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Wednesday, May 06, 2009

Deans and Sausages: On conducting a dean search in public and correcting the public record

Back in February, I wrote about the early coverage of FIU's dean search, made public by the state's Sunshine Laws. I particularly complained that the coverage was likely to be inaccurate for the same reason much coverage of the judicial process is inaccurate--the press is not very good at capturing niche or nuanced events, nor is it very good at reporting process stories or the effect that process has on outcomes. Dan Filler similarly criticized the potential mischief that comes with subjecting a process such as a dean search to the Sunshine--as he put it, giving the world an opportunity to see us making sausage.

Thus far, we have met five candidates, with a sixth coming at the end of this week. On Monday, the faculty met to vote its preferences on each candidate. The meeting was opened and noticed under the Sunshine Laws. And the next day, accounts appear that are inaccurate or at least not reflective of process and nuance. The gist of the accounts is that Alex Acosta (the current United States Attorney for the Southern District of Florida and the candidate that everyone around here cares about) was deemed "not acceptable" by a majority of the faculty (he was nixed, in one commentator's words). Two candidates--Prof. Joel Friedman of Tulane and Dean Jose Juarez of Denver--were found "acceptable," or, as one story stated, they were the only two found to have "superior academic chops." It also was reported that the vote, although not binding was "traditionally . . . seriously considered."

And once again, nuance and process were lost in inaccurate or incomplete news accounts. People are watching sausage being made here, but media accounts do not provide the context of the sausage maker, especially the unquestionably unique sausage maker that is FIU. So allow this post to correct at least some of the public record.

We did hold a sense-of-the-faculty vote on the five candidates we have met thus far (the final candidate will be considered at a second faculty meeting next week). But under the rules established for the vote, there was explicitly to be no characterization of the outcome; there was to be no determination or declaration that anyone was acceptable or unacceptable. The rules did not establish any numerical threshold for acceptability (on faculty-hiring votes, we always know that acceptability requires 2/3--and no one reached that mark). The fact that it is being reported as a finding by the faculty of the acceptability or unacceptability of any candidate is wrong because no standard ever was established to define acceptability. The reporter unilaterally decided that 50 % (rather than 2/3 or 40 %) was the threshold, with no basis for the conclusion.

Similarly, the lede in one paper stated that the faculty "didn't want" Acosta as dean. But again, there was nothing that defined at what point a candidate became wanted. And since we also did not rank-order anyone, there was no statement of preferences and thus no statement as to who we wanted or did not want as dean. The vote simply was supposed to reflect the unadorned numerical opinion of faculty members as to individual candidates--running alongside individual statements of views that we were invited to present directly to the provost. And it certainly was not a finding as to anyone's "academic chops."

The Sunshine Laws created a second bit of mischief that was not addressed in the articles. University counsel rendered the opinion that, to comply with the laws, the members of the law faculty who are members of the Search and Screen Committee (five people out of a committee of nine) had to either publicly declare their votes (all other ballots were secret) or not vote. They chose the latter so as to protect two untenured committee members from having to declare their preferences. But, as a result, 15 % of the faculty members present at the meeting were unable to express their preferences on the same terms as other faculty members--a number that might have shifted the outcomes on several planes. The question now is whether and how the views of these five faculty members will be presented to the provost and considered in conjunction with the votes of the rest of the law faculty in order to get a true "sense of the faculty."

Third, there is no way to conclude that the faculty vote is "traditionally" "seriously considered" because a faculty vote on a dean candidate is a totally unique animal at FIU. Deans here historically are selected without corporate input from the faculty as a whole; the faculty is represented on the search-and-screen committee (always chaired by a dean from a different college) and individual faculty are given the opportunity to weigh in on their preferences for the provost's consideration. But no other college here ever has had this type of sense-of-the-faculty vote--precisely to leave the provost with the freedom to choose without running into cries of faculty governance. And since this is the first time the College of Law ever has searched for a dean, there is no "tradition" at FIU (whatever the effect of similar votes at other schools) of how such votes are treated. I have no doubt the provost will consider the vote totals (as the provost said in one of the articles). And ABA accredidation standards provide that a dean should not be hired who lacks the support of a substantial majority of the faculty (whatever that means and whatever the final numbers look like, after the additional five faculty members have been heard from), at least without good explanation. But I do not believe it is accurate to suggest that the vote will be any more controlling than the other pieces of information provided to the provost.

