I have been following the progress of events in the Kansas state university system, as its Regents struggle to develop a reasonable and coherent social media policy respectful of the human dignity and citizenship rights of its employees while protecting the limited but legitimate interests of the university (e.g., 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 (12-29-2013); Kansas Social Media Policy to be Reconsidered; Does a Segmented Approach to Academic Freedom Follow? (1-5-2014); The Rising Price of Speech on Campus (March 10, 2014); Proposing a Set of Social Media Policy Guidelines For Penn State University (March 17, 2014)).
From Peggy Lowe, Strict Social Media Policy Approved By Kansas Board Of Regents, KCUR, May 14, 2014; "Critics of the social media policy stand during part of Wednesday's Kansas Board of Regents meeting in Topeka to demonstrate their opposition. Credit Stephen Koranda / KPR").
At the end of 2013, the Kansas Board of Regents, responding to a wave of bad press that met their initial ham handed effort to control the social media activities of university employees, declared that they would constitute a committee made up of senior administrators, faculty and staff to reconsider the issue. (Kansas Social Media Policy to be Reconsidered; Does a Segmented Approach to Academic Freedom Follow? (1-5-2014)). That committee came up with what appeared to be a reasonable policy, respectful of the human dignity rights of individuals and the material interests of the university. (Available HERE: Social Media Work Group Draft Policy (.PDF)). It appeared for a while that this draft policy would serve as the basis for a revised Regents' policy in Kansas.
But this was not to be. "But Logan and two other regents differed with a working group proposal that the social media policy be scrapped and replaced with an advisory policy on proper use."Kansas regents stick with social media policy for universities, The Kansas City Star, April 17, 2014). And thus, the "Kansas state attorney general approved a revised policy that states
any employee at a public university in the state can be fired over
improperly using social media, raising questions that their First
Amendment rights are being infringed upon." ("Social media posts could get Kansas university employees fired," Foxnews, May 21, 2014 ("One of the elements of the new policy
that has legal experts confused is the part that says a faculty member
can face disciplinary action for "speech contrary to the interests of
the university.")).
The Policy and some commentary follows, including the Statement of the Association for Education in Journalism and Mass Communication.
The Policy
itself is a model of incoherence, of misdirection, of statements that,
when considered against each other, reduce the Policy to little more
than an administrative permission to administrators to exercise a
substantially unconstrained direction, with the burden then falling on
faculty to prove that this discretion, substantially unconstrained in an
effective way, constituted an abuse (a very difficult standard to meet
in law). Indeed, that appears to have been the intention--to add
hortatory language about respect for the U.S. Constitution's 1st
Amendment, while retaining the original policy substantially intact ("In
response to a backlash that the policy is too harsh, the regents are
considering changes to explicitly say that the board respects First
Amendment rights of staff to free speech, without dropping provisions
that allow for firing or discipline." Kansas regents stick with social media policy for universities, The Kansas City Star, April 17, 2014).
Let's look carefully at the language of the policy. Policy 6.a provides a statement of commitment to the obvious--to the obligation of the Kansas Regents to obey law and to principles of academic freedom. But it speaks in a way that commodifies the employee and reduces the extent of this commitment to an aggregation of the employees' utility to the university ("Academic freedom protects their work and enhances the valuable service they provide"). The Regents' support of academic freedom is also selective; they choose only to quote one section of the 1940 AAUP Statement of Principles (drawn from the Social Media Work Group Draft Policy). While the Regents support the quoted language, they recognize the superiority of the Federal Constitution as it applies to employees "to speak on matters of public concern as private citizens, if they choose to do so, including through social media." (Policy 6.a). Yet this is offered not as a baseline but as a maximum expression of the protection that the Regents will tolerate. Yet there is a silver lining--the Regents appear to recognize that there may well be a space for individual autonomy beyond their role as recipient of wages from the university, a sphere where they may function as private citizens, but only to the bare extent absolutely protected by the Federal Constitution, and extending nowhere beyond this recognition of limited political and civil rights in its employees. But even this recognition is conditional, it is extended only conditionally and in the negative--it is to be narrowly construed in favor of the regulatory rights of the university ("In general, for both faculty and staff, any communication via social
media that is protected by the First Amendment and that is otherwise
permissible under the law is not precluded by this policy." Policy 6.a).
The operational heart of the Policy is situated in the well-packed text of Section 6.b. The Regents first reaffirm their conditional commitment to the Federal Constitution and the baseline civil and political rights it provides U.S. citizens. But then there is an odd twist--that commitment is targeted to support of "the responsible use of existing and emerging communications technologies, including social media, to serve the teaching, research, and public service missions of the state universities." (Policy 6.b). Thus, social media may be used, but only responsibly as the employer defines the term, and apparently, it is assumed, only in the service of the university for which it is also assumed, the employee is compensated because she receives things of value from the university. And the object is not personal enhancement--but apparently as well, responsible use of social media is bent to the augmentation of the value of the university as a going concern--the focus of speech then is institutionally value enhancing--and little else (though the role of the private civil and political rights of employees mentioned in Policy 6.a may somehow be squared with this in some undefined way).
It is here that the Policy engages in some troubling conflations that appear to merge the personal autonomy of the individual into the property interests of the institution: "These communications technologies are powerful tools for advancing state university missions, but at the same time pose risks of substantial harm to personal reputations and to the efficient operation of the higher education system." (Policy 6.b). It appears that for this, the individual waives personal autonomy when she agrees to accept wages for services and that once the employment relationship starts, service to her employer trumps her private life, whether touching on her role as a member of her community, religious obligations or her political rights as a citizen of the United States. There are radical implications here that ought to be troubling. It is this conflation of personal and professional--of private and professional lives (where at least of professional life is hired out to the university) that provides the basis for the university's assertion of its broad authority to control the social media use of people with an employment relationship with the university.
