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.
When the Trinity College (Connecticut) president released a statement denouncing the American Studies Association's endorsement of an academic boycott of Israel, faculty pushed back. UPDATE: Other faculty members issue letter attacking the boycott.
Friends and colleagues familiar with my longstanding support of a Palestinian state in the West Bank and Gaza and my extensive criticisms of the Israeli government's expansionist policies and violations of Palestinian human rights may be puzzled that I have weighed in publicly in opposition to the proposed academic boycott of Israel endorsed by the council of the American Studies Association (ASA) and now the subject of a membership vote in that organization. But the fact is that such a boycott is at best misguided. Not only is it the wrong way to register opposition to the policies and practices it seeks to discredit, it is itself a serious violation of the very academic freedom its supporters purport to defend.
The ASA Council, however, disagrees. In an extraordinarily one-sided FAQ on the ASA website, advocates of the boycott assert that, like the AAUP, the ASA "unequivocally asserts the importance of academic freedom and the necessity for intellectuals to remain free from state interests and interference as a general good for society," making no mention, of course, that the very organization they cite, the AAUP, has publicly and forcefully opposed as a violation of academic freedom the very boycott they advocate. Then, in language that can only be described as Orwellian, the FAQ contends that "the academic boycott doesn’t violate academic freedom but helps to extend it. Under the current conditions of occupation, the academic freedom of Palestinian academics and students is severely hampered, if not effectively denied."
I have little doubt that conditions under which Palestinian scholars and students must function leave much to be desired, including with respect to academic freedom, but I wonder how boycotting Israeli universities does anything to improve that situation and thereby "extend" academic freedom. Does the ASA seek to make a general statement about Israeli policies in the West Bank, or is the organization making a statement about academic freedom in Israeli institutions? If the former, one immediately wonders why they do not advocate an academic boycott of Chinese higher education institutions in response to the occupation of Tibet, where conditions for native Tibetan scholars and students are certainly worse than in, say, the Palestinian Bir Zeit University on the West Bank. If the latter, I wonder how they have determined that Israeli institutions of higher learning are so much more culpable than those elsewhere.
As our "Open Letter" noted, the AAUP doesn't have "the organizational capacity to monitor academic freedom at institutions in other countries, nor are we in a position to pick and choose which countries we, as an organization, might judge." Yet the ASA, which has no special academic interest in the Middle East, feels comfortable boycotting Israeli universities while ignoring seemingly more obvious violations of both academic freedom and broader human rights in Iran, China, North Korea, Singapore, Zimbabwe, the former Soviet republics in Central Asia, and Russia, to mention but a few examples.
According to one Israeli human rights organization, Israeli forces killed 6,722 Palestinians between September of 2000 and October of 2013. In Iraq, however, American troops took the lives of more than half a million civilians. That, by the way, is the same America whose "culture and history" members of the American Studies Association are said to approach "from many directions" (quotations from "What the ASA Does"). In 2006 the ASA adopted a resolution condemning the U.S. invasion of Iraq, noting among other things that the invasion "threaten[ed] academic freedom" (whether in Iraq, the U.S., or both is unclear). Were I an ASA member I would surely have supported that resolution. Yet the ASA did not even consider an academic boycott of American universities in response to the American occupation of Iraq as they do now in response to the less murderous Israeli occupation of Palestine.
Well, some might say, they can't really advocate a boycott of themselves, can they? But in fact that is precisely what supporters of this proposed boycott are doing. Omar Barghouti, a prominent Palestinian advocate of the boycott, is himself a former student and part-time instructor at Tel Aviv University. He is one of many Palestinian and Arab Israeli students and faculty at Israeli colleges and universities. As Emily Budick, an American-born Israeli professor of American studies at Hebrew University, wrote in the AAUP's Journal of Academic Freedom:
Over the years I have taken great pride in the achievements of my Arab and Palestinian students. Last year one of my former graduate students became the first woman mayor of Bethlehem. I was similarly thrilled when several Palestinian students greeted me the first day of classes this year to bring regards from another former student of mine who was their teacher at the Arab university where they'd done their undergraduate degrees and who had encouraged them to do their graduate work at Hebrew University. Last year a full 50 percent of my Introduction to American Literature class was populated by Arab and Palestinian students.... If you want to stop Palestinian progress, then boycott the Israeli academics who contribute (along with Palestinian and Arab teachers) to their education and well-being. If you want to further the rights and liberties of Palestinians, then help us continue to provide Palestinian students with the best education we can.