Dan Filler is absolutely right that giving the world a window into the process is a bad idea (a point he made back in February and again today). I believe the problem is less giving the world a window, than the inaccuracy of the window. But I am not sure how we can get or ensure accuracy in such a unique process.

Posted by Howard Wasserman on May 6, 2009 at 05:30 PM in Howard Wasserman, Life of Law Schools | Permalink

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Listed below are links to weblogs that reference Deans and Sausages: On conducting a dean search in public and correcting the public record:

» Howard Wasserman On The FIU Dean Search from The Faculty Lounge
I shouldn't be surprised (and I should have been more skeptical in this post) that newspaper reporters captured an incomplete picture of the FIU dean search in news accounts today. As readers may recall, the fFIU faculty has been voting... [Read More]

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» Florida's Open Records Law Meets the FIU Dean Search from Discourse.net
Spare a moment of sympathy for the poor folks at FIU Law. Having just been through a (very successful) relatively painless Dean search here at UM, I know just how awful even the very best search can be. Now imagine having to do the whole thing in publi... [Read More]

Tracked on May 7, 2009 9:14:04 AM

» David Souter's Pen; FIU And The Sunshine Band from Legal Profession Blog
Posted by Alan Childress Two interesting stories (to me) around the web worth pointing to: (1) Chris Zorn at Empirical Legal Studies Blog shares his assessment of the brand of fountain pen traditionally used by David Souter. I have to... [Read More]

Tracked on May 7, 2009 10:15:35 AM

Comments

In reading this, I am struck that there is a valid complaint that people involved in the process don't want the world to watch the decision being made, just as a lot of legislators would prefer to do things in private. However, it does not sound like the reporters missed any "nuances." One candidate got fewer votes than the other two, and less than a majority, and there were no standards other than the logical "most votes" or "majority" established. The candidate with the least votes may ultimately win the war, but has clearly lost this particular battle, and the reporters are accurate and complete to say so.

Posted by: Petunia | May 7, 2009 1:48:40 PM

I probably would prefer not to have this be a public process. And judging by comments from other law-prof bloggers (click to the trackbacks, above), it appears many professors share that preference. There is a strange under-inclusiveness to the openness requirement: The process of hiring the dean must be open, but just about everything he (and the faculty) do once he becomes dean is not open--including the process of hiring, promoting, and tenuring faculty and all other personnel decisions. I am not suggesting those processes should be open; I simply fail to see what is different about the hiring of a dean.

It might be that "most votes" or "majority" is the logical default. But that does not make the reporting accurate--the reporter still improperly ascribed a meaning to the outcome of the vote that the governing rules did not provide for. The explanation only gives a logical or rational explanation for the inaccuracy. At best, the reporter could have said that more faculty members wanted A and B as dean than wanted C.

Posted by: Howard Wasserman | May 7, 2009 3:22:30 PM

Howard is right about this. The FIU vote (if that's the proper term) appears to have been more of a political maneuver by those who are hell bent on getting Juarez the job. Juarez had been passed over by the FIU Search committee and he withdrew his candidacy. Then a group of law faculty with a shared political ideology (who are opposed to Acosta because of his political affiliations with the Bush Administration) insisted that the committee reconsider Juarez and they caved in. Juarez was brought to campus to satisfy this political group, and he got their unified vote. The rest of the faculty supports Acosta (as well as a couple of the other candidates). The original media reports were dead wrong to conclude that Acosta has been "nixed" because he lacks "academic chops." They were equally wrong to conclude that Juarez was the "top" candidate because he has such "chops".

Posted by: FIU Fan | May 7, 2009 9:46:23 PM

I love hearing academics whine and flail about. Poor babies. Grow up. Welcome to the real world, life outside the womb.

Posted by: FIU lover | May 11, 2009 9:44:38 AM

Oh perfessor - this is such a "unique process." Not. The only thing that renders it less unique than digging diteches is the self importance you place on the process. Yawn.

And all the while you relish in this little extra attention one of the applicants confers upon you.

Pathetic.

Posted by: federal prosecutor | May 11, 2009 9:47:55 AM

At least Juarez has been a dean. Not so for Joel Friedman. But he's an avid scuba diver and dive buddy of Dougie Wartzokk the FIU provost marine biologist. What a way to chose a dean. FIU will keep diving to the bottom.

Posted by: jobless alumni | May 20, 2009 11:47:13 PM

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