The actual standard (Policy 6.b.1) is written in the negative and it provides for three tests that must be met in order for social media communication NOT to be considered improper: it must be (1) "in accordance with commonly accepted professional standards", (2) "in compliance with all applicable laws", and (3) in compliance with "university and Board policies." Of course at its broadest, it suggests that the board and university may enact whatever policies they like--including policies that forbid the use of social media. The constraint of Policy 6.a is only POTENTIALLY applicable, though not directly made so to this part of the standard. The standard makes sense only if one posits that ALL social media use is made in the course of employment--or that employees never access social media except in the course of employment. Both assumptions are inaccurate and quite aggressive. Moreover, this NEGATIVE PROTECTION (i.e. "shall not be considered an improper use") is only applicable in the context of work.
Policy 6.b.3 then touches on those elements of civil and political rights that the government has reserved to citizens and other individuals who also accept something of value (wages etc.) for service. The Kansas Regents, in their wisdom, take a discretionary power accorded to public employers (in the dubious circumstances of university employment--the applicability of the rules relied on remaining quite contentious; e.g. Garcetti v. Ceballos, 547 U.S. 410 (2006) and its progeny) and convert it into a mandatory duty. In effect they hide behind a dubious interpretation of the Supreme Court to justify a policy choice that they imply is a legal duty. There is no discussion rationalizing this policy choice, nor its application to the unique circumstances of higher education, a form of governmental service substantially different from the administrative apparatus of government. The Regents appear to take choice as opportunity and without more adopt as a standard their interpretation of constitutional law as applied in other circumstances to public employment.
More interesting still are some of the incoherence built into the governance scheme. Its inot clear, for example, how to reconcile (or apply together) Policy 6.b.2 (the multi factor quasi-safe harbor for social media communication) with Policy 6.b.3.iv (communication on "public concern" baseline balancing) and Policy 6.b.4 (the general balancing test for inappropriateness of communication). It is possible, for example to read them together to suggest that where "content on social media [is made] in accordance with commonly accepted professional standards and in compliance with all applicable laws and university and Board policies" (Policy 6.b.2) when made in the context of shared governance (Policy 6.b.2.iii), it may still be subject to discipline where it "impairs discipline by superiors or harmony among co-workers" (Policy 6.b.3.iv) because, as a matter of shared governance rather than as an issue of communication deemed sufficiently general in the context in which the decision is made, the employer's interest is deemed to trump that of the employee under the interests balancing test of Policy 6.b.3 ("interest of the employer in promoting the efficiency of the public services it performs through its employees must be balanced against the employee’s right as a citizen to speak on matters of public concern") OR because it failed ot meet the factor test of Policy 6.b.4. The latter would be possible because, while Policy 6.b.2.iii appears to carve out a protected space for shared governance communication, those communications are themselves limited "in accordance with university policies and processes", which, for example, may declare that issues of shared governance, no matter how generalizable (for example policies on fixed term faculty hiring in general) may constitute disclosure " without lawful authority" (Policy 6.b.3.iii) as expressed in a university, unit or department rule. And Policy 6.b.3, as an expression of the most extreme constraints the Supreme Court permits (but does not require) public employers to embrace (which which have apparently been embraced in Kansas without much public discussion or justification (something that might raise eyebrows in other contexts), may be applied generally to interpret Policy 6.b.2 and Policy 6.b.4.
Beyond that, of course, lies the incoherence that results from an accumulation of the use of words and phrases whose meaning, and the possible range of their interpretive scope, remains oracular at best. Where standards are developed many of the key words and phrases of which are susceptible to quite elastic definition, and together used to produce even more elastic application, the standard loses a key element that makes for legitimacy--legal certainty and predictability. And without either of these, the standard itself becomes harder to justify as legitimate under American rule of law principles, if for no other reason that the standard loses whatever bit of fairness it purported to build into its framework. Consider in this light the following key terms left undefined: "supports" (Policies 6.a, 6.b. etc.), "academic research or other scholarly activity", "within the instructor's area of expertise", "impairs discipline by superiors", "harmony among co-workers," "close working relationships," "interferes with the regular operation of the employer," "adversely affects the employer's ability to efficiently provide services", "used or publicized," etc. And consider the incoherence of the sentence "In general, for both faculty and staff, any communication via social media that is protected by the First Amendment and that is otherwise permissible under the law is not precluded by this policy." (Policy 6.a). This suggests that while the Regents are willing to abide by the constitutional law of the United States, they are prepared to do so unless they chose not to (and thus the "in general"). Otherwise, one would suspect, one would either agree to abide by the law or declare an intention to do so only when it suits. Alternatively, the phrase "in general" has some other effect on the rest of the sentence (which would in the absence fo the phrase suggest a willingness of the good people of Kansas to abide by the law of the land). Though even there an incoherence exists since the "law" referenced produced a set of baseline protections, rather than mandating a ceiling for the protection of speech. Here, as in many other instances, administrators tend to mask policy choices as mandated by law.
