Saturday, August 5, 2017

Guest post about governance by Professor James Engell

This comment addresses grave matters of university governance raised by the announcements, committees, and reports of the past year about student clubs.

The current policy of discipline (“sanctions”) for students entering the College this fall was never voted by the Faculty and cannot be regarded as legitimate.  Any policy regarding discipline (“sanctions”) or prohibitions against certain behaviors should be voted by the Faculty.  This is clearly stipulated by the University Statutes.  (The link is to a 2004 version of the Statutes, the current Statutes being unavailable on the Web, to the best of my knowledge.) Matters to be voted by the Faculty include any determination to phase out student membership in USGSOs and effectively to prohibit such membership as a precondition of being a member of the College.  No administrator—Dean or President—has the inherent statutory power to make or change any policy of discipline or sanction.  This power belongs to the Faculty.  If the Faculty permit this particular power to be exercised by some other body or by any administrator, then the Faculty will forever cede an important power and will diminish their own standing to effect or change any policy.  Furthermore, any policy that has not been voted and adopted by the Faculty, and thus does not appear in the Handbook for Students, would almost surely be subject to legal challenge if that policy were enforced.

The Committee on Unrecognized Single-Gender Social Organizations (the committee) co-chaired by Dean Khurana and Professor Clark is not a faculty committee and should not be called a faculty committee.  It is an administration-faculty-student committee.  (Or it may be called, as the ROTC committee of similar composition was called in the early 1990s, simply a committee.)  I have never heard a committee with such a composition ever before referred to as a “faculty committee.”  Calling it that gives the false impression that all or almost all its members belong to the teaching faculty.  I believe that the report of the committee never refers to the committee itself as a faculty committee.  Of twenty-seven members, eleven are tenured faculty, two are untenured faculty, two Allston Burr assistant deans, six are administrators appointed by various deans or other administrators, and six are students apparently selected by administrators and not elected or selected by their peers as representatives.  This mix of members may be desirable.  However, a committee so composed is not a faculty committee.  In fact, teaching faculty are in a minority unless the Allston Burr assistant deans are counted as teaching faculty (the masthead of the committee does not indicate a teaching appointment for either).  Even if they are counted, then Faculty are in the barest majority.  Despite all this, according to the Crimson (July 21, 2017), a spokesperson for Dean Khurana, Rachael Dane, in an email to the Crimson referred to the committee as “the faculty committee.”

As reference to my remarks at the December 6, 2016, FAS Faculty meeting will indicate, the current policy of sanctioning students, which is a policy of discipline, cannot be regarded as institutionally legitimate.  By extension, despite its good will and work, the Implementation Committee is also illegitimate.  All disciplinary policy and its enforcement comes directly by a vote of the Faculty unless the Faculty delegates it to some other body or person by a vote, or unless in very rare cases there is strong evidence that a student has violated the University policy on Rights and Responsibilities.  That is what the Statutes of the University clearly state—unless the Corporation has recently changed the Statutes without notifying the Faculty (the Statutes were altered several years ago to reflect the new calendar and changed date of Commencement).

The Faculty have never taken a vote on the current policy.  The Administration never presented that policy to the Faculty for a vote, despite several opportunities.

The recommendation of the committee as just issued constitutes a form of discipline, too; or if it is argued that it does not, then it forms a sweeping change in the manner in which the College will police and dictate the social lives of students and take action against students if they violate the policy.  Such a change should be voted by the Faculty.

For Dean Smith to say in his charge to the committee that, “Any recommended change to our current policy must be approved by the President of the University” is to abrogate without warrant or precedent whatever mode of shared governance we enjoy.  It also further ensconces the “current policy” as legitimate when it is not.

Dean Smith also stated at a Faculty meeting this spring that the manner in which we are proceeding is what “we have always done.”  With forty years experience on the Faculty and attendance at nearly every FAS Faculty meeting during those decades (when I was not on leave), as well as membership in over three dozen faculty committees (including Faculty Council, twice, and its Docket Committee), as well as committees with students and administrators as equal voting members, including the Committee on College Life in the 1980s at the time when the University and the male final clubs parted ways, I disagree.

