Kansas Board Reviews Controversial Social Media Policy

The Kansas Board of Regents has ordered a review of its recently adopted and highly controversial rules on social media. The rules outline situations in which faculty members could be dismissed or disciplined in other ways over statements they make on social media -- and numerous faculty and civil liberties groups have said that the rules violate basic principles of academic freedom and the First Amendment rights of professors.

A statement issued by the Kansas Board of Regents did not withdraw the policy, but announced a review of it: "Because of concerns expressed regarding the Board of Regents’ policy regarding the improper use of social media, Board Chair Fred Logan has asked Andy Tompkins, president and CEO of the Board, to work with the university presidents and chancellor to form a workgroup of representatives from each state university campus to review the policy. Regent Logan requests that any recommendations for amendments to the policy from the workgroup be presented to the board’s Governance Committee by April 2014."


Proportion of Part-Time Faculty Dipped Slightly in 2012

The proportion of faculty members who work part time fell slightly in 2012 from the previous year, although it remained close to half, according to data published this week by the National Center for Education Statistics. The Education Department report, which also includes statistics on fall 2012 enrollments and graduation rates, among other things, shows that of the 1,565,493 postsecondary faculty members employed in fall 2012 by institutions that award federal student aid, 800,212, or 51.2 percent, were employed full time, and 765,280 worked part time. In fall 2011, 784,639 were full time and 780,865 were part time.

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Faculty Panel Finds No Problems in Deviance Course

A faculty panel at the University of Colorado at Boulder has found no problems with a course on deviance at the University of Colorado at Boulder. The review found that the course and its professor -- Patricia Adler, a professor of sociology -- generally get high reviews. The review follows complaints by administrators about an in-class event in which some volunteer assistant teaching assistants dress up as various kinds of prostitutes. Administrators have suggested that the exercise may make some students feel uncomfortable, although there have never been formal complaints about the issue and the course has been popular for years. The faculty panel said that "properly conducted role-playing and skits are meritorious pedagogical techniques. If skits are used in the future, it will be appropriate for Professor Adler to document that those involved, whether students in the class, undergraduate teaching assistants (ATAs), or graduate teaching assistants (TAs), give full informed consent to participate, including to the possibility of being filmed, and can opt out of participation at any time without penalty, if, indeed, this is the standard being used throughout the university for in-class participation." The panel concluded that there was no reason the course could not continue.

Many faculty groups (at Boulder and nationally) have been calling for the university to endorse that view (the university has said that such a review was necessary) and to retract a series of statements offering different reasons for the concern about the course. Via email, a spokesman for the university said that if the executive committee of the sociology department endorses the report, Adler can continue to teach the course. But the spokesman said that the university wasn't retracting any statements. "We understand the concerns of various groups and organizations that have weighed in, but they are not privy to all the facts in the case," he said. The statements were not intended to reflect on Adler, he said, but to affirm the idea "that student welfare in the classroom is a co-equal concern for the institution alongside academic freedom."



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Everyone Can Have MLA Badge and Obscure Specialty

With the Modern Language Association meeting a week away, the Internet is full of discussion about the academic job market and rumors about how the Israel boycott may or may not come up. Some people are even excited to talk about books. But there is also humor. Inspired by this tweet, a new website allows you to put in your name and receive an (unofficial) MLA name badge complete with a specialty.

I couldn't stop at one. See what research focus the website has for you.

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Gender Gaps in Medical School Faculty Tracks

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.


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Essay criticizes new Kansas policy on use of social media by university employees

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.

The Academics Who Defend Wall Street

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 in The 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.

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Research Fraud Found in Iowa State AIDS Study

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.

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Whittier Adjuncts Vote to Unionize

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."

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Major Growth Seen in Jobs for Health-Fields Instructors

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.



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