Actions of Last Resort in the Academy, Part 1: Internal Avenues

History chronicles moments where people pushed, pulled, shoved, harassed, bullied or beaten chose fighting over fleeing. The continuum ranges from stories of quiet personal rebellion to ones of explosive cultural and political movements changing the course of history. Superhuman willpower, seething rage and unbridled determination ultimately thwart the other’s beliefs, power and authority to repress human rights and dignity.

To choose to fight is a decisive moment—an action of last resort. Fueled by a sense of moral obligation and conviction, the oppressed, the abused and their allies have no other option but to battle without compromise. Backed into a proverbial corner, the one or the many choosing to fight against oppressors accept(s) risk and the distinct possibility of being killed, either literally or figuratively.

In higher education, the actions of last resort are often formal complaints lodged through institutional (college, university, state) systems; oversight organizations (i.e., NCAA); parliamentary; and state and federal legal procedures. These formal allegations are often supported by informal complaints, primarily via disruption (protests, strikes, petitions, letter-writing campaigns, bans and other types of activism). This column focuses on the former—formal complaints via an established process.

Of late, the news has been rife with stories of individuals and groups engaged in actions of last resort, namely strikes, protests, votes of no confidence and court battles. Before these actions of last resort, individuals likely sought resolution through other avenues. People seek justice elsewhere when these avenues fail (and no doubt they do). To better understand what it is like to bring forth issues, I encourage everyone to read the recent book Complaint! (Duke University Press, 2021) by Sara Ahmed, a brilliant scholar. Her work chronicling stories and analyzing experiences reveals the challenges and failings of the academy to hear complaints and act effectively, particularly for those who experience discrimination, abuse, harassment, assault and retaliation in the workplace.

Lodging a complaint relies on the chain of command (authority) and a prescribed process moving from the internal to external deciding bodies to regain order, civility or lawfulness (and/or seek reparations) in a situation where allegedly the opposite is taking place. For the plaintiff, the long, grueling journey is fraught with victim blaming, shaming and efforts to undermine the victim’s credibility as they must repeatedly tell their story of trauma. Victims may be retaliated against, defamed, slandered, fired or forced to resign. The process can take months or, in some cases, many years at a considerable price—financially, mentally and physically. To understand, one just needs to review cases at Michigan State University, the University of Rochester, Penn State University and Sonoma State University, to name a few.

In making the complaint, one is expected to have evidentiary support and have asked the accused to cease the offending or unlawful behaviors. Depending on their position and rank, the complainant may have brought issues to a resident assistant, professor, department chair, dean, vice president or the president. Suppose the problem is without resolution at a supervisory level. In that case, it may be heard and investigated by one or more of the following: the director of human resources, the union representative, the ombuds (campus mediator, see Standards of Practice), the Title IX investigator (issues related to the Civil Rights Act of 1972), campus police or the student honor board (or similar body), depending on those involved and the issues at hand. In some cases, where procedures dictate it, there are hearings and rulings on the complaints.

The success of these efforts often depends upon many things, including the experience, training, competence and ethics of those responsible for leading the process toward resolution. It also depends on who is being investigated for wrongdoing and what’s at stake. For example, can someone who reports to the president effectively investigate the president objectively and without fear of retaliation or reprisal? Will the president act to address an issue with her superiors on behalf of an employee, even if doing so would put her job or a charitable gift at stake? If someone makes a claim against the university to human resources, is it human resources’ job to protect the individual employee or the institution? Will human resources abandon their duty to protect the individual’s rights when it doesn’t serve to protect the institution? Remember, while the law (and internal policies) state that your employer or the person you complain about can’t retaliate, it doesn’t mean they won’t. They may bank on the possibility the individual won’t be able to prove retaliation or doesn’t have the wherewithal to challenge it in court.

The administration’s or governing bodies’ (as a whole or in part) ability to lead can be called into question. Formal complaints can be made because leaders are believed inadequate, unfit or failed to uphold the law or the academy’s policies and procedures. Campus constituents via a faculty, college or staff senate may act through a parliamentary procedure. Complaints against the administration or governing body (or individuals within those bodies) are made by a motion of no confidence, which is then discussed, debated and voted on. If the motion succeeds, it communicates a level of distrust and lack of general support.

While a vote of no confidence is symbolic, it can have repercussions. The article “Power of the Faculty: Consequences of No Confidence Votes for College Presidents,” by authors Daniel P. Nadler, Mei-Yan Lu and Michael T. Miller, was published in the fall 2017, volume one edition of Journal of Research on the College President (University of Arkansas). It presented findings of their study: “Of the 57 no-confidence votes, within six months of the actual vote, the campus leader was removed from office in 32 of those instances; 56% of the time a presidential change followed a faculty-led no-confidence vote. The reasons for departure varied dramatically, with the majority of those departures being nonvoluntary on the part of the president (n=21; 66%), but they also included retirement, vacating the position for personal reasons (resignation), accepting a position at another institution, accepting a different position in the university or system, and in two cases, promotion within the university system.”

Complaints can also be made outside a particular institution to oversight organizations and bodies that may act through sanctions, censure, penalties and lawsuits. Some of those bodies include the American Association of University Professors (aaup.org), the National Collegiate Athletic Association (ncaa.org), the state controller’s office, the state department of education and accrediting bodies. They each have methods and processes to address issues. For example, the AAUP might weigh in on matters of tenure, the NCAA on cases of equitable treatment of men’s and women’s sports teams, or the controller on an institutionally affiliated foundation allegedly violating its contract with the state system.

Failure to resolve issues internally (or at the level of an overseeing body) may lead to other actions of last resort, especially concerning civil rights and employment-related complaints. Next week is “Actions of Last Resort in the Academy (Part 2: External Avenues),” where I’ll look at making complaints via state and federal government.