Dan: My guest today is Teresa Manning, Policy Director for the National Association of Scholars. Teresa earned her JD from the University of Iowa College of Law in 1993. She also has an MA in Western European History from Washington University in St. Louis and her BA in philosophy from St. Michael’s College at the University of Toronto. Before joining the National Association of Scholars, Teresa served as the Deputy Assistant Secretary of the Office of Population Affairs in the Department of Health and Human Services and is formerly a law professor at the Scalia Law School of George Mason University. She recently published an article in the online journal Law and Liberty entitled, “Make University Administrators Pay and Watch Things Change.” In this article, she argues that the qualified immunity that public college administrators enjoy when making decisions about student constitutional freedoms has resulted in a culture that lacks accountability and has caused taxpayers needless expense. Teresa Manning, welcome to the podcast.
Teresa: Thank you for having me.
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Dan: You’ve taken the position that the best way to address poor decision-making by college administrators is to hold them personally legally accountable. Before we talk about your reasoning, could you share some examples of actions by administrators that in your mind require this change?
Teresa: It is only part of the solution. I mean, there are many things that could be done to hold administrators more accountable, so this is just part of the approach to what would be a solution. But I think in the article I published with Law and Liberty, I began with a few examples here in Virginia of administrators who look very much like they have violated the constitutional rights of their students. One was at the University of Virginia, the medical school there, a medical student, Kieran Bhattacharya, who was very polite and civil in a university-sponsored event, discussing microaggressions, and he was challenging the definition. After this really quite polite and civil exchange, the organizers of the event proceeded to file a behavior warning card – a “professional concern card” is what they called it – and brought him in for various questions and all of their behavior was punitive. They ended up suspending him and then eventually expelling him. The original event was recorded, so those interested can listen to how civil and polite the exchange was, and how really obnoxious it appears that this type of intellectual exchange could become a cause for discipline at the university. This case I consider egregious, but it’s not atypical. Incidentally, the UVA medical student did file suit against the University of Virginia, and that was recently allowed to proceed. Another case is against James Madison University, filed by a former administrator herself, who was victimized by a Title IX proceeding where a faculty member and her cronies in the Title IX office filed a complaint under Title IX, which is the federal law that bans sex discrimination at schools receiving federal funds, but whose offices are now defining Title IX offenses well beyond what the original statute envisioned, such that any misconduct they find problematic can become subject to a Title IX investigation. This victim of the Title IX proceeding also has filed suit saying that she was suspended from her job, mind you, before she even knew the details of the allegations against her, which is a huge due process violation. Due process is a term that we bandy about; it’s a legal term that refers to what’s called the “basket of rights” that constitute fundamental fairness in any procedure or proceeding, whether legal or administrative or at a school with discipline. Due process rights include famous things, such as the presumption of innocence, the right to see evidence, the right to confront your accusers and to question witnesses, the right to know what you are being accused of with sufficient particularity that you can defend yourself, and especially the right to exonerating evidence. So all of those rights are grouped together and called the basket of rights that comprise due process. So Title IX offices are especially suspect in recent years because so many of their policies have been drafted behind closed doors, because these offices are staffed by largely ideological individuals who feel that they’ve been authorized with sort of a feminist mandate to go after whatever they consider to be misconduct that has a sexual angle. So we have a lot of administrators who I would describe using the words of Laura Kipnis, a Northwestern professor, who was also victimized by a Title IX investigation for an essay she wrote. I would describe a lot of these administrators as “drunk with power.” They seem to be in a position where everyone is involved so no one is responsible. There is a grotesque lack of accountability. They often act in concert with one another and we have drunk with power, lack of accountability, the ability to draft policies that don’t comport with statutory law, much less with constitutional law. We have a very big problem with college administrators run amuck. I’ll stop there, if that’s enough to answer your question.
Dan: Keeping in mind examples like this, why is it you feel that personal liability is the solution? Obviously, that’s a very significant way of addressing this issue that you’ve described. Why is it you think that personal liability as opposed to any other type of solution is the answer?