In press reports late in 2016, Senior Fellow Lee is quoted as saying, “I think rather than getting into a struggle over who has the right to do what, I think what [Faust] said is we have a shared responsibility to solve these issues.  I think the first major step was the policy,” meaning the current policy of disciplinary sanctions.

The Senior Fellow of the Corporation, a lawyer, thus stated that it is not worth deciding who, or what body, in the University, has the right to do what.  Taken at face value, imagine what that statement means.  He does not reference the Statutes.  They do not favor his view.  The Statutes do not struggle on this matter.  The Statutes are clear.  Only the Faculty as a body has the power to act in this matter.  Yes, we have a shared responsibility to solve these issues.  Yet, the actual power to discipline—“power” is the word in the Statues—is vested in the Faculty.  Mr. Lee thinks the first step should be certain disciplinary sanctions, and that is his opinion.  But such power unambiguously rests with this Faculty.  Otherwise, the Faculty might as well never meet again and simply do whatever the Dean, the President, and the Senior Fellow of the Corporation say should be done, no matter what issue is at stake.  Not even power over the curriculum is granted Faculty privilege in the Statutes equal to the power of the Faculty to determine discipline.

Mr. Lee said, “I think rather than getting into a struggle over who has the right to do what . . . we have a shared responsibility to solve these issues.” Yes, we have that responsibility.  So, why worry who or what body or person has the right to act or to set any policy?  In a weird mirror image of what sometimes—and perhaps even now—occurs in our national polity, why indeed worry?  Why not let the executive do what it wishes—especially if the executive deems that it alone has ultimate power to determine how to “solve these issues”?  As Dean Smith told the committee, “Any recommended change to our current policy [itself a policy never voted upon] must be approved by the President of the University.”  Who cares about precedents, process, Statutes, or the constitutional fabric?  Why not summarily strip flag burners of citizenship and students of fellowship eligibility?  Why bother with written Statutes and honored principles?  Why deliberate?  Why vote?

It is said by some that a vote will come—though perhaps it will be cast procedurally as simply a vote on relatively brief language, perhaps involving multiple changes, in the Handbook, and reserved, as such a vote usually is, for the last FAS faculty meeting of the year, May 2018.  What we need is a vigorous Faculty debate on the current policy of sanctions and on the recommendations of this committee.  We need that debate sooner rather than later.  Town Halls are no substitute for Faculty debate in Faculty meetings.  Town Halls may be useful, but Town Halls also permit one to say that Faculty have been consulted and heard without actually calling anything to a vote of the Faculty.

The Administration has done much maneuvering to keep Faculty votes from occurring.  Rules of Faculty Procedure were violated in the December 2016 meeting more than once.  That meeting was even adjourned contrary to the Rules of Faculty Procedure. Professor Haig’s motion this past spring was referred to the committee in a manner extremely rare and only at the behest of the Docket Committee.  His motion concerning oaths (affirmations, pledges—a part of the recommendations of the committee) pertains to the actual though illegitimate current policy, which remains in force, but the committee appears to fail to address directly Professor Haig’s motion in any context other than, it seems, to advocate that the recommendation of the committee not be embodied in an explicit pledge or oath but in language contained in the Handbook.

Finally, if the account of the committee votes and voting procedure given in the Crimson (July 21) is accurate, then there is no basis to believe that a majority or even the largest plurality of the committee voted in favor of what was stated as the recommendation of the committee.  This is deeply disturbing.  Even if one eliminates the four options that received no votes, voting on 6 options when several have significant overlap, and permitting each committee member to vote for more than one option though not at the same time stipulating the exact number of votes that each committee member must cast (two, for example, or three), can never produce meaningful or reliable results.  At best the process of voting was so irregular and botched as to be inconsequential or nugatory, giving only the most general impression of committee views; certainly, the process of voting in the committee cannot be regarded as determinative nor as a genuine statistical measure of the varied views of the committee members.  At worst, the process of voting may have been designed to obfuscate and make elastic the very act of voting itself in order to permit the declaration of a recommendation that had been determined beforehand by one or both the co-chairs of the committee who knew that such a recommendation had at least some support.  A vote so irregular, so contrary to any established committee procedure—and in violation of any valid way of voting on multiple options established in political or polling science—cannot and should not be trusted.  Moreover, neither of the two options that clearly received the most votes became the recommendation of the committee.