Now consider the result of this analysis. If, (1) for every act of communication in social media, of whatever kind, might potentially require such an elaborate analysis, and )2) if the price of failing to appropriately analyze the application fo the rule--as it might be applied by the administrators with authority to discipline in the employee's department, OR unit, OR College, OR University, is possible discipline, then every act of communication on social media permits FOUR principle alternative choices. The first is to analyze as best one can and hope that no discipline will emerge. The second is to seek counsel from a lawyer before posting to social media, an expensive and time consuming exercise with no guarantees. The third is to seek approval of the post from every administrator with the authority to discipline before posting; that of course, suggests the sort of prior restraint the Americans used to hold up as an example of the sort of thing that this Republic found troubling when practiced in other states with less well developed or robust democratic principles, but which appear to be more acceptable in the United States now. Still, the optics are not always positive. Fourth, and the most likely course, the employee will not post any communication. And THAT, is the way one arrives at the chilling effect of policies like that just embraced by the Kansas Regents.
In effect, the policy starts with a hortatory expression of principle (not rule) through which it them provides a rule that effectively gives substantial discretion to administrators, in the absence of any process protections, to declare the policy violated and to effect discipline. The standards for the exercise of discretion are so ambiguous as to define practically any conduct. It is thereafter left to the employee (or former employee) to seek to defend her rights in accordance with whatever procedure may be invoked to that end, at her expense, all the while suffering the consequences (economic and reputational) of the decision. The policy, cloaked in the language of balancing, tends to conflate the public, economic, social and political life of employees, and to give the employer--and not the state--the principal authority to regulate those relationships and to set the boundaries for conduct. This, as a metaphorical sort of droit du seigneur proceeding from the payment of money or other things of values, for services to the enterprise.
The operational heart of the Policy is situated in the well-packed text of Section 6.b. The Regents first reaffirm their conditional commitment to the Federal Constitution and the baseline civil and political rights it provides U.S. citizens. But then there is an odd twist--that commitment is targeted to support of "the responsible use of existing and emerging communications technologies, including social media, to serve the teaching, research, and public service missions of the state universities." (Policy 6.b). Thus, social media may be used, but only responsibly as the employer defines the term, and apparently, it is assumed, only in the service of the university for which it is also assumed, the employee is compensated because she receives things of value from the university. And the object is not personal enhancement--but apparently as well, responsible use of social media is bent to the augmentation of the value of the university as a going concern--the focus of speech then is institutionally value enhancing--and little else (though the role of the private civil and political rights of employees mentioned in Policy 6.a may somehow be squared with this in some undefined way).
It is here that the Policy engages in some troubling conflations that appear to merge the personal autonomy of the individual into the property interests of the institution: "These communications technologies are powerful tools for advancing state university missions, but at the same time pose risks of substantial harm to personal reputations and to the efficient operation of the higher education system." (Policy 6.b). It appears that for this, the individual waives personal autonomy when she agrees to accept wages for services and that once the employment relationship starts, service to her employer trumps her private life, whether touching on her role as a member of her community, religious obligations or her political rights as a citizen of the United States. There are radical implications here that ought to be troubling. It is this conflation of personal and professional--of private and professional lives (where at least of professional life is hired out to the university) that provides the basis for the university's assertion of its broad authority to control the social media use of people with an employment relationship with the university.
The actual standard (Policy 6.b.1) is written in the negative and it provides for three tests that must be met in order for social media communication NOT to be considered improper: it must be (1) "in accordance with commonly accepted professional standards", (2) "in compliance with all applicable laws", and (3) in compliance with "university and Board policies." Of course at its broadest, it suggests that the board and university may enact whatever policies they like--including policies that forbid the use of social media. The constraint of Policy 6.a is only POTENTIALLY applicable, though not directly made so to this part of the standard. The standard makes sense only if one posits that ALL social media use is made in the course of employment--or that employees never access social media except in the course of employment. Both assumptions are inaccurate and quite aggressive. Moreover, this NEGATIVE PROTECTION (i.e. "shall not be considered an improper use") is only applicable in the context of work.
i. academic research or other scholarly activity;
ii. academic instruction within the instructor's area of expertise; and
iii. statements, debate, or expressions made as part of shared governance and in accordance with university policies and processes, whether made by a group or individual employee. (Policy 6.b.2)This standard, we well, suggests another aggressive and inaccurate premise, that all such activity is necessarily incurred for hire--that is the faculty employees may never engage in any of these activities except for the university (or conversely that the university has bought and paid for all of the productivity characterized as falling within any of these categories). It is true enough that certain economic enterprises have sought to impose this sort of condition premised on the payment of something of value (but that suggests the sort of trading for which the original inhabitants "sold" Manhattan than a reasonable and transparent exchange).
Policy 6.b.3 then touches on those elements of civil and political rights that the government has reserved to citizens and other individuals who also accept something of value (wages etc.) for service. The Kansas Regents, in their wisdom, take a discretionary power accorded to public employers (in the dubious circumstances of university employment--the applicability of the rules relied on remaining quite contentious; e.g. Garcetti v. Ceballos, 547 U.S. 410 (2006) and its progeny) and convert it into a mandatory duty. In effect they hide behind a dubious interpretation of the Supreme Court to justify a policy choice that they imply is a legal duty. There is no discussion rationalizing this policy choice, nor its application to the unique circumstances of higher education, a form of governmental service substantially different from the administrative apparatus of government. The Regents appear to take choice as opportunity and without more adopt as a standard their interpretation of constitutional law as applied in other circumstances to public employment.
