This week, the AAUP’s Committee on College and University Governance released a draft statement, entitled “Confidentiality and Faculty Representation in Academic Governance”, which in part originated with the following presentation that I have given at several state conference meetings over the past year.

A couple of years ago, I served as chair of a committee that advocates for faculty and staff on issues related to health insurance on my campus: the Health Care Advocacy Committee. For several years, the primary issue that this committee dealt with was retiree health insurance and its effect on the university’s balance sheet because of accounting rules categorizing the benefit as an “unfunded liability.” The committee was provided with actuarial analyses, including some different scenarios for making changes to this benefit. These analyses, which contained no information about individual faculty or staff members, were provided to the committee under the condition of confidentiality. The main reason that was cited by the administration for requiring confidentiality was that, because the proposals were still in a preliminary stage of consideration, sharing them across campus could lead to faculty or staff being “overly concerned” regarding the details of a proposal that was, perhaps, not even going to be seriously considered. Because of significant pressure by the board of trustees, the plan subsequently adopted by the university completely disregarded the views expressed by members of the committee. At a subsequent faculty meeting, a faculty member asked the president of the university whether an open forum scheduled on the topic of retiree health insurance was going to provide an opportunity for faculty and staff to comment on the proposed changes. The president replied that he had already “consulted” with the relevant committees, so the purpose of the open forums was simply to inform. I distinctly remember my colleague protesting that it was illegitimate to claim that there had been faculty consultation, given that the information provided to the committee had been provided under the condition of confidentiality, thus preventing the faculty representatives to the committee from consulting with their constituents.

This exchange caused me to reconsider my position on confidentiality. While I had previously believed that confidentiality was an acceptable concession in order to get “a seat at the table,” I am convinced now that we must resist confidentiality mandates because they undermine shared governance. I want to argue here that it is impossible to conduct shared governance within any kind any confidentiality framework. An exception to this claim is of course governance work concerned with personnel issues. However, a clear-cut distinction can be made that justifies under what conditions confidentiality should apply, based on whether or not faculty members serve as representatives of the faculty. This distinction is grounded in the AAUP’s various statements on the participation of faculty in the governance of colleges and universities.

The rise of fully confidential searches for university administrators is an emerging trend that is a significant threat to shared governance. As my colleague Mike Theune and I outlined in a paper we presented at the AAUP’s 2011 governance conference, on-campus discussion of confidentiality enforced on the faculty played a central role in our university’s most recent search for a provost and dean of the faculty, as well as in presidential searches at Knox College and Carleton College. In fact, the Carleton website reports that, in order to maintain confidentiality, about 100 faculty members (roughly half of the faculty) were asked to sign confidentiality agreements before they were permitted to meet with the finalists. I was told of a scenario in which buses transported the 100 faculty to meet the finalists at an undisclosed location. This would be mainly comical were it not for the chilling effect that the mandated confidentiality has on these faculty members’ ability to serve as true representatives of the faculty. For example, such enforced confidentiality would prevent faculty representatives from checking out finalists thoroughly by making off-list reference calls.

In my estimation, the imposition of confidentiality is likely to occur in the following three areas: (1) budgeting in the broadest sense, including salary and benefit policies, (2) administrative searches, and (3) strategic planning. A central feature of these three kinds of governance activities is the extent to which the results of the deliberation have collective consequences. Clearly, my example of the health care committee deliberating retiree health care scenarios involves significant collective consequences. For different reasons, and probably for different faculty members, so does the appointment of a provost or other senior administrators. Whenever there are significant collective consequences, faculty representatives need to get direction from their constituency, which likens the relationship to that of an agent to a principal. These governance areas should be contrasted with the work of faculty on committees dealing with promotion, tenure, internal grants, or grievances, where faculty members are selected not to represent the views of the faculty, but to use their professional judgment to interpret and apply established criteria relevant to these areas. This distinction is central in justifying why one but not another kind of governance activity is appropriately conducted in confidence.

More generally, political philosophers have proposed competing definitions of the concept of political representation that distinguish at least two conceptions: that of a delegate, directly responsible to a constituency, and a trustee, who is responsible only to his or her own best judgment. In fact, there is clearly a continuum of directness of the constituency’s influence between these two extremes. Given the responsibilities assigned to faculty representatives by several AAUP statements, it appears that the AAUP’s conception of faculty representation is closer to that of a delegate, although, as will be discussed in greater detail later, moving the conception of a faculty representative too close to the notion of a delegate has certain problems associated with it.

