The University and the Panopticon: Naturalizing "New" Governance Forms for Behavior Control Beyond Law

How do institutions with governance authority respond to  behaviors considered a problem, or a threat to the stable social order or social goals to be encouraged among its populations?  Traditionally, the responses of governance bodies would rely heavily on the conventional tools of government:  command and sanction.  In the form of law or regulation, coupled with enforcement and judicial procedure, these techniques have served the state and its subsidiary units with the principal methods for commanding subject populations and managing their behaviors.  But the last part of the 20th century saw the rise of new methods of governance--methods that bypassed law as inefficient and clumsy in favor of more subtle but comprehensive techniques.  These techniques are meant to operate on the bodies of the objects of governance, to weave a complex net of expectations, perspectives, and exposures,  and to naturalize cultures and expectations of exposure of even the most intimate activity.  The methodologies of these forms of governance were once methods of enforcing direct command through law.  

Today method provides the basis for substantive regulation without the need to declare the substance of the regulation itself.  In the form of  information  harvesting, publication and management--grounded on its utility for the development of judgment and the application of consequences--governance has come to be understood as a technique of management rather than of law.  It becomes most successful when it disappears into the background of cultural assumptions and expectations of the managed population.  As culture rather than as regulation, the state can also appear more benign, and the iron fist of control covered in the velvet of management that is self effected.   Observation, publication and judgment now serve as more effective instruments of governance than commands published in a register and administered haphazardly by an overwhelmed administrative and enforcement apparatus of the state.   And thus the panopticon has come to serve the state and related governance units, to extend the efficient control of subject populations in an efficient and more successful way.   For what can be more successful than a system of management and control in which the population to be controlled serve as their own wardens.   I have elsewhere tried to find order in this new approach to governance.  See, Larry Catá Backer,  Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies  15(1):101-148 (2008).   

But this is all theory, and fairly opaque to those heavily invested in governance at the operational level.  An example might be useful to illustrate both the utility of this approach and its increasing importance as the preferred form of managing behavior.  A really useful example might focus on a subsidiary governance unit--a university, confronting a problem that requires behavior modification, cultural readjustment and control.  What follows is a short description of the way in which the modern panoptic approach to governance has become an important tool in the management of behavior among large masses of constituents and what that may suggest for governance by governments.  

The alcohol consumption habits of university students has become an issue of alarm to local, regional and national elites.  Alcohol consumption and abuse, especially, but not limited to those prohibited by law from its consumption has begun to absorb ever larger resources and universities, local, regional, state and national governments are confronted with behaviors that is judged detrimental to the welfare of the state (and the individual well being of those persons contributing to the crisis by  their behavior).  The traditional methods of control have proven ineffective--regulation by university officials, local governments, state and federal authorities have proven easy enough to evade .  Moreover, it is not clear that the larger culture shares precisely the same values and approaches to appropriate conduct that is the object of public and university regulators.  What is clear, however, is that the objections to the consequences of that behavior in terms of property damage, injury to individuals, the loss of future productive social elements, combined with a willingness of society to vest responsibility for these problems on universities, local, regional, state and federal governments (aided to some extent by the information media) has produced substantial pressure to force changes in behavior and manage the habits of a large target population.  Increasingly, universities have sought to center themselves within webs of panoptic techniques as a means of managing individuals and naturalizing a process of behavior control and modification that appears "natural" and "conventional".

The National Institute on Alcohol Abuse and Alcoholism (NIAA) College Task Force reports have begun to point to the framework within which behavior can be governed, modified and internalized among a subject population.  See, e.g., NIAAA College Task Force Report, Proposed 3 in 1 Framework, or the Four Tiers Program. Many of these seek to integrate multi-government programs of education, control of the environment, targetted enforcement, prgrams of intervention, counseling and related support, institutionalization of objectives based outreach efforts and coordination with other programs targeting related behaviors (drug use or other activities deemed to have an antisocial component).

The Four Tier framework "The 4 Tiers organize some of the most commonly used prevention and intervention tactics according to the level of research that supports them."  Four Tiers, id.

Tier 1: Evidence of Effectiveness Among College Students

Strong research evidence (two or more favorable studies available) supports the strategies that follow. All strategies target individual problem, at-risk, or alcohol-dependent drinkers. Their efficacy as part of a campus-wide strategy has not been tested.

Strategy: Combining cognitive-behavioral skills with norms clarification and motivational enhancement interventions. Cognitive-behavioral skills training strives to change an individual's dysfunctional beliefs and thinking about the use of alcohol through activities such as altering expectancies about alcohol's effects, documenting daily alcohol consumption, and learning to manage stress. . . .

