Coordination Games at Widener and Ave Maria
It's interesting how little support Professor Lawrence Connell has gotten from his fellow professors at Widener Law School--- zero, in fact, as far as I can tell. We professors are, unfortunately, timid people for the most part, highly reluctant to stick our necks out for the sake of abstract principle or our fellow man. One might expect that of bookworms, actually. We are happy to criticize politicians, of course, but we fear public advocacy that actually has some possibility of hurting our careers. That very much includes public criticism of deans (though see the case of Ave Maria Law School discussed below).
Many Widener students but no Widener faculty contributed emails and testimony in support of Professor Connell in his formal hearing. Two non-Widener law professors contributed testimony about legal teaching, but no Widener professor did--- not even the criminal law professors who teach the same course and could have testified as to whether or not they use hypotheticals. One former student said in a blog comment,
"Other professors at Widener, and even professors at my current law school (some of the best professors around I might add) use each other in their hypos! I just finished a Secured Transactions final that had one of the professors at my current school doing some seriously strange things while borrowing money creating security interests! For instance, at Widener I recall Professor Turezyn used her students in her hypos for battery, assault, etc." ( comment at jonathanturley.org)
In the blogosphere I have seen no comments from current Widener professors either defending the dean's actions or criticizing them, even though a surprisingly large number of those professors run their own blogs:
WordInEdgewise - John Culhane
Environmental Law Center and Environmental Law Center Blog - Jean Eggen, David Hodas, J. Patrick Kelly, Ken Kristl, James May, and Andrew Strauss
Climate Change Law: Mitigation & Adaptation Book Companion site - David Hodas
Health Law Pulse - Andrew Fichter, John Culhane
Institute of Delaware Corporate and Business Law - Lawrence Hamermesh, Paul Regan
Nonprofit Law Prof Blog - Nick Mirkay
Medical Futility Blog - Thaddeus Pope
NanoLaw Blog - Jean Eggen
China Blog - Juliet Moringiello blogged from Beijing
The complete blog list (including Harrisburg faculty) with links is at an official law school site here.
It is perhaps significant that Widener University has no AAUP or NAS chapter.
I have seen reports that two faculty committees exonerated Professor Connell, but that is false. The first committee was an informal ad hoc committee composed of three law professors. They dissolved it in March 2011 without making any conclusions, saying that a formal committee was at work so their committee was unnecessary. The second committee, the formal one, was composed of the Associate Dean and two law professor picked by the Dean. To be sure, it did not find the Professor Connell had committed racial harassment or sexual discrimination, but it did find that he had retaliated against the students who charged him, which opened the door to much the same punishment.
My field is game theory, and this situation is reminiscient of a common game theory model that we might call "Who Will Bell the Cat?". The players are the law professors. The actions are "Criticize the Dean" and "Be Silent". The payoff functions are harder to specify. They depend on the amount of retaliation feared from the dean, the shame of not defending academic freedom, and the desire to help or hurt Professor Connell. My guess is that the first two considerations predominate for most professors, with a few more strongly wishing to help Professor Connell and few more strongly wishing to hurt him. The amount of feared retalition falls with the number of faculty criticizing; it is hard for the Dean to punish the entire faculty, but easy to come down hard on a few dissidents. The shame of not defending academic freedom increases with the number of faculty criticizing, since the silent professors stand out more as being especially craven.
This game has two equilibria: All Criticize and All Be Silent. I would guess that the All Criticize equilibrium is better for the faculty, since they incur no shame and the Dean cannot easily shift duties or the budget for faculty raises to punish one professor without rewarding another, especially if getting a new dean would help the faculty and keeping in mind the precedent for future faculty-Dean conflicts. But that better equilibrium is not necessarily what will happen. It depends on various things that I do not wish to discuss here but which can be found in the economics literature.
