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St. Thomas Law Review

First Page

201

Document Type

Article

Abstract

For over two thousand years, since the times of Jesus Christ, society has valued collegiality as one of its pillars in advancing human relationship: "Now I plead with you, brethren, by the name of our Lord Jesus Christ, that you all speak the same thing, and that there be no divisions among you, but that you be perfectly joined together in the same and in the same judgment." Collegiality is "cooperative interaction among colleagues. Put another way, collegiality results when two or more individuals who are willing to engage in a common enterprise (the "cooperative" component), actually engage or participate in the enterprise (the "interaction" component), thus achieving a common goal (the "colleagues" component). Others call it "'work[ing] well with colleagues,' 'demonstrat[ing] good academic citizenship,'... 'contribut[ing] to a collegial atmosphere,' ... and 'get[ting] along,' [or] 'fit[ting] in' . . . . While these and dozens of other definitions contour the boundaries of a seemingly simple principle, in the end, what collegiality is rests on the subjective interpretation of the inquirer. Each of us decides - depending on our individual interpretative mechanisms - whether being collegial means having a personality that suits ours, being able to disagree without being disagreeable, or having to forfeit one's contrary opinion to another's for the sake of keeping the peace. Subjectivity can be a very difficult adversary for anyone who seeks to define a general concept over which reasonable minds can readily disagree. Subjectiveness is fertile ground for misunderstandings that eventually lead to unintended but harmful consequences. Curiously and despite its operational breadth, particularly as within our inherently imperfect language, a majority of higher education institutions use collegiality as a criterion, but fail to define collegiality as an objective criterion when determining a professor's eligibility for tenure. The most common reason advanced is that standardizing objective definitions stifle freedom of speech and dissent. Additionally, critics are quick to pull the race/sex/religion card. They claim that subjective discriminatory animus ultimately seeps into the objective conscious decision-making process. Ironically, the majority of institutions openly allow the subjective use of collegiality as a determinative factor. Accordingly, due to its nature, collegiality cannot be an objective criterion, only a subjective one. Thus, collegiality can be (subjectively) considered as long as its results are not acknowledged as having resulted from such consideration. Ostriches hide their heads in the sand because they believe that it makes them disappear from a predator's view even though it is clear that their entire body is visibly not in the hole. But unlike an ostrich, this article will show that the results sought to be avoided by keeping collegiality a subjective rather than an objective criterion can be better achieved precisely by the inverse. By objectively defining collegiality, one will speak one's mind without the fear of being branded "un-collegial." That is, the speaker will know, as everyone else will, that disagreeing on a point of discussion, without being disagreeable, advances collegiality. Collegiality, as in achieving the common goal of seeking the truth, after all, depends on the free exchange of ideas. Hence, freedom to disagree and to dissent are integral parts of collegiality. This article will also show that an objective definition of collegiality squashes discriminatory pretext. Not defining a criterion admittedly used to make a determination permits the use of just about any definition that fits the facts. Further, relying on "any definition that fits the facts" ultimately yields a greater spectrum of available definitions. Thus, the greater the spectrum of definitions, the more choices exist, and the easier it is to come up with a definition that masks discriminatory intent. Clearly, the result is a greater use of collegiality as pretext to exercise discrimination. Such greater use, however, remains generally unknown - or better said, unacknowledged - because one is not supposed to rely on it objectively, only subjectively. On the other hand, however, an objective definition of collegiality would significantly reduce discriminatory pretext abuse because it would unquestionably decrease any subjectivity, and establish the specific circumstances under which collegiality would or would not exist. Any other circumstances not defined or established would fall outside the objective characteristics, and would thus be unavailable as pretext for discrimination. The fewer subjective opportunities that exist, the harder it becomes to discriminate and the easier it is to detect any parasitical discrimination. This result is, precisely, what opponents of segregating and defining collegiality want. So, why isn't collegiality, as a separate and defined criterion, used to determine whether a professor is eligible for tenure?

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