Thursday, November 20, 2014

On the Human Rights Obligations of Universities--Announcing a Project on Operationalization

(Pix (c) Larry Catá Backer 2014)

Influential American academics have been coming around to the notion that  the emerging international principles (and structures) of human rights norms and processes ought in some way to apply to U.S: universities--at least with respect to their interactions with their supply chains. See Michale Posner, Commentary: Universities Can Put Their Economic Clout to Good Use, The Chronicle of Higher Education (Nov. 17, 2014); Michael Posner, Remarks: Universities Not Making Enough Progress to Protect Human Rights In Supply Chain, Spending or Investments, Address given at the University of Michigan, October 10, 2014, Ann Arbor, Michigan.

I think this represents an important step in the right direction, as critical actors in the academic community begin to take up this important issue. It is a step, though, that carries with it a risk, one evident in current approaches, that may narrow the engagement of universities only to those activities between the university and outsiders (for example through their supply chains).  That itself would serve to build a wall between human rights obligations and the internal operation of universities--and that would be a real tragedy.  

This post considers those issues and announces a project to theorize and operationalize the human rights obligations of universities.

I have been considering the need to apply basic human rights principles to the internal operations of universities in the context of recent efforts to manage the costs of the provision of benefits of permanent and temporary employees of the university, and their quest to establish eugenics programs for their staff. Larry Catá Backer, More Penn State Wellness Programs in the News and From the Bottom Up, Monitoring University Governance (Aug. 12, 2013).

As a matter of core principle, I continue to emphasize that, like any other institutional organ, an enterprise (like a university) must exercise substantial restraint and sensitivity when it seeks to manage or to appropriate to itself a power to manage or control the personal choices of individuals in ways that touch on the human dignity and personal autonomy of the individual.   In many highly developed Western states, the protection of human dignity and personal autonomy is a matter of constitutional commitment. At its limit, of course, that protection serves as a rationale for the suppression of slavery and the incidents of slavery as a matter of law. But between slavery and complete personal freedom there is a large space within which the state, and the enterprises it permits to operate within its borders, permit some control of autonomy.  That space, of course, is essential for the operation of a free society, and is usually grounded, in the area of human economic activity, on the boundaries within which enterprises may hire labor to meet its specific objectives.  However, the existence of this discretionary space is not meant to produce a place where autonomy and human dignity may be completely disregarded in the drive toward enterprise welfare maximization. To permit that freedom would be to allow slavery by other means--and the state of peonage, the closest model for that sort of society, has also been suppressed in most civilized states.  As a consequence, enterprises ought to be sensitive to the detrimental effects of the instrumental use of their authority over their employees when they seek to that power to manage and control the human beings they employee.  This responsibility to be sensitive to the detrimental effects of employer self interested actions ought to be especially strong where the mechanisms of control and management touch deeply on matters of human dignity and autonomy.  That responsibility to respect the human rights of their employees may not be strictly required by law but is central to the social license of enterprises to claim a right to legitimate operation within the societies in which they operate. This notion reflects emerging consensus at the international level around the responsibilities of enterprises for the human rights effects of their activities. (e.g., United Nations Guiding Principles on Business and Human Rights) These are no less binding on universities where they act as economic actors.  Where enterprises rely principally on their raw power and expand their control of elements of production, especially human beings, for reasons other than to respect their human dignity and autonomy (for example for reasons of cost reduction or productivity gains, both quite respectable in their own right of course), the enterprise ought to bear a special duty to be  sensitive to human dignity concerns in fashioning such programs.  That duty increases as the human dignity and autonomy effects of these actions increase, including potential violations of privacy interests and the effects of the appropriate of the right to exploit employee information by employers. When the enterprise fails to exercise this sensitivity in its imposition of dignity and autonomy affecting projects, it may rely on its coercive power, supported perhaps the discretionary space permitted by law, to impose its will. But it will also act in ways inconsistent with the sort of respect for human dignity and autonomy at the core of our values. Individuals may conform because they must, but trust is lost and the willingness of individuals to cooperate may decrease.  Eugenics programs sit at the very core of human dignity and personal autonomy, and absent substantial and comprehensively explained reasons, these merit substantial sensitivity and engagement before they are either formed or imposed. That an enterprise may impose its will in these matters in this country as a matter of law does not necessarily mean that it is the right thing to do.  (Ibid.)

The project of the human rights obligations of universities, especially U.S. based universities, and more especially internally applied, requires a broader and more systematic approach than one that focuses only on the university's episodic engagement with global supply chains or in the conduct of university operations abroad.  Michael Posner, Remarks: Universities Not Making Enough Progress to Protect Human Rights In Supply Chain, Spending or Investments, Address given at the University of Michigan, October 10, 2014, Ann Arbor, Michigan.

The university as an enterprise must be theorized as a special form of that form of operation,  It also requires a more rigorously developed grounding set of principles--principles that might, for example, be grounded in the normative framework of the U.N. Guiding Principles for Business and Human Rights.  Or better yet, ones grounded in the principles from which the Guiding Principles themselves were derived.

It is to that effort that a small group of us at the Coalition for Peace & Ethics have started a project to frame the issues of the human rights obligations of universities as an external and internal matter.  The university is responsible for  human rights detrimental activities down its supply chain--that is the simplest of the conceptual issues that must be framed.  More difficult are the issues of the university's human rights detrimental activities toward its internal operations--everything from labor and working conditions, benefits, the rights of faculty and students to participate in the intellectual life of the university, and sexual and alcohol policies.

The Concept Note can be found here.

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