The Equity Office and the Modern University: What Faculty Should Know

ASU is currently conducting a search for the position of Associate Vice Chancellor for Equity, Diversity, and Compliance. The search committee is seeking feedback from the faculty. Though it is of course up to each individual faculty member to reach his or her own conclusion about the candidates, it is worth reminding ourselves, first, why this office has been controversial and, second, how “equity,” “diversity,” and “compliance” positions have evolved at American universities in recent years.

The following post is intended to encourage reflection about the Equity Office’s role at ASU. Hopefully, it can also encourage informed questions at the forums being organized for each of the candidates for the position of Associate Vice Chancellor for Equity, Diversity, and Compliance. We are scholars and teachers by profession; when considering the issues that affect our workplace, we need to draw on the same intellectual rigor that informs our research and our teaching.

Recent Controversies Concerning the Equity Office

Most of us probably recall the Equity Office’s role in recent campus controversies. Here is a quick recap:

– The October 12, 2012 report of the Faculty Grievance Hearing Committee (FGHC) was critical of several aspects of the Equity Office’s role in the Jammie Price affair. The Equity Office director, according to the report, did not solicit interviews with students in a sufficiently neutral manner (p. 27) and wrote a  report that was “entirely hearsay,” in which the Equity Office director was the “sole interpreter” and which relied on “paraphrases” of student testimonies rather than direct quotes (pp. 27-28). Furthermore, in receiving the students who objected to Dr. Price’s teaching “with little or no wait,” the Equity Office appeared to give “undue deference to student athletes.” The report concluded: “Past history suggests that if these students were not student athletes, it is unlikely they would have received such swift attention” by the Equity Office and other concerned administrators (p. 26).

–  In the Price case, the Equity Office also made a controversial use of the “hostile work environment theory,” a legal concept that is central to Title IX case history. The Equity Office director concluded that “Dr. Price created a hostile learning environment for a significant number of her students.” On March 19, 2013 letter to the ASU Board of Trustees, the Foundation for Individual Rights in Education (FIRE), a non-profit civil rights group, observed: “While App State has a legal obligation to ensure that professors do not harass their students, Price’s commentary and classroom presentation in no way constituted ‘hostile environment’ harassment. As OCR [the Office for Civil Rights, the federal bureau in charge of enforcing Title IX] has made clear, professors do not create a ‘hostile environment’ simply by offending their students.” The FIRE letter further notes that in its Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, OCR wrote: “Title IX is intended to protect students from sex discrimination, not to regulate the content of speech. OCR recognizes that the offensiveness of a particular expression as perceived by some students, standing alone, is not a legally sufficient basis to establish a sexually hostile environment under Title IX. In order to establish a violation of Title IX, the harassment must be sufficiently serious to deny or limit a student’s ability to participate in or benefit from the education program.”

– On November 15, 2012 the Provost sent an email to the university community announcing that ASU had contracted with EthicsPoint, “a third-party vendor … to provide a hotline and website where anonymous reports may be made in confidence.” It was further explained:  “Individuals may call or submit a report on the website for compliance concerns involving, but not limited to, accounting and financial matters, athletics, research and academic misconduct, health and safety, bias, harassment and discrimination, human resource and personnel matters, information technology, hazing and sexual assault.” In a subsequent email sent out on December 7, 2012, in response to the “discussion” the initial message had triggered, the Provost addressed a number of questions about EthicsPoint, including: “Who will have access to the reports?” The answer included the following:  “The Director of Equity, Diversity and Compliance and the General Counsel are the super users identified at Appalachian.  They are the only ones who have access to all reports.  This is necessary for follow-up with other offices so reports are dealt with in a timely manner.”

– The title of the top position in the Equity Office has recently changed: whereas previously the person in charge was a “director,” it will now be run by an “Associate Vice Chancellor,” thus contributing to concerns regarding the rapid growth of top-level administrators (“associate vice provosts,” “vice chancellors,” etc.).