A fascinating case study could be made comparing Widener Law School in 2010 with Ave Maria Law School in 2007. Widener is very liberal and secular (as are most law schools) and Ave Maria very conservative and Roman Catholic but they are at a similar level of prestige and both aspire to academic influence. Ave Maria had a strong-willed major donor who induced the dean to fire certain professors who questioned his policy choices. There, however, most of the professors publicly opposed the dean. In addition, the alumni association (of very young alumni, since it was a new law school) and well-known scholars associated with the strongly Roman Catholic blog Mirror of Justice publicly criticized Ave Maria, though Ave Maria did have prominent public intellectuals on its side (a black mark on those intellectuals, in my opinion). Was this an example of a "Criticize the Dean" equilibrium? Or are conservatives more willing to speak out for their fellow professors?
One reason I take an interest in this is because the situation of the professors at Widener and Ave Maria is not unique (or even duonique) . Professors are usually reluctant to come to a colleague's aid. I am providing a tool that can be used to reduce the mental cost of aid and increase the cost of not aiding, and this tool can easily be adapted for future use.
What I am doing with my email survey is to reduce the faculty payoffs from "Be Silent". Without the survey, All Be Silent is the most likely equilibrium, as a result of inertia if nothing else. With the survey, "Be Silent" becomes more shameful, since voicing an opinion becomes easier and the professor's choice of action becomes more public.
Here are several excuses people try to use to avoid taking a stand--- all-purpose bureaucratic excuses of the kind made famous by the TV show and book, Yes, Minister. In the Widener situation, they allow someone to avoid taking a stand either way when asked by the Dean or by a scholar from another university.
Excuse 1. I don't know enough about the situation to have an opinion.
Counterpoint. Sure you do. This is the biggest thing going on in your building, so I don't believe you when you say you don't know enough. Or, the only reason you don't know enough is that you know which side you'd have to come down on, so you purposely bury your head in the sand so you can pretend you don't know enough.
Excuse 2. I can't comment on personnel matters.
Counterpoint 1. Sure you can, especially when the person in question wants you to. Rules about someone's privacy should protect him, not act as a cover-up when his employer is persecuting him.
Counterpoint 2. Does your answer mean you will comment if I get his permission? I can send off a quick email...
Excuse 3. I see that the correct procedures have been followed.
Counterpoint 1. The procedures are no good, so following them is not enough. When the decisionmakers are pre-selected to biased, it doesn't matter if they have to follow rules in making their decision; they might as well have made the decision at the start of the process.
Counterpoint 2. Even if the procedures are good, the decisionmakers can still be massively unfair. Think of the novel, To Kill A Mockingbird, for example. The procedures are fair, and by the end of the trial the jurors all believed the black man accused of rape was innocent, but they voted guilty anyway.
Excuse 4. I shouldn't comment while a lawsuit is in progress.
Counterpoint. Why not? You're not a party to the suit, so you don't need to worry about incautious wording being used in court against you. Even if you were a party, there's nothing in the law that says you can't talk about your case outside the courtroom. Otherwise, you'd have to keep silent for years as the suit dragged on--- which is perhaps your intent.
I will conclude by talking about the limitations of the courts in protecting academic freedom. To start, general law does not protect untenured professors at private universities from being fired for their political opinions, nor should it, this being a matter of contract between employer and employee. In practice, most universities do adopt some language to protect the academic freedom of even the untenured, but they well know that the courts cannot protect them. They must rely on public opinion.
The law does protect tenured professors from being fired for their views, but it doesn't protect the university that fires them. Let me explain that paradox. Tenure is not a matter of public law but of private contract. By contract, the professor agrees to work for the university and the university agrees to pay the professor and not fire him for his political views. Breaching a contract, however, is not a criminal act. As with any contract, the university may deliberately breach the agreement so long as it pays damages. Unlike with tort injuries, these damages are limited to compensating the other party and cannot include punitive damages even if the breach was intentional. Thus, it is not quite right to say that a university cannot fire a tenured professor. Rather, a university cannot fire a tenured professor {\it without monetary compensation that leaves him as well off as if he were not fired.}
The law on this is a bit cloudy. In AAUP v. Bloomfield in 1974, a New Jersey judge ordered specific performance rather than money damages, saying that professors fired because of financial exigency had to be rehired. 322 A. 2d 846. This was an exception to the general rule that specific performance is not a remedy for breach of contract, however. More important, whether a state's law includes specific performance as a remedy usually won't matter. Let me explain. We must remember Holmes's Bad Man theory:
"If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience....
