Requiring Civility

Push and pull between administrators and faculty unions during contract negotiations is to be expected. But some faculty members at the University of Oregon say administrators in their contract negotiations are attempting to gut a particularly sacred university policy: academic freedom.

Oregon’s existing policy calls free inquiry and free speech “the cornerstones of an academic institution committed to the creation and transfer of knowledge.” The belief that an opinion is “pernicious, false, and in any other way despicable, detestable, offensive or ‘just plain wrong’ cannot be grounds for its suppression,” it says.

In the spring, Oregon’s Faculty Senate approved a new policy on academic freedom, a near-identical version of which the United Academics, a union affiliated with the American Federation of Teachers and the American Association of University Professors, soon adopted for negotiation purposes. Oregon faculty voted to unionize last year and they are working on their first contract. The Senate statement on academic freedom has yet to be finalized, pending its own negotiations with the administration.

The union’s proposed statement is similar to existing policy, calling free inquiry and free speech “essential components” of academic freedom. The statement is also more expansive, and includes language guaranteeing faculty the “right to engage in internal criticism, which encompasses the freedom to address any matter of institutional policy or action, whether or not as a member of any agency of institutional governance."

Faculty advocates say that language was included in response to the 2006 U.S. Supreme Court ruling in Garcetti v. Ceballos, which limited the speech rights of public employees. The decision, which concerned the Los Angeles district attorney's office, noted that the ruling did not deal with identical issues to those found in public higher education, but some courts have been applying the ruling to faculty disputes at public universities (others have not).

Since then, faculty leaders nationwide have been pushing for clarification of university policies as a way to protect free speech rights amid the uncertain legal environment.

The union statement also guarantees the right to free speech in public debate, “free from institutional censorship or discipline.” At the same time, the statement notes that faculty members have “special obligations,” including as de facto public representatives of the university.  

But the university’s counterproposal decouples academic freedom and free speech, addressing them separately. Academic freedom is “necessary to teaching and research,” it says, with no mention of the role of academics in speaking out if not related directly to teaching and research. Rejecting explicit union language on free speech, the counterproposal instead guarantees protections afforded by the First Amendment and state law.

The university statement mentions civility twice in a section on faculty responsibilities, including that faculty are responsible for treating "students, staff, colleagues and the public fairly and civilly in discharging his or her duties and in accordance with this agreement." Civility clauses have long been of concern to advocates for professors. While it's hard to find people who are anti-civility, many academics note that requiring civility can become a tool for punishing those professors who speak out against their bosses or who push unpopular positions.

Margaret Paris, professor of law and president of the Faculty Senate, has not been involved in union negotiations but said that the union statement likely would influence the ultimate Senate document, since it would be difficulty to work off two different policies when most of the faculty belong to the union (although law professors do not).

Paris also said she was aware of the university’s preference to decouple academic freedom and free speech in the final Faculty Senate statement, and that she would likely support it. Because the policies "spring from different sets of values," it makes sense that each deserves individual attention, she said.

Oregon’s administration works closely with the Faculty Senate and Paris is looking forward to a collaborative process finalizing the document, she said.

But those involved in union contract negotiations said otherwise.

Bill Harbaugh, professor of economics and moderator of the "UO Matters" blog, which is frequently critical of university policy, said decoupling academic freedom from free speech left room for administrators to punish those faculty – like him – who say things administrators don't like. He also objected to the idea that administrators would be the ones deciding what qualifies as "civil."

The university has previously publicly accused Harbaugh of including “consistently anti-university” statements on his blog.

“The university is place of higher learning,” warranting explicit protections of free speech, Harbaugh said. “The new policy takes out all the pro-free speech stuff and instead includes many restrictive rules about how faculty can be engaged in free speech. It’s aimed in part at limiting the critical faculty right to criticize the administration outside of [the formal university setting].”

Michael Mauer, an AAUP senior labor adviser involved in contract negotiations, said the university’s counterproposal gutted union language that protects faculty free speech, in light of Garcetti.

“It limits that to whatever the courts currently say is protected by the First Amendment, and we think it should be broader than that,” Mauer said, particularly as the counterproposal also rejects some union language guaranteeing faculty members the right to engage in criticism of institutional policy.

And while there’s nothing wrong with an “aspirational” mention of civility, he said, including it as a “faculty responsibility” opens the door to potential disciplinary action for words that should be accepted within the "scope of vigorous debate."

David Hubin, executive assistant to University of Oregon President Michael R. Gottfredson, said that he wasn’t involved in contract negotiations but that the university’s desire to divorce academic freedom from free speech “reflects the president’s sentiment that each of those two things are very important historic privileges and that they can be stated more clearly separately. When they are conflated it has the potential to not give the focus on academic freedom that we feel is critical.”

Asked about the civility clause, Hubin said Oregon has a long history of promoting respectful discourse – one that’s covered by the university’s existing policy on academic freedom and free speech: “It is the responsibility of speakers, listeners and all members of our community to respect others and to promote a culture of mutual inquiry throughout the university community.”

Any determination of what’s civil would likely include faculty input, he said.

In e-mail, President Gottfredson said:  “Academic freedom and freedom of speech are both central to the strength and integrity of our academic community – they are cornerstones of the public university. Discussions with the University of Oregon Senate last spring resulted in a draft statement that combined these two freedoms. I believe these tenets are of such central importance to our academic mission that they deserve to be considered individually and developed separately into two strong policies. I communicated my views to the former Senate president, and look forward to moving the discussion forward with our new Senate president when our academic year begins later this month.”

Harbaugh, however, said Gottfredson’s views lagged behind that of his former employer, the University of California. The system’s Board of Regents recently expanded speech rights for faculty. Gottfredson is the former provost of the University of California at Irvine.

Robert O'Neil, a free speech expert and former University of Virginia president and law professor, didn't suspect any nefarious intent on the part of the administration based on the counterproposal, but said that a first contract is an important opportunity to "get it right" when it comes to understandings of academic freedom.

The union is particularly well-positioned to flesh out language regarding free speech in light of this month's U.S. Court of Appeals for the Ninth Circuit ruling on public college and university free speech rights, O'Neil said. Instead of limitations set by the Garcetti ruling, the lower court -- in whose jurisdiction Oregon sits -- found that a more general First Amendment analysis protects those rights.

"They need to make sure the adequate language currently reflects Demers," he said, referring to the appeals court case regarding David Demers, former professor of communications at Washington State University at Pullman.

Additionally, he said, the civility language is "fuzzy" and needs definition.