A new study in Academic Medicine notes the differing career options being used by men and women on medical school faculties -- at a time that women making up an increasing share of medical school students. Of traditional tenure track programs (in which professors engage in teaching, research and patient care) only 20 percent of medical schools report that there are more women than men in this category. But of medical schools offering a clinician-educator track (in which faculty focus only on patient care and teaching), 77 percent report having more women than men. A key issue, however, is that those on the tenure track are more likely than those on the clinician track to be promoted, the study finds.
For decades, the Supreme Court has kept vigil over the campuses of state universities as, in the words of one memorable 1995 ruling, "peculiarly the marketplace for ideas." No opinion, the Supreme Court has emphasized, is too challenging or unsettling that it can be banned from the college classroom.
Forget the classroom – professors today are fortunate if they can be safe from punishment for an unkind word posted from a home computer on a personal, off-campus blog.
The Kansas Board of Regents triggered academic-freedom alarm bells across America last month with a hastily adopted revision to university personnel policies that makes “improper use of social media” grounds for discipline up to and including termination. (While the board this week ordered a review of the policy, it remains in place.)
While described as a restriction on “social” media, the policy is nothing of the sort. By its own terms, the policy is an assertion of college authority over “any facility for online publication and commentary.” (Kansans, think twice before pushing “send” in the comments section of this article.)
The breathtaking sweep of the regulation – it seemingly would confer jurisdiction over every online appearance, from an interview with Slate magazine to an academic article in a science journal – evidences an eagerness to control the off-the-clock lives of employees that is itself cause for suspicion.
The policy purports to create two categories of online speech. Speech made “pursuant to” or “in furtherance of” official duties is subject to essentially complete regulation, and penalties up to firing may be imposed for any speech deemed “contrary to the best interest” of the institution.
All other online speech is punishable if it adversely affects the workplace, but only after a “balancing analysis” that considers the institution’s interests in “efficiency” against the employee’s interest in addressing matters of public concern.
These categories roughly track the Supreme Court’s employee-speech jurisprudence. But the Kansas regulation dangerously oversimplifies the law of employee First Amendment rights in ways that invite abuse.
The Court’s 1968 ruling in Pickering v. Board of Education marks the headwaters of public employee First Amendment protection. There, in the case of an Illinois teacher fired for a letter to the editor about a school bond issue, the court coined its “Pickering balancing test” to determine whether employee speech may lawfully be punished.
The test requires weighing “the interests of the teacher, as a citizen, in commenting upon matters of public concern” against “the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.”
Pickering was curtailed in the 2006 ruling, Garcetti v. Ceballos, involving a California prosecutor fired over an internal memo critical of the way the police department handled evidence. The Garcetti case essentially recognized that, when a dispute involves speech contained in an official work assignment, that is the government’s speech and not the individual’s. Accordingly, the individual cannot claim a First Amendment violation if the speech displeases a supervisor, and no balancing of interests is even necessary.
Although some lower courts have expansively applied Garcetti in dubiously supportable ways, it’s essential to recognize just how narrow the Garcetti decision really is.
Properly understood, Garcetti applies only where the speech itself is a work assignment – not where the speech is about work responsibilities. Prosecutor Richard Ceballos lost his First Amendment case because his speech came in a memo he was assigned to write. The same message in an interview with The Los Angeles Times – or on Facebook – might well have been protected.
Indeed, the Supreme Court painstakingly made the distinction in Garcetti between speech that “concerned the subject matter” of an employee’s work (which remains highly protected) versus speech “pursuant to” official duties, which Garcetti left unprotected.
Importing the Garcetti standard into the employment policies of Kansas universities raises two principal legal concerns.
The first is why Garcetti language belongs in a policy about off-hours social media activity at all. Few positions at a university require creating social media as part of official job duties. For the few that do, the Kansas policy is unnecessary. If you are the employee in charge of managing the university’s Facebook page, doing that job badly has always been grounds for removal.