More interesting still are some of the incoherence built into the governance scheme. Its inot clear, for example, how to reconcile (or apply together) Policy 6.b.2 (the multi factor quasi-safe harbor for social media communication) with Policy 6.b.3.iv (communication on "public concern" baseline balancing) and Policy 6.b.4 (the general balancing test for inappropriateness of communication). It is possible, for example to read them together to suggest that where "content on social media [is made] in accordance with commonly accepted professional standards and in compliance with all applicable laws and university and Board policies" (Policy 6.b.2) when made in the context of shared governance (Policy 6.b.2.iii), it may still be subject to discipline where it "impairs discipline by superiors or harmony among co-workers" (Policy 6.b.3.iv) because, as a matter of shared governance rather than as an issue of communication deemed sufficiently general in the context in which the decision is made, the employer's interest is deemed to trump that of the employee under the interests balancing test of Policy 6.b.3 ("interest of the employer in promoting the efficiency of the public services it performs through its employees must be balanced against the employee’s right as a citizen to speak on matters of public concern") OR because it failed ot meet the factor test of Policy 6.b.4. The latter would be possible because, while Policy 6.b.2.iii appears to carve out a protected space for shared governance communication, those communications are themselves limited "in accordance with university policies and processes", which, for example, may declare that issues of shared governance, no matter how generalizable (for example policies on fixed term faculty hiring in general) may constitute disclosure " without lawful authority" (Policy 6.b.3.iii) as expressed in a university, unit or department rule. And Policy 6.b.3, as an expression of the most extreme constraints the Supreme Court permits (but does not require) public employers to embrace (which which have apparently been embraced in Kansas without much public discussion or justification (something that might raise eyebrows in other contexts), may be applied generally to interpret Policy 6.b.2 and Policy 6.b.4.
Beyond that, of course, lies the incoherence that results from an accumulation of the use of words and phrases whose meaning, and the possible range of their interpretive scope, remains oracular at best. Where standards are developed many of the key words and phrases of which are susceptible to quite elastic definition, and together used to produce even more elastic application, the standard loses a key element that makes for legitimacy--legal certainty and predictability. And without either of these, the standard itself becomes harder to justify as legitimate under American rule of law principles, if for no other reason that the standard loses whatever bit of fairness it purported to build into its framework. Consider in this light the following key terms left undefined: "supports" (Policies 6.a, 6.b. etc.), "academic research or other scholarly activity", "within the instructor's area of expertise", "impairs discipline by superiors", "harmony among co-workers," "close working relationships," "interferes with the regular operation of the employer," "adversely affects the employer's ability to efficiently provide services", "used or publicized," etc. And consider the incoherence of the sentence "In general, for both faculty and staff, any communication via social media that is protected by the First Amendment and that is otherwise permissible under the law is not precluded by this policy." (Policy 6.a). This suggests that while the Regents are willing to abide by the constitutional law of the United States, they are prepared to do so unless they chose not to (and thus the "in general"). Otherwise, one would suspect, one would either agree to abide by the law or declare an intention to do so only when it suits. Alternatively, the phrase "in general" has some other effect on the rest of the sentence (which would in the absence fo the phrase suggest a willingness of the good people of Kansas to abide by the law of the land). Though even there an incoherence exists since the "law" referenced produced a set of baseline protections, rather than mandating a ceiling for the protection of speech. Here, as in many other instances, administrators tend to mask policy choices as mandated by law.
Now consider the result of this analysis. If, (1) for every act of communication in social media, of whatever kind, might potentially require such an elaborate analysis, and )2) if the price of failing to appropriately analyze the application fo the rule--as it might be applied by the administrators with authority to discipline in the employee's department, OR unit, OR College, OR University, is possible discipline, then every act of communication on social media permits FOUR principle alternative choices. The first is to analyze as best one can and hope that no discipline will emerge. The second is to seek counsel from a lawyer before posting to social media, an expensive and time consuming exercise with no guarantees. The third is to seek approval of the post from every administrator with the authority to discipline before posting; that of course, suggests the sort of prior restraint the Americans used to hold up as an example of the sort of thing that this Republic found troubling when practiced in other states with less well developed or robust democratic principles, but which appear to be more acceptable in the United States now. Still, the optics are not always positive. Fourth, and the most likely course, the employee will not post any communication. And THAT, is the way one arrives at the chilling effect of policies like that just embraced by the Kansas Regents.
In effect, the policy starts with a hortatory expression of principle (not rule) through which it them provides a rule that effectively gives substantial discretion to administrators, in the absence of any process protections, to declare the policy violated and to effect discipline. The standards for the exercise of discretion are so ambiguous as to define practically any conduct. It is thereafter left to the employee (or former employee) to seek to defend her rights in accordance with whatever procedure may be invoked to that end, at her expense, all the while suffering the consequences (economic and reputational) of the decision. The policy, cloaked in the language of balancing, tends to conflate the public, economic, social and political life of employees, and to give the employer--and not the state--the principal authority to regulate those relationships and to set the boundaries for conduct. This, as a metaphorical sort of droit du seigneur proceeding from the payment of money or other things of values, for services to the enterprise.
Sadly, it seems, while the Kansas regents appear fierce in the defense of their own individual citizenship rights, and the human dignity concerns that underlie them, as a central element of their relationship to the United States and the communities in which they live--they assented to the institution of a system in which the same dignity is denied employees of the institutions they oversee. For these employees, their employment relationship appears to be the central element that defines their relationship to the world in which they live, and it is only by the sufferance of their employer that they make hope for the permission to exercise the rights of free individuals in the United States of America. For those who aspire to preserve the conservative values on which this Republic was founded, this should be troubling--for the Regents would substitute the corporation for the nation, for it is the university that now deems itself to have the power to determine the civic rights of its employees. In this, the Kansas Regents have not broken new ground--yet this is ground that ought not to be ceded by those who hold dear the fundamental normative principles on which this nation, at great cost in the blood of its sons and daughters, was founded and preserved.