In fact, if there is anywhere in Israeli society where support for a fair and just peace and for Palestinian human rights can flourish it is the country's universities. Boycott supporters are ironically only strengthening the hand of those right-wing forces in Israeli society who seek to muzzle the kind of questioning and dissent, and who reject the spirit of tolerance, that are often found among Israeli and Palestinian scholars in Israel's institutions of higher learning. The ASA foolishly seeks to punish potential allies largely to the benefit of common opponents.
Indeed, the whole idea of boycotting academic institutions in order to defend academic freedom is utterly wrongheaded. Violations of academic freedom can be found anywhere. In the AAUP we encounter such violations, petty and large, on a daily basis in the U.S. In the very worst of these cases, when all efforts to correct the situation fail, we place administrations on our censure list. But that list is not a boycott list. We do not and will not ask our colleagues to boycott institutions that violate academic freedom or that support policies we abhor. Instead we call on people to organize and struggle to effect change in such institutions, both from inside and out. If we resist the temptation to boycott offending institutions in our own country, where we have full opportunity to determine all the relevant facts, how then can we agree to support such boycotts of foreign institutions?
The AAUP does not have a foreign policy; our members may and do disagree about numerous international conflicts and controversies, including the Israeli-Palestinian dispute. But if the members of the ASA can somehow achieve broad agreement on such a controversial question as this one, we would not gainsay their right to pass resolutions on it as they did during the Iraq War. But a boycott is quite another matter.
Finally, I cannot fail to mention that the leaders of the ASA are not conducting this election in a spirit of frank and free discussion. AAUP's "Open Letter" was preceded by a private communication prior to the ASA council's approval of the boycott resolution. The ASA declined to circulate that communication among members and then rebuffed a request to post the "Open Letter" on its website along with other background material on the boycott proposal. The ASA has also declined to inform members of a letter in opposition to the resolution signed by eight former ASA presidents and other prominent ASA members.
By contrast, this fall the AAUP published an issue of our online Journal of Academic Freedom, much of which was devoted to articles calling on us to abandon our opposition to academic boycotts and advocating such a boycott of Israel. Some supporters of Israel criticized us for this, but we stood by our commitment to the journal as an open forum for debate and discussion. The articles attracted a good number of reader responses representing different points of view, all now published as part of the issue along with replies from the original authors. ASA members would do well to compare this to the ASA leadership's approach to dissent. Those seeking to make up their own minds about the boycott proposal should consider the various arguments pro and con published in our journal instead of relying on the one-sided and disingenuous presentations sadly offered on ASA's website.
Henry Reichman is professor emeritus of history at California State University, East Bay; first vice president of the American Association of University Professors; and chair of AAUP's Committee A on Academic Freedom and Tenure.
Over the last decade there has been a rapid evolution toward increased scholarly publishing online. Much of it remains proprietary publishing available only through paid access, but there are now a number of peer-reviewed gold access online scholarly journals, and book publishers commonly make a table of contents and a sample chapter freely available. Google meanwhile has made the complete texts of millions of public domain books available for free. And there are countless websites devoted to more narrowly defined online publishing projects.
After an initial impetus toward mandating that all Illinois public university faculty put their published articles online for free six months after publication, the Illinois legislature instead passed Public Act 098-0295 in August 2013, a bill directing universities to come up with a plan to deal with the possibility and desirability of making scholarly publications freely available to all citizens. The Illinois law deserves some national publicity since other states may do the same. Existing university policies have generally been adopted by faculty senates. Illinois is initiating a policy through legislative action.
While a university would be performing a useful service by giving faculty a vehicle for voluntary self-archiving, making it possible for them to reprint publications freely online, it would be quite another matter for either a public or a private university to require faculty to place all their publications there. An optional, but not mandated, green access model (in which faculty can reprint publications on a university website) would increase the public availability of published research and promote a trend toward open-access publishing without constraining faculty publication rights.