Monday, July 31, 2017

More Social Club Press

Two new items in the Boston Globe.

Sage Stossel (AB'93) has a hilariously apt cartoon about Harvard's new social club policy.

And Laura Krantz has a new story up. She had the wits to call Bowdoin and ask them about the comparison Harvard was using to justify its policy. Part of the answer is astonishing.
A spokesman for Bowdoin said that even though Harvard cited the college as a model, no one from Harvard contacted Bowdoin for information. Administrators were perplexed to read about their college in the news.
“Our decision was based on what was right at the time for Bowdoin and not necessarily relevant to what other colleges and universities face today,” college spokesman Scott Hood wrote in an e-mail to the Globe.
Really? The Clark-Khurana committee report presenting the new Harvard policy casually states that it was unlikely Harvard could come up with a better policy than Bowdoin's, and nobody bothered to call Bowdoin?

Bowdoin's policy may or may not have been a success at Bowdoin; there seems to be some difference of opinion about that. But there are many ways in which Harvard's situation does not parallel Bowdoin's, where the fraternities were on campus and residential. Nobody at Harvard is trying to avoid living in the Houses, which house something like 97% of undergraduates, even though not a single undergraduate is required to live on campus after the freshman year.

Sunday, July 23, 2017

Social Club Press Roundup

Several articles of interest have appeared in the aftermath of the report of the Clark-Khurana committee, which recommends a total ban on "exclusive" social clubs.

There is no substitute for humor. It's actually too bad that Harvard didn't think of using this weapon against the more ridiculous of the clubs, rather than allowing itself to become the target. Like any good humor piece, this one makes a serious point. The rationales keep changing; the set of affected clubs keeps expanding; but the horror stories in the reports remain the same, because killing off the men's final clubs has always been the real agenda--a conclusion in search of an appropriate premise to imply it, now for more than a year. It cannot be an accident that discussion of sexual assault faded away last year once it became clear that closing down the final clubs could not be justified on that pretext.

By the way, not stated in this piece but certainly implicit is that the slope is indeed slippery. It was asserted repeatedly last fall that sanctioning the single-gender clubs could not possibly be a step down a slippery slope; the original policy had a very narrow and unique target, we were told. We have skidded quite a distance between last May and this July, but there are plenty of arguably obnoxious organizations left for Harvard to bar students from joining. I hope the next time someone asks whether this could be extended to a conservative religious group, we will not again be dismissively told that there is no slippery slope.

This piece, too, is brilliant, in an entirely different way. As it is behind a paywall (it appears in the Chronicle of Higher Education), I will quote just one passage to give the drift.

To quote the great philosopher Clint Eastwood, as Dirty Harry, "a man’s got to know his limitations." The same may be said of a university. Its jurisdiction and authority are rightly bounded by the perimeters of its campus. The certitude of its moral and intellectual prowess does not give it infinite license to control the private lives or thoughts of its students, to manage the affairs of society at large, or to deliver its principles as if tablets from on high. The evangelical zeal of any university, its messianic compulsion to promote progress (as it and it alone would define it), is a sure sign that it misunderstands its core responsibilities: educating its students and demonstrating by word and example the need to respect the rights of others to self-determination, even when adjudged to be wrong. A university on a mission is a dangerous thing in a pluralistic society, a betrayal of the diverse values it purports to represent, and a sure way to alienate those it seeks to enlighten.
The list of examples Gup goes on to cite certainly makes one wonder, as one of my colleagues did with me this morning, whether some future writer will look back on these events and ask, "What were they thinking?"

