There is nothing like individual bad taste and administrative overreaction to make for bad law and policy. And so it goes in Kansas. In September, the University of Kansas suspended David W. Guth, a tenured journalism professor, after he responded to the shootings at the Washington Navy Yard with this comment on Twitter: "#NavyYardShooting 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." Jason Jaschik, Fireable Tweets, Inside Higher Education, Dec. 19, 2013). In response, and in the face of a supposed absence of rules for dealing with this sort of old fashioned malediction or curse, the Kansas Regents rushed in with a broad effort to control the behavior of its academics.
(Reeve and serfs in feudal England, ca. 1310; Source Wikipedia Serfdom)
But they have done more. 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. Under a new set of Kansas Board of Regents rules, faculty and other
employees may be suspended, dismissed or terminated from employment for
“improper use of social media.” Docility and servility to one's master, whether that master acquires
power by force (no longer formally possible in this Republic) or through
wages, appears to be the core value that the Regents of the Kansas Board of Regents
wish to instill in the children who are to be schooled in the
institutions over which they now assert a control that a century ago
might have been characterized as a species of Victorian-Edwardian house service
more fit for the disciplining of the staff of 19th century English manor
houses than for the robust global society that the United States must
learn to navigate in or perish in this century. And so a professor's curse has now come back to haunt that portion of the Kansas academy subject to the administrative ukases of the Kansas Board of Regents.
This post includes the text of the Kansas Regents--HERE and below. It also includes text of the AAUP Statement on the Kansas Board of Regents Social Media Policy (December 20, 2013) and some brief thoughts that apply some of the insights developed in Backer, Larry Catá, Between Faculty, Administration, Board, State, and Students: On the Relevance of a Faculty Senate in the Modern U.S. University (February 10, 2013).
The Kansas Board of Regents Policy (see especially § 6(b)(iv)):
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6. SUSPENSIONS, TERMINATIONS AND DISMISSALS
a. Felony Offenses
i. Felony Conviction. The chief executive officer of a state university has the authority to discharge any employee, including a tenured faculty member, immediately upon conviction of any felony.
ii. Felony Charge. The chief executive officer of a state university has the authority to discharge or place on leave without pay any employee, including a tenured faculty member, who has been charged with a felony offense. Prior to any such determination, the employee shall be given notice of the proposed action and an opportunity to respond.
b. Other
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.
c. Grievance Procedure
i. Each state university shall establish and publish grievance procedures for use by faculty and staff in appealing employment decisions of the institution. The procedures shall provide the employee with notice of the action to be taken, the reasons for the action where appropriate, and an opportunity to be heard. A copy of all institutional grievance procedures shall be provided to the institution’s general counsel for review prior to becoming effective.
ii. The decision of the chief executive officer, or the chief executive officer’s designee, concerning any grievance appealing employment decisions of the university shall be final and is not subject to further administrative review by any officer or committee of the university or by the Board of Regents.
In a press release, the American Association of University Professors (AAUP) condemned the Kansas Board of Regents rules as a gross violation of the fundamental principles of academic freedom in a written statement released December 18, 2013. It continues: "Not only faculty, but students and the general public benefit from the free exchange of information and ideas that are at the heart of the academic enterprise, whether conducted orally, in print, or electronically. We urge the Regents to revisit this decision, to repeal this ill-advised policy, and to work with elected faculty representatives to develop a social media policy that protects both the legitimate interest of the university in security and efficiency as well as the paramount interest of faculty and students in the unfettered exchange of ideas and information."
AAUP Statement on the Kansas Board of Regents Social Media Policy
December 20, 2013
On December 18, the Kansas Board of Regents adopted new rules under which faculty and other employees may be suspended, dismissed or terminated from employment for “improper use of social media.”
The policy defines social media as “any facility for online publication and commentary” and covers but is “not limited to blogs, wikis, and social networking sites such as Facebook, LinkedIn, Twitter, Flickr, and YouTube.” This definition could arguably include any message that appears electronically, including email and online periodicals and books. The policy defines “improper use of social media” in extremely broad terms, including communications made “pursuant to ... official duties” that are“contrary to the best interest of the university,” as well as communication 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 university, or otherwise adversely affects the university’s ability to efficiently provide services.”
