An Ignored Conflict of Interest

Conflicts of interest are inherent in faculty control over curriculum. When not addressed, these conflicts can result in faculty behavior that is neither in the best interest of their students nor of their colleges and universities. Our proposed approach for mitigating such conflicts involves shared governance, with faculty and administrators facing, and mitigating, potential conflicts together.

The possibility that conflicts of interest can lead to inappropriate decisions is recognized by nearly every profession and form of governance. Whether for lawyers, physicians, journalists, governments, the financial industry, or nonprofit corporations, a national or international regulatory body or trade association has imposed or recommended standards and disclosure requirements covering all types of conflicts.

Academe has also addressed conflicts of interest. The Redbook of the American Association of University Professors (AAUP) defines a conflict of interest: 

“A circumstance in which a person’s primary interests and responsibilities (such as the responsibility to analyze research results as dispassionately as possible) may be compromised by a secondary interest (such as financial gain). Identifying a conflict of interest does not entail an accusation of wrongdoing. Conflicts of interest have been shown to affect judgments unconsciously, so a conflict of interest refers to a factual circumstance wherein an impartial observer might reasonably infer that a conflict is present. Not all conflicts of interest are financial in nature, but financial conflicts of interest are not only the ones most easily managed but also the ones most likely to undermine public respect for, and trust in, higher education.”

Other academic organizations as diverse as the National Science Foundation (which requires its grantee institutions to have “an appropriate written and enforced policy on conflict of interest”) and the American Psychological Association (one of the largest academic organizations in the world), also have such policies. Virtually every college and university also has its own conflict of interest policy. For example, the conflict of interest policy of the State University of New York defines a conflict of interest generally as “any interest, financial or otherwise, direct or indirect; participation in any business, transaction or professional activity; or incurring of any obligation of any nature, which is or appears to be in substantial conflict with the proper discharge of an employee’s duties in the public interest.”

However, all of the examples provided by SUNY concern financial conflicts, and the policy requires the identification of only a “financial disclosure designee” for each campus. This is typical of higher education policies, which focus on financial and/or research integrity conflicts. The City University of New York (CUNY) does have a policy (the multiple positions policy) that limits faculty teaching extra courses (for pay) within their institutions, but this policy does not directly touch upon faculty work concerning curriculum.

There is one internal, course-related, conflict of interest situation for which policies do exist:  faculty assigning their own textbooks in their courses. The AAUP has such a policy. Rather than state that faculty members should not assign their own texts, however, the policy states that faculty should “seek to ensure that course-assignment decisions are not compromised by even the appearance of impropriety.” Again, this policy does not directly address the issue of faculty conflicts that may exist regarding curriculum.

For the majority of faculty members, course instruction constitutes a substantial workload, and the amount and type of that workload depends on what they are teaching. At the same time, decisions about what sorts of courses should be required for a major or a degree and what courses should be available are usually made by faculty members. Hence the potential conflicts. 

The decisions made by faculty about what courses students should take not only have a direct impact on the work done by the faculty but also on department resources. Robert Zemsky, in his excellent book Checklist for Change, goes so far as to say that the question that “dogs nearly every attempt to change a collegiate curriculum [is] to what extent is the real purpose of a college curriculum today to distribute enrollments in such a way as to preserve faculty slots?” The more faculty in a department, say, of English, the more influence, power, and budget that department, especially its chair, has.

Consider some specific possible examples of conflicts of interest involving faculty members and curriculum. These examples are based on the almost 40 years of personal experiences of one of us (Logue) as a faculty member and administrator involving approximately 30 colleges and universities (though the experiences are primarily from prior to Logue’s most recent administrative position).

