Light and untruth at Yale

lux et veritas

Lux et nonveritas?

It is not a good year for Yale.  First, its endowment dropped 30%, about $1 billion more than projected.  Now it is being sued for $50 million by a major private Korean university.  Dongguk University, a 103-year-old Buddhist institution, has filed a lawsuit against Yale, alleging negligence, recklessness, and defamation after Yale officials mistakenly identified a Dongguk professor as having received a Ph.D. from Yale.

In what has become known in the media as “Shingate,” Shin Jeong-ah, a Dongguk art professor, forged a certificate from Yale to get a job at Dongguk in 2005.  After questions about her credentials arose, Dongguk sent a letter to Yale asking for authentication on a document that Shin provided, which bore the signature of a Yale official and stated that Shin had received a Ph.D. from Yale.  The document was a fake, but the Yale official whose name appeared in the document confirmed its authenticity, apparently without checking Yale records.

After more inquiries from Dongguk, Yale finally investigated and then announced in 2007 that Shin did not receive a degree from Yale.  It denied at first, however, about having received the first inquiry in 2005.  Yale did not acknowledge its mistake until later that year and issued a letter of apology.  Shin eventually resigned and was convicted of falsifying records and of embezzlement.

Gongguk then brought suit against Yale in the federal district court of Connecticut, claiming that Yale’s mistake and negligence had damaged Gongguk’s reputation and resulted in loss contributions. The court rejected Yale’s effort to dismiss the suit in June.

What caught my eyes about this lawsuit is not just the fact that Yale is my alma mater, but because the suit highlights an oft-overlooked function of our higher education institutions.  When we think about the role of a university, we often think of it as either “the producer of knowledge” or as the educator of its students (though, as I pointed out in previous posts, universities that actually produce knowledge are fairly rare).  We often forget a third and equally important social function of the university — evaluating our youths, judging their competence, sorting them into various categories, and stamping them with grades and a degree.

Admittedly, grades and degrees are not everything, and their importance in a person’s career decrease with time.  But they are not nothing.  For better or for worse, our society — employers, schools, consumers, and the general public — rely on information about a person’s educational history and performance in school as tools to judge someone’s intelligence and ability.  In many cases, such as in the case of Ms. Shin, these credentials are the prerequisite for receiving benefits and opportunities.

It seems remarkable then that this important social function of our universities are largely self-regulated.  There is some oversight for the admissions process — the freedom of a public university to admit and reject students is somewhat limited by racial discrimination laws.  (For private universities, the incentive against racial discrimination comes largely from requirements attached to receiving federal funding and the tax exemption status.)  But once students enter the college gates, the evaluative function of the university is largely unsupervised due to the academic abstention doctrine.  At least theoretically, a professor can grade papers by throwing them down the stairs and assign letter grades based on where the paper lands, and a student has no legal recourse if the university refuses to act.

The lack of legal recourses for students implies that the university has no legal duty towards them to provide a fair, impartial, and non-arbitrary evaluation process.  As a society, we trust the universities themselves to perform this self-regulation.  This trust — whatever its roots are — has deep roots in the legal community.  Lawsuits against schools over alleged unfair grading policies have been largely unsuccessful.

The Dongguk lawsuit challenges this notion from another angle.  At issue is not the responsibility of the university towards its students, but towards third parties who might rely on the university’s representation about its students (or, in this case, its non-student).  The logic, if extended, could create legal duties in other situations.  Could an employer prevail in a suit against a university for sloppy record-keeping that mistakenly identified a C-student as an A-student?  Could a scholarship committee prevail in a suit against a college or university after discovering that the high grades of an award recipient resulted from random or arbitrary grading practices?

Realistically speaking, the chances of the Dongguk suit actually going to trial is slim.  The strong rhetoric from both parties reflect attempts to stake out better negotiation positions that would lead to a favorable settlement.  The suit would probably never result in precedent-setting law or any real duties on the part of the university.  But alas, one can dream.

Politics, political science, and the production of knowledge

My last post discussed the costs associated with judicial supervision of the academic system, where I argued that such intervention undermines the purpose of a university. Today, however, I learned of a different kind of intervention. In a recent proposal, Senator Tom Coburn (R-OK), suggested that the National Science Foundation, the federal agency in charge of funding scientific projects, stop “wasting any federal research funding on political science projects“.

CoburnThis is no small potatoes. The NSF, with a budge of over $6 billion, funds about 20 percent of all federally supported research at American colleges and universities. Though political science research would presumably continue, it would no doubt take a hit if Coburn’s proposal is approved. A $9 million hit, to be exact.

