“Me obey the law, too? But I’m tenured!”
D.A. Ridgely on Nov 21st 2008
Should a tenured professor at a state university be required to attend sexual harassment training as a condition of his continued employment? Alexander McPherson, a professor of molecular biology and biochemistry at UC Irvine, thinks not.
He writes:
I believe the training is a disgraceful sham. As far as I can tell from my colleagues, it is worthless, a childish piece of theater, an insult to anyone with a respectable IQ, primarily designed to relieve the university of liability in the case of lawsuits. I have not been shown any evidence that this training will discourage a harasser or aid in alerting the faculty to the presence of harassment.
What’s more, the state, acting through the university, is trying to coerce and bully me into doing something I find repugnant and offensive. I find it offensive not only because of the insinuations it carries and the potential stigma it implies, but also because I am being required to do it for political reasons. The fact is that there is a vocal political/cultural interest group promoting this silliness as part of a politically correct agenda that I don’t particularly agree with.
The imposition of training that has a political cast violates my academic freedom and my rights as a tenured professor. The university has already nullified my right to supervise my laboratory and the students I teach. It has threatened my livelihood and, ultimately, my position at the university. This for failing to submit to mock training in sexual harassment, a requirement that was never a condition of my employment at the University of California 30 years ago, nor when I came to UCI 11 years ago.
There is much in those three paragraphs with which I wholeheartedly agree. Sexual harassment “training” is, itself, intended not to train but to intimidate the workforce. It is predicated on some of the absolutely worst developments in the law in the past several decades; specifically, the notion that the subjective reaction of the alleged “victim” suffices to determine whether, for example, a workplace constitutes a “hostile environment” and thus whether sexual harassment has occurred. The “training” in question is absolutely the sort of protective measure adopted at no small expense by the state and the federal government and most of the corporate world precisely because the nature of the law is such that these employers’ own legal advisers correctly argue that failing to do so exposes them to vastly more expensive liability. Moreover, that fact, which Prof. McPherson failed to note, is one of the most objectionable elements of the sexual harassment “training” cottage industry; namely; the obscenely high prices charged by the social parasites who trade under the titles of “facilitators” and “trainers” in supposed furtherance of America’s culture of the permanently aggrieved and perennially potential victim classes.
But wait a minute? What is the legal basis for McPherson’s position? That he is tenured and his precious “academic freedom” is being threatened? Sorry, but if all you’ve got is your union’s latest collective bargaining agreement with your employer, the state, you’ve just lost about 90% of your ethical street cred points with me.
In the first place, tenure is probably just about the least defensible employment practice left anywhere in the civilized world, a largely feudal remnant of a time and place when there was some real threat that scholars might be pressured or censured in their quest for truth and knowledge. Ignoring for the moment how many scholars these days would know truth if it bit them on the ass, no such threat exists today nor has it for a long, long time.
Universities, both public and private — an increasingly illusory distinction thanks to federal encroachment — are far too diverse (in one of the rare good senses of the word) and far too competitive among each other for any genuinely productive scholar to find himself unemployable because the proverbial powers that be fear or oppose his views. That, I hasten to add, is different from being blackballed within the ranks of one’s scholarly peers because of one’s views; but that’s a different matter for a different discussion. In any case, if you want to whine “‘’T’aint fair!” because you’re a tenured and highly paid state employee and the big bad state wants to treat you like some lesser mortal, well, cry me a friggin’ river, doc.
More to the point, public law trumps private law. (Even, necessarily, in Libertopia!) That is, the fact that you have a private contractual relationship with the state does not immunize you from whatever lawful requirement the State of California may impose on employers and, by extension, employees generally, including itself as an employer and you as an employee. (There is a critical distinction at play here between the state acting in its sovereign capacity enacting and enforcing laws and acting in its proprietary capacity as a party to a contract.)
If you worked for a private company that fell under the requirements of the law and they said “Take the training or you’re out” you’d have to take the training or be gone. Period. End of story. If you held up your employment contract and waived it about pointing out they were imposing a new condition on you, you’d be right but the point would be irrelevant. Oh, maybe, though I doubt it, you might get some cash settlement for breach of contract, and maybe, though I doubt it, you even have that “remedy” available to you here. But you sure as hell wouldn’t have the right to insist that you get to keep working just as you had before as though your tenured contract with the university somehow bound the rest of the government forever and a day.
In short, I agree entirely with Prof. McPherson’s attitude and his opinion about the requirement he is being coerced to meet. If he’s any sort of principled man, he’ll pack his lab notes and look for a new employer without further ado. That said, however, I have as little sympathy for him as the supposed victim under these circumstances as I do for many so-called sexual harassment victims these days.
Namely, none.
(H/T to Matt Welch @ reason’s Hit & Run.)
Filed in The Basement
I had to attend one of these; but that’s because just about ALL NJ Employers have to give these as a step to protect themselves against sexual harassment lawsuits.
I think there is a difference between “descriptive” and “prescriptive” sexual harassment training. I’ve certainly been to a number of these “prescriptive” diversity training seminars which as you note were “intended not to train but to intimidate the workforce.” My sexual harassment seminar (which I as an attorney who fairly well understands employment law could have taught) was more “descriptive” of the law, complete with proper warnings. If that’s all these seminars amount to, I don’t have a problem with them; but too often, there is much more included.