Enactment of a new regulation suggests something more – a desire to extend authority over social media activity that is not a part of the employee’s job. The portentous descriptive – that the college may freely regulate speech “in furtherance of” official duties – is especially ominous for employees (read, faculty) for whom speaking and publishing is an expected credential-builder.
A researcher at Hawaii Pacific University recently created the “Faculty Media Impact Project” (call it “Klout for Kollege”), which attempts to measure individual professors’ influence by online references to their work, including mentions on social media. (Evidencing the blurry line between professors’ online visibility and their institutions, Southern Methodist University recently issued a news release boasting of its #2 national ranking – far outdistancing #17 Harvard – in the inaugural “impact” scores.)
No university employee, particularly not a teaching employee, can be secure of the boundaries where speech “in furtherance of” official duties ends and personal speech begins. That’s a problem.
Restrictions on the content of speech must be so clear and so specific that a speaker can be certain he is protected. Otherwise, speakers will censor themselves for fear of crossing indistinct boundaries.
The second and more legally intriguing concern is whether Garcetti can legitimately be applied to teaching faculty without running afoul of academic freedom.
Two of the 12 federal geographic circuits have recently said no. In September, the Ninth Circuit U.S. Court of Appeals ruled in Demers v. Austin, involving disciplinary action against a Washington State University professor, that “Garcetti does not — indeed, consistent with the First Amendment, cannot — apply to teaching and academic writing.” The ruling echoes a decision by the U.S. Court of Appeals for the Fourth Circuit, Adams v. Trustees of the University of North Carolina at Wilmington.
Decisions from three other federal circuits – the Third, Sixth and Seventh – suggest to the contrary that professors receive no special forgiveness from Garcetti.
By embracing without qualification the Garcetti level of authority over all employee speech, the Kansas Board of Regents inevitably has teed up a future case in its own Tenth Circuit, which has yet to speak to the issue.
Dissenting in the Garcetti case, Justice David Souter prophetically warned that employers would simply broaden employees’ job descriptions so that virtually any speech about the agency came within their official duties. This is no idle fear in the university setting.
To give one concrete example, it is the responsibility of nearly every university employee with a supervisory position – a dean, a coach, a club sponsor – to notify campus authorities upon learning that a student was sexually assaulted. Arguably, complaining in a blog that the college fails to diligently pursue and punish rapists might be speech pursuant to official duties, and consequently, grounds for termination at a supervisor’s complete discretion.
The context in which the Board of Regents enacted this hurry-up policy cannot be overlooked. It came in response to the suspension of David W. Guth, a University of Kansas journalism professor, for an angry outburst on a personal Twitter account blaming the National Rifle Association for the fatal shooting of 12 employees at the Washington Navy Yard on Sept. 16.
Though harsh and tasteless, the posting addressed a disputed political issue – the type of speech to which courts have always afforded special First Amendment dignity, even outside the academic world – and no reasonable reader would have confused the post with an official statement of KU policy.
That the Board of Regents enacted a regulation unmistakably intended to ratify disciplinary action for speech like Guth’s is worrisome. It conveys the message that the proper official response to provocative speech that offends sensitive listeners is to punish the speaker – even on a college campus, where the Supreme Court has always said that extreme views must be given their chance to find an audience (or, as in Guth’s case, to be discredited).
At its heart, the Kansas policy exemplifies a larger problem afflicting all of government – the hair-trigger use of punitive authority whenever the agency’s public image is imperiled. At many, if not most, government agencies today, it is easier to get fired for making the agency look bad than for actually doing your job badly.
The media is filled with stories of police officers, firefighters and teachers who have lost their jobs for entirely legal activity on social media that their supervisors consider “unprofessional.”
The public would justifiably rebel against a “24/7 optimal conduct code” that made it a punishable offense for a teacher to wear a sexy Halloween costume to the shopping mall or enjoy a cocktail in a local restaurant. But let the teacher share a photo of that moment on Facebook, and the same harmless behavior that was publicly viewable to the community in the real world is pronounced to be “bad judgment” and grounds for termination.