The argument is hardly overblown, but it is meant to provide emphasis on the enormity of what the Kansas Regents are attempting through the enactment of what to many may appear to be a rule of little moment. After all, why should anyone really care much about a simple rule that appears to go to good manners on social media sites. And of course, the corporation, and especially a university, ought to be known by the sum of the behaviors of its employees. Yet a closer inspection suggests the difficulty. This is no small thing, the effort to regulate the entirety of the social interactions of individuals, whether or not part of a natural person's aggregate of duties to the university, in return for which she is paid. For the university appears now to take the position that, for pieces of silver (or its modern equivalent in remuneration), it has acquired the right to control the entirety of the lives of its servants (no longer employees as such precisely because the university assumes a role that substantially expands the control exercised by an enterprise that hires labor).
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. (The Rising Price of Speech on Campus (March 10, 2014))
For this we have the Regents themselves to defend this position.
Regents Chairman Fred Logan, speaking to a packed meeting in Topeka, defended the policy, claiming it will shore up academic freedom by creating more specific guidelines.
“In many respects, the work that has been done has really focused on lifting up academic freedom as a core principal for the Kansas Board of Regents,” Logan said. “Now, that may sound funny, but if you look in our policy manual, there’s really not much in there about that.” (Peggy Lowe, Strict Social Media Policy Approved By Kansas Board Of Regents, KCUR, May 14, 2014)
It does, indeed, sound funny, but not quite in the way intended. For Mr. Logan, it seems, even unsound policy is better than no policy--that is is better than the set of laws and court cases that had, until now placed the state at the center of the determination of the extent of a citizens' speech rights, rather than an employer, even one as as sadly controversial as that currently developed by Supreme Court precedent (e.g. Garcetti v. Ceballos, 547 U.S. 410 (2006) and its progeny, discussed in Larry Catá Backer, Between Faculty, Administration, Board, State, and Students: On the Relevance of a Faculty Senate in the Modern U.S. University (February
10, 2013)). Yet the principal issue, it seems was as much about protecting the institution's "brand" as it was about the more complex issues of speech and the university. "Another member of the board, Helen Van Etten, called the revised policy "a happy medium." "I think we will see more an d more other universities start to have these same policies," she said. "We don't want to damage their brand and we don't also want their universities to impair their academic freedom." (Juana Summer, Educators Not Satisfied With Revised Kansas Social Media Policy, KUNC.org, May 25, 2014).
Free speech advocates and university professors opposed to the policy say it lacks specificity and could have a chilling effect on speech at universities.
“The problem is it’s hard to know what it means,” said Lisa Wolf-Wendel, a professor of education at the University of Kansas, who attended the meeting. “And that’s why it has the chilling effect.”
Wolf-Wendel said part of the purpose of education is to introduce people to uncomfortable ideas and spark debate, but that this inhibits that. (Bryan Lowry, Kansas regents adopt revised social media policy, The Wichita Eagler, May 14, 2014).
Let me be clear: the university, like any other institutional employer, is fully entitled to manage its property and to protect its interests in its reputation, as well as to manage its image, as a corporate body, as it sees fit. To that extent, the university ought to be free, whoever silly it chooses to be, to control its own social media outlets. Equally, it may protect its reputation interests (in the jargon today, its "brand" interests) as well. It might choose, like the government, to insist that where employees engage in speech that is not undertaken in pursuance of their job responsibilities, that they clearly so state, drawing a sharp line between their activities undertaken for hire and those that is their own. And to this end, the university is free to also control, as foolishly and unreasonably as it likes, to control the property (computers, networks) through which these social media communications are made or transmitted. A university, in light of a long tradition of shared governance and its unique role in society, might wish to use that power wisely, but that is the responsibility of the boards of trustees or Regents (who ought to be but are rarely held directly accountable for missteps). The university's interests are weakest, to the extent one might argue they exist at all, where they touch on the activities of an individual beyond their work responsibilities. In this area, the human dignity and political, social and cultural interests of the individual as a citizen of a democratic republic ought to take strong precedence over the parochial and economic interests of an employer. In this area the employer ought to no right to act except where the individual may have breached governmental limitations on speech or communication. And this should be so no matter how silly the individual communication through social media may appear.
Yet universities, like other employers, have increasingly taken the position that what they buy with the payment of salary or wages is a control over the lives of employees substantially broader than the job responsibilities for which the individual was hired. Or put differently, that the tasks for which the individual was hired so bleeds into all aspects that that individual's conduct, that the employer may regulate all aspects of the individual's life as long as there is a plausible connection between that regulation that the university's property interests. The courts have, to some extent, gone along. That has emboldened aggressive employers to seek to harvest for themselves virtually all of the products of the thinking of individuals hired to produce thought (research papers through inventions) on the grounds that every thought of the individual must have been touched by some contact with the resources or property of the university or somehow derived, directly or indirectly, from the obligations for which the individual was hired. It has also emboldened the employer, and especially the university, to re-impose those sorts of restrictions on private conduct that suggest that the individual always represents the university in every aspect of their lives and at no time, from the date of hire, can be expected to be taken as an autonomous individual with her own dignity and interests. This incarnation theory of employment has profound effects. If one always represents the university in every aspect of life, then that representational character is property in the hands of the employer and subject to its use and exploitation. It suggests that an individual loses all or whatever portion of her individual autonomy and human dignity, as the employer seeks fit to take for itself. An individual cannot put aside her role as a hired servant of another no matter what she says or does to indicate that she acts for herself. All of their activities reflect on the university and all, therefore, may be managed. Most telling, in the case of the Kansas Regents policy the the idea that they have the authority by reason of the employment relationship to protect the personal reputation of their employees (Policy 6.b) even against the employee herself. And this, the consequences of the payment of a wage. One ought to be troubled by this. Not that there isn't a representational character to the employment relationship at times, but that it has been so profoundly expanded beyond reasonable direct connection to employment function, leaves an employee with virtually little autonomous space to be something other than a representation of the university's property interests in itself and its productive capacity.
