The Tenured Oligarchy

The joke goes like this:

When Brezhnev first became President he invited his elderly mother to come up and see his suite of offices in the Kremlin and then put her in his limousine and drove her to his fabulous apartment there in Moscow. She spoke not a word. Then he put her in his helicopter and took her out to the country home outside Moscow in a forest. And, again, not a word. Finally, he put her in his private jet and down to the shores of the Black Sea to see that marble palace which is known as his beach home. She looked quite distressed. He asked “Mother don’t you like how well I have done for myself?” Finally she spoke. “Yes Leonid it is all lovely, but what if the Communists come back?”

So it is with virtually all nominally left-wing projects, and so it is with higher education in America. All the rhetoric is about the egalitarian mission and the creation of opportunity for the underprivileged. But if the project endures, the coin of the realm ends up in the hands of a tenured elite.

In a recent and scathing interview in Salon, Camille Paglia savaged leftist academics. She wrote:

[I]n the 1990s, I was saying that the academic leftists were such fraud–sitting around applying Foucault to texts and thinking that was leftism! …. Real ’60s radicals rarely went to grad school and never became big-wheel humanities professors, with their fat salaries and perks.  The proof of the vacuity of academic leftism for the past forty years is the complete silence of leftist professors about the rise of the corporate structure of the contemporary university–their total failure to denounce the gross expansion of the administrator class and the obscene rise in tuition costs. The leading academic leftists are such frauds–they’ve played the system and are retiring as millionaires!

I knew Camille way back when. We were both undergraduates at Harpur College from 1964 to 1968, and shared a group of friends. She is one of the most intriguing and engaging social commentators of our era. Camille has a uniquely authentic and vibrant voice, refreshing in an era flooded with the trite and false.

Her background is in the classics and the visual arts and her take on contemporary political, economic, intellectual and social culture is both informed and limited by that background.

Where I think she is spot on is her accusation that much of the left-wing professoriate, which is to say most of the folks in the social sciences and humanities, are a privileged class being rewarded out of all proportion to their contribution.

While only some tenured professors are handsomely paid, virtually all are grossly underworked. Teaching loads for tenured professors have been falling steadily for the last half century. The standard teaching load at the “better” universities is now two classes a semester, with many senior faculty teaching only one course.

At the same time that the tenured elite relaxes in the faculty lounge, a rapidly growing army of non-tenure-track adjuncts and lecturers pick up the slack.

In effect, those on the tenure track have slammed the door behind themselves so that they need not share the “economic rents” too widely. The gangs of adjuncts working for a pittance are the modern university’s Helots.

In addition to the light teaching loads, the tenured faculty extracts its “economic rents” by choosing to teach what they find of interest rather than what the students value. As a result while the professoriate prospers, the core liberal arts curriculum has become progressively less serious, meaningful and engaging to students. The proportion of English and history majors has as a result been declining steadily. All this at the same time tuitions have increased ten-fold in nominal terms over the last forty years while the consumer price index has risen three-fold.

Camille is exercised by the implicit hypocrisy of the nominally egalitarian left-wing professoriate happily profiting from this transformation of the university. She sees this as indictment of their character. Well, maybe so, but the root cause of this looting of the university by the faculty is less a failure of people and more a failure of institutions.

The phenomenon has a straightforward banal explanation—nobody is minding the store. Universities in America are overwhelmingly either government enterprises or non-profit institutions—and there is little difference between the two with respect to the pathologies they display. “Non-profit institutions”! That benign, anodyne, sounding term, conceals a deceit. To the naïve, the term suggests that no one absconds with the profit because there is none to be had. Nothing could be further from the truth.

Because a non-profit firm has no owners, no residual claimants, its ultimate authority is exercised by a board of trustees. The board is expected to govern the institution for a grand purpose independent of their own personal interest or that a shareholder, and in doing so they are to endeavor to get maximum value on the dollar.

Collectively and individually the trustees should be deeply attached to the mission and scrupulous with regard to their fiduciary duties. I suspect that that is how it was at Harvard and William and Mary three centuries ago. But that model is now a quaint anomaly and anachronism at virtually all universities.