Norms or values clarification examines students' perceptions about the acceptability of abusive drinking behavior on campus and uses data to refute beliefs about the tolerance for this behavior as well as beliefs about the number of students who drink excessively and the amounts of alcohol they consume.

As its name implies, motivational enhancement is designed to stimulate students' intrinsic desire or motivation to change their behavior. Motivational enhancement strategies are based on the theory that individuals alone are responsible for changing their drinking behavior and complying with that decision (Miller et al., 1992). . . . 

Strategy: Offering brief motivational enhancement interventions. Students who receive brief (usually 45-minute), personalized motivational enhancement sessions, whether delivered individually or in small groups, reduce alcohol consumption. This strategy can also reduce negative consequences such as excessive drinking, driving after drinking, riding with an intoxicated driver, citations for traffic violations, and injuries. . . 

Strategy: Challenging alcohol expectancies. This strategy works by using a combination of information and experiential learning to alter students' expectations about the effects of alcohol so they understand that drinking does not necessarily produce many of the effects they anticipate such as sociability and sexual attractiveness. . . .

Tier 2: Evidence of Success With General Populations That Could Be Applied to College Environments

The Task Force recommends that college presidents, campus alcohol program planners, and student and community leaders explore the strategies listed below because they have been successful with similar populations, although they have not yet been comprehensively evaluated with college students. . . . 

Strategy: Increased enforcement of minimum drinking age laws (Toomey and Wagenaar, 2002; Wagenaar and Toomey, 2002). The minimum legal drinking age (MLDA) law is the most well-studied alcohol control policy. Compared to other programs aimed at youth in general, increasing the legal age for purchase and consumption of alcohol has been the most successful effort to date in reducing underage drinking and alcohol-related problems.. . . .

Strategy: Implementation, increased publicity, and enforcement of other laws to reduce alcohol-impaired driving. Injury and deaths caused by alcohol-impaired driving and related injuries and deaths can be reduced by lowering legal blood alcohol limits to .08 percent for adult drivers. . . .

Strategy: Restrictions on alcohol retail outlet density (Scribner et al., 1995; Gruenewald et al., 1993). Studies of the number of alcohol licenses or outlets per population size have found a relationship between the density of alcohol outlets, consumption, and related problems such as violence, other crime, and health problems. . . .

Strategy: Increased prices and excise taxes on alcoholic beverages. A substantial body of research has shown that higher alcoholic beverage prices or taxes are associated with lower levels of alcohol consumption and alcohol-related problems. . . .

Strategy: Responsible beverage service policies in social and commercial settings (Saltz and Stangetta, 1997; Holder et al., 1997b). Studies suggest that bartenders, waiters, and others in the hospitality industry would welcome written policies about responsible service of alcohol and training in how to implement them appropriately. Policies could include serving alcohol in standard sizes, limiting sales of pitchers, cutting off service of alcohol to intoxicated patrons, promoting alcohol-free drinks and food, and eliminating last-call announcements.. . . . 

Strategy: The formation of a campus and community coalition involving all major stakeholders may be critical to implement these strategies effectively. A number of comprehensive community efforts have been designed to reduce alcohol and other substance use and related negative consequences among underaged youth, including college students, and among adults. . . .

Tier 3: Evidence of Logical and Theoretical Promise, But Require More Comprehensive Evaluation

The Task Force recognizes that a number of popular strategies and policy suggestions make sense intuitively or have strong theoretical support. Many also raise researchable questions that may be crucial in reducing the consequences of college student drinking.. . . 

Strategy: Adopting campus-based policies and practices that appear to be capable of reducing high-risk alcohol use. The following activities are particularly appealing because straightforward and relatively brief evaluations should indicate whether they would be successful in reducing high-risk drinking on a particular campus.

• Reinstating Friday classes and exams to reduce Thursday night partying; possibly scheduling Saturday morning classes.
   
• Implementing alcohol-free, expanded late-night student activities.
   
• Eliminating keg parties on campus where underage drinking is prevalent.
   
• Establishing alcohol-free dormitories.
   
• Employing older, salaried resident assistants or hiring adults to fulfill that role.
   
• Further controlling or eliminating alcohol at sports events and prohibiting tailgating parties that model heavy alcohol use.
   
• Refusing sponsorship gifts from the alcohol industry to avoid any perception that underage drinking is acceptable.
   
• Banning alcohol on campus, including at faculty and alumni events.

Strategy: Increasing enforcement at campus-based events that promote excessive drinking (DeJong and Langenbahn, 1996; Gulland, 1994). Campus police can conduct random spot checks at events and parties on campus to ensure that alcohol service is monitored and that age identification is checked.. . . 