Teresa: Well, I would qualify that again and say it’s only part of the solution. There may be many ways that we could get more accountability from this administrative bloat, but this is certainly one important aspect. And perhaps the best way to explain this is to explain what typically happens when administrators engage in wrongdoing, and illegal wrongdoing at that. First of all, they are only called on their misconduct if someone files suit. If someone goes in-house through the university, for example, chances are over 95% that the institution will protect its own and simply rubber-stamp whatever the administrator did. So if an injured party decides enough of that, I’m going to file suit, the administrator who is sued at a public university doesn’t even have to retain his or her own counsel. It’s provided by the in-house counsel of the public university in the general counsel’s office. Keep in mind that at a public university, that general counsel is a public employee paid by the taxpayers of the state. So already something doesn’t sit well, since the taxpayers of a given state are not involved at all in the drafting of these policies, much less their enforcement or their arbitrary implementation. And yet the taxpayers are subsidizing the defense of that administrator. But it’s not just the general counsel at the institution. It’s often also the state Attorney General’s office that routinely will defend university public university officials. So we have a problem here with the taxpayers paying the costs of actions and policies they’ve not even been involved with drafting or implementing. So they’re bearing the burden without having any hand in any sort of benefits. This asymmetry creates real fairness problems. So what do I see as one corrective to this? One corrective is that administrators should be sued in both their personal and official capacity, not one to the exclusion of the other. And the personal capacity means that that individual administrator must retain his or her own council pay for his or her own defense, and of course, if a judgment were entered at the end of the process would have to pay the portion of that judgment out of their own pocket. That is obviously a great preventive or deterrent to illegal wrongdoing.
Dan: You have pointed out that administrators of public institutions enjoy protections that their counterparts at private institutions don’t have even though both groups of people are doing essentially the same work serving similar populations of college students. Can you explain your view that some types of public employees should not enjoy protections as you’ve just described, protections that you believe, for example, judges and prosecutors should enjoy?
Teresa: Yes. So we should step back and examine this term ‘immunity,’ which sounds sort of legalistic and is somewhat foreign to most people. Immunity means that you cannot be sued. States enjoy a certain sovereign immunity; for example, vis a vis the federal government being brought into federal court, and sovereign immunity is the typical phrase that the crown or governmental officials are not allowed to be sued. This is easiest to understand and explain when people think of certain types of governmental officials: judges and prosecutors make the best examples. Incidentally, judges and prosecutors enjoy full immunity, which is distinct from qualified immunity or partial immunity, which I explained in the article. “Full immunity” means no matter what the situation, such a government official cannot be sued. Whereas “partial immunity” means that the determination of immunity is somewhat fact-specific, but let’s stay with full immunity for the moment to explain this. Judges who have to issue opinions and findings from one party against another inherently alienate and antagonize somebody – it’s just inescapable in litigation or a criminal proceeding, somebody is going to win and someone’s going to lose. Given that the position itself is fraught with this problem, that you’re going to alienate and antagonize and anger someone it makes sense to say that you’re always going to have an aggrieved party and therefore the judge can’t be worried that that aggrieved party, after the proceeding, will sue the judge. Similarly, a prosecutor, same type of situation. A prosecutor’s job is to bring in defendants to be prosecuted in criminal proceedings and to request criminal sentences, whether it’s fines or incarceration, or even the death sentence. This is a position that is fraught with tension and alienation, and is going to upset people. And so it makes sense, again, that a prosecutor can’t have to worry about being sued after the fact. So prosecutors and judges are given full immunity. There are other government officials that have sort of these unpleasant tasks that are going to upset people, and if they do their job, and if they don’t have immunity are going to find that they are sued every day of the week because of what they do. Right now, we’re having a bit of a national discussion about police and how police claim qualified immunity as distinct from full immunity. That is, they don’t want to be able to be sued personally for actions on the job that would upset, that have upset, other people, such as drivers or bystanders. That too is sort of understandable; that the nature of their work is so time-sensitive, is very dangerous, that if they had to worry about being sued, one could argue that they couldn’t do their job. By comparison, the university official, the employee of a public university, applying immunity to such a person makes no sense. We can look at the private sector where you have employees of private universities who are making decisions and doing their jobs and have no immunity. Yet they function. So why are we extending this defense to employees of public universities, just because they’re public employees, as opposed to private employees? That just amounts to an irrational bonus to public employees that makes no sense. They can function without any immunity in a way that judges and prosecutors and arguably police cannot. So this doctrine of immunity doesn’t make sense as applied to employees of a public institution, such as a university.