At almost all universities the Board of Trustees now functions as a rubber stamp and cheerleader. Indeed when on rare occasions boards try to play their nominal role and govern the institution as in the attempt to remove Teresa Sullivan at the University of Virginia as President two years ago, substantial portions of the faculty revolt in protest. So if the board of trustees does not run the university then who does? And on whose behalf?

The modern university is run by and in the interest of an amalgam of the senior employees, both teaching faculty and senior administrators. It has become a dysfunctional combination of an equalitarian partnership, worker-owned firms in the former Yugoslavia, and non-profit corporations.

Most faculty of all political stripes, but most embarrassingly on the left, are studiously unaware of, and would deny, the moral failings outlined here. They would deny or justify their privileged status. As Milton Friedman once said, ‘it is extraordinary how often we find that that which is in my private interest is also for the public good.’

Camille tries to cast opprobrium on the university by referring to its “corporate structure.” Alas, the word corporate has become little more than a vacuous epithet in the modern patois. I will forgive her this inapt use of the term; she is out of her field of expertise. The pity is that universities are not for-profit corporations. Were they so, there would be far more efficiency and honesty in their operation and structure.

Lloyd Cohen is a professor of law at the George Mason School of Law.

A One-Sided Law Meeting

In the week that a new organization, Heterodox Academy, was established to press for more ideological diversity in academic life, the learned association in my own profession showed how much it is needed. The Association of American Law Schools (AALS) sent around a notice of its prospective annual meeting, highlighting its most prominent speakers. Of the thirteen announced, none is associated predominantly with the Republican party, but eleven are associated with the Democratic Party. Many are prominent liberals. None is a conservative or libertarian.

Five are judges, including Stephen Breyer, all appointed by Democrats. Another is the incoming Senate leader of the Democrats. Three others contributed predominantly to Democrats. One for whom no contributions could be found held a fund raiser for President Obama. Another worked for the Democratic side of the House Judiciary Committee during the impeachment of President Clinton.

It is true that Michael Bloomberg is also speaking. He has been at various points a Democratic and a Republican and is now an independent. Perhaps the AALS thought that a single person could create diversity through his many political avatars! But seriously, Bloomberg, who has crusaded for gun control and limitations on permissible ounces in a sugary soda, does not resemble a conservative or libertarian. He ran as a Republican in 2001 for Mayor of New York City because it was the nomination he could acquire.

Now my point is not to disparage the highlighted speakers. They are all eminent men and women. Some have even taken positions friendly to ordered liberty.  Deborah Rhode has made excellent arguments for the deregulation of the legal profession. But when everyone shares largely convergent premises, intellectual discourse is stunted. And the lack of diversity is particularly embarrassing in the legal academy. As Professor Nicholas Rosenkranz of Georgetown Law School has observed about the homogeneity in law schools:

it is a fundamental axiom of American law that the best way to get to truth is through the clash of zealous advocates on both sides. All of these law professors have, in theory, dedicated their lives to the study of this axiomatically adversarial system. And yet . . . . on most of the important issues of the day, one side of the debate is dramatically underrepresented, or not represented at all.

And in my experience many of the panels at the AALS reflect the same lack of political diversity as the highlighted speakers. Indeed, the Federalist Faculty Convention, which is held at the same time as the AALS, assembles panels with a wide range of viewpoints that are more fruitful and entertaining.

The obliviousness of the AALS to need for political diversity stands in stark contrast to its relentless push for gender, racial, and ethnic diversity. Harvey Mansfield once noted that diversity in academics often approximates that in the famous Coca Cola commercial—a group of people from all over the world singing in happy harmony. For discussion of law, however, dissonant chords would create more memorable music.

Reprinted with permission from Law and Liberty

Education Dept. Rules on Campus Rape Called Illegal

The College Fix published an interesting article, “Department of Education shredded for lawless overreach in Senate hearing.” It was about Congress getting annoyed with the Education Department for illegally imposing mandates on colleges and schools out of thin air, without even going through rulemaking or the notice and comment required by the Administrative Procedure Act (APA). Examples include school bullying rules and counterproductive mandates for handling sexual harassment and assault claims.

