THE FREEDOM TO JUDGE OTHERS
Liberating teachers from bureaucracy is not all that’s needed to make them succeed. Even creating a good culture, as at TEAM Academy, is not enough. A lot depends on the particular person. “We had a teacher here—a really nice guy with great credentials and several years of teaching under his belt—who just couldn’t relate to the students,” Ryan Hill remembered. “It’s hard to put my finger on exactly why. He would blow a little hot and cold, letting one student get away with talking in class and then coming down hard on someone else who did the same thing. . . . But the effect was that the kids started arguing back. It affected the whole school. Kids would come out of his class in a belligerent mood. . . . We worked with him on classroom management the summer after his first year. It usually helps, but he just didn’t have the knack. So we had to let him go.”
Any healthy organization requires accountability. There’s nothing sinister about it. Some people don’t work out. It happens all the time, for all kinds of reasons. Most of us pick ourselves up, learn from the experience, and go on to something else.
Someone must make decisions about accountability. Making these judgments about people, however, is not conducive to objective criteria. Success in a job is certainly not a matter of credentials or logic. How do you prove who has good judgment, or tries hard, or has the knack of running a classroom? People are not like manufactured products, either well made or defective. You can’t appraise people in the abstract, Chester Barnard explained in The Functions of the Executive. “Men are neither good nor bad, but only good or bad in this or that position.” Just think of the variables that apply to each person—aptitude, training, character, energy, personality, caring, to name a few obvious ones. Failure at a job, like success, has infinite permutations. As Professor Philip Jackson notes, teachers can be “kind or cruel, fair or unfair, considerate or inconsiderate, domineering or cooperative, as their fancy or moral temperament suits them.”
Group dynamics only compound the complexity of making judgments about people. Whether a person succeeds in a job is often a question of fit. People who succeed in a big organization, Peter Drucker observed, often fail in a small one. A brilliant high school teacher may be terrible with first graders. How a person relates to the other employees is critical. “The question of personal compatibility or incompatibility,” Chester Barnard observed, “is much more far reaching in limiting cooperative efforts than is recognized.”
We tend to think of accountability from the standpoint of the affected person, but accountability is profoundly a matter of the group. There’s nothing more important in an enterprise than how people feel about each other. “A social organism of any sort . . . is what it is,” William James noted, “because each member proceeds to his own duty with a trust that the other members will simultaneously do theirs.” Camaraderie among employees is the most productive resource any enterprise can have. People row harder if they feel that they’re rowing together. When it clicks, there’s nothing more powerful than the fellow feeling of people working together for a common goal. In the California study on teacher retention, mutual affinity was second only to “decision-making authority” as the most important factor mentioned by teachers who liked their jobs. “When people identify with the group,” organizational psychologists tell us, “they feel a moral duty to cooperate.” Soldiers can endure the horrors of war because their buddies are enduring it with them. They face death because they face it together.
But the positive leverage becomes negative when an organization tolerates employees who aren’t perceived to be pulling their weight. Ineffective workers not only are deficient in their contribution but also have a corrosive effect on everyone else. A study at the University of Washington found that there is a “precipitous decline in teammate contributions . . . when a single individual free rides.” “One bad apple,” the study concluded, “can spoil the barrel.” The fact that the ineffective person remains is a constant reminder of the lack of mutual obligation. Over time one person can drag down a culture.
Welcome to public employment in America. There is no accountability in America’s government service or public schools. This is not a secret. Due process, civil service protections, and union contracts put public employees in a “virtually impregnable position.” “Basically whether you perform well or you perform poorly, you are treated the same,” New York City Schools Chancellor Joel Klein observes. We might as well have sprayed a depressant into the air of public offices.
Morale plummets when employees see others not doing their jobs. Every teacher, every public servant can tell you horror stories. Betsy Rogers, a former National Teacher of the Year from Alabama, considers almost nothing more discouraging than teachers who don’t try. “On a daily basis, I see teachers who start classes late, chatting on their cell phones while they eat breakfast in front of their students. . . . There are even a few classes where I have yet to see any instruction taking place. . . . The sense of pride I felt for the teaching profession [when I received the award] was overwhelming. . . . Today, at the age [of] 54, I finally had to look myself in the mirror and say out loud—There are educators who do not care.”
Lack of accountability brings with it an evil twin—growth in bureaucracy. When people can’t be judged for whether they did the job, pretty soon rules will instruct them on exactly how to do the job. Bureaucracy accelerates to warp speed (as it were) as rules strive to keep pace with the unintended consequences. The forms teachers spend hours filling out are just a bureaucratic scolding device, like forcing them to write on the blackboard: “I followed the script. I filled out the evaluations.” We are now at the point of total bureaucracy—trying to create “‘teacher proof’ curriculum . . . consist[ing] of step-by-step lesson plans prescribed in such detail that ostensibly anyone could teach them, no matter how skilled or unskilled.”
A common characteristic of public agency culture—particularly in state and municipal bureaucracies—is one of gray powerlessness. People shuffle here and there, going through the motions. There is no pressure to cooperate, to solve problems, to work hard, or to do anything. One of my daughters worked for a summer in the Massachusetts State House, where her job—this was in 2002—was to do an inventory of ancient phones stored in the basement. Who is making the decision to keep telephones that have been collecting dust for decades? My daughter learned one lesson: Don’t work in government.