Dan: At the outset of the interview, you talked about administrators who are drunk with power. If this solution were implemented, it would represent a fundamental change to people who had a great deal of power, because they would suddenly become very vulnerable. And I’m trying to get a sense of how big of an issue this is; that is, whether this is a problem that needs fixing or needs a fix of the size that you’re recommending. Have you or anyone else attempted to quantify the cumulative cost of the errors that you think these administrators are making to taxpayers? Has anyone tried to quantify this sort of hands-off approach that we have to college administrators?
Teresa: Well, not that I’m aware of, but an empirical study of crunching the numbers, would not be at all difficult to do. Almost all attorneys have to account for their time and bill for their time, and incidentally, counsel for plaintiffs, especially in constitutional litigation under section 1983, which is the federal statute that authorizes individual lawsuits regarding constitutional rights, if a plaintiff that is the complainant prevails, attorney’s fees are to be reimbursed and included in any judgment. So plaintiff’s counsel are very accustomed to tracking their hours and their costs. And a lot of those attorneys who end up in the general counsel’s office or the attorney general’s office, hopefully have some experience in the private sector as private practicing attorneys and have also had to account for their time. So it’s not at all a disproportionate or an alien thing to ask for them to keep track of their time and their costs. It would be easy enough to do. And in many cases, I think judges order attorneys to give an estimate of their costs and their time. So though I’m not aware of an empirical study on this, it’s a very reasonable and sort of industry-standard thing to have lawyers do.
Dan: You describe a two-tiered penalty for bad decisions and here I’ll quote you, and I apologize for the substantial quote that I’m going to give you now, “What’s more, policymakers can actually make state schools pay by reducing state appropriations for the institution in the amount of both legal expenses and any judgment. Such policies must still allow schools and their employees to get sued. This is an important check on both the institution and the individual, but the stakes would be higher for them because school officials could be found personally liable and institutions would pay the price through reduced appropriations. How else to restrain uncontrolled administrators and their ideologies run amuck.” So, this solution is doubly consequential – first for the individual administrators, and then second for the institution. For my final question to you, I’m wondering is it possible that this solution is a cure that is worse than the disease? I ask that as someone who was a college president for nearly a decade and has served in administrative roles for much longer than that, and it, isn’t difficult to imagine that the consequences of this would be institutional paralysis – administrators afraid to act not only because they could suffer personal legal liability, but also because their positions would be in jeopardy if their actions resulted in reduced appropriations. Sort of like “one false move and I’ll lose my job and my savings.” And I’m wondering how you respond to these concerns, for example, would administrative recruitment even be possible under these conditions? As another question, for example, one thing that occurs to me is that I’m wondering if top-level administrators who had no protection would say, “well, okay, then you have to compensate me more because either I need to be paid more because I could lose my job at any time due to the whim of some litigious person.” There’s simply more cost to the institution because they essentially require the institution to take out an insurance policy that would completely cover them in the event that they were held financially, personally liable. So the cost would still be passed along to whichever constituents were ultimately paying for the cost of the institution. I guess that’s a long way of saying, what are the real consequences of this? Not only in terms of holding administrators liable, which I think I understand what you’re after there, but the collateral effects, which appeared to me to range from simply higher costs to total institutional paralysis. Now that was a long, complicated question. Please, I’ll stop talking and let you answer.