As the College Fix notes, the Education Department’s Office for Civil Rights, where I used to work, has dictated sweeping “changes in how colleges and universities handle sexual-assault allegations and investigations.” The Education Department requires colleges to comply with an intricate and very burdensome set of rules (66 pages), beginning with a 2011 Dear Colleague Letter, even though that letter explicitly (and falsely) claimed it was not adding any requirements to applicable law.

As the College Fix observes, that letter “was issued without a notice-and-comment process, making OCR’s guidance arguably unenforceable, yet the office has launched Title IX investigations against scores of schools for allegedly violating its unenforceable rules emanating from that letter. OCR’s guidance overreach has been weighing on Sen. Lamar Alexander, R-Tennessee, chairman of the Senate committee that handles education, and President George H.W. Bush’s education secretary, who said the letter circumvented ‘the principles of transparency and accountability.’”

Since that letter, OCR has issued tons of additional “guidance” that schools must follow, some of it harmful to both victims and wrongfully accused people. That has triggered a vast expansion of university Title IX bureaucracies that were already growing. It has also held individual colleges liable for not complying with additional requirements made up after the fact in pending Title IX investigations.

For example, a recent settlement with the University of Virginia requires it to investigate even when the accused has already admitted guilt (even though that could needlessly force a victim to relive her trauma) and even in “cases in which students chose not to file a formal complaint” or even to pursue an “informal resolution process.” Earlier, it faulted Michigan State for not investigating a false complaint fast enough, even though the complainant didn’t want a college investigation at all, and it suggested the University might have to offer the false complainant academic “remedies“ as a result.

Sen. Alexander also said the Education Department’s Office for Civil Rights was making up rules out of thin air in its 2010 school “bullying” guidance, which was issued without any notice and comment, even though it triggered the APA’s notice-and-comment requirement in imposing “significant” new obligations on schools. (The Education Department has attempted to federalize school bullying and define it in an overly broad way that violates freedom of speech, and has no basis in Title VI, Title IX, and the Rehabilitation Act, as I previously explained here and here.)

As Sen. Alexander noted, Congress had deliberately left this issue to be handled by state and local governments, not the federal Education Department, when it “purposely left out prescriptive rules in its recent education reauthorization bill” because “nobody” in Congress wanted the Education Department to act as a “‘national school board’ to set bullying policies for 100,000 schools.” He asked Acting Assistant Secretary Amy McIntosh “where does the Department of Education get the authority even to issue a guidance or even a rule or regulation on bullying? . . . The United States Senate doesn’t agree that the federal government ought to be telling the local school what its bullying policy ought to be.”

The examples of bureaucrats making up rules out of thin air that Senator Alexander cited are just the tip of the iceberg. A recent report by College Presidents discusses how the Education Department is flooding schools with obscure, uncodified, but very costly rules, in violation of the Administrative Procedure Act. Most of the rules they cited had nothing to do with Title IX, bullying, or civil rights.

We discussed earlier how the government is misinterpreting and misapplying Title IX to attack free speech by incorrectly redefining protected speech as verbal “sexual harassment”, in a way at odds with federal court rulings, in past commentaries you can find here and here. We also discussed how the government is misusing Title IX to erode the due process rights of people accused of sexual harassment or misconduct, in a way that violates the Administrative Procedure Act, here, here, and here.

UCal Regents Strike Back at Napolitano

On September 17 a committee of the Regents of the University of California discussed at their regular meeting a proposed “Statement of Principles against Intolerance” that had been drafted and offered for their approval by President Janet Napolitano and her staff. The Regents resoundingly rejected the draft, by implication questioning Napolitano’s judgment that it was worth their time. Items on the Regents’ agenda rarely attract public attention, but this one was different. Before the meeting the Regents received thousands of communications objecting to the statement, and both before and during the meeting there was severe criticism by individuals, organizations, and Regents.