Life within these agencies can be awful. Just cling on to a few rules and entitlements, and drift along for thirty years. Then you’ll get a pension. Thirty years in that culture must seem like thirty lifetimes. One public manager told me about a retirement party where, trying to make conversation, he said, “You must have seen some interesting times here.” The worker responded, “Not really.” The manager tried again and got the same response. “Not really.” In “Bartleby the Scrivener,” a short story written by Herman Melville about the horror of functionary jobs, the title character responds to each request with a similar passive refusal: “I would prefer not to.” The comatose culture of some government departments, where decades of dust settle onto ancient files, is not something normal people want to contemplate. We would prefer not to.
No one even thinks of mounting an assault on this huge legal bulwark that surrounds public employees. It’s been this way for so long, largely unquestioned, that we accept this as a fact of nature. It must be guarding something very valuable. Terrible woes, maybe even a return of the spoils system, will befall us unless public employees are insulated from accountability based on—perish the thought—how well they do. Any accountability reform, in the words of a union official, would create “a system open to cronyism and subjectivity.” Just think of the abuses if people in public service were accountable to other public servants or, even more shocking, to elected officials.
But maybe that accountability is just what American schools and government need. Today politicians and their appointees blame inept government for our woes. Might it not be better if political leaders actually had the authority to do something about it? Democracy is a chain of authority that ultimately rests upon the vote of the people. Break any links in the chain, and democracy starts to sag. It doesn’t matter much whom we elect if they don’t have ultimate authority over the competence of officials actually delivering the services. “Public policy is not best understood as made in legislatures or top-floor suites,” Michael Lipsky writes in Street-Level Bureaucracy, but “in the crowded offices and daily encounters of street-level workers.” Nine out of ten decisions needed to get anything done, management expert Chester Barnard observed, are made by the person on the ground. Democracy can’t do its job unless those people on the ground are both free to take responsibility and accountable for fulfilling their responsibility.
Accountability is the flip side of freedom. You will be free to act on your best judgment only if others are free to judge you. Otherwise, before you have time to spell b-u-r-e-a-u-c-r-a-c-y, rules will be instituted telling you how to do your job. Freedom doesn’t work unless there’s freedom all around.
DUE PROCESS ON THE LOOSE AGAIN
Public employees must be protected against unfair management decisions, the argument goes. It’s David against Goliath, the small individual against the giant institution. Overprotection is a small price to pay, union leaders say, to avoid unfairness. “We need due process,” a teachers’ union official argued, “as long as there are people who might fire you because they didn’t like what you wore that day.” But Goliath isn’t the main adversary here. A poor teacher injures all the other Davids in that school, including students and other teachers. Students who are taught by ineffective teachers, as we have seen, will learn only a fraction of what other students do.
It’s just a matter of proof, union leaders say: “Tenure simply requires due process, meaning a chance to hear and respond to charges. . . . This concept is one of the foundations of American democracy.” Here we go again: Are you against teachers’ rights? In the heyday of the rights revolution, in the 1960s and 1970s, the Supreme Court expanded the reach of the due process clause to personnel decisions for public employees. The basic idea is that competence can be proved in a legal hearing. “It is not burdensome to give reasons,” as Justice Thurgood Marshall put it, “when reasons exist.”
It’s easy enough to give reasons. Unfortunately, it’s also easy to disagree with them. Whatever you call these protections, they are not “just a matter of due process” or “just” anything. Years of legal argument—years—are required to get rid of a bad teacher. In 2004 Common Good did an analysis of how many steps it took to dismiss a teacher in New York. The chart, filled with tiny bubbles representing each legal consideration, was five feet long. A similar study in Denver, describing an actual termination proceeding, produced a chart almost as long. The school board succeeded in firing a teacher for refusing to teach the required courses—after a legal process lasting twenty-seven months.
These legal safeguards against accountability are cloaked in rhetoric that bears almost no relation to reality. Fairness to the particular teacher is the stated goal. But fairness, as we’ve seen, also involves considering the fairness to students and fairness to the other teachers. And what is the standard of performance for fairness in the workplace? The judge or hearing officer needs some benchmark principle against which to evaluate the facts. Is it competence? Mediocrity? The bare minimum?
For teachers and public employees, the standard is lower than the bare minimum. Any sliver of rationalization is often good enough to keep a job. In East St. Louis, an assistant principal who impregnated a fourteen-year-old student was ordered reinstated on the basis that the evidence was not conclusive; years later, when DNA tests established his paternity to a 99 percent certainty, he was suspended again but allowed to apply for recertification. A teacher in New Jersey acted inappropriately on a regular basis, for example, referring to a student as “your typical nigger” and “created such a negative learning environment” that some students couldn’t sleep at night. The correct procedure, the state commissioner of education found, was to order her to go to anger management classes.
Government agencies have the same problem. Cincinnati basically lost control of its police force because it couldn’t fire anyone. The arbitrators who were charged with making the decision always found a reason for giving someone another chance. One police dispatcher—terminated for forgetting to dispatch police, placing emergencies on hold, falling asleep, and using crime lines for personal calls—was ordered reinstated because of extenuating circumstances—a toothache and a difficult pregnancy. A policeman fired for being drunk on the job and trying to pull a revolver on someone in a bar was ordered reinstated on the basis that alcoholism is a disease.