Equity Offices: Pros and Cons

All of this reminds us that, at the very least, equity offices (and their equivalents) have taken on an increasingly powerful role in the modern university. In itself, this is not a problem; indeed, many of us can probably support much of the work they do. The basic problem with this office lies in a tension between the Equity Office’s core mission and its methods. If one considers their primary goals—ensuring enforcement of anti-discrimination legislation (notably sex-based discrimination, through Title IX), making the university environment more inclusive and welcoming of minorities, guaranteeing that the provisions of the Equal Employment Opportunity Act are obeyed—the existence of equity offices represents enormous progress, historically speaking. If we didn’t have someone doing these tasks at the university, many of us would probably want an Equity Office to be created. At the same time, the Equity Office has acquired, in order to carry out its mission, responsibilities and tools that contribute to the “corporatization” of the university, the recruitment of administrators trained in managerial methods rather than in academics, and the decline of shared governance.

ASU’s equity office is one of the few in the country to have a three-part title: equity, diversity, and compliance. In other schools, equivalent entities are known as the “office of equity and inclusion”; in Canada, they are often called “offices of equity and human rights.” Each of these terms refers to a specific set of responsibilities grounded in a specific legislation. In each case, a progressive goal is paired with regulatory tools that pose a risk to academic freedom and shared governance.

“Equity”

“Equity” refers to the university’s responsibilities under Title IX of the Education Amendments Act of 1972, which prohibits discrimination on the basis of sex in higher education, and under Executive Order 11246 of 1965, which requires non-discriminatory hiring practices of government contractors. The former requires ASU to develop policies for fighting sexual harassment and gender discrimination (notably but not exclusively in athletics departments); the latter requires ASU, like other federal contractors, must have affirmative action and equal employment opportunity plans that describe its employment practices and policies, report on its workforce, and establish “placement goals.” The reports that ASU must submit are sufficiently complicated that the Equity Office works relies on the assistance of the Office Institutional Research, Assessment & Planning in preparing them.

Robust policies for fighting gender discrimination and sexual harassment and promoting affirmative action and non-discriminatory hiring practices are goals most of us agree with. However, as the Price case reveals, some of the legal tools that have been devised to achieve these goals can be used for other ends. There is considerable debate in the legal community about where free speech in the classroom (which is protected by the first amendment) ends and where a “hostile work environment” begins. For instance, in Bonnell v. Lorenzo (Macomb Community College), the sixth circuit supported a college’s suspension of an English professor on the grounds that he had created a “hostile learning environment” because of his repeated use of “lewd and graphic language” in his class. The court found that while “a professor’s rights to academic freedom and freedom of expression are paramount in the academic setting, they are not absolute to the point of compromising a student’s right to learn in a hostile-free environment.” It also concluded that vulgar language was “not germane to the subject matter.” In an article published in 1999 in the Duke Journal of Gender Law and Policy, Jon Gould argues that “academic freedom” has often served as a “straw man” that (typically male) professors have used to justify behavior that in most other work environments would be regarded as sexual harassment.

In short, the relationship between Title IX and academic freedom is complex, as each can potentially infringe upon the other. This is why faculty must be vigilant in ensuring that equity offices strike a reasonable balance between fighting discrimination and protecting academic freedom.

“Diversity”

Diversity is another responsibility the Equity Office has assumed. The Equity Office conducts on-campus and off-campus diversity education programs, in addition to running  a “diversity outreach” program (including an annual diversity festival and sponsorship of graduate “diversity assistants” and undergraduate “diversity scholars).

“Diversity” entered the world of university administration a little over a decade ago. According to an interesting article by Ben Gose that appeared in the Chronicle of Higher Education in September 2006 (available through Lexis-Nexis) , universities, in appointing “diversity officers, “are following the lead of the corporate world, where chief diversity officers have been in vogue since the 1990s.” Universities have been led to create these positions due to campus controversies (such as the remarks by Harvard President Larry Summers that led to his resignation), but also in response to Gratz v. Bollinger, the 2003 Supreme Court case that stated that race could serve as a criteria in university admissions if they were tailored to achieve the “educational benefits that diversity is designed to produce, including cross-racial understanding and the breaking down of racial stereotypes.” As a result, according to Gose, chief diversity officer positions were created at Harvard, Texas A&M, and Berkeley, Texas, and Virginia between 2004 and 2006. Many universities, like ASU, merged these new “diversity” positions with their equity offices.

Diversity officers perform many essential tasks. They can contribute to making diversity a priority in institutions that have been tone-deaf or even hostile to the concerns of campus minorities (or even to diversity in the first place). The fact that they have been made top administrators, with direct access to university presidents or chancellors, is a way of showing that a university takes diversity seriously.