Both state and national press reported on the event, but these accounts seemed in some ways confusing because the statement was criticized for two quite different reasons. Some thought the statement went too far, while others thought it didn’t go far enough. The latter wanted stronger action against campus anti-Semitism, while the former saw in the statement a threat to the free expression of ideas. But both wanted it withdrawn.

To fully grasp what happened at the meeting we need to understand that two different developments on the UC campuses, involving very different kinds of people, led up to the meeting. The one involved an ugly series of anti-Semitic incidents on the campuses. The other was a movement to identify and stamp out “microaggressions.”

The anti-Semitic incidents were well documented, and persistent. There have been painted Swastikas, graffiti expressing Nazi sentiments (e.g., “Hitler was right” and “Zionists should be sent to the gas chambers”), vandalizing of a Holocaust Museum, physical threats and even physical attacks. In particular, students wearing the Star of David are often menaced or assaulted. In one case a student was surrounded by angry Muslim students who threatened to kill him. Before the meeting over 100 UC faculty wrote a letter to the Regents expressing alarm at campus anti-Semitism, and noting that too often criticism of Israel crosses the line into attacks on Jews as people.

The campus climate is also influenced by bias in many classrooms, where treatments of the Israeli-Palestinian dispute commonly fall short of what competent academic inquiry must be: a sober presentation of all the relevant historical facts (not just those that favor one side), and of how those facts are interpreted by all the major participants. Instead, lectures and readings often present only one interpretation, and therefore only the evidence that supports that interpretation.

Microaggression Hunters

At the meeting, Regent and former Democratic Assembly Speaker John Perez laid to rest any possible doubts about the authenticity of these campus reports when he coolly said that he himself had witnessed actions on a variety of campuses which by any reasonable person’s definition were anti-Semitic. But perhaps the most compelling incident was the UCLA student Council’s vote to deny Rachel Beyda’s proposed appointment to its judicial Council on the grounds that she was Jewish.

The Nuremburg laws at UC? (The vote was hastily reversed only when the majority began to understand what this would cost them.)   The microaggression hunters, on the other hand, seemed to need a microscope to find what they were looking for. They wanted to see intolerance, bigotry, racism and sexism in all kinds of seemingly innocuous everyday language, so that, for example, to say “the most qualified person should get the job” must be interpreted as covert aggression and bigotry towards minorities, and not (as we always thought) simply the expression of a common view of an important question in social policy.

The common expression “America is the land of opportunity” might seem benign to most of us, but for the microaggression people it too carried dark implications of bigotry. And if a professor notices a minority graduate student looking lost in the corridors of a campus science building and offers help, that too is a microaggression, because the implication is that the student is really there to break into one of the labs. The draft statement offered a real gem: calling disabled people disabled would be a microaggression too.

Invisible Bigotry  

Side by side, the two situations formed an odd contrast. The microaggression hunters strained to find bigotry that nobody else could see, but managed not to notice all too real, well-documented bigotry and aggression that horrified others. They were quick to notice the slightest hurt to anyone’s feelings in some cases, but couldn’t see real emotional anguish even when it was repeatedly brought to their attention. What explains the exaggerated zeal in the one case, and total lack of concern in the other?

First of all, microaggression theorists have a finite list of groups that are oppressed and need protection, and Jews are not on their list.  (History is not their strong suit.)   Another motivating factor is surely a desire to narrow the range of permissible expression on campus. People who have reasoned doubts about affirmative action, or who think the free market a powerful force for the good, would be effectively silenced if the microaggression theorists had their way.

Finally there is the fact that on the modern campus denouncing racism and sexism seems to satisfy a deep-seated need for moral self-congratulation, though it is now terribly hard to find much of it there: campuses are devoutly politically correct places. Hence the frenzied attempts to find even the faintest traces of the sins that can afford the delights of ritual moral preening.

Common Sense

Needless to say, whenever accounts of microaggression theory come to the attention of the general public, the common sense of those who don’t live on campuses comes into play: the public finds all of this so stupid as to border on demented. And for everyone but the tiny charmed circle of microaggression obsessives, there is no need for any more nuanced judgment.

