Surveillance and Control: The Kansas Regents Social Media Policy; Administrative Discretion, Employee Obligation, Citizen Duty, Human Dignity and the Possibility of Systemic Corruption

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.

On the Limited Promise of Whistle Blower Protection Statutes for University Employees--Narrow Scope and Traps for the Unwary

 (Pix (c) Larry Catá Backer 2014)

We were recently informed (because the Federal government required such disclosure if for no other reason; e.g. 41 U.S. Code § 4712(d);  Notice of Implementation of Pilot Program for Enhancement of Employee Whistleblower Protections Notice Number: NOT-OD-14-068, March 7, 2014) as follows:

Congress has enacted new whistleblower protections effective July 1, 2013. The enhanced protections apply to any employee of a federal grant recipient such as Penn State who works on a federal grant, subgrant or subcontract. The statute (41 U.S.C. §4712) states that an "employee of a contractor, subcontractor, grantee [or subgrantee] may not be discharged, demoted, or otherwise discriminated against as a reprisal for 'whistleblowing.'" More information (as summarized by the National Institute of Health) can be found at http://grants.nih.gov/grants/guide/notice-files/NOT-OD-14-068.html.

On the verge of exuberance over this new set of protections, I took a moment to carefully consider the scope of this protection and the framework within which it might be asserted.  What I found, as I have found before in other context (e.g., Backer, Larry Catá, The Sarbanes-Oxley Act: Federalizing Norms for Officer, Lawyer and Accountant Behavior. St. Johns Law Review, Vol. 76, pp. 897-952, 2002) is that whistleblower statutes continue to be constructed more as gesture than as a functionally effective set of protections for workers.  This new set of "protections" little different from the pattern already well established in federal law provides the appearance of protection that masks a narrow scope and a set of traps for the unwary.

This post considers the scope of this new protection  for employees of universities who work on a federal grant, subgrant or subcontract and the traps they resent for people who mistakenly believe they "whistleblow" under its protection. It suggests that while this provision serves as a lovely gesture, it provides substantially less robust protection for employees seeking to use its provisions.