Academia: Blame the Lawyers
And the risk-averse culture they engender
I no longer recall which of the umpteen blogs and newsletters and social-media feeds I follow at the moment threw these two pieces together, but somebody did. The first is a lament in Palladium from Ginevra Davis about the destruction of the anarchic social scene at Stanford; the second a slightly older article by John E. Seery about the ill effects of administrative bloat at Pomona College between 1990 and 2017. The common theme between them is the idea that colleges and universities have become depersonalized over the years, to the detriment of student happiness and success and mental health generally.
The forces blamed for this are slightly different— Davis tries to pin it on diversity and equity initiatives doing some “Harrison Bergeron” thing to crush individuality in the name of equality, Seery blames the corporatization of everything. I don’t think either of these is quite right (though there’s a sense in which Seery is closer): instead, I blame the lawyers. Or, maybe more properly, the risk-averse culture that’s a nearly inevitable result of a society in which disputes almost inevitably end up as legal actions.
This is a little more obvious in the Stanford case, as a lot of the free-wheeling party culture that underpins the narrative of a past golden age is, in fact, explicitly illegal, in that it involves underage drinking and the use of drugs that are banned even in California. It’s really tempting to spin this as the work of some latter-day Vernon Wormer who’s just anti-fun, but there is a genuine element of risk to a lot of the behavior in question in a way that would expose the institution to a lot of legal liability if they were to formally condone it.
My own college years, in the early 1990’s, were in a kind of transitional period for this sort of stuff. When I arrived, the college took a very winking stance toward the 21-year-old drinking age (which was a recent enough development that I knew guys who could still buy beer at 20 in Vermont because they had been grandfathered in when the law changed). By the time I graduated, policies had gotten a whole lot stricter, thanks in large part to some theatrical crackdowns by the local police. Large keg parties were still allowed, but much more tightly regulated, with actual checking of ID and the like.
(Williams handled this about as well as could be; in the same era, Hamilton College banned kegs outright, which led to an enormous shitstorm on that campus. The roughly annual crackdowns by the Williamstown PD played a big role in this—the cops would do something dramatic that seemed to threaten a total party ban, the college would then negotiate some incremental tightening of the rules that would get the police to back off, and the students would be happy and relieved that the administration had taken our side. But by the time I graduated it was substantially harder for a freshman to get a beer than it was the day I arrived1.)
That was a really fun time to be in college (for the people who liked that kind of scene), but at the same time, we did a lot of incredibly stupid and risky shit. It mostly worked out okay, as stupid risk-taking by 18-22-year-olds in a controlled environment tends to, but that was by no means guaranteed. And that was thirty-ish years ago, when society generally was a little more accepting of stupidly risky behavior, and a little less quick to sue over absolutely anything that went wrong. Even then, the college needed to be seen to be moving toward less condoning of misbehavior, to limit that liability; I’m sure they had at least some lawyers pushing for more dramatic steps to limit the downside risk.
It’s less obvious that the proliferation of bureacracy lamented by Seery is a result of lawyers run amok, but I think it’s the root cause there, as well. Some of the expansion in the number of VPs and other administrative positions is a very direct result of the need to document compliance with various Federal laws (Clery Act, FERPA, the ADA, etc.), but a lot more of it is a move toward greater formality in all aspects of employment, again driven by the need to limit the downside risk of institutional liability.
In a culture where you’re reasonably confident that interpersonal conflicts will be resolved informally, you can get away with a really light touch, administratively. In today’s world where every dispute seems to involve at least the threat of a lawsuit, you need a lot more overhead. If every tenure case could land in court, you need vice-provosts and the like to ensure that all the formal procedures are up-to-date, followed to the letter, and fully documented. If every disciplinary proceeding is going to be challenged by irate parents, you need a bunch more people in the Dean of Students office to field those calls and document that the procedures have been followed. And so on.
On top of that, particularly in the elite private tier of colleges, you have the effects of a tightening and a nationalization of the higher education market. That is, as jobs become more scarce and prestige more prized, institutions that were once happy to be regional leaders need to go nationwide in recruiting both faculty and students. Which means a need for more people in admissions and more people in Human Resources (or HR-like functions within the academic structure) to manage those processes. And all those processes have also become more legalistic, with the associated burdens of documenting every step of every process.
This being 2022, it’s virtually obligatory to note that this is in many ways a consequence of the slow and ongoing diversification of the pools of both employees and students, which is a Good Thing overall. The past golden age where everything ran smoothly with minimal oversight was able to exist (to the extent that it did exist) thanks to a relatively homogeneous faculty and a relatively homogeneous student body. When everybody at an institution comes from a similar background (in terms of class, race, gender, and even geography), it’s a lot easier to run a system based on handshake deals and personal honor. A more diverse population is necessarily going to bring in people with very different ideas and expectations about what constitutes proper behavior, and that will necessarily require more formal adjudication procedures. Which means additional administrative overhead.
So, while I can’t speak to Stanford in particular, I would agree with Davis that campus cultures nationwide have become considerably less fun and freewheeling over the years, and with Seery that college administrations have become larger and more bureaucratic. In both cases, though, I think the ultimate cause of this is risk aversion and the desire to avoid legal liability. And much as I would like to unwind both of those changes a bit, I just don’t see any way back this side of a broad societal change toward being less litigious, which isn’t going to happen any time soon.
So, yeah, that’s a cheery note to end the week… If you would like to read more of this kind of thing almost as soon as I finish typing it out, here’s a button you can click to have it sent to your inbox:
If you’d like to take issue with any of my characterizations here at a level short of legal action, the comments will be open:
It was still really easy, objectively speaking. Just harder than it had been four years earlier, and easier than it was four years later.
Another driver in the growth of administration is the expansion of IT over the last few decades. They're not instructors, so they all wind up in the administration budget.
Isn't sexual assault the proverbial elephant in the room here? The Palladium piece was pretty clearly trying to write around the topic, but that seems a fairly obvious element of why some of these social events had to be rethought.