The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it � and nothing else."
Suppose a dean wants to fire a professor because he is a Republican (either the dean or the professor in our hypo, depending on how realistic you want it to be). The dean knows that the professor will challenge the firing in court and win. The court might award money damages of, say, $500,000 (based on how hard it is for the professor to find another job) or specific performance: requiring the dean to rehire the professor. The dean's first thought will be whether it is worth $500,000 of the school's money to him to fire that professor. He will not like having to take that money out of his budget for faculty raises, the new building, his own future raises, or whatever, but he does not like having that professor on his faculty either, and $500,000 might well be worth it to the dean. Maybe there's even a wealthy donor who would donate that much to get rid of the professor.
Now come back to the problem of specific performance. What if the judge orders the dean to pay $100,000 and rehire the professor? All is not lost. Most lawsuits settle, and this one will too. Shortly before the trial, the dean's lawyer will talk to the professor's lawyer. By then they will both have a good idea of each other's evidence about the size of the damages and they will know how pro-plaintiff a judge is going to supervise the trial. The dean's lawyer can say, "I know my side's going to lose. But it's still not certain what remedy the judge will award you. How about if we offer you $700,000 now to settle the case? That's better for your client than a gamble between $500,000 on the one hand and getting his job back plus $100,000 on the other. It costs my client more money, but it's worth $700,000 to the dean to be sure of never seeing your client again." They will haggle, and the professor will, unless he is very stubborn, end up settling. Whether the law offers him specific performance or not won't matter, which is what I said above that I'd explain. That's the Coase Theorem, in law-and-economics lingo.
There will be another part of the deal, too, which is most neatly thought of as a side-deal. The dean's lawyer will say, "I'm glad we've agreed to settle. But how about adding one more clause to the settlement agreement? My client will pay an additional $100,000, and your client will agree to keep this settlement secret and to never talk about the case." We can predict that the professor will agree to the side-deal too.
Now return to "it doesn't protect the university that fires them". The dean is happy, and the professor is happy. But what about the university? Not only has academic freedom been stifled, but the university has less money left in its budget for salaries and buildings. The president of the university could fire the dean, but that is a lot of trouble for a president. The dean does not have tenure as dean, but hiring a new dean is a big job. The university trustees could fire the president, but hiring a new president is an even bigger job. Could somebody sue the trustees to get them to do a better job? Alumni? students? faculty? the state attorney-general? Even if they could sue, they are unlikely to win. Courts give nonprofit trustees a lot of leeway in their management decisions--- not corporate directors' "business judgement rule" perhaps, but something close to it.
So why don't deans routinely fire troublesome professors? First, the other side of Holmes's Bad Man theory is that there exist Good Men too, who do their duty even if the legal penalty is low. Second, the law does require money damages, and few deans care enough about politics to pay out the necessary dollars. Third---and the reason I am writing all this--- public opinion imposes an extra cost on deans that can be crucial. Everyone values the good opinion of others--- not of all others, but of certain other people. If a dean's faculty, his university's faculty, other deans, or possible future employers hear of misdeeds, some of those people's opinions will matter. But if they never hear of the misdeed, or hear of it but do not speak of it to others, public opinion will not work.
The Business Judgment Rule: Should It Protect Nonprofit Directors? Denise Ping Lee, 925-968, Columbia Law Review, Vol. 103, No. 4, May, 2003. http://www.jstor.org/stable/1123781.
The Path of the Law Oliver Wendell Holmes, Jr. 10 Harvard Law Review 457 (1897).
Judicial Enforcement of Academic Tenure: An Examination, Matheson, Alan A. 50 Wash. L. Rev. 597-622 (1974-1975).