Life is about aspiration. Law is generally about the minimum. That’s why due process, so noble-sounding, is poisonous in the workplace. Instead of judging against a standard of excellence, due process looks to the lowest acceptable standard: Is this person so bad that he should lose his job? In a society that strives to get As, due process protects people who get Ds. That’s how due process is supposed to work—it’s designed to prevent decisions (specifically, to prevent the state from taking away our property or throwing us in jail). That’s certainly how employment cases are argued—a person’s performance is judged against the worst employee the litigant can find. “Mediocrity is not a sin,” former Denver Superintendent of Schools Jerry Wartgow observes; “it’s a guarantee of life employment.”
The debate over teacher tenure has all the dynamics of World War I: both sides dug in, going nowhere, hurling nasty attacks at each other. It’s been going on so long that no one in memory has actually stepped back and calmly discussed what the fight’s about. Look at how little they’re fighting over. “No one wants teachers who are not pulling their weight,” union leader Randi Weingarten acknowledges. Unless principals and other supervisors are idiots or are really insecure (some are, I know), they don’t have an incentive to get rid of good people. And if a teacher is in fact good, she won’t have much of a problem getting a new job.
So what is this holy war really about? It’s about ideology, specifically that teachers have a right to a legal trial before losing their jobs. The ideology springs from the toxic combination of union protectionism and the 1960s’ expansion of due process. Due process was supposed to add a kind of gold plating to employee protections. It worked better than anyone could have imagined—it sealed off the oxygen of honest interaction. Due process supposedly protects the employees. Would you like to trade places with a public school teacher?
Both sides are dug in so deep that they can’t see how this went wrong. There’s an assumption that worker protection is all or nothing—it’s either no protection or a full legal arsenal against accountability. But that isn’t the only choice. Indeed, the original goal of civil service, and of labor protections, and even of civil rights laws, was not to protect against individual accountability decisions. The purpose was to protect against group-wide abuses—for example, abusive working conditions. The distinction is critical. Protecting against group-wide abuses creates a safe and level playing field without paralyzing personal accountability.
PROTECTING GROUPS, NOT INDIVIDUALS
One of the triumphs of law in the twentieth century was to elevate protections for workers and consumers over the nineteenth-century legal doctrines of laissez-faire and caveat emptor. The Industrial Revolution created forces far too powerful for people to defend against without legal protection. Generations of legal reformers devoted their lives to protecting people against the abuses of huge corporate and governmental organizations.
These were, and are, necessary protections. Restoring personal accountability does not mean that employers can return to the bad old days of worker abuse or racism. Lost in the haze of history, however, is the fact that none of these historic reforms originated as protections of individuals. These reforms all were aimed at protecting against conduct that affected an entire category of people, not at protecting the job of a particular person. The civil rights movement was aimed at tearing down the walls of segregation, for example, not at allowing a legal case any time a person lost his job. But each historic reform ended up getting captured by the protected group and transformed into a shield against personal accountability.
The lines can blur, of course, like most legal lines. But the focus is entirely different. Today the idea of rights focuses on sympathy for the individual. “This is someone’s job, someone’s career. It’s how he supports his family. Just give him one more chance.” That legal logic soon slides down to a place where inept teachers and sleeping police dispatchers have a legal entitlement to inflict their failures on society. Protecting groups is entirely different. The focus is on systemic abuses, not disagreements over the performance of one person. The question is not fairness to the particular person—which opens the door to litigation over virtually any adverse workplace decision—but whether the decision reflects a bias or abusive practice against the group.
Protecting against unfair workplace practices started in the 1880s with the creation of civil service, safeguarding the public against the corruption of the spoils system, in which government jobs essentially had been sold to the party faithful. With patronage there was no requirement that the person actually do the job well (or, in some jobs, even show up at all). Creating a civil service meant that government employees would be hired on the basis of merit by a neutral commission. That’s why it was called the merit system.
Civil servants were not supposed to be immune from accountability. The goal was to neutralize hiring, not interfere with accountability decisions. Dismissal remained a matter of discretion. With patronage eliminated, there was no ulterior motive to fire good workers. “If the front door is well-guarded,” reformers believed, “the back door will take care of itself.” The first head of the Civil Service Commission, George William Curtis, was explicit on the need for personal accountability: “It is better to take the risk of occasional injustice . . . than to seal up incompetency, negligence, insubordination, insolence and every other mischief in the service by requiring a virtual trial at law before an unfit and incapable clerk can be removed.”
But the new class of civil servants amassed their own political power; after all, elected leaders couldn’t do anything without them. Within two decades civil servants had succeeded in securing layers of job security. Theodore Roosevelt, an original civil service reformer, was furious to discover that as president he had no authority to get rid of people not doing the job. Zell Miller confronted the same problem when he became governor of Georgia: “Too often in government, we pass laws to fix particular problems of the moment, and then we allow half a century to roll by without ever following up to see what the long-term consequences have been. Folks, the truth of the matter is that . . . despite its name, our present Merit System is not about merit. It offers no reward to good workers. It only provides cover for bad workers.”
