encampment had contributed to “a hostile environment” for Jewish students and faculty, “in violation of Title VI.” These statements were remarkable on several levels.

The Title VI threshold for university liability is high—the discriminatory harassment must be so severe and pervasive as to prevent an individual from participating in educational programs—and scholars continue to debate whether and to what extent Title VI applies to speech on matters of public concern. My fellow Jewish colleagues and students hold a wide range of views on the encampment. (We are Jews, after all.) Yet however upsetting some may have found the takeover of the lawn, as well as any number of incidents before and since, it is not at all clear that the encampment placed the university in violation of Title VI. That issue could be litigated for years. Since when does Columbia go out of its way to concede liability?

The point can be pushed further. Legal standards such as hostile-environment harassment are not well suited to this situation. These standards assume a reasonably stable and widely shared baseline as to what counts as an act of intimidation, on the one hand, and what counts as public-spirited advocacy, on the other. In the current context, however, that baseline is itself fiercely contested. Students have disagreed about the boundaries of acceptable speech many times before. But I cannot think of another instance where one group’s asserted experience of discriminatory harassment corresponds so closely with another group’s asserted expression of political protest—and where both groups contain a substantial share of the student body. This campus speech debate has produced so much more heat than light not only because of the horrifying violence to which it responds, but also because it is taking place in the absence of any consensus on the meaning or morality of core slogans and symbols. Moreover, the debate is inextricably bound up with a higher-order argument about who gets to set the terms of acceptable discourse on Israel-Palestine issues.

But let’s say that I am wrong about all of this and the encampment did indisputably place the university in violation of Title VI. Even when a hostile environment or other acts of unlawful discrimination are found to exist, university administrators are given discretion over how to rectify them. In private suits for money damages, administrators must show that they were not “deliberately indifferent” to discriminatory conditions. The notion that a university must call in the cops to fulfill this obligation finds no support in Title VI doctrine, as far as I’m aware. That notion seems all the more bizarre in a context where many of the arrested students, including Jewish students, believe that they themselves have been subject to discriminatory treatment.

I do not mean to assert that no Title VI violations have occurred or to imply that President Shafik appealed to the statute in bad faith. The law of Title VI in higher education settings is complicated; the facts on the ground at Columbia have been complicated; and Shafik may well have believed that the encampment crossed a new legal line. It is nevertheless hard to escape the conclusion that she invoked Title VI not so much in acknowledgment of a regrettable legal fact as in service of public persuasion—as an effort to reassure audiences in Congress, the Department of Education, and beyond that she is taking antisemitism seriously, and to justify to constituencies on campus the police raid that would soon follow. From everything I have seen since Tuesday, the internal persuasion strategy, at least, does not seem to have worked.

* * *

There is no shortage of immediate repair work that needs to be done at Columbia, as at many other universities. But if the thrust of this post is right, we should redirect some of our critical attention away from President Shafik herself and toward the office she occupies, away from the latest divisive decision and toward the decades-long drift toward presidential administration, which shaped how that decision got made. Reversing this drift, and developing a more democratic model of internal governance, may be a prerequisite not only for rebuilding intellectual community but also for avoiding future campus conflagrations.

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