Monday, March 10, 2014

The Rising Price of Speech on Campus

 (Pix (c) Larry Catá Backer 2014)

Americans appear to have developed a quite distinct but two sided vision of what we like to call "free" speech on campuses.  On the one hand, we have embraced the idea of universities as a place of deep and sometimes fractious open discourse, where students and faculty work diligently in the pursuit of knowledge, wherever it may take them, and for its dissemination through instruction that is meant to challenge and train. On the other hand, we have increasingly come, again, to view faculty the way aristocrats once thought of the tutors for their children-- as staff that ought to be careful about their place and their role.

These views are irreconcilable and both are deeply held.  Their interaction tends to work tolerably well in times of relative social calm.  But when there are substantial social and political rifts, the contradictions become more plainly visible.  The resolution of that incompatibility tends to formally embrace  the "open discourse" premise while creating functional systems that strip "open discourse" to a quite precise meaning the control of which is no longer in the hands of faculty.  And indeed, at times of the greatest social and political rifts, it tends to be the faculty that bears a substantial amount of the brunt of this exercise of control--faculty are after all, charged with the care of the progeny of  adults deeply divided in their politics and social and economic stations.  And many of these adults (and the children they have produced and proffered up to the university for "finishing") prefer to keep it that way.

The move toward models of servant or teacher, or perhaps servant-teacher, appears to be the thrust of recent trends in academic disciplining of faculty--that is, of the construction of the rules within which one can distinguish between appropriate and naughty conduct in an institution where free thinking (within bounds of course) must be permitted for the edification of those being prepared to assume their stations within society's social, economic and political hierarchies, but where that free thinking and its challenge must be well managed within the bounds of propriety and the sensibilities of those at the apex of power structures. This is the ancient aristocratic tutor model now dressed up in democratic garb, where the aristocrat has given way to the think tank, media authorities, and the usual array of institutional leaders.  Within it, "smart" is purchased but to be applied in ways that may be appropriate to the expectation of training suitable for the social and economic station expected to be assumed by the students who are sorted into institutions that are themselves ranked and constituted to serve the various levels of American social, economic and political organization.

The use of social media has been the current focus of efforts to discipline and regulate faculty speech.  It is an easy target because it is new and because it tends to leverage faculty voices enough to make them more important than other conventional forms of expression.  Faculty publications and lectures, however provocative, tend to have a fairly narrow audience in most cases.  Social media tends to permit faculty voices to be heard more "loudly" and thus to compete for a role in managing mass culture with traditional social culture leaders. The contentious nature of debates about faculty behavior on special media--and who may control it--has produced some reaction.  The AAUP's Draft Report: Academic Freedom and Electronic Communications (Nov. 2013) may be accessed HERE.  It has also produced some study.  E.g., Mike Moran, Jeff Seaman, and Hester Tinti-Kane, Teaching, Learning, and Sharing: How Today’s Higher Education Faculty Use Social Media, Pearson Learning Solutions and Babson Survey Research Group (April 2011).

To ensure that necessary disciplining, the modern American academy has deployed two old approaches to governance.  The first include regulatory systems that vest discretion in university administrators (and important outside stakeholders) to set the proper boundaries for faculty speech.  The second involve the invocation of social norms so that these regulatory constraints might be better internalized--to avoid the bother of monitoring and enforcing command based rules. I have touched on these themes recently: (1) A Malediction for Academia--The Kansas Regents and the New Social Media Policy--Docility and Servility Against Academic Freedom and the Need for Contractual Protection (Dec. 29, 2013); (2) "Sandusky's Ghost" and the Weaponizing of Scandal--Administrative Disciplining of Faculty at the University of Colorado (Dec. 24, 2014).

Both governance approaches are much in evidence in two recent reports from the Chronicle of Higher Education each described briefly below. On the regulatory aspects of managing faculty speech:  Peter Schmidt,  Colleges Are Divided on Need for New Speech Policies, Chronicle of Higher Education, March 10, 2014.  On the invocation of social norms to inculcate appropriate internalization of speech boundaries in faculty: Peter Schmidt, One Email, Much Outrage, Chronicle of Higher Education, March 10, 2014. 

Each provides a glimpse of an aspect of the rising forms of the management of faculty speech.  Together they serve to illustrate the evolving social system within which faculty are better taught to understand their place.   Added to evidence the governance effects of these trends is the current and proposed rewritten policy on social media use drafted for approval by the Kansas Board of Regents.  Available HERE: Social Media Work Group Draft Policy ( .PDF )

One Email, Much Outrage
 Peter Schmidt
Chronicle of Higher Education March 10, 2014
Rachel Slocum’s problems began with an email she sent at the end of long day.

