An external regulator is not the solution to academic misconduct

The problem is very real, but it would be more effective to invest in creating an institutional culture of responsibility and accountability, says Jim Nicell 

April 22, 2024
Jim Nicell
A bouncer checks a woman's ticket at a nightclub to illustrate External regulator is not the solution to misconduct
Source: Tetra Images, LLC/Alamy

We need an independent register from which bullies can be struck off. So argued Nicholas Rowe in a recent article in Times Higher Education (“If abusive lawyers can be banned from practising, why not academics?”, 14 March).

His suggestion stems from his observation that universities are not doing enough to police abusive academic behaviour. But while I tend to agree with that diagnosis, my experience as a professor, academic leader and registered professional engineer makes me wary of this cure.

Regulating academics as professionals, such as is also done worldwide for physicians and lawyers, certainly has potential benefits. These could include increased accountability, enforced ethical conduct, quality assurance and control, protection of clients’ interests, safeguarding public security and health, enforcement of professional development requirements, and facilitating international recognition and mobility.

However, we must also weigh very carefully the possible negative consequences of charging an external body – whether at local state/provincial, national or international levels – with the authority to decide who can be licensed as a professional academic, who retains the right to practise over time, and who and under what circumstances is to be excluded.

Quite apart from the administrative burden of regulation on both individuals and institutions, regulating scholars too tightly could stifle both their academic freedom and the advancement of knowledge if they feel pressured to avoid contentious topics or unconventional ideas. Academic disciplines benefit from a diversity of perspectives and methodologies, but overregulation risks homogenisation. It might also hinder the evolution and progression of fields as circumstances change or even stifle the creation of new fields that would not be readily recognised by a regulator.

Another peril is systemic uncompetitiveness. In an increasingly interconnected world, universities unavoidably compete globally for talent, funding and recognition. Those in an overregulated environment could be at a relative disadvantage, while academics qualified to practise in one jurisdiction might not be readily certified in another, inhibiting exchange and relocation.

Just as importantly, we must ask whether an external regulatory body would be better able to address the range of bad behaviours that Rowe so aptly summarises. In my experience, most bad professorial behaviour – sexual harassment, bullying or toxic supervision of postgraduates – happens in the context of power imbalances. In such contexts, is it more likely that victims will report bad behaviour to an external regulator than to their own institutions?

Moreover, is a rapid and fair conclusion more likely to be reached by an external organisation? Rowe asserts that universities are more interested in protecting their own reputations than victims’ welfare – but, once established, such bodies take on lives of their own, becoming self-interested and bureaucratic. An academic version might seek to minimise its liability by dealing only with egregious instances of bad behaviour, for instance. That would lead to only a limited number of academics being excluded from the profession and make little contribution to reducing bad behaviour more generally.

The best way to police the questionable behaviour of a small fraction of our colleagues, in my view, is to focus our collective efforts on better managing those exceptions internally. Many, if not most, universities already have the necessary policies, practices and mechanisms in place: the problem is that, because academic institutions tend to be collegial and highly decentralised, many academic leaders and administrators still don’t feel empowered to deal with bad actors. They are concerned about the repercussions of dealing with colleagues to whose ranks they might someday return, and they shun the administrative and emotional burden of handling complex situations.

So rather than expending the considerable resources required to establish regulatory bodies with internationally recognised standards, I would invest instead in creating an institutional culture of responsibility and accountability. I would focus on valuing managerial courage and training administrators to deal with complex issues. I would select institutional leaders who are motivated to support those on the front lines dealing with bad actors. And I would ensure that the hiring process at all levels – as well as in promotion and tenure processes – evaluates every aspect of candidates’ contributions: not only their research output and impact, but also the quality of their teaching/graduate supervision and their service to the institution and the scholarly and external communities.

I would also focus on training academics to not be passive bystanders when they witness questionable behaviour. All too often, we know who the bad actors are but refrain from actively taking steps to correct the situations ourselves. Collegiality requires an environment of mutual respect, where we all share the responsibility for fulfilling our collective academic missions.   

As for Rowe’s suggestion of a registry of offenders, I think that would be fraught with legal complications and do irreversible damage to those identified, destroying any likelihood of rehabilitation and closing down alternative career paths. Better to ask job applicants, at the last stage of the hiring process, to grant permission for their potential new employer to enquire of their current or former employers about any formally established record of toxic practices. Candidates who refuse, as well as those with a record of offences, would be disqualified.