• Faculty members could decide that a course should be a required general education course for all students, thus guaranteeing enrollments for a given faculty member and/or department. Further, two departments might agree to vote for each others’ courses being required general education courses, so that both departments’ courses would be included. Such actions could result in unusually high total general education requirements for students, so that students have fewer electives, and increasing students’ difficulty in efficiently scheduling all required courses and in doing double majors.
• A department could decide to require students without college-level skills to take remedial courses that generate substantial enrollments for that department, even though the students cannot afford these courses, may be likely to fail them (repeatedly), and the students may not receive from these courses information or skills they are likely to need in college or beyond.
• Departments or individual faculty could deny transfer credit so that transfer students will have to take these institutions’ own courses, delaying the transfer students’ graduation.
• Courses of little student interest could be offered, thus enabling particular faculty members to teach them, either because the topics or the low enrollments are favored by these faculty. This would increase average course cost.
• Faculty members could refuse to expend additional course preparation time in order to incorporate new technologies into their teaching, even though there is evidence that these technologies result in students learning more and/or having to spend less time to learn.
• The faculty of a campus within a system could object to participating in establishing a system-wide course (such as calculus) that would ease student transfer within the system, due to the campus’s faculty not wanting to spend the extra time needed to work with a system-wide faculty committee to design the course.
• A campus’s faculty could seek to offer more advanced degrees (e.g., master’s degrees at a baccalaureate college), not due to evidence that more graduates with those degrees are needed, but because those faculty wish to teach more advanced students, thus decreasing the institution’s time and funds that can be expended on the campus’s other students.
• A department’s courses could be scheduled at the times preferred by faculty members, making it difficult for students to put together a full schedule of courses.

These are all situations in which faculty are making decisions regarding what sorts of courses should be required for or available to students. In some colleges or universities faculty members have been given, essentially, actual veto power over curriculum. In others, tension between the faculty and the administration has resulted in the administration awarding faculty what amounts to veto power. For example, at San Jose State University, the president had unsuccessfully tried to promote the use of online pedagogies, and then approved the following policy: “As departments and faculty control and determine the appropriate pedagogies for their courses, the university will not agree in a contract with any private or public entity to deliver technology intensive, hybrid, or online courses or programs without the prior approval of the relevant department, through the same department procedure that the department reviews pedagogical changes in in-person courses."

In still other institutions, the administration has the final authority and has exercised it (e.g., CUNY regarding its Pathways program). The Wisconsin legislature is moving to establish such an authority structure for the University of Wisconsin system.  However, none of these cases address the issue of faculty conflict of interest with respect to curriculum.

Virtually everyone — board members, administrators, and faculty — agrees that it is the faculty members who have curricular expertise. Virtually everyone also agrees that when all parties work together, participating in shared governance, colleges and universities function better, including with better outcomes for students. However, there are disagreements as to precisely how shared governance should be structured. Some contend that it should consist of dividing up campus authority. 

We contend, consistent with the eloquent exposition in Bowen and Tobin’s new book, Locus of Authority, that governance works best when everyone works together in teams with the administration making he final decisions, at least regarding faculty conflicts of interest (for an example of a recent disagreement about who should have final see see this article.)

Some writers see shared governance as a way for faculty to put checks on “administrators [who] often find it expedient to pursue their own purposes rather than, or at the expense of, those of the larger organization or their supposed superiors” (Ginsberg, The Fall of the Faculty). There is no doubt that some administrators engage in such behavior. One of us (Logue) saw an administrator at a not-wealthy university spend a large proportion of the administrator’s budget to start a new center that lacked an adequate business plan. Instead of bringing fame to the administrator, the center imploded within a few years.

However, although it may be useful for administrators and faculty to participate together in governance of institutions of higher education, the existing protections against conflicts of interest are not identical for these two groups. Most administrators — even presidents and board members — have supervisors who have the authority to terminate the administrators’ employment if their job performance is not satisfactory. Theoretically at least, major decisions made by any administrator can be reviewed by his or her supervisor, and if the supervisor views this administrator to have acted more with personal, rather than the campus’s, interest in mind, termination can ensue.

Most states are employment-at-will states, meaning that employers have the right to terminate their employees without justified cause. The administrator referenced above who started the inadequately funded, short-lived center that drew funds from departments that badly needed them lost his position soon after the center began to implode.