According to media accounts, in voting to adopt the policy the board ignored calls by elected faculty leaders to delay a vote so that there could be more discussion of its ramifications. Although the policy instructs university presidents to “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,” it provides no clear guidance as to how such balance might be achieved. The policy does not seem to distinguish between faculty use of social media in a professional capacity (e.g., to communicate with other scholars; promote research; or engage in pedagogical exercises) and use in a personal capacity (e.g., to communicate with friends and express personal opinions about political, social or cultural controversies).
The American Association of University Professors (AAUP) condemns this policy as a gross violation of the fundamental principles of academic freedom that have been a cornerstone of American higher education for nearly a century. Not only faculty, but students and the general public benefit from the free exchange of information and ideas that are at the heart of the academic enterprise, whether conducted orally, in print, or electronically. We urge the Regents to revisit this decision, to repeal this ill-advised policy, and to work with elected faculty representatives to develop a social media policy that protects both the legitimate interest of the university in security and efficiency as well as the paramount interest of faculty and students in the unfettered exchange of ideas and information.
In our recently published draft report on “Academic Freedom and Electronic Communications” the AAUP recommended “that each institution work with its faculty to develop policies governing the use of social media. Any such policy must recognize that social media can be used to make extramural utterances, which are protected under principles of academic freedom.” With respect to extramural speech, AAUP has previously declared, “Professors should . . . have the freedom to address the larger community with regard to any matter of social, political, economic, or other interest, without institutional discipline or restraint, save in response to fundamental violations of professional ethics or statements that suggest disciplinary incompetence.” This principle “fully applies in the realm of electronic communications, including social media.”
Unfortunately, the Kansas Regents’ policy fails on both counts. It was developed without faculty participation--indeed, in apparent defiance of faculty appeals for consultation--and makes a mockery of faculty members’ rights to speak as public citizens on matters of public concern, including speech about university affairs. Under this policy, if a faculty member disagrees with an administration policy and as part of official duties serving on a university committee speaks out against it, this could lead to termination. Under this policy a faculty member who dissents from university policies or simply disagrees with colleagues online may also be terminated for impairing “discipline” or “harmony,” vague criteria that all but invite gross abuse.
According to media accounts, Regents Chairman Fred Logan said the policy tracks language in U.S. Supreme Court decisions on First Amendment rights and was deemed constitutional by the Kansas Attorney General’s office. But the policy seeks to apply to faculty expression the principles of the Court's 2006 decision in Garcetti v. Ceballos, in which the justices explicitly stated that the decision need not apply to scholarship and teaching in higher education and which left intact all public employees’ rights to First Amendment protection for speech as citizens on matters of public concern. But even if the policy is Constitutional, that hardly means it is desirable. If unopposed and unmodified, it will surely yield multiple deleterious consequences for public higher education in Kansas. As University of Kansas provost Jeff Vitter warned the Regents, “You are potentially walking into a dangerous situation.”
In a communication to faculty on December 19, University of Kansas chancellor Bernadette Gray-Little wrote:
Application of this policy falls to the individual universities. As is the case with other Regents policies governing faculty and staff rights and responsibilities, we will work closely with university governance on how to apply this policy at KU in a way that respects our university’s core values and beliefs, as well as our rights and responsibilities as public university employees.