While many might regard what I propose as too idealistic and naive, I think that culture change, if it is to happen at all, must come from within. It is hard, but the long-term return on that investment is likely to be much greater than one in another third-party regulatory body.

Jim A. Nicell is a professor in the department of civil engineering at McGill University.

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Reader's comments (5)

#1 Submitted by kresta on April 23, 2024 - 1:57pm
Excellent perspective with a rate combination of insight and pragmatism. Thanks Jim.
#2 Submitted by christopher.yip_1 on April 23, 2024 - 5:18pm
A great piece - well done Jim
#3 Submitted by Eivind Beinlaus on April 23, 2024 - 9:50pm
Some time ago, I was involved in dismissing an academic who had engaged in very serious sexual misconduct with students. The university behaved impeccably and carried out a rigorous and fair investigation ending in the individual's dismissal. However, the individual continues to work in academia. They have simply suppressed their employment with that university from their CV. As a result, the university where the misconduct occurred will never have the opportunity to tell new employers about the misconduct. This is not a trivial problem. Nicholas Rowe's proposals of an offender's register and / or a striking-off process provide a solution. Professor Nicell's proposals do not.
#4 Submitted by jim.nicell on April 23, 2024 - 11:41pm
I understand your point of view, Elvind Beinlaus, except that I think that the simple solution that I offer at the end of the article should be considered; i.e., make sure at the end of the hiring process that there is no record of misbehavior that would disqualify the candidate from being hired. I suspect that if your university was asked about the record of the individual you describe (with thier permission having been granted as part of the hiring process), this individual would not have been hired at their next institution. Moreover, I still think that the proposed process to which I responded would not work: I think that it is highly unlikely that a student who has been mistreated, and who is already concerned about power imbalances, would bring their case to an external body for investigation and followup. I suspect that they would feel that they would be put in a precarious and vulnerable position. But thanks for your comment and for your very legitimate concern about situations like this.
#5 Submitted by Nicholas Rowe on April 25, 2024 - 1:04pm
Response to J. Nicell This is an interesting but anticipated response to my article, which given its visibility merits reply. As noted in the comments to my article, the title of the final submitted version was ‘Harm, abuse and self-interest: has a ‘desensitized academy’ lost its right to self-governance?’, with a byline of ‘Nicholas Rowe pushes the need for the effective external registration and governance of members of the academic profession’. The article was subsequently edited, and the title changed (post-submission), with an emphasis on the legal profession, and an emphasis on ‘being struck off’. My own stance on this issue is firstly to discourage malpractice to prevent harm, and then to apply appropriate and fair sanctions in proportion to the offence - it is not a witch hunt. There is massive published evidence of wrongdoing in the academy, to an extent that is socially and professionally unconscionable. In this type of article and forum it is not possible to include adequate support for every instance, and this opens the path for others to comment, with an equal opportunity to voice well-meaning but unsupported opinion. It is understandable that others will feel obliged to defend and even justify the academy, especially if they hold positions of standing. But unless they have made in-depth and detailed study of the phenomenon concerned, then regardless of the longevity of their tenure, they cannot be considered to be expert to the extent that their opinions are allowed to override evidence. As no forum exists to argue and present this evidence (it goes beyond an academic article and cannot afford to be lost in the pile of academic books), it is currently being compiled as a whitepaper for distribution to The Law Society and the Committee on Standards in Public Life, so as to bring the situation to their attention. But in response to such issues being labelled as ‘observations’, and the cautious moderating terms used in your article, a degree of reality is needed. I apologise that I am unable to include references in this setting. Some selected facts: The degree of harm suffered in the academy is widespread and damaging. 1. Mental health is poor. Applied statistics show that 40,811 - 42,904 UK PhD students may suffer anxiety & depression with a treatment cost (at an undiagnosed minimum level and excluding impact) of £20,928,750. Undiagnosed anxiety and depression among all HE students could cost the UK a minimum of £232,060,000. Undiagnosed anxiety and depression among researchers (53% incidence) could cost the UK a minimum of £31,855,500. The percentages affected are large, and this cannot be dismissed as being related to ‘young people’, ‘young careers’, or ‘demanding conditions’ – it results from abuse and wilful neglect in the system. If UK study data is applied: over half a million UK students could have a diagnosable mental health condition, and 1.4 million may have thoughts of self harm. Of the 40,811 – 42,904 doctoral students predicted to be suffering from moderate to severe anxiety and depression, 51% is likely to be caused by the person appointed to supervise and guide them. If such predictions are unpalatable, then divide any one statistic by 10, and see if the resulting figure is still acceptable on moral, professional or economic grounds. 