Deans and Lawyers and Congress, Oh My
On bad faculty meetings and worse congressional testimony
This is my 23rd year as a college professor, and during that time I have attended a truly astonishing number of faculty meetings of various types. The very first real faculty meeting I went to featured a discussion of the administration’s proposal to eliminate one of the engineering departments, and was picketed by students from that department. The elimination went ahead over the objections of the faculty, which is a long and sordid story not really relevant to this; suffice to say, though, that that first meeting set a kind of tone that’s colored everything since.
These meetings come in a lot of flavors and levels of usefulness. There are somewhat consequential meetings at which meaningful policy changes are discussed, there are largely trivial but obligatory meetings which involve approving changes to the wording of various official policies to reflect what we’ve actually been doing (we had a long run of those). There are a bunch of meetings that are basically just reports on the results of other process— the annual “Best! Class! Ever!” meeting where Admissions talks up the students who will be enrolling in the fall, and the annual “OMG, We’re Broke!” meeting reporting on the state of the budget.
Far and away my least favorite type of meeting is the “listening session,” in which various faculty make meandering, grandstanding speeches about some controversial policy proposal from the administration, who don’t respond at all: “We’re just here to listen.” This is the Platonic ideal of “This meeting could’ve been an email,” and I have stalked out of a few of these over the years when it became clear what was happening. I regard these as an absolutely colossal waste of everybody’s time, but they’re inexplicably popular with a lot of my colleagues.
My second least favorite type of meeting is anything involving a presentation from somebody holding a law degree. These at least nominally involve some back-and-forth— there’s usually a brief presentation, and then a lot of time for Q&A— but in practice, there’s no actual exchange. The faculty ask very specific questions— “Are we legally required to do X?”, or “Are we legally allowed to do Y?”— and the lawyers steadfastly refuse to give any kind of concrete answer. Everything “depends on the context,” and there’s no level of hypothetical context that can be put into the question that will get them to commit to an answer.
It’s not really their fault, of course, because that’s the nature of their business. The actual answer to both “Are we legally required to do X?” and “Are we legally allowed to do Y?” is “You are if a court says you are.” Any attorney in a position to make one of these presentation can and will make an argument for either side of either question in front of a judge, if asked to do so by the institution paying their fee, but the ultimate decision as to what’s legal and what’s not will be made by that judge, or another in a higher court. They can offer advice as to what conditions or specific actions would make a particular argument easier or harder to make, but that’s about it.
The end result of this is that any meeting involving a lawyer is guaranteed to be somewhere between “unsatistfying” and “infuriating,” depending on the details and the general vibe of the attorney. After two decades of these, I’ve gotten a bit more Zen about the lawyer’s side of these, and am now mostly irritated by my colleagues who Still Don’t Get It. There’s always at least one moment during these kinds of meeting where I find myself internally screaming “He’s not going to answer that, you dumbass, stop talking.” (In the age of Zoom meetings, I sometimes get to scream that externally at a muted webcam, which is at least mildly cathartic…)
There’s also a kind of hybrid of these two, where a member of the administration does a presentation about things that are fundamentally legal issues. Those are just kind of pathetic and sad, because they’re not even in a great position to say what would make a legal argument stronger or weaker, and have to keep punting answers to a lawyer who usually isn’t there. At best, they’re repeating a version of a thing they were told, but have little ability to extend beyond the very specific questions they’ve already asked and had not-really-answered. I end up mostly feeling sorry for whoever gets wheeled out to do that.
I bring up this taxonomy of bad meetings because of the hot story of the last couple of weeks, namely the disastrous testimony by three elite university presidents before a Congressional committee looking into recent campus protests, which led to the resignation of the president and board chair of Penn over the weekend. I can’t claim to have watched all of the several hours of testimony, but the clips I have seen are recognizably straight out of the pathetic and sad “I can’t answer this without talking to our lawyer, who won’t answer it” class of meeting. On the question of whether their existing policies prohibit various kinds of offensive speech acts, they have very clearly been drilled in the technically correct legal non-answer: “It depends on the context.”
This is not a satisfying response when served up in a faculty meeting, but in a faculty meeting, it basically doesn’t matter. An unsatisfying non-answer will spawn a bunch of angry talk on the faculty email list, and maybe some grandstanding speeches in future meetings, but ultimately, it doesn’t have much in the way of real consequences. It’s unlikely to attract much attention outside of the campus.
In front of Congress, on the other hand… As we saw last week, those answers are an absolute disaster when offered on TV, to professional politicians. The issue comes back to a recurring theme on the Serious Trouble podcast: Josh Barro and Ken White take turns pointing out numerous occasions where a good answer in terms of the law is a bad answer in terms of politics, and vice versa. The answers those presidents gave were legally correct, but politically terrible.
To be clear, this isn’t just a matter of being asked “Gotcha” questions— the questions they were asked were designed as a trap, to be sure, but so are the rambling and discursive questions posed by emeritus faculty. “It depends on the context” is a bad political answer when offered in a faculty meeting, too, but it more or less flies there for two reasons: first, faculty are temperamentally a little more comfortable with the idea of things being complex and unanswerable, but more importantly, if they don’t find it satisfying, they can’t do much of anything about it. Presidents report to their Boards, and dissatisfied faculty can go piss up a rope.
Congress, on the other hand, has the power to make their lives miserable. Not so much because of any concrete legislative action, but just through boosting the profile of those terrible, unsatisfying non-answers. Those bad answers getting play on the evening news land in front of members of the Board and big donors to the institution, and those people genuinely do have the power to do something. Which is why Liz Magill is no longer the President of the University of Pennsylvania, and Claudine Gay is sweating bullets in the Boston suburbs.
What would be a good answer in this context? I honestly don’t know. A lot of people were citing the “Give the Devil the benefit of law” speech from A Man For All Seasons over the weekend as the kind of lofty and impassioned response appropriate to the context, and it’s an absolutely magnificent speech, to be sure:
Would that work in the context of a Congressional hearing, though? To a hostile audience that, more importantly, has the authority to cut you off and demand yes or no answers? I don’t think you’d get through much of that script, even if it did win an Oscar.
But, man, it would be hard to do a worse job of recognizing the context and reading the room than those presidents did. And that failure genuinely does reflect extremely poorly on their institutional leadership, at a level where at least offering to resign is appropriate, and arguably necessary.
I am aware of the irony of ending this with an unsatisfying non-answer, but you know, such is life. If you want to see whether I ever come up with a better aproach, here’s a button:
And the comments will at least start out as open, though I reserve the right to shut things down if they head in a toxic direction:
I just find it fascinating that the right-wing folks who a minute ago were screaming about encroachments of freedom of speech on campus are suddenly concerned with encroaching on the wrong kind of freedom of speech -- which, of course, was the issue all along. No one opposes freedom of speech in the abstract. It turns out that the extent of one's free speech absolutism turns out to depend on whose ox is being gored. Color me shocked.
I think one kid of answer could have been, "it depends on context but for example when xyz happened, we did A because of N and if pqr were to happen we would probably do B.
Another kind would be a process answer, "We would refer behavior xyz to our committee F who would take a, b, and c into consideration in coming to a conclusion.