Frank D. LoMonte is executive director of the Student Press Law Center, an advocate for the First Amendment rights of students and educators.
In the last decade, new federal regulations have forced academics who receive money from drug companies to disclose those ties when writing and speaking about their products. An article inThe New York Times suggests that such conflicts of interest may have been going on for some time -- undisclosed -- involving academics who defend controversial Wall Street trading practices. A number of such academics do work for parts of Wall Street, or their academic programs receive gifts from businesses that benefit from the research. In many cases, the Times said, these ties have not been reported. Professors told the newspaper that their views were not influenced by the ties to the finance industry.
The U.S. Department of Health and Human Services announced Monday that it had found that Dong-Pyou Han, until recently an assistant professor at Iowa State University, falsified results of research he was conducting on a vaccine that could be used to prevent the spread of HIV. The agency found him to have engaged in "intentional spiking" of lab samples, and concluded that the results of these samples prompted considerable interest in the research involved -- including the awarding of more research grants. Han apparently added human blood to samples that were supposed to be rabbit blood, and the additional blood skewed the results, The Des Moines Register reported. HHS said that Han had admitted his actions. The Register reported that he had resigned from Iowa State and that he could not be reached for comment.
Adjunct faculty members at Whittier College have voted to unionize and to be represented by the Service Employees International Union. SEIU is currently trying to organize adjuncts in various regions, and Whittier's vote comes as the union has drives going on at such Southern California institutions as Loyola Marymount University and the University of La Verne. The union has pledged to see better wages, benefits and job security for the adjuncts. Sharon Herzberger, president of Whittier, issued this statement: "We appreciate the contribution that our adjunct faculty makes to our institution. Upon request, Whittier College will meet with SEIU and attempt to negotiate a collective bargaining agreement that meets the needs of both Whittier College and its adjunct faculty."
New projections from the Bureau of Labor Statistics predict that 30 professions will be the fastest growing from 2012 to 2022 -- and two of the professions are in higher education. They are health specialties instructors (projected to increase by 36.1 percent) and nursing instructors (projected to increase by 35.4 percent). Among all professions, the number of jobs is expected to increase by 10.8 percent. Many colleges and universities already struggle to fill nursing professor jobs.
The Canadian Association of University Teachers this week called for colleges and universities in Canada to sever ties to Confucius Institutes, which have been set up at many Canadian (and American) campuses with support from the Chinese government. Supporters say that the institutes are a valuable way to expose more students outside China to Chinese history and culture. But critics say that the institutes present an oversimplified and positive image of China and that universities that want the house institutes may feel pressure to avoid certain topics. A statement from James Turk, executive director of the Canadian faculty group, said: “Confucius Institutes are essentially political arms of the Chinese government. They restrict the free discussion of topics Chinese authorities deem controversial and should have no place on our campuses."
Officials of the University of Colorado at Boulder continue to offer new reasons for why they told Patricia Adler, a tenured sociology professor, that she could no longer teach a popular course on deviance that attracts hundreds of students every semester (although they now say she could teach again if the course undergoes a review). The objections concern a lecture on prostitution in which Adler seeks volunteers from her assistant teaching assistants to dress up as various kinds of prostitutes and to discuss (in character) their lives. First, Colorado said that the university was concerned that the activity required approval by an Institutional Review Board. After many professors (and Colorado's IRB) noted that institutional review boards don't review classroom activities, Colorado acknowledged that there was no IRB issue, and said that some students complained that they felt pressure to participate in the exercise (which Adler and many past participants denied).
Then on Wednesday at a press conference, officials said that their primary concern was that some students in the class had their photographs taken (or videos made) of the class without their consent, The Daily Camera reported. Adler told the newspaper that students know that the class -- like many classes -- is videotaped, and that no complaints have been raised. She said come participants ask for copies of the videotape. The press conference followed a closed, emergency faculty meeting called to discuss the Adler case. The Daily Camera obtained a recording of the meeting, and said that "many faculty members angrily expressed their concerns and frustrations with the situation surrounding Adler."