Seven Votes (Crimson)
This is the blockbuster news story of the year by the Crimson. If correct, and it seems well sourced and no corrections have been added to the story in the two days since it appeared, then the Clark-Khurana committee did not reach nearly so extensive a consensus as the report of that committee suggests. (I do not refer to this as a "faculty committee," since many members were not faculty, and faculty who are not also administrators were in the minority.) The committee members certainly have my sympathy--it's a complicated issue about which it had to reach a conclusion under time pressure and with limited information. (In fact, very little factual information is in the report. I wonder how carefully the policies of other colleges were studied. There are no thanks to people at Bowdoin or Yale who were consulted, no evidence of road trips, and very little if any numerical data.)

From the time I--respectfully and in good faith--withdrew my motion, I have said nothing about the committee or its work, until now. The stunning revelation is the one in the title--that apparently the recommendation for a total ban came out of a single up-or-down vote (described as a straw vote) among ten alternatives. The Crimson reports that seven of the 27 committee members voted in favor of the option that was then reported to be the committee's recommendation. Even middle school students learn not to conduct a vote that way when choosing a team captain--the results are meaningless. And here the vote is being used to radically restructure undergraduate life forever. This is the culmination of a consultative process that was supposed to get us to a unifying end to a year of divisive discussions set off when the policy was announced, out of the blue, as students and faculty were leaving town.

If true, the article confirms all the worst that our critics think of academia: That we come to conclusions first, write fake reports to justify those conclusions, fill them with phony numbers ("small minority") and sanctimonious language about our own moral superiority (really--"pernicious" appears four times), and then claim high moral ground we do not deserve. The sadness of this, unless the article is somehow debunked, is that it sullies the reputations of academics who make other decisions with human consequences--political scientists, climatologists, medical researchers, admissions professionals. It makes us a laughing stock, and that hurts us all.

Harvard alums furious over proposal to ban elite social clubs (New York Post)
I am quoted skeptically about a new argument for banning clubs: Harvard students can't handle being rejected from them. I don't doubt that this upsets people, probably more now than a couple of years ago. (Harvard's constant complaining about how important the clubs are has probably been good for recruiting.) I get it about the stress of competition--in Excellence Without a Soul I quoted one of my assistant deans as saying he loved athletes because "they are the only people here who know how to lose." I am just skeptical about the seriousness of the problem, and that a ban is a remotely sensible response. We are an educational institution, and there is no educational value in protecting students from the consequences of their choices by taking those choices away from them. In any case, I wonder if anybody really cares that much about the stress resulting from trying to get into a club--we seem fine when students get "lotteried by application" out of two or three Gen Ed courses, which they  actually need to take in order to graduate. (The Post had an earlier editorial, Harvard's plan to make sure undergrads never grow up.)

Harvard women's groups frustrated by efforts to ban them (Boston Globe)
This does a good job shifting the attention to the collateral damage done to women's clubs, most of which have little in common with the men's clubs that were the original target. One of the annoying attitudes one hears is that the clubs don't really add anything, so if they get injured in the process of killing off the minority that are widely agreed to be obnoxious, it will still be a win.

A cautionary tale for Harvard on male-only clubs (Boston Globe)
This article draws a parallel between the Harvard ban and a recent case at Wesleyan where a fraternity won a lawsuit against the university. Unfortunately it  seems to miss the point that the new Harvard policy, which is not based on gender, may have been designed to avoid the flaw that made Wesleyan vulnerable. On the other hand, given the chaotic design-making process described in the "Seven Votes" story, that speculation may be giving the Harvard process too much credit.


A year later, after so much has been written and said, I am exactly where I was last May. Students, just like the rest of us, should be able to join any private organization they want. We should all be held accountable for our actions, not for our choice of clubs. There are good reasons why Harvard prohibits us from asking about clubs when we make hiring decisions--because what clubs people belong to is nobody's business but their own. I will return to these thoughts on another occasion.

(updated 7/24 to reflect correction to the last Globe story)

Monday, July 17, 2017

Further comments on the social club policy

FAS has set up a website for faculty to post comments about the policy. (Actually, the report, which links to the site, says "faculty and students," but students tell me they can't log into it.) Here is the comment I just posted there.