The labor movement similarly arose to protect the group—in that case, from unsafe and inhumane working conditions and wages. Going to work every day was a little like going off to war, with death and disfigurement commonplace. In the 1870s, 12 percent of anthracite coal miners in Pennsylvania were killed or permanently disabled each year; in the 1890s, one in a hundred railroad brakemen died each year. The rise of the labor movement changed work conditions so that workers were treated like people, not like machine parts that could be worn out and discarded. As labor unions amassed power, however, they flexed their muscles to get as much as they could—and started protecting individuals from accountability. Workers kept jobs even when there were no jobs for them. Union contracts required firemen on diesel locomotives when there was no coal to shovel. But as competitive pressures mounted in the mid-twentieth century, union leaders realized that union jobs depended on the employers’ efficiency. Today personal accountability is not generally a problem in unionized industrial companies; the union shop steward and co-workers don’t want slackards or misfits any more than the company does.
The greatest of these reform efforts was the civil rights movement. The civil rights movement set out to open up all public accommodations and to allow minorities to compete for jobs. But it had almost nothing to do with judgments about particular individuals. Hubert Humphrey and other sponsors of the Civil Rights Act of 1964 took pains to emphasize that the act was intended to remove artificial barriers based on race or gender, not to give employees affirmative rights to require employers to hire them.
With civil rights, as with all these reforms, the momentum kept reformers pushing for ever more protection. The pace of integration was slower than had been hoped for, and the reformers decided to take the battle down to each workplace decision. Each individual would be provided a legal sword to fight for his right to the job he thought he deserved. In 1991 Congress amended civil rights laws to “encourage citizens to act as private attorneys general,” including authorizing jury trials and payment of attorneys’ fees. For lawyers, as one put it, this was “manna from heaven.” Laws prohibiting discrimination against the disabled and the elderly were passed at roughly the same time. The effect was as intended—a threefold increase in employment discrimination claims by 1997.
The goal of discrimination law had now changed. Discrimination law was no longer focused on patterns of discrimination, but had become a general law of workplace fairness—over 70 percent of workers are in some “protected category.” In 2003 the blind director of Pennsylvania’s agency for the blind was terminated and replaced by another woman with impaired eyesight. But that didn’t keep the dismissed director from suing and winning a $3.4 million verdict that she had been discriminated against on the basis of her disability. Who is law supposed to be protecting, the protected person losing the job or the protected person getting the job? It doesn’t really matter, because discrimination law is available to be used as a lever for personal vindication, not protecting the interests of the particular group.
Invoking law to protect against individual accountability is entirely different from using law to protect against group-wide practices. In the glory days of the civil rights movement, lawsuits knocked down barriers by proving patterns and practices of discrimination—such as at the steelworkers’ union, where the court found that “job assignment practices were reprehensible,” or at the supermarket chain that never promoted any female cashiers. These cases turned on demonstrable factual patterns.
Lawsuits over individual accountability, by contrast, rarely turn on discrete legal or factual issues—how do you prove or disprove who is effective? Judges nonetheless require employers to come up with objective proof for judgments that are generally a matter of subjective perception. “A remarkably wide range of qualities are considered too subjective to stand up in court,” Walter Olson notes in The Excuse Factory, including such characteristics as “temperament, habits, demeanor, bearing, manner, maturity, drive, leadership ability, personal appearance, stability, cooperativeness, dependability, adaptability, industry, work habits, attitude . . . and interest in job.”
The flaws of bringing law down to personal judgments quickly become apparent when the lawsuit begins. A lawsuit over individual accountability turns into a trial over the person’s worth, like a trial over life itself. Having to “prove” why a person isn’t working out in a job—whether for incompetence, a bad attitude, or a thousand other traits—transforms accountability into a kind of divorce proceeding, boiling over with emotion. “You say I acted inappropriately? Well, how bad was it? Don’t other people act inappropriately sometimes? I think it has to be discrimination. Why didn’t I get those plum assignments?”
Putting individual accountability into a legal cauldron is a recipe for bitterness, obsession, and fear. The supervisor, co-workers, and lawyers spend months trying to construct a case with objective proof of incompetence and bad judgment. All this is recorded in affidavits and deposition transcripts. The personal disappointment of the job not working out, which would be quickly forgotten if the individual just got a new job, becomes a crusade on both sides. The claim ends up consuming the life of the person supposedly protected. After all, it’s a trial over your inherent quality as a person. Moving on to a new job would be so much less painful (and less expensive) than throwing your character onto the pyre of legal justification.
The overhang of law in workplace decisions has changed the culture. In some ways, the changes have been for the better—employers are more measured in their approach to accountability—but these benefits can probably be accomplished without the backdrop of a holy war. The legal fear in the workplace, however, has unleashed waves of unintended costs. The chilling of honest interaction is palpable, harming most those who are supposedly protected. Distrust replaces candor, starting a downward spiral of misunderstanding. Black workers often talk about an invisible barrier separating them from others in the workplace, as if they had a contagious disease. Spontaneity is replaced by heavy pauses and formalism. Managers and co-workers are afraid not just of lawsuits, but of being labeled bigots. “When avoiding offense becomes our primary concern,” Professor Mark Notturno notes, “it quickly becomes impossible to say anything freely at all.” Jonathan Rauch sums up the problem this way:
Daily life in a dense and diverse society is full of moral disputes and interpersonal collisions. Civilized life must be reasonably free of the fear that these everyday disputes and collisions may, at any moment and for no clear reason, suddenly explode into intolerable ordeals.