Teresa: So a number of things: first the National Association of Scholars just produced a report on the finances of higher education called “Priced Out.” And anyone concerned about raising tuition and unmanageable student loan debt should look at that report. One conclusion is that much of the rate of increase for tuition is due to administrative bloat; the number of administrators, the high salaries of these administrators, the long tenure of many of these administrators. Some states, and I think the Chronicle of Higher Education, used to on a yearly basis publish the salaries of college and university presidents, deans, associate deans, provosts, vice-provosts. These people are making outrageously, obscenely high salaries. One could discuss that in its own right, but we typically associate high compensation with high responsibility and high accountability. You make the big bucks because you make the big decisions. Now we have the perverted situation of people making obscenely high salaries who are escaping responsibility and escaping accountability. So I see this as actually bringing responsibility and accountability more in line with these inflated salaries. So that’s the first thing – we have an egregious imbalance and asymmetry right now with high salaries and no responsibility, so that needs to be fixed. And I think maybe your question overlooks that the pendulum right now is just totally on the opposite side, that no one is ever held accountable, and the only people who pay are taxpayers. With respect to paralysis, there’s a part of me that thinks more paralysis is in order in the area of free speech, due process, and other constitutional rights. That is, right now, we have administrators who are almost zealots in pursuing what I think are unlawful policies at the university to advance an ideological mission, and they are, the legal term is showing a callous disregard for constitutional rights such as due process and free speech. I, again, refer to the cases I mentioned in my Law and Liberty article, James Madison University, Virginia Tech, and UVA. I want more paralysis. I want more of these administrators thinking long and hard before they run afoul of constitutionally guaranteed rights. They should be thinking long and hard before they draft these policies. So right now we have the opposite problem. They are almost jumping without looking. They’re not only drunk with power, but they’re drunk with their ideology. We need to have them put on the brakes and to think. When it comes to free speech and due process, we have such a long record, I think, of violations by these institutions that there almost should be a bubble around those rights, and the university doesn’t get the benefit of the doubt when it acts here, because it’s got a long record of violating these rights. So those are my responses to your concerns. And I hope that your listeners will take a look at the report called “Priced Out,” which details administrator salaries.
Dan: Yes, I’ll put a link to that in the show notes for the listeners. Let me just push you a little on your answer, just for clarification. I’ll take as a given that administrators are well-paid in many cases, particularly high-level administrators. I will also accept your premise that with responsibility should come some level of liability, and I hope I’m not, mischaracterizing your view there. I think your point was that these people are well-paid and in fact, in some cases they’re so well-paid that it seems beyond argument that they should be willing to accept some level of liability. However, I think I just want to clarify or push back a little on the issue of the practical consequences. I appreciated your answer about seeking a higher level of deliberation with regard to important questions, particularly the constitutional rights of students, but in the case of the practical consequences, I think it’s very unlikely that an administrator who is paid X number of dollars will say, “Well, I’m already paid X number of dollars, and I should be willing to simply absorb additional risk with no additional reward.” So as a strictly practical matter, I’m wondering if what you’re suggesting wouldn’t dramatically inflate costs by requiring administrators to be very well compensated for what they will see – and I think it’s safe to say they will definitely see this – as a dramatically increased personal risk.
Teresa: Well, I can’t put myself in the shoes of these administrators. I think their salaries should be more highly publicized, and my first reaction to you, or to this point that you’re making, is that if you can’t stand the heat, get out of the kitchen. If you want to be at a public university and dealing with student issues and important constitutional rights, both faculty and students, you are assuming a lot of responsibility. You are running the risk of liability, and your salary, I think, already is paying for that. And if added responsibility and the risk of liability, which everyone in the private sector shoulders – incidentally, this is almost like making public employment artificially cushy, everyone in the private sector just by doing business runs the risk that they could get sued for some type of malpractice or negligence. So we are not asking employees of public institutions to do anything more than what your average person in the private sector already does. And if you can’t handle that responsibility and liability, you can’t handle the heat, then get out of the kitchen. Thank you for the pushback, but I hope that the practical consequence of this is to scale back dramatically the number of administrators we have on campus, since by all indications, they are superfluous and their presence and these silly policies, these silly and problematic and likely illegal policies that they implement, are the reason that tuition has escalated over the past decades to a ridiculous degree. So I hope the practical consequence is that we get fewer administrators. That would be a very good thing.
Dan: Teresa Manning, policy director of the National Association of Scholars. Thanks very much for being with me today.
Teresa: Thank you so much, Dan. It was great fun.