Presumably, the proposal is motivated by the idea that political science departments don’t conduct valuable research (it’s hard to discern what Coburn’s idea of value is, however), and that the money could be spent more efficiently elsewhere. Indeed, Coburn said that network television and cable news stations provide a myriad of answers to the questions political scientists are engaged with.

There are at least two problems with Coburn’s proposal. First, is the idea that a politician, who is probably not very well versed in the academic literature, seems to think, based on scant evidence, if any, that an entire scientific field is worthless. I’m saying this is a problem because the NSF, which is a federal agency comprised of experts and which also employs scientists to determine how the funds will be disbursed, does not seem to think the field is worthless. The NSF actually does maintain regular contact with the academic and research community to assess the situation.  It is unclear, then, what the criteria for Coburn’s proposal are, and he would do well to articulate them.

More importantly, and on a more philosophical level, Coburn’s argument demonstrates a misunderstanding regarding the production of knowledge. This misunderstanding is so severe and so widely shared, I think, that a fuller elaboration is necessary.

Knowledge is produced today mainly in two settings, market and non-market. In the market setting, knowledge is produced for commercial purposes and basically follows the supply and demand curves. If the public demands a product or service, or if developers sense a need for such product or service, then efforts to produce that product will take place and knowledge will be accrued in the service of that and future products. The knowledge produced in the market setting, therefore, is dependent on market needs. If the market doesn’t need a product right now, then it will most likely not be developed, and the knowledge won’t be gained.

Knowledge can also be produced in non-market settings, such as universities, government laboratories, think tanks, and the like. Because the knowledge is developed outside the market, it doesn’t have to meet its demands.

Already we can see the difference. In the market setting, knowledge is produced instrumentally, to bring about a product. On this view, knowledge is the means to produce an end. But knowledge can also be considered as a product by itself, which is what the non-market (academic) setting is mostly concerned with. If we think of knowledge as having these two meanings, then we can point to a market failure in the production of knowledge. The knowledge that we get from the political pundits Coburn referred to is knowledge produced to achieve something else, for example high ratings. The market is therefore ill-equipped to produce the knowledge as product that universities, and political science departments, produce.

Coburn is being terribly short sighted here. It could indeed be that some political science scholarship does not reap immediate rewards. However, the nature of the production of knowledge for the sake of knowledge, and its interaction with market based knowledge production, is that it produces more knowledge. How we come to know something invariably depends on all the trials and errors and progress that preceded it. Cutting funding is to be oblivious to that . It harms the production of knowledge.

Is nothing sacred?

Reading Stanley Fish’s essay, one gets the sense that the answer is no. Judicial intervention in academic proceedings is on the rise, and it poses a threat to academic freedom. More importantly, it calls into question the longstanding and venerable traditions of academic practices. In her post, Greta critiques Fish’s concerns and, with some reservations perhaps, welcomes this new trend of abandoning the judicial doctrine of academic abstention.

I, however, am not so optimistic. I see several problems with judicial control of academic affairs, which I will highlight below. I do want to make clear that when I refer to academic affairs I don’t mean the regular employment issues that every institution encounters, or the regular contractual matters that a university is engaged in, such as the leasing of property. I mean the “hardcore” academic stuff, such as hiring, grading, deciding on the curriculum, and, of course, tenure.

First, it’s not so clear to me why courts would be the solution to the problems discussed in Fish’s essay and Greta’s post. I am concerned here with judicially administrable standards, and indeed, how those standards would be derived, especially when evaluating a colleague’s performance. I realize that claims of institutional competency are becoming cliche, but it’s hard for me to see how a court can evaluate whether a physicist should or should not have gotten tenure.

To this claim we can add the panoply of claims about academic freedom, institutional independence, the importance of creating a safe environment for peer-review, and the like. Moreover, making test scores actionable will most likely create a culture of entitlement among students for whom the value of hard work and accepting failure as a part of life should be part of the college experience, and, indeed, of growing up. However, I don’t want to talk too much about these arguments, not because they are unimportant – they are. But rather because they’re familiar to the point of banal (although it’s a good idea to keep them in mind).

What bothers me more is the kind of academic culture we’re cultivating by having the courts oversee such processes. The real problem with judicial review of academic affairs (in the way that I defined them) is not simply judicial competence, but the importance of preserving a space free of judicial interference. Yes, I’m actually making the point that even if some academic processes are not always perfect, I still don’t want to see the courts involved.

Universities are not simply institutions of learning and accreting knowledge. They fill a vital purpose in our society – that of producing knowledge, maintaining a repository of ideas and facts, and being a safe haven for innovation, contemplation, and, yes, wisdom.