It was Tuesday, October 1, and the federal government had partially shut down as a result of a budget impasse. The U.S. Census Bureau and Education Department websites were out of commission, leaving the students in her introductory geography class without access to data for an assignment.

"Hi everyone," she wrote to the 18 students in the online course. "Some of the data gathering assignment will be impossible to complete until the Republican/Tea Party controlled House of Representatives agrees to fund the government."

She urged her students to do whatever work they could. The rest, she wrote, "will have to wait until Congress decides we actually need a government."
 At 10:23 p.m., she hit send.
Without knowing it, she had just put herself on a political battle’s front lines.

With the click of a button on her laptop, she became the focus of a national controversy that rattled her employer, the University of Wisconsin at La Crosse, and continues to threaten her career.

In an instant, the assistant professor of geography joined a growing list of college instructors whose lives have been thrown into turmoil when their words were relayed far beyond intended audiences via the Internet. Their ranks include professors whose provocative statements in the classroom were surreptitiously videotaped by students and posted online, professors who vented frustrations on Facebook or Twitter and then watched their posts go viral, and professors whose work-related websites were combed by advocacy groups for evidence of the political indoctrination of students.

. . . .


Colleges Are Divided on Need for New Speech Policies

By Peter Schmidt

Many colleges have been slow to develop policies governing professors’ online speech. But institutions’ hesitancy to adopt new rules for new forms of communication might be wise, a number of faculty leaders and legal experts say.

Among the more than 70 four-year colleges whose faculty leaders recently provided details about their policies to The Chronicle, nearly half said their institutions had no policies specifically regulating online speech. Relatively few had rules governing faculty members’ work-related websites or speech on popular social-media platforms like Facebook and Twitter.

"We have a lot of work to do!" said one of the faculty leaders. Others who responded to the online survey, sent to current and recent faculty-senate presidents and other top faculty representatives, similarly complained that their colleges are behind the times.

The American Association of University Professors, for its part, has urged college administrators to work with their faculties to develop policies governing the use of social media and other forms of online communication.

Its committee on academic freedom said in a draft report issued last fall that advances in online communication have broadened the definition of a classroom, blurred distinctions between personal and work-related communication, and created new threats to faculty privacy. The committee argued that electronic communications "are too important for the maintenance and protection of academic freedom" for their regulation to be left up to colleges’ technology officers.

Other experts on the law and academic freedom argue, however, that rather than crafting new policies on online speech, colleges should govern it with well-established rules predating the Internet and simply advise faculty members to be wary of how far their remarks can travel.
 . . . . 


1. Discussion draft for comment
2.Social Media Work Group members
3.Charge to the Work Group
4.Existing Board of Regents Social Media Policy

KBOR Policy
Chapter II: Governance – State Universities
F. Other
7. Social Media Policy

In keeping with the Kansas Board of Regents’ commitment to the principles of academic freedom, the Board supports the responsible use of existing and emerging communications technologies, including social media, to serve the teaching, research, and public service missions of Kansas universities. Each university shall adopt guidelines to advise all university employees on use of social media. The guidelines shall encourage the responsible use of social media by all employees.

Social media means any facility for online publication and commentary.

The guidelines shall suggest ways in which social media technologies may be used to serve the university’s mission and shall encourage these uses. In doing so, the guidelines shall strive to assure all employees that improper use of social media shall not
be interpreted to include any of the following:

i the content of any academic research and other scholarly activities;
ii the content of any academic instruction;
iii the content of any statements, debate, or expressions made as part of shared governance at a university whether made by a group or employee; or,
iv in general, any communication via social media that is consistent with First Amendment protections and that is otherwise permissible under the law.

The guidelines shall remind employees that their authorship of content on social media may violate existing law or policy and may be addressed through university disciplinary processes if it:

i is intentionally directed to inciting or producing imminent violence or other breach of the peace and is likely to incite or produce such action;
ii violates existing employee policies addressing professional misconduct;
iii discloses without lawful authority any confidential student information, protected health care information, personnel records, personal financial information, or confidential research data.

The guidelines also shall advise employees that when using social media to speak as a citizen they should be mindful of the balance struck by the 1940 Statement of Principles of the American Association of University Professors:
College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.

These guidelines shall recognize the rights and responsibilities of all employees, including faculty and staff, to speak on matters of public concern as private citizens, if they choose to do so.