Strategy: Increasing publicity about and enforcement of underage drinking laws on campus and eliminating "mixed messages.". . . . Lax enforcement of State laws and local regulations on campus may send a "mixed message" to students about compliance with legally imposed drinking restrictions. Creative approaches are needed to test the feasibility of this strategy. . . .

Strategy: Consistently enforcing disciplinary actions associated with policy violations (DeJong and Langford, 2002). Inconsistent enforcement of alcohol-related rules may suggest to students that "rules are made to be broken.". . . . 

Strategy: Conducting marketing campaigns to correct student misperceptions about alcohol use . . . . . On the basis of the premise that students overestimate the amount of drinking that occurs among their peers and then fashion their own behavior to meet this perceived norm, many schools are now actively conducting "social norming" campaigns to correct many of these misperceptions. . . .

Strategy: Provision of "safe rides" programs (DeJong, 1995). Safe rides attempt to prevent drinking and driving by providing either free or low-cost transportation such as taxis or van shuttles from popular student venues or events to residence halls and other safe destinations.. ..

Strategy: Regulation of happy hours and sales . . . .  Happy hours and price promotions—such as two drinks for the price of one or women drink for free—are associated with higher consumption among both light and heavy drinkers. . . .

Strategy: Informing new students and their parents about alcohol policies and penalties before arrival and during orientation periods. There is some anecdotal evidence that experiences during the first 6 weeks of enrollment affect subsequent success during the freshman year. Because many students begin drinking heavily during this time, they may be unable to adapt appropriately to campus life. 

Tier 4: Evidence of Ineffectiveness

The Task Force recognizes that it is difficult or impossible to "prove" that a specific intervention approach is universally ineffective. . . . 

Strategy: Informational, knowledge-based, or values clarification interventions about alcohol and the problems related to its excessive use, when used alone . . . . This strategy is based on the assumption that college students excessively use alcohol because they lack knowledge or awareness of health risks and that an increase in knowledge would lead to a decrease in use.. . . .

Strategy: Providing blood alcohol content feedback to students. This strategy uses breath analysis tests to provide students accurate information on their BAC.. . .  Four Tiers Program, supra.

Pennsylvania State University recently announced a set of comprehensive multi-jurisdictional  and coordinated  strategies  to achieve desired governance objectives with respect to alcohol consumption.  University and local government officials have publicly outlined "a long list of strategies for addressing the issue including  making dorms alcohol free. . .  , notifying parents of students who receive any type of alcohol violation--rather than just serious or repeated violations, as in the past--and having a greater police presence in town.  Other efforts include encouraging faculty to make greater use of Friday class periods, getting rid of the week between finals and commencements and developing a method for requiring anyone taken out of a football game for alcoholism related problems to pass a breathalyzer to get into future games."  Anne Danahy, "University Leaders Get Updates on Booze Efforts, Endowment," Centre Daily Times, Sept. 18, 2010, at A-5.  Earlier in the month,Penn State had announced the implementation, on a trail basis, of a Brief Alcohol Screening and Intervention of College Students (BASICS) program.  See, Matt Scorzafave, PSU Implements BASICS Program, Daily Collegian, Sept. 3, 2010.  "BASICS is a one-on-one alcohol counseling program some Penn State students will be referred to when they get into legal trouble on- or off-campus. The program will focus on individual students' needs in order to change or improve their drinking habits in a personalized setting."  Id.  As explained in the public website describing the program,

The BASICS program consists of two one-hour sessions with a UHS staff member. During the first session, you will meet individually with a staff member and complete an on-line questionnaire. You will also be screened for alcohol abuse, depression, and anxiety. At the second session, you will discuss your questionnaire and personalized feedback with the staff member. You will receive a personalized feedback report that includes a comparison of your drinking to other Penn State students. You will explore ways to reduce future health, social, and legal risks. Additional sessions beyond the first two may be required for some students. Penn State Division of Student Affairs, University Health Services,  Brief Alcohol Screening and Intervention for College Students (BASICS).

This BASICS project is "based on a program created by Dr. Alan Marlatt (Director, Addictive Behaviors Research Center and Professor of Psychology at the University of Washington).  The BASICS program is one of the most effective alcohol education interventions with college students.  The Substance Abuse and Mental Health Services Administration (SAMSA) has recognized BASICS as an evidence-based model program."  Penn State Division of Student Affairs, University Health Services,  Brief Alcohol Screening and Intervention for College Students (BASICS).