And indeed, this is the intended effect with respect to the power, taken by the Regents to themselves, because the Supreme court suggested (in the Regents' untested interpretation elaborated as Policy 6.b.3) that they might, to discipline any communicative act of an individual who is also an employee for a stunningly broad array of communicative acts, including any communication act undertaken through social media that:
And the exercise of discretion also provides an authority to conflate course of employment and personal communication in a way that is determined by the employer. The balancing of interest standard imposed by the Regents requires, without distinction as to the character of the communication (course of employment or personal) suggests that the interests of the employer may well trump the citizenship obligations of the individual--once she agrees to take money or other things of value from the employer. Thus, "the interest of the employer in promoting the efficiency of the public services it performs through its employees must be balanced against the employee’s right as a citizen to speak on matters of public concern." And indeed, that tendency toward conflation of working and private lives of employees--all under the control fo the employer--is written into the general balancing prevision of the Social media policy itself.
Social media policy, then, implicates something far larger than merely technical rules for the use of emerging communication tools by individuals in an employment relationship with a university. It touches on the fundamental issue of the power that employment ought to give those who pay others to work for them in a free society. It also touches on the extent to which payment of a wage can waive an individual's rights. The Kansas Regents appear to believe, as do many others who hire the services of natural persons, that by the simple act of payment, they have acquired a substantial regulatory role over broad aspects of that individual's professional, private and family life. Perhaps on a theory that the payment of a wage entitles them to protect their property interests in the individual (or in her production to avoid the slide toward the language of chattel slavery that officially is now illegal in this country), employers have sought to manage the health habits of employees (e.g., The New Eugenics--The Private Sector, the University, and Corporate Health and Wellness Initiatives (July 16, 2013)), and many seek to appropriate for themselves all of the creative products of an individual on the theory that it must have somehow derived from that individual's contact with her work duties or with the property fo the employer (thus transforming creativity from being centered in the individual to being a product of contact with the property of the employer). The Social Media Work Group Draft Policy got the balance more or less right; the Board of Regents have not.
But the development of social media policy also touches on more mundane but important issues--everything from the meaning of shared governance, to the role of faculty in education, to the processes for vindicating (or even protecting) employees against abusive administrators. Recall that process rights were not created to protect individuals against kind and honorable administrators; it was created precisely to protect against the depredations of the administrator who abuses her discretion. In this case, Kansas has unbalanced its procedural protections--making it quite easy to act administratively, but quite difficult to defend against (and expensive in terms of time and income, and loss of reputation, substantially unrecoverable even when an employee's position is vindicated). Even if one sought to defend the substance of this policy, its process is flawed and quite unfair policy. Again, the Social Media Work Group Draft Policy got the balance more or less right; the Board of Regents have not.
Yet universities, like other employers, have increasingly taken the position that what they buy with the payment of salary or wages is a control over the lives of employees substantially broader than the job responsibilities for which the individual was hired. Or put differently, that the tasks for which the individual was hired so bleeds into all aspects that that individual's conduct, that the employer may regulate all aspects of the individual's life as long as there is a plausible connection between that regulation that the university's property interests. The courts have, to some extent, gone along. That has emboldened aggressive employers to seek to harvest for themselves virtually all of the products of the thinking of individuals hired to produce thought (research papers through inventions) on the grounds that every thought of the individual must have been touched by some contact with the resources or property of the university or somehow derived, directly or indirectly, from the obligations for which the individual was hired. It has also emboldened the employer, and especially the university, to re-impose those sorts of restrictions on private conduct that suggest that the individual always represents the university in every aspect of their lives and at no time, from the date of hire, can be expected to be taken as an autonomous individual with her own dignity and interests. This incarnation theory of employment has profound effects. If one always represents the university in every aspect of life, then that representational character is property in the hands of the employer and subject to its use and exploitation. It suggests that an individual loses all or whatever portion of her individual autonomy and human dignity, as the employer seeks fit to take for itself. An individual cannot put aside her role as a hired servant of another no matter what she says or does to indicate that she acts for herself. All of their activities reflect on the university and all, therefore, may be managed. Most telling, in the case of the Kansas Regents policy the the idea that they have the authority by reason of the employment relationship to protect the personal reputation of their employees (Policy 6.b) even against the employee herself. And this, the consequences of the payment of a wage. One ought to be troubled by this. Not that there isn't a representational character to the employment relationship at times, but that it has been so profoundly expanded beyond reasonable direct connection to employment function, leaves an employee with virtually little autonomous space to be something other than a representation of the university's property interests in itself and its productive capacity.
And indeed, this is the intended effect with respect to the power, taken by the Regents to themselves, because the Supreme court suggested (in the Regents' untested interpretation elaborated as Policy 6.b.3) that they might, to discipline any communicative act of an individual who is also an employee for a stunningly broad array of communicative acts, including any communication act undertaken through social media that:
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 employer, or otherwise adversely affects the employer's ability to efficiently provide services. (Policy 6.b.3.iv).The stunningly broad part of Policy 6.b.3.iv, emerges from the conflation of communication regardless of character and its perceived effects, perceived, that is, by the disciplining administrator. The standards provide a cornucopia of unrestrained and potentially arbitrary discretion, grounded in the fundamental ambiguity and malleability of the standards themselves. The "impairs . . . harmony among co-workers" is particularly troubling. It is impossible to define with any certainty the meaning or limits of this standard. It invites abuse. But then so does the "impairs discipline by superiors" standard, which appears to mean that if an employee annoys a superior in any way, that is cause enough for discipline. There are others: "has a detrimental impact on close working relationships" is notable for its lacunae--everything from the measurement standards and thresh holds that trigger detriment, to the definition of close relationship, to the time period within these close relationships are measured. For the moment, these terms mean whatever the disciplining administrator says they mean. The result is the creation, perhaps inadvertent, of an incentive toward systemic corruption.