But that’s not all. What makes universities unique is their institutional history. Universities don’t simply occupy a place among our many institutions. They have developed, ever since the third century (in China), in a particular way. One defining feature is the quest to free the university from external institutional controls. Indeed, our definition of what constitutes a university cannot be separated from the way it evolved over time. Its telos is (partly) to maintain institutional independence so that it can exercise its own criteria of evaluation. Of course, and here I agree with Greta, these criteria can’t be capricious or arbitrary. But the academic process itself seeks to minimize capriciousness through the use of peer-review mechanisms and intersubjective verification processes.

Sure, such processes can never be perfect, but judicial supervision, and the knowledge of judicial overhang is not only imperfect in the sense that it introduces its own institutional limitations and difficulties, but it risks jeopardizing precisely the things for which we value the university and the academe as having a unique role to play in our lives and societies.

Subjecting all institutions to the same judicial standards of propriety and fairness not only belies a certain simplicity and untested faith in the courts, but it fails to recognize the virtues of having an institution that, by its nature, should be evaluated differently. And it fails to acknowledge the role universities play and how they came to have that role.

Related post: The costs of academic freedom

The costs of academic freedom

What price liberty?

What price liberty?

Say what you want about Stanley Fish, the professor knows how to write a provocative essay.  In “The Rise and Fall of Academic Abstention“, published in the New York Times today, Fish laments what he believes to be an erosion of academic freedom by the meddling courts.  He argues that, although courts have traditionally practiced “academic abstention,” or deferring to the professional judgment of universities and colleges in academic matters, the doctrine has been declining in recent years.  Instead, courts have been inserting themselves into the middle of academic disputes with increasing frequency and boldness.

Fish then proceeded to rattle off a few especially egregious cases of this insertion: an incompetent medical student being awarded millions in lost income for being denied a degree by the medical school, a professor denied tenure successfully suing the school for visiting his class only once when the faculty handbook promised multiple visits, and so on.

Fish acknowledges that given the practical realities, we need to find a “balance point between the value of accountability through the courts and the value of limiting intrusion on the autonomy of academic communities.”  But he seems to be nostalgic for the days when courts did not monitor any academic processes and left the matter entirely to the discretion of the universities.  “Those were the days,” he said, “and they have their injustices as well as their advantages.”

Though there is much I disagree with about the essay, it addresses an important question: what role should the courts play in monitoring academic processes and ensuring fairness in school?  Fish answers that the courts should play an extremely minimal role in “academic matters.”  In matters where professional judgment is required, such as “promotions, curricula, admission policies, grading, tenure, etc.,” courts should respect academic freedom and not substitute their own judgment for that of the university.

“Academic freedom” has a pleasant ring to it.  But whenever I hear the word “freedom,” I wonder: at whose expense is this freedom being asserted?  Fish talks of balancing “accountability” with academic freedom.  The word “accountability” conveniently lacks an object.  Accountability to whom?  To the government?  To the public?  To the judges?

The answer becomes clearer when we consider what freedom means.  The philosopher John Finnis has some useful analysis here.  Employing a distinction first written about by legal scholar W.H. Hohfeld, Finnis points out that liberty to do X means the absence of duty to do “not-X”, which in turns means that no one has a right (or “claim-right”, as Hohfeld called it) to force one not to do X.  If Amy has the “liberty” to do something, say order a hamburger, she does not have a duty to not order a hamburger, which means that Betty, or Cathy, or Zina, has no right to force Amy not to order a hamburger.

The thing to notice about this is that as long as there is more than one agent in the world, liberty is a relational concept, and it comes at the expense of someone else’s rights.  When liberty expands, it means that someone else’s rights diminish.  If Amy has the freedom to eat what she wants, it means that others have no right to tell her what to eat.

In the case of the university, there are many parties who might conceivably have rights vis-a-vis the university. Some of these rights will concern academic matters.  Students might expect fair admissions, grading, and disciplinary procedures. Employees expect non-discriminatory, sensible, and just employment and termination processes.  The public, whose tax dollars might support a portion of the university funding, expect transparency in the budget and rationality in the use of the funds.

When “academic freedom” is used to shield the university and its officials from scrutiny and liability, this assertion of freedom comes at the expense of diminishing the rights of these other parties.  So the trade-off is not exactly one of “accountability” and “freedom,” whatever that means, it is about limiting the rights of the individuals who interact with the university in favor of the university’s asserted freedoms.

Seen in this light, the idea of academic freedom seems more disturbing.  Perhaps each of us have a different idea of where to draw the line between the university’s freedoms and the rights of those that interact with it, but we must be clear that this is in fact the trade-off we are making every time.

Related post: Is nothing sacred?