Faculty Governance Requires Faculty Accountability: A Response to David Pozen

In a recent Balkinization post, my colleague and friend Professor David Pozen critiques the power held by the office of Columbia University President Minouche Shafik and argues for a more “democratic model of internal governance.”  Alongside his broader critique of the powers of Columbia’s presidency, David raises questions concerning the removal of the encampment at Columbia and clearing of Hamilton Hall.

Along with my research and teaching on corporate governance, I have closely advised Jewish and Israeli students at Columbia over the past year, and I serve as faculty adviser to the Law Students Against Antisemitism group, which was initially denied funding and recognition by the Columbia Law School student senate for adopting the IHRA definition of antisemitism.  So I have some familiarity with these issues.

My reply here to David is two-fold.  First, shared governance requires a shared set of facts, and David left a few out — like the multiple documented episodes of antisemitism on campus and the takeover, occupation, and vandalism of Hamilton Hall, which included threatening a janitor.  Second, faculty governance requires faculty accountability.  The events of the last few weeks have shown that many tenured faculty at Columbia lack incentives to internalize the preferences of other university stakeholders and at times were even active participants in rule-breaking.  Until there is meaningful accountability, faculty governance is a recipe for chaos and institutional collapse.

Shared Governance Requires Shared Facts

The events of the last few weeks did not occur in a vacuum.  Since October 7, Jewish students at Columbia have been subject to appalling episodes of antisemitism both on campus and just outside the campus gates, which intensified with the establishment of the encampment.  As documented in an open letter signed by hundreds of faculty and thousands of community members, these included chants like “Go back to Europe” and “You have no culture” and the display of signs like “Al Qassam Brigade’s next target” with an arrow pointing to Jewish students.  The list is too long to write in its entirety but there are ample video compilations and documented evidence online.

If that is not hostile-environment harassment, I am not sure what is.  If the KKK were to set up an encampment and chant that Black students should “go back to Africa,” it seems unlikely that one would “fiercely contest” whether this was “public-spirited advocacy.”  Why is the conclusion any different when one substitutes “Europe” for “Africa” and “Jewish” for “Black”?  Surely the Israeli-Palestinian conflict is no excuse — certainly no more of an excuse than the Rwandan genocide or Darfur would be.  As Columbia’s task force on antisemitism noted in its first report, “speech or conduct that would constitute harassment if directed against one protected class must also be treated as harassment if directed against another protected class.”  Indeed, even if David is correct that there has never been “another instance where one group’s asserted experience of discriminatory harassment corresponds so closely with another group’s asserted expression of political protest” (though many believe this distinction is illusory and the product of an antisemitic double standard), it remains self-evident that if Columbia defers to some protected classes in determining which statements are biased or hateful, the university should be consistent in applying that standard to Jewish and Israeli affiliates as well.  In its most recent May 7 letter, the Office of Civil Rights of the Department of Education (OCR) issued guidance reaffirming the importance of “different treatment analysis.”

David doubly misstates the standard for a hostile environment under Title VI as it has been interpreted by OCR.  He writes: “the discriminatory harassment must be so severe and pervasive as to prevent an individual from participating in educational programs.”  But OCR has stated consistently that harassment qualifies if it is “so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.”  There is a difference between “preventing” and “limiting” a Jewish student from participating in educational programs.  The OCR guidance holds that discriminatory harassment must be either severe or pervasive, whereas David suggests that the harassment must be both.  To be fair, David might be subtly echoing some far-right commentators in suggesting that OCR’s guidance in this respect is unconstitutional, notwithstanding the extensive case law cited in the footnotes to the OCR’s May 7 letter.  But regardless, it would be imprudent for the university to simply disregard the Department of Education’s guidance, no matter what the courts end up deciding years from now.  OCR’s May 7 letter gives the example of a single statement by a professor that “Israelis don’t even deserve to live” as an example of conduct that is sufficiently severe to “interfere with or limit” Israeli students’ access to university activities.  OCR similarly emphasizes that a “college’s failure to investigate allegations of harassment based on Israeli national origin, while investigating allegations of other forms of harassment, may reflect college officials treating similarly situated individuals differently” in violation of Title VI.

Of course, I am sure that David agrees that episodes of antisemitism are just that: antisemitism.  I read his essay as trying to sidestep the point by characterizing the Title VI dispute as over the encampment itself rather than the antisemitism that accompanied it.  But at Columbia, one could not be separated from the other.  Many of those antisemitic episodes occurred on College Walk, within feet of the tents.  Might there also have been protected expression that occurred alongside harassment and intimidation?  Of course.  But just like I tell my six-year-old, good behavior does not offset bad behavior.  Any amount of antisemitism is too much — and can rise to a level that violates Title VI.

In addition, David’s essay makes no mention of the fact that just before President Shafik called the NYPD for the second time, pro-Palestinian protestors had not only established multiple encampments, but had forcibly taken over Hamilton Hall and vandalized the building.  Rather than attacking a faux Title VI justification for the police raid, one could simply reference the university’s public statement: “after the University learned overnight that Hamilton Hall had been occupied, vandalized, and blockaded, we were left with no choice. Columbia public safety personnel were forced out of the building, and a member of our facilities team was threatened.”  Masked, hooded individuals from outside of campus were filmed sneaking into undergraduate dorms at John Jay Hall.  That is why the university called the police.  It is not particularly complicated.

Another argument in David’s post is that Columbia “conceded liability” by acknowledging a potential Title VI violation.  I find this a bit confusing: By taking affirmative steps to remedy a hostile environment for Jewish students, the university would be curtailing its liability under Title VI, not conceding it.  This highlights a curious omission from David’s narrative about the president, namely, the role of lawyers.  (I say curious because we both train future lawyers.)  After all, presumably President Shafik did not personally conclude there might be Title VI violations, but rather the university’s counsel did.  It is the fiduciary responsibility of the general counsel to make sure an organization follows the law.  Not all lawyers are litigators — some try to avoid liability in the first place!

