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Watching a Watchdog's Words

August 15, 2008

Alan Contreras is an increasing rarity these days: a knowledgeable public official who says what he thinks without worrying too much about whom he offends. That trait has him in a scrape over free speech with his superiors in Oregon's state government. And while they backed away Thursday from the action that had most troubled him, Contreras isn't backing down from the fight.

Contreras oversees the state's Office of Degree Authorization, which decides which academic degrees and programs may be offered within Oregon's boundaries. Through his position in that office, which is part of the Oregon Student Assistance Commission, Contreras has become a widely cited expert for policy makers and journalists, on issues such as diploma mills, accreditation, and state regulation of higher education. He also writes widely on those and other topics for general interest newspapers and higher education publications -- including Inside Higher Ed.

Some of those writings rub people the wrong way. In a 2005 essay for Inside Higher Ed, for instance, Contreras characterized a group of states with comparatively lax laws and standards on governing low-quality degree providers as the "seven sorry sisters." Other columns have questioned the utility of affirmative action and discouraged federal intervention in higher education. In his writings about higher education topics, Contreras scrupulously notes that his comments are his own, not the state's.

Contreras's writings and outspoken comments over the years have earned him his share of enemies, particularly among proprietors of unaccredited institutions that he strives to shut down. And while his wide-ranging opinion making has allowed some critics to write him off as a gadfly, he testifies as an expert before Congress and delivers keynote addresses at meetings of higher education accrediting associations.

Those writings have raised some hackles in Oregon. About a year ago, Contreras says, Bridget Burns, the appointed head of the Oregon Student Aid Commission, told Contreras that she wanted him to seek her approval before he did any outside writing that identified him as a state employee. Contreras balked, and after numerous discussions among commission officials in the months that followed, he says, he was told during his annual review last December that "they realized I had the right to do my writing," Contreras says. "I thought it was all done."

But this week, Contreras says he was contacted by several acquaintances who had received an annual survey that the commission does, as part of his annual review, to assess the quality of his and his office's work. In addition to the usual two questions of the "how are we doing?" variety, as Contreras calls them, the survey that began circulating last week contained two new ones:

  • "Alan occasionally writes opinion pieces in newspapers and professional journals. Do you have any concerns about a state employee expressing personal opinions in this way?"
  • "Do Alan's writings affect your perception of OSAC?"

Contreras says that several of those who contacted him asked him whether he was under fire from his superiors. The official of one institution that is involved in a case before him, he says, "asked if I was the victim of a witch hunt by my own agency." One recipient of the survey, Michael B. Goldstein, a Washington lawyer who serves on an accreditation panel with Contreras and has appeared on conference panels with him, says he was surprised both to have been asked to assess Contreras and by the tenor of the questions.

"It's not uncommon for people who work closely with someone to be asked to comment on his or her performance, but I have never seen it cast like this to people who are pretty far removed," Goldstein says.

Contreras characterizes the commission's inquiry as an attempt "to unconstitutionally interfere with my free speech rights under the Oregon Constitution," which reads in part: "No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right." The commission's inquiry, he says, "damaged my reputation with the people I work with" in and around Oregon. "It's clear that it's perceived out there as some show of 'no confidence' in me."

Contreras says that he complained Wednesday to the staff of Gov. Ted Kulongoski about the commission's actions, and that he had asked for Burns's resignation. Kulongoski's higher education aide could not be reached for comment late Thursday.

Public Employees' Free Speech Rights

The legal situation surrounding the free speech rights of public employees is in a state of flux. A 2006 Supreme Court decision altered 35 years of settled jurisprudence by finding that when public employees make statements that relate to their official duties, "the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,” as Justice Anthony M. Kennedy wrote in the majority opinion in Garcetti v. Ceballos. That ruling modified the court's 1968 decision in Pickering v. Board of Education, which had mandated that public employees have a right to speak about matters of public concern that must be balanced against the government's ability to operate effectively and efficiently.

Contreras acknowledges that, both legally (even under Oregon's expansive constitutional provision) and otherwise, he might be on shaky ground if he "went around trashing" the Oregon Student Assistance Commission's scholarship and other financial aid programs. "It would be completely inappropriate for me to go around saying that these programs are terrible programs and shouldn't be supported," he says.

But "99 percent of what I write doesn't have to do with anything the agency is doing," Contreras says. "So what if I said the University of Oregon's affirmative action plan is awful, or that the level of academic planning in most colleges is insufficient. That is legitimate comment on public policy issues, and it is perfectly normal comment by a citizen."

Burns, a policy research associate in the office of communications and public affairs at the Oregon University System, said in an interview Thursday that she was severely restricted in what she could say because this was a "personnel matter."

But she did say that commission officials were preparing a letter telling all recipients of the survey about Contreras to disregard it, and that "another questionnaire will go out later." "Upon further reflection, we think we can do the survey in a better manner," Burns said. "We realized it was not what we wanted and we want to remedy it immediately."

Burns, citing the state's policy on personnel matters, declined to answer several follow-up questions, such as whether she had told Contreras last fall that she wanted to review his outside writings. Asked whether it was unfair to characterize her as wanting to restrict Contreras's right to speak (or write) his mind, she said: "Yeah. There's just confusion."

Reached late Thursday, Contreras was unassuaged by the commission's change of heart on the survey. "This does nothing to change my mind," he said. "I'm not going to attend any further meetings of the commission unless [Burns] resigns."

 

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