Yet either an optional or a mandated online publication policy will require adequate funding if it is to fair and practical. Colleges and universities have long needed a stronger commitment to publishing support that makes non-commercial scholarly communication a part of the fabric of the institution. But open access systems require new infrastructure, including appropriate software and either new staff to handle the responsibility or a reassignment of existing staff.
The national American Association of University Professors (AAUP) stands firmly behind the principle that academic freedom guarantees faculty members the right not only to decide what research they want to do and how to do it but also the right to decide how the fruits of their research will be disseminated. Academic freedom does not terminate at the moment when you create a publishable book or essay.
Publications have long been covered by copyright law, and faculty members in the modern university have traditionally owned the rights to work they create that can be copyrighted. It would be a major change in intellectual property tradition, policy, and law for a state or a university to claim ownership or control. Of course a university-mandated free publication requirement does not appear on the surface to affect ownership, but in fact it eviscerates ownership by divesting it of meaningful control. A Creative Commons license is only of limited help at that point, since a freely available publication has pretty much lost all the commercial value associated with copyright.
A policy mandating free and open online publishing — even after a defined period of time — would violate academic freedom and potentially cause serious harm to faculty members. Such a policy relies implicitly on the assumption that both public and private university faculty are no different from other state or company employees, indeed that they are all equivalent to corporate employees, subject to the unqualified workplace dictates of the state or the corporation. But U.S. courts have long recognized that academic freedom is an important value in higher education and that it limits the control the state or an institution can exercise over the distinctive faculty speech rights entailed in teaching and research. A university policy that preempts a potential contract between a researcher and a publisher would abridge academic freedom.
A state-mandated blanket policy requiring open-access publishing would also change the conditions of employment for existing faculty who were hired without such a restriction, effectively significantly changing their academic freedom expectations without their consent. Such a change could not be imposed on individuals by a collective decision or by a vote by a representative body.
The harm at issue would vary by discipline and form of publication. An assistant professor’s tenure case could be seriously damaged if he or she had to seek publication only in gold access journals (those online from the outset) or in journals permitting green access (delayed self-archiving), rather than in the best journals in the field. Science disciplines whose academic journals have traditionally levied page charges, costs often built into grants, may be relatively well-positioned to handle processing fees from open access journals. Humanities, fine arts, and social science disciplines with no such traditions and no such revenue sources would find such a mandate not merely damaging but impossible to honor.
There may well be another disciplinary disadvantage built into a specified wait time for an open-access electronic version to become available. Prospective individual buyers of expensive hardbound academic books typically wait until a paperbound edition is published or until a used hardbound copy becomes available from an online used book service. Faced with a one-year wait for a free electronic copy, how many individuals or libraries would still buy either an electronic or a material version of a scholarly book at all? Paid electronic or hard copy journal subscriptions in many fields would certainly suffer the same fate. Scientists, engineers, or medical faculty might successfully lobby their institutions for more rapid access to the latest papers, but how many humanities disciplines could convincingly wage such a campaign? Mandated gold or green access at least for now is likely to seriously disadvantage humanities, arts, and interpretive social science fields.
Such a campus requirement would be an open invitation for humanities and fine arts faculty who could do so to move elsewhere and would make recruitment in such disciplines much more difficult. Imagine telling a potential senior hire that he or she would have to switch to a publisher supporting green access if they came to your campus.
In any case, gold access publications typically need mechanisms to cover their editorial, copyediting, design, and promotional costs. Nothing would be accomplished by a state or university policy that ignores that reality. Nor is anything to be gained from a university deciding that it knows what is best for publishers on campus or elsewhere.
Given the Illinois bill’s legislative history, concern about its intent may justify raising some questions about the law. Although the Illinois law refers to “articles,” not books, it is not clear that the legislature recognized the difference between article and book publication, or whether such distinctions as those between authored and edited books were anywhere in play. Is a book chapter in an edited book an article? And one may reasonably wonder whether an effort to mandate online book publication might follow. Edited books, for example, would almost always encompass authors from other states or countries; in cases where work was being reprinted the copyrights held by both profit and nonprofit publishers in other states and countries would be at issue. No editor would be likely to be able to get such a range of other publishers to agree to grant open-access online publishing rights to documents whose copyrights they control. An editor would simply have to abandon such a project if he or she had to obtain online publishing rights for its contents, an obvious and intolerable abridgement of academic freedom.