I do appreciate the difference, Mr. Rowe. By way of full disclosure I suppose I should admit that not so long ago I was one such attorney advising his client of the prophylactic justification for requiring such training. In my own defense, however, I don’t mark the experience in the column reading “Things I Enjoy And Find Admirable About The Practice of Law.”
If I am not mistaken, it’s New Jersey’s “Law Against Discrimination” (or a state court interpretation thereof) that says employers MUST give these seminars, or else it’s easier for prospective victims to recover under an NJ LAD sexual harassment lawsuit.
If the statute didn’t read that way, all it would take would be one successful suit in which part of the plaintiff’s case was that the employer had failed to give the seminar and had therefore arguably breached its duty of care under the statute. I can hear the argument now. Hell, I can hear myself making the argument if I’m being paid by the plaintiff.
Interesting, this isn’t something we have to deal with here, but then we don’t have juries in civil cases and that makes a big difference to how our tort law shakes out.
Come to think of it, our academics aren’t tenured either, though that’s mostly because there’s no such thing as at-will employment here so you have to work a bit to fire anyone.
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Many good points, D.A., including that tenured individuals should not constitute a protected class for this action relative to non-tenured individuals. Depending on the nature of the “training”, possibly no one should be subjected to it. However, I disagree with you on this:
“In the first place, tenure is probably just about the least defensible employment practice left anywhere in the civilized world, a largely feudal remnant of a time and place when there was some real threat that scholars might be pressured or censured in their quest for truth and knowledge. Ignoring for the moment how many scholars these days would know truth if it bit them on the ass, no such threat exists today nor has it for a long, long time. ”
and wonder what your basis is for this assertion.
Hi TIO, and thanks for the comments. Admittedly, that whole paragraph is a bit of a hit & run. I’ve known many scholars who care passionately about the truth and would know it when they saw it at least as well as I would. (Of course, that may be damning them with faint praise.)
But universities are essentially patterned still on medieval guild structures with apprentices (graduate students), journeymen (nontenured faculty) and masters (tenured faculty) in institutions that developed the notion of tenure in reaction to fear that the state or the church, insofar as that was a meaningful distinction, would suppress or persecute them for heterodox teachings. It made some sense in a world with few scholars and fewer universities and powerful vested interests predicated on, shall we say, epistemically dubious claims.
I don’t know the current count, but there are literally thousands of universities in the U.S. alone, and while outside sources of funding are obviously critical to their continued existence, modern universities nonetheless operate as academic departmental city-states or mini-fiefdoms such that there is very little real input from administrators and virtually none from external sources about who gets hired in the English or history or chemistry department, who gets tenure, etc.
Bear in mind I also said in the next paragraph, “That, I hasten to add, is different from being blackballed within the ranks of one’s scholarly peers because of one’s views.” In other words, while there is tremendous pressure within one’s discipline to conform to certain peer expectations, at least until one gets tenure, there is little outside pressure. Here, too, however, I need to qualify that claim by noting that academics are subject to passing trends, that one of those trends currently is how ‘diversity’ concerns play a role, and that the exceptional, um, maverick with truly revolutionary findings will likely be a star anyway, but he or she will be the rare exception to the rule.
Finally, all those universities are essentially in competition with each other, so the productive scholar has a vastly larger job market than in the days when there were a small handful of universities, all of which were dependent upon the state or the church.
If anything, I think the case could be made today that tenure tends to stifle academic progress, not protect it. I am fully aware that reasonable people can reasonably disagree, but I certainly see no credible evidence that tenure continues to be a vital part of the academic freedom required for serious scholarship however enviable a perk it may be relative to the rest of the job market.
P.S. — I agree with your comment regarding Frank’s lack of appreciation of the difference between what is and what ought to be over at Hit & Run. In fact, he even had a bit of an (undeveloped) point about how the state could use corporations as its sockpuppets. OTOH, his failure to understand that a genuinely private, consensual quid pro quo between employers and employees really doesn’t give rise to libertarian objections pretty much disqualified him from my caring enough to keep trying to explain.
D.A. -
Thanks for the elaboration. I should have quoted you more narrowly, as I was mainly questioning the rationale for your conclusion on the defensibility of tenure as an employment practice. My own experience, albeit limited, has been different, having observed activist administrators wielding the executioner’s axe over the tenure application of an individual who was supported by the department’s promotion and tenure committee.
As to the Frank analysis, I’ve come to the realization that many of the disagreements at H&R are failures to distinguish between description and normative arguments (if I understand the latter term correctly).
I’ve heard of such happenings, too. My question would be whether such administrative ‘meddling’ (for that is surely how it is perceived by the departmental fiefdoms) effectively keeps the scholar in question from finding work elsewhere. It’s one thing to say Professor Jones doesn’t get to teach or doesn’t get tenure at East Jesus Poly, another to say he doesn’t find work or tenure elsewhere. But I could be wrong. I’d be interested in hearing others’ take on this.
Many faculty have a bias against hiring new faculty who have been denied tenure at other institutions, reasoning that such faculty may fail to achieve the conditions necessary to be promoted at the new institution.
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