2. Bullying is prevalent in the UK academy, and if the average rates of 15 international studies are applied, over 94,000 UK academic staff may have direct experience of bullying, and over 100,000 will have witnessed bullying, the majority (47.75%) perpetrated by superiors and peers (31.85%). 3. 20-50% of female students (UK application: 322,620 - 806,550 students) and >50% of female staff (UK application: 52,720 staff) experience sexual harassment. 70% of all students 18-20 yrs experience unwanted behaviours (UK application: 1,405,967 UG students). 59,430 assaulted UK students may be forced into penetrative sex. 39% of academic staff experienced or witnessed sexual violence (UK application: 93,763 staff - 52% of abuse is not disclosed, 49% of abuse is by a colleague / 18% by a manager / 10% by line manager. In these cases, NDA agreements have been used by universities to cover up misconduct, and around one third of UK universities have used NDAs to quash complaints and allegations, to the extent where government action has been taken to restrict their use. 4. Aside from some of the criminal offences I mentioned in the earlier article, concealing a crime is also a criminal offence, as is perverting the course of justice. Not only are offences committed and covered up (propagated by a self-asserted misapplication of university autonomy), but universities are often not qualified or more importantly authorised to adjudicate offences that fall outside strict academic confines. Moreover, HR departments are used to support the best interests of the institution, and the victim’s rights and interests are held subjugate (some 60% of staff feel that administrators are not held accountable). The academy is also not reliable as a profession in regard to academic matters, and does not regulate or set a particularly good example to its own community. Applied research indicates that 1.36 million UK undergraduates and 393,748 UK postgraduates may cheat, and 1,326,394 students may commit academic misconduct - much of which is undetected by those overseeing them. 8,685 - 14,022 doctoral students may publish fraudulent results if it helped them get ahead, and the coercion to publish can be seen in staff and student suicides, as well as in the growing retractions of published work. If only a 10th of the approximate 50% cross-study incidence of academic misconduct is applied to UK academic staff, then 12,021 staff may be guilty of academic offences that if redressed may involve issues of fraud, false publication, obtaining pecuniary advantage or property by deception, abuse of position, falsifying records, forgery, incitement to commit fraud, failure to prevent fraud, conspiracy to defraud, etc. – all of which may be subject to significant fines, sanctions, or custodial sentences. Just from these instances, unless individuals or institutions are prepared to furnish substantial and documented evidence to rebut the allegations, then whilst the honest feelings and thoughts of good men are appreciated, they do not prevent harm or wrong being done, and it is this that must be paramount and (due to the nature of offences) take precedence over any discussions of competitiveness or market disadvantage. To balance your assertions of 30 years experience – I also worked for 25 years under healthcare professional regulations, and was not once impacted by their regulatory position or imposed requirements. You mention that ‘most bad professorial behaviour – sexual harassment, bullying or toxic supervision of postgraduates – happens in the context of power imbalances’, and ask whether ‘[i]n such contexts, is it more likely that victims will report bad behaviour to an external regulator than to their own institutions?’ The answer is thankfully yes – ‘bad behaviour’ (which diminishes the experiences of those upon whom it is perpetrated) is not practiced by ‘a small fraction of our colleagues’, but by thousands of people. The figures and applied statistics show many instances to be widespread, but as many behaviours are repeat offences and known to many, the fact we still discuss matters in these terms does not say much about us as individuals. At professorial and administrative levels, there is a responsibility to both lead and act with competence and reliability. But it is from these ranks that many of the offenders come, and upon whom many of the victims rely on for their fair advancement and career wellbeing. I agree that a culture change is needed, and should ideally have come from within. But with such asserted autonomy and such widespread malpractice (even if it is not ‘us’), the academy has lost any potential to be impartial and objective in its self-regulation, because of its involved commercial and reputational interest, and dare I say it - pride. If our objective is to protect the standing and regard for our profession, then an integral part is to protect the reasonable interests and wellbeing of those impacted by its business. When we see so much harm (and wrong) being done, then we are inadequate human beings if we are content to stand by and let the thousands of cases that happen every day continue for any longer than necessary. The academy has been offered carrots in terms of voluntary guidelines and practices for so long, that it has forgotten that similar offences in society are generally dealt with by a stick. Why should we be any different?

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