The effects of this legal self-consciousness ripple into important decisions. Employers say they often won’t take a chance on a minority candidate out of fear that they can’t dismiss him without risking a discrimination claim. This is a variation of the paradox identified by former Czech president Vaclav Havel as “enforced proximity” that serves mainly to drive people apart.
The myth that law can sort out the truth in human relations lives on. At a hearing before the House Judiciary Committee in 2005, I was asked by Congresswoman Maxine Waters whether I believed anyone would go to the trouble of bringing a discrimination claim if it weren’t true. I bit my tongue, and replied only that most federal judges seemed to be of that view. The numbers in fact are overwhelming. There is a dramatic mismatch between the flood of employment claims (10 percent of the federal civil docket) and the probability of success (about 15 percent).
Law can protect against group abuses, but it can’t resolve individual disagreements in the workplace without removing the conditions and benefits of free interaction. Some people do things one way; others another way. Some people will get along in the department; others won’t. People need to be able to make these choices.
THE VIRTUES OF ACCOUNTABILITY
In 1996, Georgia Governor Zell Miller performed a minor miracle of public administration—he sponsored a law that eliminated civil service protections for new state employees. The benefits were seen immediately. “It was like somebody turned on the lights,” observed Paul Burkhalter, the deputy commissioner of the state’s Department of Natural Resources. Burkhalter said that his environmental agency always had good people, but there was always the overhang of “knowing that you didn’t have to extend yourself.” No more. “On snowy days in the north Georgia mountains, civil servants often called in saying they couldn’t make it to work,” Joe Tanner, a top aide to Governor Miller, recalled. “The new employees somehow made it to work.”
Another benefit was to open up opportunities. The fact that jobs were no longer cast in stone meant that supervisors could try people out in higher responsibilities. Burkhalter, a state employee for thirty years and an African-American, moved from a back-office position to being second in charge of the environmental agency. “I wouldn’t be here today but for that change in law.” Attitudes changed from compliance to accomplishment: “People started thinking about what they could do, not what was required.” Accountability stopped being a problem. Even employees still in the classified civil service (now only 15 percent at the environmental agency) will accept discipline and demotions without legal fuss. “I don’t even remember the last time we had a problem when someone didn’t do their job,” Burkhalter noted.
Discussing the virtues of accountability is a little like talking about the joy of taking exams. It’s not exactly what we look forward to in life. Accountability is scary—someone else judging how we’re doing. “Responsibility does not always bring joy in its wake,” Mark Bovens observes in The Quest for Responsibility. “It goes together . . . with stress, anxiety, and a certain amount of self-sacrifice.” But accountability is an essential part of a healthy life and a healthy society. We all know this. In this age of legal insecurity, however, we are no longer free to act on the obvious—as with our obsessions with safety and with rights. We want a perfect world, without failures or disagreements.
In striving for this utopia we don’t notice all the vital benefits that we lose. The freedom of people to make accountability judgments is vital to just about everything important and joyful in work life. Here’s a partial list:
1. Personal fulfillment. The pride of a job well done is dramatically enhanced by recognition by others. Humans, at least most of us, long for the approval of others. To be rewarding, this recognition must be earned by genuine accomplishment. A culture without accountability is dispiriting. “It’s very frustrating to high performers not to be held accountable,” said Susan Schaeffler, a former public school teacher who now runs the KIPP schools in Washington, D.C. “Good teachers want to be sure that people appreciate the value they bring to the building.”
2. Avoiding self-delusion. To see ourselves as we really are, we need the mirror of other people’s views. Scientists tell us that most people are incapable of accurately judging themselves, because humans are hard-wired by nature to be self-centered. Our founders believed this as well—that “a human being was an atom of self-interest.” By protecting against the judgment of others, modern personnel law fosters these worst tendencies in humans, starting a downward spiral. “The more a man indulges in the propensity to blame others or circumstances for his failures,” Friedrich Hayek observed, “the more disgruntled and ineffective he tends to become.”
One federal judge told me about presiding over a discrimination trial in which the facts of the worker’s incompetence were overwhelming. As the trial progressed, it was clear to everyone in the courtroom that the worker had no claim. When the verdict came in dismissing his claim, however, the employee still couldn’t see it. He sat in the courtroom in disbelief, crying in frustration at the injustice that had been done to him. Inside a legal cocoon, people let their imaginations replace reality.
3. Personal growth through failure. “We learn wisdom from failure much more than from success,” Victorian reformer Samuel Smiles explained. “We often discover what will do, by finding out what will not do. . . . Probably he who never made a mistake never made a discovery.”
Failure doesn’t get a lot of attention in our culture. Management gurus churn out books, seemingly by the thousands, on how to succeed (Winning!). I don’t recall any on how to deal with failure (Failing!). But failure is not some unusual circumstance, needing a dirge and funeral procession. Failure is the norm, as management expert Chester Barnard observed. Success both for an individual and for an enterprise generally comes after countless adaptations to repeated failures.