The regulatory approaches to the governance objectives related to patterns of alcohol use by students provides an excellent window onto the way on which contemporary governance is effectuated.  These  efforts  suggest a very different approach to the management of behavior by public bodies than the traditional conventional approach grounded in law and rule fo law principles.  it suggests the privileging of method over form and of the therapeutic over the command structures of traditional governance.  These strategies move beyond the traditional law systems to one grounded in the naturalization of behavior on the bodies of the objects of regulation.   Let's see how programs that focus governance through these methods help shape the panoptic approach to managing behavior as a substitute to legislating standards.

1.  The focus of these methods is on the disciplining of the bodies of the objects of regulation.  Breathalyzer tests, examinations by physicians, observations by faculty, passersby, neighbors and the like form the  basis of control.  The focus is not on drinking so much as the consumer of drink.  Consumption opens the body to examination and thus examined, to consequences derived from that probing.  

2.  These regulatory systems are grounded in surveillance.  Surveillance provides a seamless and constant method for deriving information that can be used at leisure to make judgments and impose consequences.  Surveillance systems that are automatic, consequential and framed around the patterns of behavior of objects and their interactions with controlled institutions or institutions that cooperate. 

3.  Surveillance provides a means for extraterritorial applications of governance power.  Universities now routinely project power well beyond the property under their control.  Not just dormitories, but entertainment venues outside of campus now form part of the virtual governance space within which the university may impose and enforce behavior norms.  Extraterritoriality is increasingly used by states as well--from the use of public funds for investment in foreign states to control economic activity outside the national territory through private market interventions to the application of national law to the activities of actors abroad with connections int he regulating state.    Students now carry their status on their bodies as well as the regulatory matrix generated by the university.  University governance thus is transformed from a static device grounded in territory and control of space to a dynamic element that moves on the bodies of its subjects.  

4.  Extraterritoriality  provides a basis for the expansion of the breadth of traditional sanctions frameworks as multiple systems interact simultaneously on the bodies of their objects irrespective of territorial location.  First larger group`s of people are subject to sanctions.  For example, the hosts of liquor parties, servers at drinking establishments and others similarly situated may find themselves responsible for the consequences of drinking by students grounded both in local regulation and the trigger of student violation of university policy.  Second, sanctions may be increased in severity.  Third, a larger range of activities may trigger sanctions.

5.  Surveillance requires a set of mechanisms for the production of information that leverages governance power by exporting its use to the very objects of regulation.  As a consequence, these systems are focused on creating reward structures for private enforcement through whistle blowing.  Informants provide a important element of enforcement and also serve to better internalize the values  that trigger informing.   That reward structure can include protection from reprisal for informing on others. More important, reward structures that serve to reinforce the extent of privatization of enforcement may be grounded on forgiveness of a primary obligation--for example, informants or those who bring in violators for treatment to medical facility may receive forgiveness of their own violation (drinking) when they aid in enforcing regulation against others or aid in the prevention of injury by violators. 

6.  Privatization is not merely a function of whistle blowing and penalty bargaining.  Much of it may require support of privatized institutional approaches to behavioral modification.  Support of programs like Alcoholics Anonymous, campus ministries and projects by other campus groups that are meant to reinforce  approved behaviors may serve as key elements of a panoptic regulatory network. 

7.  But behavior modification requires multiple approaches to the control fo the body.  A critical additional approach  to behavior modification targets communication--the environment in which the object of regulation (the student) receives and evaluates information.  The instrumental use of communication is now understood as a critical component to behavior modifying regulatory campaigns.  Social marketing has become established as a key element of governance.  "Social marketing was "born" as a discipline in the 1970s, when Philip Kotler and Gerald Zaltman realized that the same marketing principles that were being used to sell products to consumers could be used to "sell" ideas, attitudes and behaviors." Nedra Kline Weinreich, What is Social Marketing, Weinreich Communications. 

8.  Surveillance can be understood as having both an active and passive  character.  The passive character--gathering and harvesting information--suggests an automatic and mechanical process.  But information does not sit inert--it is used to form judgments and inform consequences.  It has value in its distribution to actors outside as well as inside the university community where it is generated.  Even the process of determining what sort of information is to be collected, the manner of collection, and the meaning of that information, can substantially inform behavior.  The power of credit rating agencies to regulate behavior by their determination of what is to be rated is well known.  But transparency is also a powerful weapon.  Governments have long used transparency instrumentally--the publication in local newspapers of the names and pictures of offenders has long been used as a method of enforcement and control.  "Name and shame" tactics are at the heart of current transnational efforts at soft law regulation.   For the university, instrumental transparency can include reports to parents or guardians of violation, and information sharing with other regulatory institutions can have a powerful disciplining effect.  

