Making the Hard Choices Fair Choices
Originally published in Academe 79(4), July/August 1993

In this time of national economic crisis when colleagues are losing their jobs, departments are facing elimination, and instructional programs are being traumatically reduced, we need to articulate the values and principles for making the hard budget choices that affect our university community.

The central value that must prevail is justice. Decisions about faculty and staff layoffs and program reductions must be fair, because the alternative pits each against all in a struggle for survival. Budget reductions cause widespread misfortune and suffering that should not be compounded by the injustice of unprincipled decisionmaking. To ensure that justice is done, it is imperative that the academic community consider the democratic principles of procedural justice that should govern any fair decision-making process of budget reduction. Only commitment to procedural justice can make the hard choices fair choices.

The first principle of a democratic community is that decisions affecting the community must emerge from a process of free and open public discussion. This means, specifically, that all faculty, staff, administrators, and students have a right to participate in making the decisions about their programs. Furthermore, those entrusted with the final responsibility to decide should publicly explain their actions. Decisions concerning the whole community cannot be made by a few administrators and then simply passed on to the faculty and students.

In addition to free and open public discussion, two other principles of procedural justice should be employed in budget reduction decisions. These principles are what the philosopher John Rawls, in A Theory of Justice, defines as "imperfect procedural justice" and "pure procedural justice." Although the terminology may not be familiar, the principles are, because much of our lives both in and out of the university are governed by them.

We employ imperfect procedural justice in the many situations that require evaluative judgments about people and the value of programs, in order to avoid arbitrary decisions by individuals or special-interest groups. For example, we want our criminal justice system to protect the innocent and punish the guilty, so we establish a fair procedure-- trial by a jury of our peers. Because our society is committed to the ideal that employment and admission to universities and professional schools should be on the basis of merit, we form hiring and admissions committees that determine standards and criteria for evaluating merit and qualifications. However, even our best procedures are fallible and cannot guarantee an absolutely just outcome. The evaluative criteria to apply to specific cases and situations can never be impartial because they embody partial and subjective value judgments. All procedures that require judgments about merit or qualifications will always be imperfect--forms of imperfect procedural justice.

Trial-by-jury, which is a form of procedural justice absolutely central to a democratic society, is a good example of imperfect procedural justice. In a criminal trial the criteria for establishing guilt or innocence are applied by the trial procedure with the goal that justice shall be done. But many things can go wrong even though all aspects of the procedure are carefully followed. The first Rodney King beating trial was a dramatic example of the inherent limitations of all forms of imperfect procedural justice. Even though the trial appears to have been fair, many Americans were outraged by the verdict. How could a fair trial, if it carefully followed all the legal requirements, lead to an unjust result? Since the trial procedure requires making judgments, it cannot entirely eliminate bias and prejudices; it cannot be totally impartial. In the King case it appears that the social and ethnic attitudes of the jurors defeated all the procedural safeguards. Following a fair, but imperfect, procedure very possibly resulted in an injustice.

Hiring by merit is another common practice of imperfect procedural justice. In the university world, hiring committees are formed that establish criteria like publication, teaching effectiveness, and departmental affirmative action goals, and then apply them to evaluating the candidates for the positions. However, committees are political entities composed of individuals with their own values and biases. Qualifications of candidates often look very different to committees of white males over fifty than they do to committees with ethnic, gender, and age diversity. In addition, all hiring criteria are merely the creatures of consensus--not eternal, objective standards. How do committees, for example, weigh the value of publication? By the number of publications, or their quality? Who determines what "quality" is? Or who defines "teaching effectiveness"? At best, hiring criteria only represent the values and judgments that the majority of the faculty have agreed are appropriate for a specific moment in the history of the department's ever-changing goals and needs.

As citizens of a constitutional democracy, we know that the judgments of the majority are frequently wrong and unjust. Procedures that rely on subjective judgments, even when they are majority judgments, are by definition imperfect. However, creating such fragile procedures is the best we fallible humans can do. Imperfect procedural justice resembles what Winston Churchill said of democracy: it is the worst form of government ever devised except for all the others. The alternative to the imperfections of hiring and admissions committees and trial-by-jury is arbitrary decisionmaking by the few. Although imperfect procedural justice sometimes delivers unjust results, many times justice is done.

We apply pure procedural justice to situations in which imperfect procedural justice won't work. On many occasions that require the just treatment of people, we cannot establish relevant criteria for making fair judgments. How do we fairly allocate limited medical resources--kidneys, hearts, and livers--to equally deserving patients? In time of war, how do we justly decide which of our eligible young men and women shall serve in the military? Or how do we distribute the limited number of tickets to a Guns 'n Roses concert? In these situations, issues of personal merit and individual qualification are totally irrelevant.