And the exercise of discretion also provides an authority to conflate course of employment and personal communication in a way that is determined by the employer. The balancing of interest standard imposed by the Regents requires, without distinction as to the character of the communication (course of employment or personal) suggests that the interests of the employer may well trump the citizenship obligations of the individual--once she agrees to take money or other things of value from the employer. Thus, "the interest of the employer in promoting the efficiency of the public services it performs through its employees must be balanced against the employee’s right as a citizen to speak on matters of public concern." And indeed, that tendency toward conflation of working and private lives of employees--all under the control fo the employer--is written into the general balancing prevision of the Social media policy itself.
When determining whether a particular use of social media constitutes an improper use, the following shall be considered: academic freedom principles referenced in subsection b.2., the employee’s position within the university, 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, whether the communication was made during the employee’s working hours and whether the communication was transmitted utilizing university systems or equipment. (Policy 6.4).Yet the weight assigned to each factpor, in the context in which the factors arise, remain undefined. And with all balancing tests of this sort, the possibilities of abuse, much less of inconsistent application (across departments and among university units) is quite large. Ironically it is precisely this sort of administrative balancing, even when undertaken by judges, that has come in for the strongest criticism among conservative lawyers, politicians and judges. It is derided as the essence of liberal abuse of discretion designed to undermine the rule of law and the predictability and certainty of rule systems by vesting the balancing administrator with virtually unconstrained discretion (e.g.,Patrick McFadden, The Balancing Test, 29 B.C.L. Rev.. 585 (1988); Paul W. Kahn, The Court, The Community and the Judicial Balance: The Jurisprudence of Justice Powell, 97(1) Yale Law Journal 1 (1987); see generally Lawrence Solum, Legal Theory Lexicon: Balancing Tests, Legal Theory Blog, Aug. 23, 2009)).
Social media policy, then, implicates something far larger than merely technical rules for the use of emerging communication tools by individuals in an employment relationship with a university. It touches on the fundamental issue of the power that employment ought to give those who pay others to work for them in a free society. It also touches on the extent to which payment of a wage can waive an individual's rights. The Kansas Regents appear to believe, as do many others who hire the services of natural persons, that by the simple act of payment, they have acquired a substantial regulatory role over broad aspects of that individual's professional, private and family life. Perhaps on a theory that the payment of a wage entitles them to protect their property interests in the individual (or in her production to avoid the slide toward the language of chattel slavery that officially is now illegal in this country), employers have sought to manage the health habits of employees (e.g., The New Eugenics--The Private Sector, the University, and Corporate Health and Wellness Initiatives (July 16, 2013)), and many seek to appropriate for themselves all of the creative products of an individual on the theory that it must have somehow derived from that individual's contact with her work duties or with the property fo the employer (thus transforming creativity from being centered in the individual to being a product of contact with the property of the employer). The Social Media Work Group Draft Policy got the balance more or less right; the Board of Regents have not.
But the development of social media policy also touches on more mundane but important issues--everything from the meaning of shared governance, to the role of faculty in education, to the processes for vindicating (or even protecting) employees against abusive administrators. Recall that process rights were not created to protect individuals against kind and honorable administrators; it was created precisely to protect against the depredations of the administrator who abuses her discretion. In this case, Kansas has unbalanced its procedural protections--making it quite easy to act administratively, but quite difficult to defend against (and expensive in terms of time and income, and loss of reputation, substantially unrecoverable even when an employee's position is vindicated). Even if one sought to defend the substance of this policy, its process is flawed and quite unfair policy. Again, the Social Media Work Group Draft Policy got the balance more or less right; the Board of Regents have not.
So, one returns, in Kansas, where one started--the creation of institutional policy as a politics of revenge and as a means through which individuals are reduced from individuals bearing rights, to objects in the production of income and prestige to the employer. "The Kansas Regents have seen in the unfortunate malediction
of a professor an opportunity for more broadly controlling the
academics of Kansas--certainly far beyond the scope of the offense of
the professor's tweeted curse. In doing so, Kansas appears to be moving
towards embracing an educational culture of servility and docility at
odds with the robust democracy in which, by the sacrifices of those who
would not be docile or servile, it operates." (A Malediction for Academia, supra). The distinctive failure of the Kansas Regents' policy is not just its sloppiness, its ill thought intent to shift significant disciplinary power to administrators with respect to employee communication in disregard of shared governance standards, its effort to shift the burden of proving justification from administrators to employees subject to discipline, its conflation of personal and employee lives subjecting both to the control of an employer in exchange for money or something of value (a circumstance that ought to be both morally repugnant to the extent evidenced here and raise concerns about its potential breach of international baselines for the protection of civil and political rights), it is that, taken together, the social media policy appears to institutionalize structures of corruption that may do the university fall more harm than any benefit it might derive from the periodic disciplining of the thoughtless employee.
__________
The Kansas Board of Regents
6. USE OF SOCIAL MEDIA BY FACULTY AND STAFF
a. Commitment to Academic Freedom and First Amendment
The Kansas Board of Regents strongly supports principles of academic freedom. It highly values the work of state university faculty members. Academic freedom protects their work and enhances the valuable service they provide to the people of Kansas.