This drastic recommendation is the product of anecdote and generalization, rather than data and analysis. The anecdotes are largely about men’s clubs, and though the report doesn’t mention it, most of the students affected by the policy would be women. Rather than targeting the malefactors and placing them in statistical context, the report uses dramatic stories to justify moves against clubs that have done nothing wrong. It is as though an attack by somebody’s Rottweiler was justification enough for taking away other people’s service dogs, St. Bernards, and poodles.

The use of “exclusivity” to consign all the women’s clubs to the same fate as the most drunken of the men’s final clubs seems almost certainly designed to meet the President’s condition of not inviting a lawsuit—which recent Crimson reporting suggests may happen anyway. Women members will testify that these organizations have grown for reasons that have nothing to do with the drunken parties that happen at some male final clubs; alumnae have told me that the support they received from other members was not just enjoyable, but essential to their success at Harvard. The report offers no evidence that getting into one of the women’s organizations is particularly competitive, relative to the psychic rewards of membership (it is probably less stressful than repeatedly being “lotteried by application” out of limited-enrollment FAS courses). The report’s vague call for “increased efforts to foster other social opportunities for students” sounds a good deal like a recommendation to “repeal now and replace later.” Of course, the argument that women’s organizations are “discriminatory” is irrefutable—but also entirely abstract: no evidence is offered that men have ever wanted to join them.

But these are practical details. Even if we were to conclude that the clubs “should” not exist, and that our students and alumnae are exaggerating their importance, the whole idea of punishing students for joining private, off-campus organizations—for peaceably assembling, as the Bill of Rights puts it—is deeply wrong.

It is true that the rights enumerated in the First Amendment are dangerous to established order. As Americans, we can ridicule our president, and can gather peaceably together in groups that cause the authorities to suspect that we are up to no good. It took supreme confidence on the part of the Founders to build into the Constitution the assurance that the government would not interfere with these activities. It might watch us closely and stand ready to respond when we break a law, but Congress could not make the speech or assembly itself unlawful. The reason these things are allowed, even when they are considered obnoxious or worse by prevailing social standards, is that the Founders understood that society is not static, and they had confidence that an enlightened if not always harmonious society will in the long run be better off, that social progress will occur, if people are allowed to speak and assemble peaceably even for reasons the authorities find offensive.

Harvard is a private institution and is under no legal obligation to follow the principles that apply right outside Harvard Yard. On the other hand, we should consider ourselves to be, if anything, more enlightened than the average place in America, more capable of governance through the rule of reason. This absolute ban—modeled on a policy for rural institutions where fraternities were residential and the entire social structure was drastically different—projects a lack of confidence that students should be allowed the same freedoms that the Constitution guarantees to all citizens. It is as though we don’t think that appeals to facts and reason will work with our students, and therefore there is no other way to proceed except by making a rule and then enforcing it with discipline. Yes, something must be done, but it is simply not true that everything else has been tried. For example, as I testified to the committee, the College has never tried (that I am aware) even the simplest of campaigns: to tell students not to join or go to the worst of the clubs, and why, and to explain the same forcefully to the parents of incoming freshmen. My own freshman advisees last year, who entered the College when it was at peak alarm about the ills of USGSOs, reported that no one had said a word to them about this subject in any orientation, proctor meeting, or written communication.

We are an educational institution. We teach students in everything we do. If we can teach students to guard themselves against infectious diseases without quarantining them, we can get them to stay away from those clubs where we have good reasons to think they should not go. Let’s give our students, and ourselves, more credit than to say that the only possible response is an outright ban, which to be effective would have to be enforced by some system of tips from informants, surveillance of off-campus restaurants where suspiciously regular dinner meetings might be taking place, and Ad Board punishments.

To proudly adopt a ban would be to teach by example that when a national leader attacks the free press or peaceful protests, he may be responding quite appropriately to the irksome downsides of citizens’ exercise of their civil liberties. Just because the rest of the world is finding authoritarianism more congenial than personal freedom, that doesn’t mean Harvard has to follow suit.