It’s hard to think of a hero of our time who did not overcome significant failure. Winston Churchill was famous for his early failures: as first lord of the admiralty, planning the disastrous assault on the Dardanelles in World War I; as chancellor of the exchequer, returning to the gold standard in 1924, precipitating a depression. But Churchill was right about Germany’s rearmament and, after a decade out to pasture, came back to lead Britain in its most perilous hours. To Churchill, success consisted of “moving from failure to failure without loss of enthusiasm.”
4. A dynamic economy. Accountability is a key element of a dynamic economy. Americans change jobs, on average, ten times between the ages of twenty and forty. Job movement is the occupational version of trial and error, increasing the odds that people will find a find a place that fits their aptitude and interests. A new personal challenge generally results in higher energy and new skills.
Success in a crowded society is not doing whatever you want but, usually, doing whatever you can persuade other people to let you do. Co-workers constantly judge the performance of people who work with them—about who’s doing the job, and who is not, about who works well with others and whose elbows are too sharp. On the open field of freedom, people push and pull each other constantly. That’s the dynamic of a free society. “In democracies men are never stationary,” Tocqueville observed. “A thousand forces waft them to and fro.”
5. Responsibility. I’d like a nickel for each time someone says that Americans need to take more personal responsibility. I’m obviously a fan of responsibility. But how do you get people to act more responsibly? In a free country there’s no law against being pushy or selfish or having bad morals. People in a free society are allowed to be sloppy in their work, temperamental, quick to blame others, and less than responsible. Within broad boundaries, on the field of freedom, law will not intervene to help us deal with these issues. We’re on our own. The culture we live in and bequeath to our children depends on how we apply our values in daily interaction. If these irresponsible people are allowed to throw up a legal shield against being held accountable, then our values are just hot air, without practical significance.
Accountability, not law, is the key to responsibility. Bureaucracy certainly doesn’t get us responsibility. The legalistic mind-set encourages compliance with rules instead of doing what’s right. Legislating individual rights, as with special education, is even worse. Rights promote selfishness, not responsibility. There’s only one clear path to responsibility in social dealings: Let people be free to make judgments about each other. Most people want to do the right thing. It’s a lot easier if you know that everyone is subject to the same oversight.
6. Ethics. Society’s cloak of responsible values, ethics, similarly frays from disuse. The ethics of relativism are basically that it’s not fair to assert ethical values. The theory of neutral values is self-defeating, as philosopher Alisdair McIntyre and others have observed, because it allows social values to be dominated by people who don’t share the goal of neutrality. Every social enterprise suffers if people aren’t free to be “judgmental” on the basis of their sense of responsible ethics. I was debating some legal scholars a few years ago in Richmond, and the subject of lawyer advertising came up. The Supreme Court held (unwisely, in my view) that lawyers have a First Amendment right to advertise, and the scholars argued that since the speech was lawful, nothing could be done about it. But why didn’t respectable bar associations, I suggested, exclude ambulance chasers from membership? “What are you going to do,” retorted one professor, “shun them?” Actually yes, I replied. Any “profession” worthy of that appellation should enforce what it views as good professional values, irrespective of legality. Isn’t that the role of ethics?
Accountability is mainly a concept of risk, not security, at least from the standpoint of the individual. But that individual risk is precisely what makes accountability indispensable to the healthy culture of the group. Moreover, the vicissitudes inherent in accountability are what makes it indispensable to our personal development.
I suspect each of you reading this has a story of some unpleasant collision with accountability that helped form your character. As a young lawyer I worked for a large New York law firm, and looked forward to a long career there. One weekend, near the time in my career when partnership decisions were made, I received a desperate plea from the New York City landmarks commissioner to try to stop demolition of the Biltmore Hotel, which was scheduled to become a landmark the next week. When I dragged into the office on Monday, after a weekend of securing injunctions, I was greeted with a stack of messages from partners. Who gave me permission to do this? There was no conflict with firm clients (several senior partners had helped me find the judge), but some partners believed this highlighted a disturbing trend. Was I really dedicated to the firm? There ensued months of painful discussion, which ended with my losing my job.
This was not what I had in mind. I had invested eight years of all-nighters in my career there. I had a big mortgage and a second baby on the way. How would I support my family? But losing my job was, without question, the best professional thing that ever happened to me. I had to figure out for myself what I wanted, not just float along in a career defined by others. I learned not to be afraid of failure. You can pick yourself up. Why not take risks? I thought it was unfair at the time, but my old firm was probably correct that I didn’t quite fit in. My leaving may have been good for them. It certainly was for me.
Our pioneer forefathers would be amused by the delicate stature we accord job status. America’s vitality comes from people fending for themselves. Jobs are about being persuasive or likable, selling whatever needs to be sold, working hard and then working harder, failing and then picking yourself up. Jobs are not precious objects, like fine crystal never to be tossed about. Americans, as noted, change jobs all the time. In Europe, by contrast, jobs have a permanent stature. In past centuries European feudal cultures had vassals, tradesmen in guilds, and the nobility, all stuck in their places for life. Now Europe has laws that make it impossible to fire anyone. People in Europe cling to their jobs as if they were on a respirator. Imagine living in France—in the luggage factory for life. It’s not a good system. That’s one of the reasons their economy grows at barely more than half the rate of ours.