This policy on use of social media shall apply prospectively from its date of adoption by the Kansas Board of Regents.

Members of the Workgroup Named to Create Recommendations Regarding Board Policy on Improper Use of Social Media
From Emporia State University – Kevin Johnson (co-chair), General Counsel
Max McCoy, Associate Professor in Department of English, Modern Languages, and Journalism

From Fort Hays State University – Kristin Rupp, Web Content Manager
Melissa J. Hunsicker Walburn, Assistant Professor in Department of Informatics

From Kansas State University – Julia Keen, Associate Professor in Department of Architectural Engineering and Construction Science and President of the Faculty Senate
Jeff Morris, Vice President for Communications and Marketing

From Pittsburg State University – Browyn Conrad, Professor in the Department of History, Philosophy, and Social Sciences and President of PSU-KNEA
Dacia Clark, Senior Administrative Specialist in Alumni and Constituent Relations and President of the Classified Senate

From University of Kansas – Charles Epp (co-chair), Professor in the School of Public Affairs and Administration
Easan Selvan, Associate Director in Information Technology Services

From University of Kansas Medical Center – Mark Fisher, Professor in the Department
of Biochemistry and Molecular Biology

From Wichita State University – Victoria Mosack, Professor in the School of Nursing and President of the Faculty Senate
Richard Muma, Associate Vice President for Academic Affairs

Charge to Workgroup Reviewing Board of Regents’ Improper Use of Social Media Policy

The development of social media is changing communication. In higher education these technologies are widely used in teaching, research, and service to the public, as well as by individual employees in their personal communications. Use of social media also poses risks, as highlighted by a recent incident at one of the six state universities.

Consequently, the Board Chair directed the staff to craft a policy on the use of social media that recognizes the value of these media to the special mission of public universities, that respects the First Amendment and Procedural Due Process rights of individuals as employees and as citizens, while at the same time respecting the rights of the universities as employers. After careful consultation with legal counsel and the Attorney General’s office about the requirements of law, a policy on social media was developed and adopted.

As you know, faculty across the system and groups representing faculty from across the country have expressed concern about the policy. In response, the Board of Regents Chair asked the President and CEO of the Board to work with the University Presidents and Chancellor to form a workgroup of representatives from each state university campus to review the policy and provide recommendations as to how it might be improved. The following is the charge to the workgroup:

1.Review the Board’s policy on improper use of social media.
2.As part of the review, honor the Board’s goal in creating the policy while considering
ways to address the concerns that have been expressed.
3.Present to the Board Governance Committee any recommended amendments to the policy by April 16, 2014.

Current KBOR Policy on Social Media
[Chapter II, Section 6, Paragraph b]
Faculty and staff may also be suspended, dismissed or terminated from employment for reasons of significant reduction in or elimination of the funding source supporting the position, program discontinuance, financial exigency, or for just cause related to the performance of or failure to perform the individual's duties or for violation of the reasonable directives, rules and regulations, and laws of the institution, the Board and the State of Kansas or the United States.

The chief executive officer of a state university has the authority to suspend, dismiss or terminate from employment any faculty or staff member who makes improper use of social media. "Social media" means any facility for online publication and commentary, including but not limited to blogs, wikis, and social networking sites such as Facebook, LinkedIn, Twitter, Flickr, and YouTube. "Improper use of social media" means making a communication through social media that:
i. directly incites violence or other immediate breach of the peace;
ii. when made pursuant to (i.e. in furtherance of) the employee's official duties, is contrary to the best interest of the university;
iii. discloses without authority any confidential student information, protected health care
information, personnel records, personal financial information, or confidential research data; or
iv. subject to the balancing analysis required by the following paragraph, impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impedes the performance of the speaker's official duties, interferes with the regular operation of the university, or otherwise adversely affects the university's ability to efficiently provide services.

In determining whether the employee's communication constitutes an improper use of social media under paragraph (iv), the chief executive officer shall balance the interest of the university in promoting the efficiency of the public services it performs through its employees against the employee's right as a citizen to speak on matters of public concern, and may consider the employee's position within the university and whether the employee used or publicized the university name, brands, website, official title or school/department/college or otherwise created the appearance of the communication being endorsed, approved or connected to the university in a manner that discredits the university. The chief executive officer may also consider whether the communication was made during the employee's working hours or the communication was transmitted utilizing university systems or equipment. This policy on improper use of social media shall apply prospectively from its date of adoption by the Kansas Board of Regents.

No comments:

Post a Comment