While both strands of campus life fed into what happened at the Regents’ meeting, only one of them actually provoked the session. The clamor at widespread, gross campus anti-Semitism became so great that something obviously had to be done about it.  But—and this is the crucial point for an understanding of what happened at the meeting—while anti-Semitism, not the notion of microaggressions, sparked the need for the meeting, Janet Napolitano assigned the drafting of the statement to the wrong side: she gave it to the microaggression theorists. She had recently created the new position of Vice-Provost for Diversity and Engagement (at a salary around $200,000), and the first appointee to that title is UC’s premier advocate of microaggressions. Predictably, microaggression people wanted to use the occasion to advance their own ideas, and so the draft was heavy on microaggressions, and didn’t even mention anti-Semitism.

This couldn’t have been a simple misjudgment on Napolitano’s part, for she is herself heavily invested in microaggressions. Earlier this year she set up a series of seminars on each of the ten campuses in which microaggression theory was relentlessly pressed on deans and department chairs. When protests arose about the inanity of the content of these meetings, Napolitano had her staff claim that the seminars had been purely voluntary. But that was a lie. In her letter of invitation to the seminars she had spoken firmly of “the seminar you will be attending,” and bluntly informed everyone that she had asked to be informed of attendance on each campus. Attend, or else, was the clear message.

Dodging Anti-Semitism

Reaction to the draft at the Regents’ meeting was withering.  Many Regents were openly contemptuous of a statement that avoided any real engagement with campus anti-Semitism.  Regent Norman Pattiz set the tone, leading off his remarks by asking: “What is this? It doesn’t say anything about anything.” He went on to say that it was “insulting” to the people who had brought the problem to the Regents.

Pattiz was clearly angry at UC’s attempt to dodge the problem of anti-Semitism, and the next three Regents explicitly associated themselves with his devastating remarks. The remaining five who spoke took essentially a similar view. John Perez called the statement a “whitewash…one which essentially says nothing,” and just walks away from offensive behavior. Bonnie Reiss lamented the fact that the statement gave no indication that the Regents had listened to the complainants. Bruce Varner said that we needed a statement that dealt with the real issue. And the student Regent, Abraham Oved, said that he had tried to make suggestions to the Vice-Provost who was drafting the statement, but was rebuffed.

Regent Richard Blum even went to the extraordinary length of saying that he had discussed the draft with his wife (US Senator Diane Feinstein), and that she planned to comment publicly about the university unless it produced something much better than this. As a UC faculty member I’ve seen 10 Presidents come and go, and don’t recall any of them being treated with such contempt.

Volokh’s Reaction

People concerned about the free expression of ideas on campus had been just as disturbed. A few days before the meeting, free speech theorist Eugene Volokh had published a highly critical analysis of the draft: . But though it was the microaggression silliness in the draft that prior to the meeting had most attracted adverse comment by those concerned about free expression, it was barely mentioned at the meeting, except in so far as the statement was repeatedly denounced as meaningless and empty.

Evidently, all present felt that that was all the commentary that microaggression deserved. Apart from issues of substance, the statement was also a confused and contradictory mess. It claimed to honor free expression while attempting to restrict it. It claimed not to be punitive while condemning certain expressions as unacceptable. As staff work it was lamentably incompetent, and yet Janet Napolitano thought it good enough to place before the Regents.

The furor at the meeting was a humiliation of Napolitano, and she knew it.  She responded to the discussion only with a short, halting, barely coherent comment. But then the next blow fell: the Regents took the whole matter out of the President’s hands, giving it to a committee that they would set up expressly to deal with it, one composed of Regents, faculty and students. Napolitano and her Vice-Provost for Diversity and Engagement would no longer be in control.

Grasp of Free Expression

The result of the meeting was in one way encouraging for UC. The university community and the Regents had recognized the draft for the absurdity that it was, and demanded better.  And the Regents had done what governing boards so rarely do:  they had intervened decisively after it had become clear that the administration could not or would not do the right thing.

What particularly impressed me was Regent Perez’s clear grasp of the nature of free expression indispensable to campus life, and of the need for firm action on anti-Semitism but only within the limits of that framework. University spokesmen never came close to this level of analysis and understanding.   What was not so encouraging was that UC’s President had been unable to recognize empty verbiage when she saw it, that she had committed herself unequivocally to the foolishness of microaggression theory, and that she was wasting a great deal of the university’s time and money on it.