Too much security makes people fat and unhappy. Too little security is not good either; people shouldn’t fear the loss of health care for their families if their jobs don’t work out. But either way, there must always be the overhang of accountability. “From childhood onward,” Professor Mark Bovens observes, “our conduct is influenced by the fact that we can be called to account for our actions.”
RESTORING THE FREEDOM TO JUDGE PEOPLE
During his sixteen-year nursing career, Charles Cullen worked as a nurse in Pennsylvania and New Jersey, moving from one hospital to the next. He was not a good nurse. He acted strangely and was found in rooms of patients with medications that weren’t appropriate. In most hospitals he never lasted more than a few months before he was let go. But he kept getting new jobs. In 2003 it was discovered that Cullen had probably murdered more than forty patients.
Cullen was able to move from one hospital to another—to ten medical facilities in all—because fear of a lawsuit prevented those hospitals from giving him a bad reference. Co-workers observed his strange behavior, but they didn’t know he was murdering people and couldn’t prove that he was doing something illegal. So the hospitals eventually let him go and, when the next hospital in line asked for a reference, merely gave the stock response of all employers nowadays: “We confirm that he worked here from this to that date.”
The Pennsylvania state agency overseeing nurses had been warned about Cullen’s penchant for diverting medications but, even after the murders had come to light, would not comment on his reputation. “Legally, we can’t speak about any information we receive that doesn’t result in disciplinary action,” a spokesman said.
“What I’m coming to understand,” said Dr. William Cors, the chief medical officer of Somerset Medical Center in Somerville, New Jersey, where Cullen last worked, “is that, short of an actual conviction or revocation of license, none of this information gets shared. If anything good comes from this, it would be to reform the system where we’re prevented from telling one another what we know out of fear, quite frankly, of being sued.”
Virtually every tragedy of this sort—for example, the shootings at Columbine High and Virginia Tech—was committed by people who were known to be unbalanced. Yet no one felt free to do what was obvious and get them out of the institution. Never underestimate the power of prevailing ideology—even sinister people are not allowed to be judged. Our motives are pure: to avoid judging people on the basis of the color of their skin or other superficial criteria. Having to prove your judgment, however, is paralyzing: “Just demonstrate that you are being fair. Maybe Cullen is just a little strange. What’s wrong with that? Aren’t people allowed to be different in a free society?” Put yourselves in the shoes of the hospital director in New Jersey. How exactly would you prove that Nurse Cullen makes your skin crawl?
Legal proceedings can’t possibly capture concepts like character or caring. That’s why proving the fairness of accountability is a hopeless exercise. Even scientists know little about how we judge people. Human judgment, already a mystery, is even more mysterious when one judges others—a black box making judgments about another black box. But we know the judgments aren’t random. Studies show that diverse groups of people, asked to watch a panel of different people talking, tend to trust and distrust the same ones. The correlation remained high when another test group judged the same people with the sound turned off. Jacob Marschak, a prominent economist, hired people in part by watching their eyes: “intelligence shines through the eyes.”
“Laying aside all exceptions to the rule, there is typically a lot of truth in the judgments we make of others,” Professor Philip Jackson observes in his study of teachers. “This is so even when we cannot quite put our finger on the source of our opinion. That truth, we would suggest, emerges expressively. It is given off by what a person says or does, the way a smile gives an aura of friendliness or tears a spirit of sadness.” People “imagine they communicate their virtue or vice only by overt action and do not see that virtue and vice emit a breath every moment,” Emerson observed: “We pass for what we are.”
As a creature of our rationalist culture you may think it absurd that people should judge others by watching them or by vague feelings about character. But until the last forty years that’s been a core precept of civilization. Most great leaders, including George Washington and Abraham Lincoln, were said to have been a “good judge of character.” There’s a huge library of human wisdom through the ages—by Aristotle, Aquinas, Confucius, Shakespeare, Hume, Martin Luther King, almost everyone we respect—about virtue, character, and other personal traits. All this wisdom is basically useless if people aren’t free to make judgments about people.
There’s no getting around the judgment of others. Accountability, by definition, is a third-party concept. People get rewarded, Hayek stated, “according to what others think.” This idea is repugnant to our modern sensibility. Why should one person be able to judge another? But co-workers are our validation as well as our reality check. The best measure of accountability is impressing others on the job. If you can’t please the people around you, then you probably should be somewhere else.
Restoring the conditions for accountability requires a basic shift in law, removing legal walls and weapons that individuals use to insulate themselves and returning to broader principles of group protection. In the public sector what’s needed is a kind of mutual disarmament—where the government removes the iron net of bureaucracy and the teachers and other public employees remove their legal armor. Public employees will be liberated to exercise their judgment only when supervisors are liberated to hold them accountable.