The 1966 Statement on Government of Colleges and Universities identifies areas in which the faculty has primary responsibility, such as faculty status and curricular matters, as well as areas requiring joint effort of the faculty with the governing board and the administration, the latter includes budgeting, planning, and the selection of the president and other administrators. In all of the areas in which the faculty has responsibility, whether or not that responsibility is primary, the statement calls for the establishment of “[a]gencies for faculty participation in the government of the college or university,” such as a “faculty-elected senate or council,” to which “[f]aculty representatives should be selected by the faculty according to procedures determined by the faculty”.  Additional statements on The Role of the Faculty in Budgetary and Salary Matters and Faculty Participation in the Selection, Evaluation, and Retention of Administrators expand on the 1966 Statement.

In the area of budgeting, the AAUP statement states that an “elected representative committee of the faculty [should participate] in deciding on the overall allocation of institutional resources and the proportion to be devoted directly to the academic program” and that such a committee will be of “critical importance in representing the faculty interests and interpreting the needs of the faculty to the governing board and president.” Clearly, it is impossible to serve as a faculty representative, representing “the faculty interest” and “interpret[ing] the needs of the faculty,” in the complete absence of consultation with the faculty. Hence, requiring confidentiality for the participation in committees that advise the administration on budgetary matters violates fairly directly this central AAUP statement.

In the area of administrative searches, current relevant AAUP language supports, in spirit, open searches or searches with an open final stage or stages.  The 1966 Statement indicates that the selection of a president should “follow upon a cooperative search by the governing board and the faculty” and that “[t]he selection of academic deans and other chief academic officers should be the responsibility of the president with the advice of, and in consultation with, the appropriate faculty.” Additionally, the derivative statement on Faculty Participation in the Selection, Evaluation, and Retention of Administrators expands on the previous statement by speaking of the “primary role” of the faculty and governing board in the search for a president and identifies the role of the faculty in searches for administrators other than the president as reflecting “the extent of legitimate faculty interest in that position.” Additionally, it further identifies academic administrators such as “the dean of a college” as “directly dependent upon faculty support,” and it concludes by noting that “sound academic practice dictates that the president not choose a person over the reasoned opposition of the faculty.” Clearly, the “reasoned opposition of the faculty” cannot be obtained in a fully confidential search.

I think it is clear that the imposition of confidentiality violates at least the spirit of these statements, if not the letter in the case of the statement on budgeting. More generally, a primary reason to oppose confidentiality agreements as a condition of participation in governance activities is that they remove the ability of faculty representatives to speak on behalf of their constituents and reduce the views expressed to being simply their own, which in turn isolates faculty representatives from their constituency and reduces the weight carried by statements made by them. On the other hand, as Greg Scholtz (now Director of the AAUP’s Department of Academic Freedom, Tenure, and Governance) noted in a letter that he wrote as a Wartburg College faculty member to its Faculty Council, administrators on committees always represent the administration and, ultimately, the governing board, and certainly are not bound to keep information confidential from, say, the president or chair of the governing board. Removing the ability of faculty representatives to speak on behalf of their constituency amplifies the already significant asymmetry of power. In areas such as budgeting or administrative searches, where faculty do not have primary responsibility, the ability of faculty representatives to speak on behalf of their constituency clearly gives more authority to their statements than speaking simply on their own behalf. Therefore, making confidentiality a prerequisite for participation in governance reduces the extent to which the views of the faculty as a whole will be brought to bear on the issue at hand and thus violates the stipulations of the AAUP’s governance statements.

By imposing confidentiality, faculty representatives may also be co-opted by making them feel as part of an important confidential conversation, so that that in addition to weakening the voice of faculty members, faculty representatives may start to identify more with the administration than with their constituency – a sort of Stockholm Syndrome of faculty governance.

Finally, in response to the Garcetti decision of the US Supreme Court, Committee A on Academic Freedom and Tenure recommended that colleges and universities include speech on governance issues under handbook definitions of academic freedom by stating that “[a]cademic freedom is the freedom . . . to address any matter of institutional policy or action whether or not [one is speaking] as a member of an agency of institutional governance.” Thus, there is an additional aspect, in which confidentiality agreements limit the ability of a faculty member to speak out on such issues and thus curtails academic freedom.