The Board also supports this statement from 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.”Further, the Kansas Board of Regents recognizes the First Amendment rights as well as the responsibilities of all employees, including faculty and staff, to speak on matters of public concern as private citizens, if they choose to do so, including through social media. In general, for both faculty and staff, any communication via social media that is protected by the First Amendment and that is otherwise permissible under the law is not precluded by this policy.
This policy shall be construed and applied in a manner that is consistent with the First Amendment and academic freedom principles.
b. Social Media Policy
In keeping with the Kansas Board of Regents’ commitment to the First Amendment and 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 the state universities. These communications technologies are powerful tools for advancing state university missions, but at the same time pose risks of substantial harm to personal reputations and to the efficient operation of the higher education system. The Board therefore believes it is prudent to adopt this policy on the proper – and improper – use of social media.
1. For purposes of this policy: “Social media” means any online tool or service through which virtual communities are created allowing users to publish commentary and other content, including but not limited to blogs, wikis, and social networking sites such as Facebook, LinkedIn, Twitter, Flickr, and YouTube; “social media” does not include e-mail sent to a known and finite number of individuals, or non-social sharing or networking platforms such as Listserv and group or team collaboration worksites.
2. Authorship of content on social media in accordance with commonly accepted professional standards and in compliance with all applicable laws and university and Board policies shall not be considered an improper use of social media in the following contexts:
i. academic research or other scholarly activity;
ii. academic instruction within the instructor's area of expertise; and
iii. statements, debate, or expressions made as part of shared governance and in accordance with university policies and processes, whether made by a group or individual employee.
3. The United States Supreme Court has held that public employers generally have authority to discipline their employees for speech in a number of circumstances, including but not limited to speech that:
i. is directed to inciting or producing imminent violence or other breach of the peace and is likely to incite or produce such action;
ii. when made pursuant to (i.e. in furtherance of) the employee’s official duties, is contrary to the best interests of the employer;
iii. discloses without lawful 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 employer, or otherwise adversely affects the employer's ability to efficiently provide services.
In determining whether an employee’s communication is actionable under subparagraph iv, the interest of the employer in promoting the efficiency of the public services it performs through its employees must be balanced against the employee’s right as a citizen to speak on matters of public concern.
4. When determining whether a particular use of social media constitutes an improper use, the following shall be considered: academic freedom principles referenced in subsection b.2., the employee’s position within the university, 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, whether the communication was made during the employee’s working hours and whether the communication was transmitted utilizing university systems or equipment.
5. The chief executive officer of a state university, or the chief executive officer's delegate, has the authority to make use of progressive discipline measures pursuant to Board or university policy, up to and including suspension, dismissal and termination, with respect to any faculty or non-student staff member who is found to have made an improper use of social media. Existing university grievance and review processes shall apply to any such action.
c. Application of policy
This policy on the use of social media shall be construed and applied in a manner that is consistent with the First Amendment and academic freedom principles and shall apply prospectively from the date of its original adoption by the Kansas Board of Regents on December 18, 2013.
__________
Journalism Educators call on Kansas Board of Regents to Reverse New Social Media Policy
CONTACT: PAULA POINDEXTER, Texas-Austin, 2013-14 President of AEJMC • May 21, 2014 |The exercise of free speech is now potentially a firing offense at colleges and universities in Kansas. The Kansas Board of Regents, which governs public universities and colleges in Kansas, has adopted a policy that defines unacceptable uses of social media and allows for the suspension or dismissal of those who violate it.
This social media policy was primarily in response to University of Kansas journalism professor David Guth’s tweet about the deadly shooting in September 2013 at the U.S. Naval Yard when 12 people were killed. Guth, who was placed on administrative leave as a result of his Twitter message, tweeted: “The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.” The resulting outcry from the public and state lawmakers no doubt fueled the formation of this new policy.
The Regents’ policy bars social media messages that would incite violence, disclose confidential student information or release protected data, communication that is already prohibited by existing laws. The more troubling provision of the policy, however, is the overly vague statement that restricts faculty and staff from posting anything “contrary to the best interests of the university.”
It is not difficult to imagine the chilling effect the new policy will have on freedom of expression in general and academic freedom in particular on university and college campuses in Kansas. Furthermore, social media, and Twitter specifically, have become essential tools in gathering and disseminating news. If Kansas’ journalism professors are afraid to teach students how to use these reporting tools because they may violate a vague social media policy, the future journalists they train will be unprepared for the real world of journalism in the digital age.
The Kansas Board of Regents chair, Fred Logan, defended the policy and argued that it enhances academic freedom by giving employees specific guidelines. But the very suggestion that social media expression should be subjected to guidelines conflicts with academic freedom and, more importantly, the First Amendment. Therefore the Association for Education in Journalism and Mass Communication (AEJMC), the largest association of journalism and communication educators in the world, calls upon the Kansas Board of Regents to reverse this social media policy that restricts academic freedom, violates First Amendment rights, interferes with the professional education of those seeking journalism careers and suppresses the intellectual discourse that universities should champion.
For more information regarding this AEJMC Presidential Statement, please contact Paula Poindexter, President of AEJMC, at paula.poindexter@austin.utexas.edu. AEJMC (The Association for Education in Journalism and Mass Communication) is a nonprofit, educational association of journalism and mass communication educators, students and media professionals. The Association’s mission is to advance education, foster scholarly research, cultivate better professional practice and promote the free flow of communication. To find out more about AEJMC, visit www.AEJMC.org.
No comments:
Post a Comment