During discussion of the policy, board members made clear this policy is to be part of the ongoing conversation among the various stakeholder groups involved in the issue. Freedom of thought, inquiry and expression are central to the success of a university. We also know that as employees of a public flagship university, our words and actions are closely scrutinized. Indeed, a few weeks ago AAUP released a draft report on the challenges faced by the academy as we adopt these new social media tools.While we certainly welcome the chancellor’s reference to our report, we remain concerned that this “ongoing conversation” may well become one-sided both at Kansas and the other institutions in the state’s public higher education system. And nothing in this statement suggests that university officials will seek the policy’s repeal or replacement. Indeed, even before this policy was adopted the university suspended a faculty member for a controversial tweet about gun control that clearly should have enjoyed the protection of academic freedom. On December 5, even before this policy was promulgated, the university administration instructed faculty not to engage with state legislators without “checking in” with the administration. Under the new policy, this might apply even to an email a professor as a citizen addressed to his own elected representative.We have also been told that the provost has in the past warned some faculty members not to criticize the governor for fear it might hurt the university, suggesting that Facebook pages with such political expression linked to university email accounts could be censored.Under the new policy, “improper” expression on such pages could result in termination regardless of whether the page is linked to a university account.
We cannot help but agree with the view of Kansas State University professor Phil Nel, who wrote on his blog: “I understand why the Kansas Board of Regents would want to encourage responsible use of social media. However, I find it harder to understand how a body that oversees an educational system designed to foster free and open exchanges of ideas would seek to impede free and open exchanges of ideas.” Unfortunately, as Nel acknowledges, that statement might itself, under this new policy, lead to his termination. Indeed, faculty members at Kansas universities face a truly frightening prospect. If they seek to communicate opposition to this policy--or to any other policy--via electronic media, under the policy itself they risk being suspended or terminated for acting “contrary to the best interests of the University,” or for “impairing discipline by superiors [administrators] or harmony among co-workers.”
Defending the policy, one state legislator said, “Universities need the flexibility to address the actions of staff that tarnish their institution’s image.” But nothing could tarnish the image of universities in Kansas more than adoption of ill-considered policies like this one, which undermine the very basis of education and scholarship and threaten the right of Kansas students to the best possible education. We therefore call on the Kansas Board of Regents to repeal this social media policy and work with faculty representatives to craft a new social media policy that respects academic freedom and the values that have made the American higher education system the envy of the world.
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In Between Faculty, Administration, Board, State, and Students: On the Relevance of a Faculty Senate in the Modern U.S. University (February 10, 2013) I argued that academic freedom is built on a thin reed indeed if it grounded solely on the U.S. Constitution's free speech guarantees. Indeed, such a grounding almost guarantees the strategic use of constraining rules, in the service of docility and control, deployed by the Kansas Regents. It reflects a growing sense among academic "industry" leaders that academics might be more useful--and more easily managed, if they kept their mouths shut, worked more diligently to produce student contact hours and contributed more efficiently to the product of academic factories--students with degrees sufficient to make them useful to the wage labors markets into which they are to be delivered. But for this, neither tenure, nor the expense of knowledge production, traditional academic markets for reputation, is necessary. Indeed, the Kansas Regents merely make more explicit an anti intellectualism that is increasingly fashionable among the minders of higher education and their legislative masters. All of this, of course, inures to the benefit of private universities that now find it easier to keep their position as lead educators to elites and as the leaders of knowledge production. It embeds an academic class system in which public universities acknowledge their subservience by embracing the role of fashioning middle managers for industries lead by the graduates of elite institutions. Rather than make the Regents of Kansas recoil with shame at the way in which they are shortchanging the opportunities for its students to join elite ranks, they embrace their intellectual and social class status--even as they might seek to send their own progeny to private elite schools--from Vanderbilt to Harvard, Yale, Columbia and Chicago.
For Kansas academics, of course, the policy ensures that their production of knowledge, and the4 exercise of academic freedom, including discussion of the shape and character of the university, are now effectively off limits. It is off limits because the policy effectively imposes an ex post vindication regime, one in which the rights of faculty, when tested, can be affirmed only after an administrative-judicial process. Kansas, then, quashes rights by its choice of the form of its affirmation!
