Synching the law to resolve the disconnection between awareness and action in legally mandated diversity hiring practices in higher education institutions.

Author:Dejean, Jacqueline Sylvia
 
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Introduction

Institutional change scholars rely on social psychology constructs, principles or models for designing organizational change strategies. Focusing on an understanding of the psychological basis for changing an individual mindset or managing the dynamics of a group, change scholars often develop tools that equip change agents to effectively engage institutions and steward the change process (Eisold, 2005; Gardner, 2006; Morgan, 1997). Both internal and external challenges can drive the institutional necessity for change. For institutions of higher education a legal mandate, such as, legislation, statutes, other policies and court decisions, serve as major external drivers of change bearing serious institutional risks including fines, non-fiscal punitive measures, loss of prestige and privilege, and public criticism.

Despite the high liability for higher education institutions, change scholars have yet to create a tool for implementing legally mandated change. Ideally, a tool that facilitates institutional compliance while minimizing legal liability would remedy this omission. Currently, institutions facing a changing legislative landscape must respond on a policy-by-policy basis to develop adequate plans. Each institution runs the risk of making changes that may not embed in institutional practices and result in non-compliance. Institutional non-compliance can manifest in several ways: by misinterpreting the law, by ineffectively implementing the law, or by failing to guide institutional enforcers of the law (Kern, 2014; Lipsky, 2010). Creating a remedy requires a solution that addresses each of these risks and removes barriers to effective change from a human behavior perspective.

Synching the Law: A Model for Legally Mandated Change

Framework of the Model

The Synching the Law model, created as part of this research, draws from organizational theory and legal therapeutic paradigms. Combining the generally accepted action research model (Cummings & Worley, 2008) with an understanding of organizational behavior and an existing legal intervention called therapeutic jurisprudence (Wexler, 1991), the model recommends overcoming institutional resistance to legally mandated changes by optimizing the role of the legal agent in the legal change process. In so doing, the model encourages a focus on organizational well-being and controls the stress of ten associated with change failures. This focus is a departure from the current practice of responding to the law with a punitive design to deter non-compliance. The legal agent includes those who must carry out the legal rule and are not the legal, subject, or content matter experts of the legal rule.

The model nods to the conventional wisdom of the necessity of institutional policies, but also equips organizations to incorporate changes that overcome the intergroup dynamics that disconnects awareness of rules and procedures from actions evidenced in the research findings. This results in departures from expected behaviors as required by law, i.e. non-compliance. The model encourages the use of legal agents in conjunction with legal experts at every point of potential legal failure which includes understanding the rule of the law, developing the implementation process and providing guidance needed by the legal agents to overcome their embedded beliefs which contribute to non-compliance.

Summary of the Synching the Law Model

Figure 1 summarizes the model's four elements: 1) interpreting the law, 2) synching the interpretation, 3) tailoring the procedures, and 4) sensitizing the implementation, and Table 1 outlines the model's process flow.

This project investigated the elements of the Synching the Law, a model designed to facilitate legally mandated change in U.S. higher education institutions (HEIs). In an environment of increasing legislative burden on HEIs, this model positions HEIs to comply with the law while reducing legal liability. The model makes a significant contribution to managing change and ensuring legal compliance.

Literature Review

Making the Case with Diversity Law in the Higher Education Institution Context

The first and most crucial part of the research involved selection of a legally mandated change. The criteria for this selection included a legal change that has historically resulted in challenges for institutional implementation. Laws that produced psychological stress in the internal stakeholders of the institution provided the best context for this project. The combination of these two criteria, i.e. institutional challenge and stakeholder psychological stress, led to the selection of diversity law and its implementation as the legal context of the project. The long history of diversity efforts in higher education institutions provided substantial information with regard to institutional compliance.

Decades ago, when HEIs described their responsibility to develop a culturally competent workforce, they meant effecting changes in core areas involving student admissions, enrollment, and retention as the primary focus, with employees and faculty as stakeholders (Worthington, 2012). The approach attempted to develop a culturally competent workforce through the admissions and the retention of diverse students to achieve a student body comprised of a mixture of people with diverse characteristics. US Supreme Court decisions shifted HEI diversity methods from structural diversity achieved through student quotas to interactional diversity rooted in student to student engagement achieved through holistic admissions criteria (Gurin, Dey, Hurtado, & Gurin, 2002; Educational Benefits Realized, 2010).

The preponderance of the literature around HEI diversity strongly favored student-focused diversity initiatives (Worthington, 2012). However, recognition of the role and importance of the institutional environments of HEIs, also known as campus climate, has emerged in more recent years (Smith, 2011; Worthington, 2012). An emphasis on campus climate integrated the role of diverse faculty in enabling a more comprehensive approach to developing culturally competent students (Igwebuike, 2006; Niemann & Maruyama, 2005). The campus climate focus on diversity initiatives provides an opportunity to include more than students and faculty, but also university administrators. Previous research shows a lack of gender, racial, and ethnic diversity among university leaders (Jackson & O'Callaghan, 2009; McHargh, 2010). This lack of diversity within the administration posed challenges for universities attempting to create culturally competent students as mandated by law (McHargh, 2010; Parker & Villalpando, 2007). Compliance to diversity law is not merely compliance with Title IX or Affirmative Action, but also compliance with the judicial interpretations of diversity mandates as described in Supreme Court decisions. Collectively, these represent what the study refers to as diversity law.

Making the Case with University Research Administration

The extensiveness of HEI organizational hierarchy and the complexity of diversity law applications in HEIs meant limiting the focus of the research to a segment of HEI stakeholders. This limitation created a reasonable and manageable research case. Research Administrators comprise one of many highly skilled university administrative groups. Similar to other university administrative areas, research administration evidences a high level of gender diversity among the general administrative staff, but lacks racial and ethnic diversity among staff. Both female and non-white populations are underrepresented at the executive level of the profession (Nash & Wright, 2013). As compliance officers, research administrators would be keenly aware of the importance of compliance and the adverse impact on the institution due non-compliance. Unlike other university administrative units that would not have the same awareness of the importance of compliance.

The profession of research administration in the United States became firmly established in the 1950s. According to the National Council of University Research Administrators (NCURA) prior to that time, the work of research administration was handled by part time university employees who held other primary duties (Wile, 2008). Federal funding for scholarly research activities grew, so too the regulations governing management both grant and contract processes and funds (Wile, 2008). The research endeavor has become an integral part of university business and identity, as reflected in HEI Carnegie classifications and the prestige associated with grant funding within the academia (Nash & Wright, 2013). The federal regulations governing research administration have also become more complex over time. The Research Administrators Certification Council (RACC) divides these administrators' skill set into four categories: project development and administration, legal requirements and sponsor interface, financial management, and general management (RACC, 2014).

Since the launch of NCURA, there have emerged other organizations for the profession. The foremost of these organizations developed initially for non-university administrators is the Society of Research Administrators International (SRA). A review of the journal archives of both SRA and NCURA revealed a paucity of articles addressing diversity in research priorities despite the increasing federal focus on university development of a diverse future workforce, federal emphasis on increasing the diversity of those conducting research including post-doctoral scholars and graduate students, and the federal requirement to diversify research study participation in gender, race, and ethnicity, e.g. in the Public Health Service Act sec. 2492B, 42U.S.C. sec. 289a-2. Three studies investigated the profiles of research administrators. Roberts and House (2006) conducted a study of research administrators in the southeastern United States...

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