Yet in some instances the promotion of diversity has clashed with the principles of academic freedom and shared governance. Gose cites one case in particular: “In June 2005, the University of Oregon scaled back a proposed five-year diversity plan after two dozen professors balked at certain aspects of it. The most controversial aspect of the plan was the addition of assessments of professors’ ‘cultural competency’ in tenure and post-tenure reviews. Several professors, including some on the committee charged with preparing the plan, said they were blindsided when Gregory J. Vincent, vice provost for institutional equity and diversity, released the draft document. Mr. Vincent …maintained that faculty members had plenty of time to weigh in on the draft….”

“Compliance”

“Compliance” refers to the various ways in which the Equity Office ensures that ASU obeys the letter (and presumably the spirit) of federal and state legislation relating to equal opportunity, affirmative action, and other policies aimed at preventing discrimination. The office crafts policies and also ensures that these policies are enforced. Compliance lies at the heart of the Equity Office’s—and the university’s—regulatory responsibilities and are the main reason why, over and above its advisory role, it has become a particularly powerful unit in the current administrative structure.

In an article from The Chronicle of Higher Education published in 2007 (also available from Lexis-Nexis) entitled “The Compliance Racket,” Kevin R. Davis reminds us that, strictly speaking, compliance refers to the “vast array of regulatory requirements in areas as diverse as health care, scientific research, immigration, labor law, and environmental safety” that universities must follow. But, as with diversity, the “racket” in compliance takes a page from the corporate world. Following the Enron scandal of the early 2000s, Congress passed the Sarbanes-Oxley Act of 2002 (or “SOX”), which vastly increased the self-reporting and external auditing requirements for corporations. Specifically, corporations were required to institutionalize “whistle-blowing” policies by creating anonymous reporting systems. Whereas CEOs and corporate boards had once seen whistle-blowers as threat, whistle-blowing now became integral to corporate governance.

The market quickly responded to the new demand for anonymous reporting systems. EthicsPoint, an Oregon-based company founded in 1999, rose to fame and wealth by offering telephone and online reporting systems in the corporate rush to comply with SOX. This is the same company that the Provost (following the lead of other universities) contracted with last year to create a similar reporting system at ASU. EthicsPoint recorded $30 million in sales in 2008—enough to attract the attention of a private equity firm, the Riverside Co., which recently acquired it and merged it with several of its competitors.

But maybe such expenditures are worthwhile for ensuring “good governance,” sound whistle-blowing policies, and adherence to federal standards many of us support? According to Kevin Davis, however, “we have good reason to be skeptical.” He explains: “On close scrutiny, it turns out that compliance programs don’t do what organizations want everyone to think they do. Although inconvenient to admit, the real benefit of a compliance program is less to ensure obedience to the law than to deflect unwanted attention from an institution’s activities.” Davis explains: “Consider, first, how a stated commitment to compliance does not mean a commitment to absolutely follow the letter of the law. That is because compliance is a plastic concept—before one can comply with a law or regulation, one must know what it requires. The crucial step of determining what constitutes compliance involves interpretation and judgment. Perhaps unsurprisingly, among the factors strongly influencing an organization’s view of a law’s meaning is self-interest.”

As an example, Davis cites the debate over how medical residents at university hospitals are to be defined for federal tax purposes. Since universities have to pay some of their employees’ FICA obligations, they have an interest in classifying residents as students (who are not subject to FICA) rather than employees. Though this can be seen as “compliance,” it is contrary to the government’s interest—and rests on a contestable interpretation of the law.

Davis concludes: “Compliance programs ultimately serve a self-defensive purpose. They are good for an institution in the way that paying protection money is good for a business squeezed by the mob.”

Questions to Think About

Given this background and the recent controversies surrounding the Equity Office, what are some of the questions that we should ask the candidates for the position of Associate Vice Chancellor for Equity, Diversity, and Compliance? Here are a few thoughts:

– How would you ensure that the Equity Office’s mission of preventing discrimination doesn’t clash with academic freedom?

– What would you do to make sure that the Equity Office doesn’t give preferential treatment to influential constituencies within the university?

– Does ASU need to establish an anonymous reporting system along the lines of EthicsPoint? If so, why?

– How independent should the Equity Office be from the Provost and other top admininistrators?

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