But more importantly it requires both a recognition that the ideals (and realities) of shared governance are not hard wired into law. Law does little to protect faculty engagement in shared governance. What little protection there is is obtained at high cost—litigation after retaliation and subjection to after the fact second guessing by courts required to contort First Amendment distinctions onto an employment relationship that is distinct but not unique.98 Universities committed to shared governance, then, are required to prove it; and the proof is in the contractual provisions they are willing to subject themselves to protect activities that advance shared governance by contract and tenured faculty. While some courts have refused to recognize the binding effect of handbooks [Stanton v. Tulane University, 777 So.2d 1242 (La.App. 2001); Raines v. Haverford College, 849 F.Supp. 1009 (E.D.Pa. 1994)], many courts have held that written employee handbooks, bylaws and similar documents could be enforced as contract [Woolley v. Hoffmann-La Roche, Inc., 491 A.2d 1257, mod. 499 A.2d 515 (N.J., 1985); Collins v. Colorado Mountain College, 56 P.3d 1132 (Ct.App.Colo. 2002)]. The protection of shared governance starts with protection from retaliation; and protection from retaliation for acts of shared governance necessarily starts with the university’s contractual commitment specified in its handbook and human sources policies, and made binding on all parties. That is the lesson that the state of U.S. law teaches. (Between Faculty, Administration, Board, State, and Students: On the Relevance of a Faculty Senate in the Modern U.S. University, supra, at pp. 24).
And indeed, much of the reaction to this new policy has noted both its deficiencies as policy and as administrative regulation. (Noted in Jason Jaschik, Fireable Tweets, Inside Higher Education, Dec. 19, 2013); see also Barbara Shelly, Social media policy from Kansas Board of Regents threatens free speech, The Kansas City Star Dec. 26, 2013 (Opinion)("The repressive policy is an overreaction to an overreaction.")). These also acknowledge the limits of grounding academic freedom on the First Amendment. The administrators of Kansas universities suggested that they would try to work around this policy.
When the Kansas Board of Regents voted this policy into place, they made it clear we need to continue a broad-based conversation on social media with all constituent groups. It is my intention to work closely with KU Chancellor Gray-Little and the other presidents in collaboration with the Kansas Board of Regents on modification of the policy to one that is acceptable to all in the Kansas higher education community. This will require continued dialog among the different constituent groups and a willingness by all parties to be patient as everyone has an opportunity to present alternative views. (Message from President Schulz about Regents' social media policy, Dec. 23, 2013 (President of Kansas State University)).But perhaps the Kansas Board of Regents has provided its university administrators with the work around necessary to avoid the worst implications of this aggressive policy--the development of anti-retaliation policies that would form a part of the terms and conditions of employment of faculty (including non-tenured contract faculty). Such policies would convert the social norms of academic freedom, well established within universities, into governance norms built into contract rights of faculty that might be used to protect faculty from those occasions (which we all hope are few) when administrators or others act badly (on social norms and governance rules, see e.g.,Elements of Law 3.0 Notes of Readings: I-E (What is Law? Law Beyond Law--Social Norms, Contract Communities, and Disclosure Regimes).
More generally, and from a longer perspective, our Declaration of Independence relates a common understanding of the political culture on which this Republic was founded, one wary of government usurpation of individual rights long grounded in custom and culture. Our Constitution embeds that notion in our Free Speech protections (at least against the state and its instrumentalities). Yet it appears that having moved from a revolutionary society two centuries ago to a more mature institutional society in which the people are more and more directed within a hierarchy of individuals who tend increasingly to know how much democratic expression is sufficient for individuals is appropriate, our institutional representatives appear to delight in the cultivation of docility and servility--precisely those traits that had been cultivated in the American colonies by our Crown in Parliament in the 18th century. Indeed, today, it appears that docility and servility seem to be one of those admirable bedrock traits that mark the character of the people who helped build the American Republic, and the values of which must now be instilled in this Republic's children, at least according to the masters of the higher education system of the great state of Kansas. Thus the Victorian-Edwardian servant sensibility suggested at the start of this blog essay actually acquires a more pernicious character. For it now appears that the sort of docility now required, along with the cultivation of a base servility, among employees assumes more and more the character of serf vassalage (in the extent to which the terms of their employment now includes significant seigniorial rights in employers), even as the rights of employers to resist even the state increases (e.g., National Association of Manufacturers v. NLRB).
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