When Napolitano was appointed, doubts were expressed about the appointment of a political figure with no experience in academic institutions. What has now become clear is that things are much worse than that. To debate the pros and cons of Napolitano’s performance in restrained academic fashion, setting out logical points for and against, would not really do justice to the situation. Only some rather more blunt language will do that: the meeting at which Napolitano presented her draft statement on intolerance brought shame on a great University, and a realization that it now has a politically correct president who is not up to the job.

A New Politically Tainted Survey on Campus Sexual Assault

The often-debunked statistic on campus sexual assault, that one in five women can expect to be attacked, has reappeared, inflated once more–this time to 23 percent–in a survey by the Association of American Universities (AAU), with the expected headlines from the expected quarters, such as The New York Times.

The general critiques of previous campus surveys apply to this one as well. First, if these numbers are true, it indicates an unprecedented wave of violent crime, yet neither the Obama administration nor college leaders are urging an increased law enforcement presence on campus. For instance, Harvard administrators called the survey “distressing” and expressed anguish—yet made no sign of calling in the Cambridge Police Department to deal with what these same administrators purport to believe is a campus crime wave.

Related: The Odd Sexual Accounting at Yale

Second, as Ashe Schow has repeatedly, and correctly, observed, framing questions in such a way to get a banner headline means the result will get a banner headline. That is, rather than asking students whether they had been sexually assaulted, this survey asked them a variety of questions that didn’t use the phrase, and then imputed sexual assault to the responses, to get the top-line figure. One of the data points from the survey revealed the problem with this approach. Of those who fit the researchers’ definition of sexual assault but didn’t report the offense, around 60 percent said they didn’t think what had happened to them was serious enough. (This number dwarfed the other reasons that students said they didn’t report, such as shame, a fear of being disbelieved, or a desire not to be re-traumatized.)

It’s simply inconceivable that a huge percentage of college women from some of the nation’s best universities don’t consider actual sexual assault to be serious enough to report—suggesting that whatever happened to these students, it wasn’t sexual assault.

The AAU survey has another significant problem, in that it appears to have dramatically oversampled one particular campus constituency—female students who reported a claim of sexual assaults to their campus. According to the latest Clery Act data, 5096 such students did so in 2013 (that number, of course, would include any males who made a sexual assault claim). Table 6 of the AAU survey informs us that, of the female undergraduates who responded to the survey, about 11 percent said they had been penetrated without consent—either due to incapacitation or force—and about one-fifth of these students had reported that offense to their college or university. (The precise reporting figures are 25.5 percent of those who said they had been penetrated without consent by force, and 14.4 percent of those who said they had been penetrated without consent due to incapacitation.)

Related: UC San Diego Loses in Sex Assault Case

As my colleague Stuart Taylor pointed out in a piece for, this survey data (conservatively assuming that students graduate in five years) would expect somewhere around 44,000 reported sexual assaults annually. Yet the most recent year’s Clery Act figures show 5096 reported sexual assaults. This massive disparity raises the likelihood that in a low-response survey (19 percent) that was already skewed 3:2 toward female respondents, those who considered themselves victims of sexual assault were far more likely to respond than non-victims. To their credit, the researchers concede the possibility of this over-reporting—just before they suggest that victims might not have wanted to participate in the survey, although none of the AAU’s internal data supports the latter conclusion.

One final point. Of the non-reporters, just under 25 percent said they didn’t report because the incident didn’t happen at school or that it had to do with school, presumably because the alleged perpetrator was a non-student. The Washington Post series from this summer also featured several students who said they had been sexually assaulted off-campus by non-students. Both data points are reminders that a non-trivial number of college students—even at primarily residential colleges, much less at non-residential institutions such as CUNY or some of the California state schools—are assaulted by people outside the campus community. The Obama administration and campus rape groups like Know Your IX, which champion a parallel, campus-based justice system, will do nothing for these students.

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