9.  Transparency, information gathering, dissemination, social marketing, and privatization provide a foundation for more extensive programs of behavior modification targeting the bodies of offenders.  These reorientation and soft law behavior modification regimes  usually employ the language and techniques of the "factual" disciplines--science, psychology--as well as the invocation of moral systems.  Offenses can trigger mandatory interventions by psychological and social service providers attached to the university or local governments.  Disease models with social implications may be deployed to demonize the targeted behavior.  Conflation with other targeted behavior may be emphasized (alcohol and sexual assault for example).   And the bodies of offenders will be imprinted with impurity, through a discourse of deviance--alcohol consumption behaviors as medically, socially and morally deviant behaviors.

10.  Yet all of these techniques cannot be effective unless the objects of regulation become its principal enforcers. A university might therefore seek actively to recruit and reward target group elites to enforce its behavior modification governance framework.   Student leaders, the leadership of fraternity organizations, athletic team leaders and the like can be recruited and rewarded through the offer of participation in governance and the opening of employment and influence networks.  Their only obligation is to serve as an instrument of enforcement and social conditioning.  This is not merely privatization but an internalization through local elites.  The model is also well developed in public law, that of local elites in developing states recruited to serve the interests of developed states through the absorption of their values and their incorporation into the power networks of the developed state.  These local elites undertake the most intensive part of thew work of behavior modification, as subalterns on behalf of the dominant power. Faculty can be recruited as well.  Universities can consider changes in the faculty reward/obligations framework to induce changes in faculty interactions with students as part of the expectations of the profession.  Faculty can come to believe that an essential role of faculty includes observation, interaction and intervention in the lives of students who appear to violate alcohol conduct norms.  Surveillance, whistle blowing, transparency serve as enhancers of this role, as well as a means of evaluating faculty willingness to serve in this role. 

11.  These efforts are usually undertaken in tandem with traditional regulatory methods.  For universities and local government officials, that may mean a heightened resort to private law--for example nuisance laws, public urination and public disturbance law and an enhanced ability for individuals to use tort law.  

12.  These efforts at coordination serve as an opening to more intense communication between university and governmental efforts to modify the behavior of students.   That communication--structural coupling--that touches not merely on communication between governance systems, but efforts to coordinate and align points of contact, have significant governance potential within panoptioc governance frameworks.  University-government communication can produce efforts to harmonize and coordinate programs as well as joint venturing, the extent of which is meant to produce a seamless system of surveillance, intervention and conventional regulatory system that together  intensifies efforts to internalize conformity. Police coordination, extensions of jurisdiction between university and local community and similar measures crams harmonization down to the operational level.  But the panoptic elements is more clearly understood in the enforcement element of this cooperation.  Coordination produces an incentive towards anticipatory enforcement rather than an increase of traditional violation based enforcement.  It is likely that university-community police cooperation can produce programs  that permit intervention before a violation occurs--based on information gathered through surveillance and recorded patterns of prior conduct.  There is some social marketing about this approach, though even conventional governance has not produced consensus on the utility of this move.  See Minority Report.  Thus an open textured system of information harvesting and dissemination permits judgment that can support police action before the fact and thus reinforces the normative objectives of governance--avoidance of alcohol abuse.  

Thus, as the university in the United States confronts and seeks to solve the problem of alcohol consumption among its student population, it provides a window on the approaches to panoptic governance at lies at the heart of contemporary efforts to more effectively manage the behavior of individuals.  This "new" governance avoids reliance on the traditional forms of government--law, rule of law, command, and punish.  Instead it adopts the managerial forms of the therapeutic, deploys the techniques of self improvement and the power of information to not merely change behavior but to internalize those changes in a population that becomes the principal agents of its enforcement. These techniques have become particularly interesting to governments.  As systems of law and rule of law constrain government authority to act on its citizens, new techniques, more subtle and complex, may serve as an alternative means of achieving governance goals.    The perceived anti-social aspects of alcohol consumption may provide insights for th management of anti-social behaviors around the use of recreational drugs.  Certainly, the White House Office of National Drug Control Policy might provide support for local efforts by universities as a means of running governance experiments to develop more sophisticated panoptic systems for its own use on a national level.  See especially the ONDCP, 2010 National Strategy ("Endorsing a balance of prevention, treatment, and law enforcement, the Strategy calls for a 15-percent reduction in the rate of youth drug use over 5 years and similar reductions in chronic drug use and drug-related consequences such as drug deaths and drugged driving." 2010 National Strategy Executive Summary). The full strategy can be accessed here.