Even a two-year moratorium on open access publication of book chapters would be highly problematic, since that is commonly the point when a publisher seeks to market a paperbound edition. An open access policy limited to journal articles would be far more manageable, but even that should be voluntary.
Even the definitional problems just listed are not well-handled in existing university open access policies. As a University of Illinois library committee noted when it compared policies at Harvard University, the Massachusetts Institute of Technology and the University of California, all refer exclusively to “scholarly articles,” without defining the term. Is a piece of creative nonfiction a scholarly article? Might it convey research findings? Nor is it clear whether the policies cover adjunct or part-time faculty. My own view is that adjunct faculty should be given the opportunity to archive their publications but never be required to do so.
Academic freedom means that a faculty member has the right to choose which journals to publish in and which publishers to offer a book project. Journal editors and book publishers often also approach a faculty member with a potential project. Again, academic freedom grants faculty members the right to accept or reject such offers. A faculty member cannot be required to publish in places that have adopted gold open-access publishing principles or that grant green open-access reprint rights to their authors. A faculty member can, however, request that a contract for publishing an essay be granted through a “nonexclusive first publication rights only” clause, and some publishers who are inclined to offer (or initially do offer) more restrictive contracts are willing to accept such language. That should enable reprinting rights on a university web site. A university policy mandating online reprinting will persuade some, but likely not all, publishers to cooperate, and it still compromises faculty rights. A book publisher, moreover, is far less likely to agree to such terms for an entire book. And those faculty members who regularly propose gathering their scattered journal articles into a book will find that almost impossible to do if all the articles are already available on a university website.
It is also inappropriate for a state to mandate open-access publishing for university published or edited books or journals. A university press has to have the freedom to follow its own rationally chosen business model. Such business models do not typically entail a one-size-fits-all model covering every book and journal. Indeed a press may rely heavily on the income from a few highly marketable books. On the other hand, a press might decide that a particular book would benefit from simultaneous or relatively rapid online open access publication. And in some cases sales of the book might benefit. Publishing professionals with the expertise to make such decisions must be left to do.
That said, there are many benefits to gold access online publication. There is the potential to reach wider audiences and the chance of doing so rapidly. Educational outlets like Times Higher Education and Inside Higher Ed that operate with in-house editorial (rather than peer reviewed) decision making can sometimes publish in a week or less, which can be a considerable benefit with time sensitive publications.
Books that really have no likelihood of reaching a broad audience may be better off being published freely online than in a hardbound edition that can barely sell 200 copies. But that reality does not address editorial cost recovery or the relative prestige issues that faculty have a right — because of academic freedom — to take into account when they make publication decisions. Nor does it make sense to tell an author or publisher that they should not limit a book that can readily sell thousands of copies to a print edition or that they should offer it for free instead. Indeed there are numerous academic authors who publish with commercial publishers who would be quite amused at the suggestion they offer their books or journals for free.
At least at present, moreover, a university press would be at a tremendous — and likely fatal — disadvantage if it offered only online book publication, given that many authors still want to see their book manuscripts published as books and that university tenure and promotion committees still value physical books more highly than electronic ones. A university would garner a very rich bouquet of bad publicity, no few lawsuits, and likely AAUP action if it tried to restrict its faculty to either gold or green access publishers. We all, of course, know the example of a rogue publisher of academic journals that charges extortionate prices for its publications. But that requires targeted action, not a wholesale regime of academic freedom restraint as a solution.
The bottom line is that universities should move forward with increased gold and green publishing opportunities, not with mandates, prohibitions, and penalties — and with faculty leadership and attention to differences in types of publications, fields, and, most importantly, the preservation of individual choice. Faculty need a mechanism to opt out of the expectation that articles will be made freely available without offering a reason. Such an opt-out mechanism should, like that at Berkeley, be automatic, automated, and immediate. Not overseen by a bureaucrat making decisions about what does and does not qualify for an exception. One hopes that, with a system to encourage, but not mandate, open access publishing, the state legislature, including the bill’s main sponsor, will be satisfied. If not, as I’ve tried to indicate, we will be in for a rough ride.
Cary Nelson served as national president of the American Association of University Professors from 2006 to 2012. He teaches at the University of Illinois at Urbana-Champaign.