Faculty Governance Requires Faculty Accountability

Getting the facts right is not just a quibble over details.  It goes to the central thesis of David’s essay: the role of tenured faculty in university governance.  Over two decades ago, Henry Hansmann pointed out the basic flaw with democratic governance in enterprise: “because participants are likely to have radically diverging interests, making everybody an owner threatens to increase the costs of collective decision making enormously.” For this reason, Henry pointed out, “one of the strongest indications of the high costs of collective decision making is the nearly complete absence of large firms in which ownership is shared among two or more different type of patrons, such as customers and suppliers or investors and workers.”

Thus, if the university did nothing more than pursue teaching and research, faculty governance would be straightforward.  But universities also pursue social policy goals and engage in political activism — what former President Bollinger called the university’s “Fourth Purpose” — over which faculty may hold diverging opinions.  Consider what it takes to run a modern university, and just how many stakeholders are implicated.  Students and faculty need classrooms and offices.  Facilities need to be maintained.  Research budgets have to be replenished.  No dean can run a school without raising money — lots of it.  And the same is true for the president.  Without endowment returns, the university cannot fund not only endowed faculty chairs, but also “financial aid, research, capital projects, schools, departments, institutes, centers, and more.”

I agree with David that the growth of these non-faculty stakeholder interests poses a challenge for university leadership.  We also seem to agree that (1) donations benefit students, faculty, and the university community more broadly, and (2) in an ideal world, the views of tenured faculty would trump other constituencies — after all, research and teaching are the lifeblood of the university.  For this reason, I am inclined to agree that if tenured faculty took these competing interests into account in a thoughtful and reasonable way, it might be possible to entrust governance of the university to them.

Unfortunately, the events of the last few weeks have shown that the institutions by which tenured faculty are involved in university governance — chiefly, the University Senate as well as the AAUP and other faculty organizations — fail to act with the responsibility necessary to govern an institution like Columbia.  None of these institutions have strongly condemned the obvious episodes of antisemitism on and surrounding campus.  Nor have they systematically considered the perspective of Jewish and Israeli students and faculty whose daily experience at Columbia is one of a fundamental lack of safety.

This should come as no surprise.  Early each semester, my corporations students learn that organizations are better off when the incentives of stakeholders and decision-makers are aligned.  But what are the incentives of tenured faculty?  Perhaps in some remote sense faculty have an interest in preventing a total fiscal collapse of the university, because tenure does not matter much when your employer cannot pay its bills.  Other than that, faculty incentives are largely non-responsive to these constituencies.  Consider Mario Torres, a janitor who has worked five years at Columbia and found himself in Hamilton Hall the moment the protestors invaded.  When describing the experience of being “swarmed by an angry mob with rope and duct tape and masks and gloves,” Torres shared a gut-wrenching message from the heart: “I was freaking out. At that point, I’m thinking about my family. . . . When it comes to the public safety, the workers’ safety, people don’t feel comfortable walking through a mob to punch in to get into campus.”

Where was Torres’ voice in the University Senate’s deliberations?  The painful truth is this: Tenured faculty do not hire or negotiate with janitors.  That work is left to the administration.  It is the administration, not the faculty, that has to contend with a possible lawsuit by the union representing building custodians for failing to protect those workers during the takeover of Hamilton Hall.  The same can be said about ensuring campus safety for Jewish students or balancing the university’s budget or investing in the future of the institution more broadly.  My salary as a faculty member does not increase when the university’s finances are well-managed.  By contrast, members of the administration can be hired, fired, and compensated based on performance.

Beyond incentives, there is the obvious difference in competency.  Cas Halloway, Columbia’s newly appointed chief operating officer, had a long history in city government and the private sector.  When it comes to responding to credible threats of violence on campus, I would much rather have the former Deputy Mayor for Operations of New York City calling the shots than the chair of literature humanities (who likened student protest to the goddess Athena).  No matter how good the chair’s intentions, expertise in the Greek classics is hardly adequate preparation for the sort of complex challenges to public safety that we saw at Columbia in recent weeks.  Running an institution is time-consuming, too: Research has found that boards of private firms spend more than 50 days a year making difficult decisions involving complex tradeoffs. Though different in many ways, the decisions involved in operating a major university are similarly challenging and would leave little time for faculty to teach students about the Greek classics — or any other topic — much less write papers.

A parting thought.  I am genuinely curious what faculty who oppose the police raid believe the university should have done in response to the encampments and takeover, occupation, and vandalization of Hamilton Hall.  I am not aware of a single university — from Harvard to MIT to Yale — that allowed encampments to remain indefinitely, much less building takeovers.  The conclusion that encampments endanger student safety is a near-universal consensus.  The university attempted a week of negotiations with protestors (without Jewish and Israeli students at the bargaining table).  When that process failed, the university’s next step was not to call the police, but to suspend the relevant students. In response, protesters escalated by “taking over” Hamilton Hall, leaving the university with just one way to restore order and safety to campus: calling the NYPD.  A faculty veto might have led to crippling inaction and deterioration in campus safety to the point of violence (as occurred at UCLA).

In short, David’s vision of a democratic model of internal governance is well-intentioned and theoretically appealing.  However, without a fundamental shift in the incentives of tenured faculty, faculty governance is a recipe for chaos and institutional collapse.

This post comes to us from Joshua Mitts, the David J. Greenwald Professor of Law at Columbia Law School.

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