The central question regarding any refusal to agree to an imposition of confidentiality is whether it would result in the faculty losing the opportunity to weigh in on those governance matters. I subsequently informed our president that I would from now on use my own judgment whether to treat any information provided to me on any committee that I serve on as confidential, and that I reserved the right to refuse to do so in the future, unless that information was clearly personnel-related, which he accepted. And so, while, as it happens, both Greg Scholtz and I independently responded to an administration’s attempt to impose confidentiality by informing our administrators that we would not be willing to conduct governance activities under a veil of confidentiality and were able successfully to resist, it is much more preferable to create conditions that will ensure that no faculty representatives will comply with confidentiality directives. Under such conditions, the administration will have to conduct the work of the relevant committee without faculty representatives, difficult to do on many campuses, certainly on those that have a relatively healthy system of governance. Furthermore, it puts the administration in the position of having to justify confidentiality and why it so important in a given instance that it outweighs the need for legitimate faculty input. Even better than having to caucus among the various faculty representatives, especially since one cannot count on all of them agreeing to defy the authority of the administration, is for the senate to set a standard of conduct for faculty representatives. An ideal model for this was developed at the University of Memphis, at which the faculty senate asks faculty representatives sign a “Agreement to Serve as Faculty Representative!” which states that

As an appointed faculty representative, you are to represent the opinions and interests of the faculty as a whole, not just your own opinions and interests.

And which includes the following expectation:

After each committee meeting, e-mail a brief summary report of the meeting to the office of the Faculty Senate so that all faculty can be informed of committee activities via the senate’s web site.

With the senate taking the initiative, no faculty representative will feel pressured to comply with confidentiality mandates. It should be noted that the Faculty Senate’s document also contains the following provision:

on items deemed crucial to the interests of the entire faculty, you may be asked to vote in a way endorsed by the Faculty Senate (if time permits) or at least by the senate’s Executive Committee.

This illustrates the conception of faculty representatives as delegates in the sense discussed earlier. There is of course a danger that moving too close to the delegate conception can lead to an unwillingness of faculty to serve as representatives, namely when it appears that faculty representatives are not asked to exercise their own judgment but are required just to function as conduits of faculty senate directives. This is clearly not in the best interest of continued faculty participation in governance activities. How to balance the competing demands of serving as a delegate or as a trustee is a central issue in the philosophical analysis of the concept of political representation and will ultimately have to be resolved in the context of each individual institution, and perhaps even within individual units that are being represented. For instance, at my institution, different divisions have very different expectations of their representatives to the faculty council on how they represent their constituency.

However, we can’t count on all faculty senates to be this enlightened when it comes to opposing confidentiality agreements, and so the alternative here is to have a strong AAUP chapter that can serve as a political whip, explaining the central governance statements of the AAUP and the governing documents of the university to the senate and administration and pushing for the adoption of similar standards of conduct for faculty representatives at their own institution.  As Larry Gerber, current chair of the governance committee, explained in his article on the relationship between AAUP chapters and faculty senates,

In addition to its role as a repository of knowledge and expertise about AAUP standards, a local chapter does have a ‘political’ role to play.  Even when relations between a chapter and senate leaders are cordial and collaborative, there may be issues senate officers are reluctant to take the initiative on, but that they would be happy to see raised by the local AAUP chapter.  As in any political realm, an outside pressure group may often be able to help those on the inside of the system function more effectively.  Such outside pressure may come in the form of bringing resolutions and proposals to the floor of the senate or holding forums and producing newsletters that bring attention to issues that might otherwise be difficult for senate leaders to be the first to take up. End quote.

An active AAUP chapter, committed to advancing standards of shared governance, should oppose the use of confidentiality agreements.

In conclusion, I believe that the use of confidentiality agreements as a prerequisite of participation in governance activities should at the very least be resisted and, ideally, rejected. Confidentiality agreements violate in a number of ways the conception of “faculty representative” that is inherent in the AAUP’s statements on governance and violate the AAUP’s conception of academic freedom. It should be incumbent upon senates and AAUP chapters to devise policies that inform faculty representatives of the expectations associated with their service, especially when it comes to their responsibility to consult with those whom they represent.