To solve these dilemmas of doing justice, we employ pure procedural justice. One common form we use is a lottery. Drawing lots to be drafted, to receive a liver transplant or concert tickets, is a just procedure because it is impartial. A lottery recognizes all participants as having equal worth and as deserving an equal chance. This process of random selection treats everyone equally to whom it is applied. In other situations that require fair treatment, we use different forms of pure procedural justice. We stop people from angry confrontations about priority for service at the bank, movie house, or restaurant by lining them up--"first come, first served." This procedure treats people fairly because it treats them impartially. A just outcome is guaranteed simply by employing the procedure alone. Hence, "pure" procedural justice.

Using seniority to determine job layoffs is perhaps the most important form of pure procedural justice in our society. It is the core value of all labor unions in their struggles to protect workers against arbitrary firing by employers. Seniority--a pure procedure of impartiality--is applied to employee layoffs because there are no fair criteria for determining the value of each employee to the organization.

Consider the following hypothetical situation: Your department must lay off five of its forty members. You and your colleagues are asked to establish criteria for determining the worth and value of each member to the department. You must each state your criteria, rank order the forty members, and select the five to be laid off. At a special department meeting you each present your criteria and ranking and then try to reach consensus. The department, of course, would not reach agreement either on the criteria or the ranking. Such an exercise reveals the subjective and contestable nature of criteria of merit for layoff.

Therefore, universities, like labor unions, are committed to seniority--a procedure that uses chance, the simple priority of time of entering employment, to determine the order of faculty dismissal. The term is often misunderstood to mean that experience is the "merit" to be used in determining layoff. However, "seniority" means the order of hiring, not time in rank. The principle is "first hired, last fired''--an impartial procedure like "first come, first served."

In times of crisis, arguments against democratic procedures are seductively powerful: the democratic process is too slow and inefficient; we don't have time for abstractions and theories; we must act now. As members of the academic community we have a special responsibility to resist such arguments and to insist that, especially in hard times, we need to live by our democratic principles. Specifically, we must engage in as much discussion with our colleagues as possible about the principles that should govern our actions, and urge that the whole university community, especially the administrators and faculty governance committees, make explicit their principles of decisionmaking.

Discussion of imperfect and pure procedural justice must be central to the debate about making the tough budget reduction decisions. Applying one of these two principles of procedural justice to specific cases is the only alternative to the arbitrary exercise of power. Deciding which principle to apply is what democratic discussion is all about.

Proposals to cut out certain departments and programs from the university, so-called "deep and narrow" or "vertical" cuts, should be considered only in extreme situations, because the implementation of all such proposals inescapably requires some form of imperfect procedural justice with its inherent limitations. Eliminating programs and departments presents the same kind of insoluble problem as laying off faculty by "merit" rather than seniority. Most vertical-cut proposals naively assume that it is possible to determine objective criteria for evaluating the worth of programs and departments to the university as a whole. But who gets to define which departments are essential to the university and to rank the value of one department above that of another? Could a majority of faculty, staff, and administrators, in free and open public discussion, actually agree to criteria of merit to apply to all university programs? The recent bitter controversy at San Diego State University over President Day's proposed elimination of nine departments by his standard of merit suggests not. Any procedure to implement vertical cuts is a procedure of imperfect procedural justice that, like trial by jury, always runs the considerable risk of producing injustice. Therefore, vertical cuts should be made only as a last resort.

The primary method used in budget reduction should be horizontal, across-the-board cuts by percentage applied to all programs and departments--a form of pure procedural justice. Across-the-board reduction is in fact the procedure that most universities have adopted because they recognize that it is the fairest method of distributing the pain. However, certain power groups within the university always grumble at such an impartial procedure because they are sure they can distinguish between "quality" departments and programs and those of lesser value.

Coincidentally, those who argue this way always belong to the "quality" departments. Fortunately, a majority of faculty understand that viewing their colleagues in other departments as of less value than themselves is a morally suspect point of view. Across-the-board cutting is a procedure of impartial justice that, like layoff by seniority, treats all personnel and programs alike; all are recognized as of equal worth to the institution. By reducing the budget of each department and program by the same percentage, we express our belief that we are equal members of a community and therefore must share the burden equally when misfortune and disaster strike.

We lament the fiscal crisis that is forcing us to damage the quality of our educational programs. Hard times tempt us to engage in divisive struggles for survival that pit the strong against the weak. We must resist such temptation and maintain solidarity by vigorously affirming our commitment to the democratic principles of procedural justice. If we do so, we can make the hard budget choices fair choices.

Dr. John Hartzog
April 2009