NEW DEAL FOR TEACHERS AND PUBLIC EMPLOYEES
Civil service and teacher protections should be largely scrapped and replaced by a new deal. The basic components might be:
1. Protecting against unfairness. Instead of legal hearings and litigation, give a designated person or committee the authority to review and overturn termination decisions—call it the review committee. This would not be a legal proceeding but an informal process of talking with others in the department to make sure there was a reasonable basis for the termination. For schools, the committee might include a parent, a teacher (including a union representative where applicable), and someone from management.
2. Retraining and reassignment opportunities. Large public agencies could provide a program of central evaluation and retraining so that terminated employees have the option of trying to fit in elsewhere. Ultimately, however, the management has to have the authority to weed out those who don’t appear to be effective.
3. Safety nets. Today public employees cling to their jobs in part because they don’t want to lose health care for their families or give up years of credit toward their pensions. These legitimate concerns should be satisfied. Remove the handcuffs by letting fringe benefits be transferable. Public employees should be vested in their accrued pensions after a threshold period. There could also be a severance payment based on years of service—providing a disincentive to arbitrary dismissals and a reassurance to employees that they are not at risk of being left high and dry.
4. Neutral hiring and programmed turnover. Going back to the original premise of civil service, career public jobs should be filled through a process based on merit, not connections. But there should also be an expectation that some people will be let go. We will have a hard time encouraging the best people to join and to stay until there is freedom to ask the worst people to leave.
These simple reforms require a legal revolution. Civil service and other laws must be largely repealed and rewritten, the unions must change their requirements, and the Supreme Court must conclude that these kinds of protection satisfy due process. But it’s worth the effort. Restoring accountability to public service holds the key to restoring health to our weakened public institutions, including democracy itself.
FAIRNESS IN THE PRIVATE WORKPLACE
A simpler revolution is required to restore balance in the private sector, with the basic shift being a presumption against litigation and a new informal grievance model. Instead of inciting people to sue, law should discourage individual claims. Job references, positive or negative, should not be the basis of a legal claim absent concrete allegations of actual malice (with penalties to the employee for bringing claims that do not meet this standard). Informal review mechanisms, such as mediation, should replace the discrimination and other employment litigation that now engulfs federal courts.
1. Discrimination laws should return to their original purpose, the protection against systematic patterns of discrimination. They can retain their basic prohibitions (although the proliferation of protected categories, now covering most of the workforce, tends to undermine the protection of racial minorities). Private enforcement should be limited, however, to credible allegations of a pattern or practice of discrimination—lawsuits would be dismissed unless the claimant presented evidence that the employer discriminated against minorities generally, not just against the plaintiff. To safeguard against the occasional individual abuses, a public official should be authorized to bring claims on behalf of individuals. Judges should be given the authority to decide as a matter of law whether allegations meet this threshold. But individuals should not be allowed to bring claims only on behalf of themselves—the overwhelming self-interest and cost of a chilled workplace far outweigh the benefits. The point is not that discrimination has been cured—we all probably harbor subconscious prejudices—but that the unreliability of individual claims freezes the open interaction needed to accomplish real integration.
2. Harassment. These presumptions against individual claims don’t work in one situation, sexual harassment. Sexual harassment involves extortion of an individual, not feelings of resentment toward a group. Even here the allegations must rise to a level of quid pro quo, not just offensive comments. Bad taste or humor might be a basis for firing someone but shouldn’t be a legal claim. Law can’t be pressed down this far without chilling the spontaneity needed for a healthy culture. Sometimes people will put their feet in their mouths. Most people will apologize and get on with life. People can distinguish between missteps by people of good character and mean behavior. “Even a dog,” Oliver Wendell Holmes observed, “distinguishes between being stumbled over and being kicked.”
3. Employer obligations. Employers too should feel the tension of accountability. As a condition for these limits, large employers (say, over 500 employees) could be required to offer and participate in independent mediation services so that employees can receive a full explanation and can respond to the employer. Although nonbinding, mediation has a good record of tempering impulsive actions and reactions, and also can provide useful feedback. Large employers can also report their diversity profile at different levels of responsibility. Transparency will be a far more constructive incentive for a diverse workplace than legal fear causing employers to batten down the HR hatches.
People are “astonishingly unlike each other,” Tocqueville noted. Hayek as well marveled at the “boundless variety of human nature—the wide range of differences in individual capacities and potentialities—is one of the most distinctive facts about the human species.” All day long people of different temperaments and values will deal with others in ways that vary as much as the people themselves.
America is built on an abiding belief in the freedom of these unique individuals. That includes the ability to deal freely with other people, including the power to make judgments and the exposure to being judged. Liberating people to make these choices restores the role of character, which today is confined to the back lot of “subjective” values. It recalibrates the goals of the workplace—toward excellence and cooperation instead of entitlement. Candor replaces resentment.
People judging people is the currency of social interaction in a free society. Almost nothing we do is done alone. Our work, our play, our life in the neighborhood, our religious life, our connection to the political system all involve other people. This requires us to make judgments about them. We do this naturally, examining all facets of a person, and drawing on our sense of ethics, goodwill, likability, and effectiveness. Yes, it is true that these judgments also draw on feelings we don’t respect, like racism or other stereotypes. It is important to protect against these tendencies, as I have discussed. But it is not possible, or desirable, to avoid making judgments about others. Without personal accountability, law will flood our lives and destroy honest interaction. Accountability is the price we pay for everyday freedom.