Michael Olivas
William B. Bates Professor of Law and Director,
Institute for Higher Education Law and Governance, University of
Houston
Governing Badly:
Theory and Practice of Bad Decision-making in Higher Education
According to the broad principles set out by Delgado and Stefancic,
"serious moral error" includes cases that "lack []
nuance to an embarrassing degree," are "broadly or
universally condemned by subsequent generations", and their
"assumptions...are roundly refuted by later
experiences." They consider the matters they discussed as
"monstrous, anomalous—a moral abomination." The
examples I discussed are not necessarily of this high order, and
did not happen long ago, or long enough ago to have gained the
kind of disapproval their cases had gained. Indeed, colleges won
the financial exigency and program discontinuance cases.
Therefore, my own candidates for bad policymaking include cases
where I believe decision makers disregarded good sense, did not
consider the full range of alternatives, and made bad choices that
were avoidable. In a footnote, Delgado and Stefancic characterize
these mistakes as technical ("failing to reflect carefully on
precedent") or as ones of prudence (e.g., "exercising
bad business judgment in a contract matter.") The many regent
or administrative or agency decisions made on a daily basis in
higher education are not written down or published in a search
engine for their precedential value, like court decisions, so
relatively little "academic common law" accretes over
time, correcting errors or overturning bad decisions. But I would
argue that each of the cases I examine is a confluence of bad
judgments, poor research, and failure to discern the larger harm
to the higher education polity. The Ohio Board of Regents funding
formula was so badly developed that it was never actually put into
place; relatively few public schools employ alumni/legacy
admissions because they are so unfair and because admissions
criteria are under more widespread scrutiny; most colleges weather
cash flow or enrollment fluctuations better than did Catholic
University or the University of Houston in the Browzin or Spuler
instances; and most colleges do not want to play like they are the
immigration police. I believe that there are many such cases out
there in the ether, and I urge scholars to track, publicize, and
study them. While there are promising theoretical approaches to
understanding organizational failure, there is much more work to
be done in this regard. In this chapter, I tracked several
possible models that could be used to implement policies, and
suggested that variations on them might be useful to understand
bad policymaking - - the failure to implement, to communicate,
etc, and I employed a quasi-legal standard of abject moral
failure, as was suggested by legal scholars Richard Delgado and
Jean Stefancic to explain legal decisions that had become widely
known as embarrassing over time. This comparison, while
instructive, is not theoretical and in some ways not a good
parallel, given the basic differences between judicial decision
making and higher education policymaking. Even so, this
preliminary inquiry revealed some reasons why good people do bad
things as college trustees or policymakers. I hope that this early
attempt will attract others to the field, and that we will
understand bad governance. Doing so will surely enhance our
ability to understand good governance and higher education
policymaking. Most of us learn from our mistakes, and decision
makers are no different.
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