Legal Commentary

Back in February, I wrote about the early coverage of FIU's dean search, made public by the state's Sunshine Laws. I particularly complained that the coverage was likely to be inaccurate for the same reason much coverage of the judicial process is inaccurate--the press is not very good at capturing niche or nuanced events, nor is it very good at reporting process stories or the effect that process has on outcomes. Dan Filler similarly criticized the potential mischief that comes with subjecting a process such as a dean search to the Sunshine--as he put it, giving the world an opportunity to see us making sausage.

Thus far, we have met five candidates, with a sixth coming at the end of this week. On Monday, the faculty met to vote its preferences on each candidate. The meeting was opened and noticed under the Sunshine Laws. And the next day, accounts appear that are inaccurate or at least not reflective of process and nuance. The gist of the accounts is that Alex Acosta (the current United States Attorney for the Southern District of Florida and the candidate that everyone around here cares about) was deemed "not acceptable" by a majority of the faculty (he was nixed, in one commentator's words). Two candidates--Prof. Joel Friedman of Tulane and Dean Jose Juarez of Denver--were found "acceptable," or, as one story stated, they were the only two found to have "superior academic chops." It also was reported that the vote, although not binding was "traditionally . . . seriously considered."

And once again, nuance and process were lost in inaccurate or incomplete news accounts. People are watching sausage being made here, but media accounts do not provide the context of the sausage maker, especially the unquestionably unique sausage maker that is FIU. So allow this post to correct at least some of the public record.

We did hold a sense-of-the-faculty vote on the five candidates we have met thus far (the final candidate will be considered at a second faculty meeting next week). But under the rules established for the vote, there was explicitly to be no characterization of the outcome; there was to be no determination or declaration that anyone was acceptable or unacceptable. The rules did not establish any numerical threshold for acceptability (on faculty-hiring votes, we always know that acceptability requires 2/3--and no one reached that mark). The fact that it is being reported as a finding by the faculty of the acceptability or unacceptability of any candidate is wrong because no standard ever was established to define acceptability. The reporter unilaterally decided that 50 % (rather than 2/3 or 40 %) was the threshold, with no basis for the conclusion.

Similarly, the lede in one paper stated that the faculty "didn't want" Acosta as dean. But again, there was nothing that defined at what point a candidate became wanted. And since we also did not rank-order anyone, there was no statement of preferences and thus no statement as to who we wanted or did not want as dean. The vote simply was supposed to reflect the unadorned numerical opinion of faculty members as to individual candidates--running alongside individual statements of views that we were invited to present directly to the provost. And it certainly was not a finding as to anyone's "academic chops."

The Sunshine Laws created a second bit of mischief that was not addressed in the articles. University counsel rendered the opinion that, to comply with the laws, the members of the law faculty who are members of the Search and Screen Committee (five people out of a committee of nine) had to either publicly declare their votes (all other ballots were secret) or not vote. They chose the latter so as to protect two untenured committee members from having to declare their preferences. But, as a result, 15 % of the faculty members present at the meeting were unable to express their preferences on the same terms as other faculty members--a number that might have shifted the outcomes on several planes. The question now is whether and how the views of these five faculty members will be presented to the provost and considered in conjunction with the votes of the rest of the law faculty in order to get a true "sense of the faculty."

Third, there is no way to conclude that the faculty vote is "traditionally" "seriously considered" because a faculty vote on a dean candidate is a totally unique animal at FIU. Deans here historically are selected without corporate input from the faculty as a whole; the faculty is represented on the search-and-screen committee (always chaired by a dean from a different college) and individual faculty are given the opportunity to weigh in on their preferences for the provost's consideration. But no other college here ever has had this type of sense-of-the-faculty vote--precisely to leave the provost with the freedom to choose without running into cries of faculty governance. And since this is the first time the College of Law ever has searched for a dean, there is no "tradition" at FIU (whatever the effect of similar votes at other schools) of how such votes are treated. I have no doubt the provost will consider the vote totals (as the provost said in one of the articles). And ABA accredidation standards provide that a dean should not be hired who lacks the support of a substantial majority of the faculty (whatever that means and whatever the final numbers look like, after the additional five faculty members have been heard from), at least without good explanation. But I do not believe it is accurate to suggest that the vote will be any more controlling than the other pieces of information provided to the provost.

Dan Filler is absolutely right that giving the world a window into the process is a bad idea (a point he made back in February and again today). I believe the problem is less giving the world a window, than the inaccuracy of the window. But I am not sure how we can get or ensure accuracy in such a unique process.