Contrast the situation of administrators with that of faculty members. Most faculty are members of a department led by a department chair. However, for tenured faculty members, that chair, though he or she may review department faculty, has no authority to terminate any faculty member simply for unsatisfactory performance, nor does anyone else have that authority. At most institutions, the standard for removal of tenure-track and tenured faculty would consist of significant unprofessional conduct, and would involve multiple reviews with multiple opportunities for appeal by the faculty member. (Non-tenure-track faculty members are unfortunately often lacking in job security, but they also are often not consulted in curricular decisions.)

These differences in the employment status of faculty members and administrators are essential, many would claim, to ensuring that faculty have academic freedom. Faculty members need job protections to ensure that they are not removed for expressing views that may be unpopular with others, and for protecting the important status of higher education as a place in which all views can be expressed without retribution.

The AAUP policy about faculty assigning their own textbooks states that “it is equally necessary to ensure that procedures followed by colleges and universities to protect students do not impair the freedom of faculty members or their flexibility of choice in deciding what materials to assign their students.” There is no question that tenure and the particular employment status of faculty members help to protect the tradition of academic freedom that we in the United States — justifiably — hold so dear. However, this structure also ensures that there are no checks or balances on curricular actions taken by faculty that may be motivated more by self-interest than by interest in the best outcomes for students or by an interest in exercising freedom of speech. At many institutions, faculty are essentially functioning as managers of themselves and of the academic enterprise, which is why conflicts of interest arise. 

American higher education cannot maximize its efficiency or efficacy in producing qualified graduates, and cannot maintain credibility with the public (and funding sources), unless every effort is made to disclose and minimize all types of faculty conflicts of interest, including with regard to curricular, and not just financial, aspects of their institutions.

How can this situation be improved?  Here is what we recommend:

• National academic organizations should take the lead in devising model policies that cover all types of faculty conflicts of interest, including with regard to curriculum.
• Using the national organizations’ policies as models, faculty and administrators should work together to devise conflict of interest policies that are appropriate for their particular institutions, policies that cover the curricular, and not just financial, interests of faculty.
• These policies should recognize that curricular expertise lies with the faculty.
• These policies should also recognize that, wherever possible, in order to minimize even the appearance of conflicts, curricular decisions should be based on objectively obtained data such as enrollments and demonstrated learning outcomes, and not simply on individual faculty members’ opinions.
• Faculty with appropriate expertise should continue to make recommendations regarding curricular action items, whether those items are initiated by faculty or by other members of the institutions. However, consistent with the standards existing in so many other professions, and in accordance with their institutions’ agreed upon conflict of interest policies, along with those recommendations faculty should disclose, to appropriate faculty members and administrators, any possible conflicts of interest.
• Simply disclosing possible conflicts of interest may have a dampening effect on them. Nevertheless, prior to any adoption of the faculty’s curricular recommendations, nonconflicted faculty (perhaps a curriculum committee whose members, according to themselves and others, have no conflicts with the particular item) should conduct an independent review of the curricular recommendations, of whether the conflict of interest policies have been followed, and of any potential conflicts of interest. If they find that there are potential conflicts, they should also state whether or not the curricular recommendations are nevertheless justified for the students.
• Final decisions concerning procedural issues and whether there are conflicts (including among members of the review committee) should be made by a senior academic administrator. Should the administrator decide that one or more conflicts are present, the institution’s procedure might give that administrator one or more options, such as that the administrator can (i) reject the curricular recommendations as not being in the best interests of the students, (ii) ask for another faculty review, (iii) remove or reduce the conflict by approving the recommendations, but decreasing the benefits to the relevant faculty member and/or department, and/or (iv) decide that the curricular recommendations benefit students sufficiently to proceed even though a conflict exists.

We live in a country that has now fallen to 14th in the world in terms of the percentage of young adults with college degrees, a country in which public funding of higher education has been decreasing. Resources flow to higher education, in part, depending on how well the public perceives that higher education is doing its job, and that, in turn, depends, in part, on how much the public trusts higher education. That some of the instruction provided is designed more for the benefit of the instructors than for the students can harm that trust. Above all else we need to remain true to our mission of advancing learning. All of those involved in higher education should work together in facing these issues.