Colorado State-Pueblo professor who is outspoken critic of budget cuts sent out an email comparing them to a century-old massacre. Hours later, university took away his campus account. UPDATE: University president cites Virginia Tech and Columbine.
During December, the two most-viewed stories carried by Inside Higher Ed concerned academic freedom. The first reported on Shannon Gibney, a professor of English at Minneapolis Community and Technical College. The second was about Patricia Adler, a professor of sociology of the University of Colorado at Boulder and the recipient of awards for both her teaching and her research.
As I think about these two women with very different careers at very different institutions, I hear Big Bird singing a new refrain: “Two of these things are so like the other; two of these things seem so the same.”
Academic freedom is an old issue. In The Lost Soul of Higher Education, Ellen Schrecker reminds us that the concept arose in 19th-century Germany: One part, “freedom to learn,” she tells us, “had to do with the freedom that German students then enjoyed to shape their education to their own desires, while swinging from one institution to another, drinking beer, dueling and attending classes when so inclined. The other half, ‘freedom to teach,’ belonged to professors and not only gave them autonomy within their classrooms but also barred external controls on their research.”
Schrecker, like others, also reminds that academic freedom has had a checkered history in the United States. Mention the term and I think of both the witch-hunts of the McCarthy era and the foolishness of fundamentalist colleges that forbid instructors to suggest that Charles Darwin’s theory of evolution is superior to creationism. Both topics are controversial in some quarters and some administrators are most likely to commit transgressions against academic freedom when instructors broach topics or introduce teaching methods that may displease donors, trustees, legislators, or parents or arouse a furor in the media.
What’s new is the nature of these instructors’ alleged academic malfeasance. When Gibney discussed racism in her class, some white men felt uncomfortable, even offended. Administrators referred her to the college’s diversity officer for sensitivity training even though she had specified that she was talking about institutional racism, not individual racism (Perhaps neither the students nor the administrators understood the distinction and Gibney’s lecture did not go far enough.)
Adler’s sin was different: In a class that had attracted 500 students, Adler’s teaching assistants, some of whom are undergraduates, performed an interactive skit about the social stratification of prostitutes. Consider the administrators' initial account. (They have offered multiple versions of how Adler provoked retribution. The initial account is revealing, because it announced what CU officials believed would play best.)
In that first version, the university claimed that more than one student in the room felt ill at ease -- sexually harassed, they claimed. The relevant federal statute specifies that sexual harassment occurs when simple teasing, offhand comments, or isolated incidents about sex or gender are so frequent or severe that they create a hostile or offensive work environment.
That definition of hostile environment is very difficult to substantiate, and Colorado officials have continued to change their story anyway about what upset them.
Of course, there’s another possibility: Talking about the institutionalized racism and sexism that are embedded in the social organization of prostitution (and in many other occupations) makes students feel uncomfortable. As true of Gibney’s class, Adler’s interactive lecture discussed practices that many students would like to ignore. The infringements on academic freedom committed by Minneapolis Community and Technical College and the University of Colorado at Boulder are indicative of a greater problem: These institutions refuse to realize that social science challenges preconceptions. As Peter L. Berger once put it in Invitation to Sociology, “It can be said that the first wisdom of sociology is this: things are not what they seem. This too is a deceptively simple statement. It ceases to be simple after a while. Social reality turns out to have many layers of meaning. The discovery of each new layer changes the perception of the whole.” Social science and the humanities analyze aspects of life that some students would rather not know about, especially if a discipline’s generalizations appear to apply to them.
Perhaps making students uncomfortable is now academic malfeasance. After all, an administrator might think, the students (or their parents) pay for their college education — what too many call their training for jobs. (That education is increasingly expensive and financed by loans whose cumulative amount is now larger than the debt involved in the mortgage bubble that led to the Great Recession.) As some administrators see it, students are higher education’s customers. Their reports of their experience may influence application and yield rates and so the economic well-being of a college or university.
Punishing professors whose content or teaching methods make students feel uncomfortable may be “just” another aspect of higher education’s accountability regime – a politics of surveillance, control and market management disguising itself as the scientific and value-neutral administration of individuals and organizations, as I discussed in Wannabe U: Inside the Corporate University. Pleasing students seems to have become what corporate managers call a best practice -- “a commercial or professional procedure that is accepted or prescribed as being correct or most effective,” as an online dictionary put it. And if one were to believe the administrators at the University of Colorado, best practices trump academic freedom.
As the Adler controversy continued, a University of Colorado spokesman suggested that she might teach her course if her peers in sociology and perhaps in other disciplines reviewed it and “that review resulted in an O.K. of the course and its materials and techniques, or recommended structural changes acceptable to her.” That review took place and she has now been cleared to teach, although she remains concerned about what happened, and hasn't said if she'll go back. The spokesman did not explain why a course that had been taught for over 20 years should be subjected to review. Faculties review courses before they are offered, not after, unless, as the Colorado conference of American Association of University professors explained, there is a compelling reason.
Meanwhile I wonder whether either the Minneapolis Community and Technical College or the University of Colorado has even tried to learn about instructors who make passes at students, behavior that the EEOC regards as quid pro quo harassment -- not whether procedures are on the books, but whether they are used. How many of their departments maintain an atmosphere that is hostile to women, people of color, gay people, or any of the other groups covered by EEOC regulations?
Gaye Tuchman, professor emerita of sociology at University of Connecticut, is author of Wannabe U: Inside the Corporate University and Making News.
“What seemed impossible only a year ago seems quite possible now,” an academic involved in the American Studies Association endorsement of an academic boycott of Israel wrote to me after the news of the ASA membership vote on the boycott resolution came in. In response to a membership referendum organized by the ASA National Council, 66 percent of the voters endorsed the resolution..
Independently but simultaneously, the Native American and Indigenous Studies Association announced its elected council’s unanimous support for the academic boycott of Israel.
These and a number of other developments this year in the global struggle for Palestinian rights lead to the conclusion that the Boycott, Divestment and Sanctions (BDS) movement may be reaching a tipping point, particularly in the academic and cultural sphere.
Even before this sweeping victory for the ASA boycott resolution, many had hailed the ASA National Council’s unanimous endorsement of the academic boycott of Israel as an exemplary expression of effective international solidarity with the Palestinian people’s struggle for freedom, justice and equality. “Warmly saluting” the ASA boycott, the largest federation of Palestinian academic unions said Palestinian academics were “deeply moved and inspired” by what it considered to be “a concrete contribution to ending [Israel’s] regime of occupation, settler colonialism and apartheid against the Palestinian people.”
The Palestinian Campaign for the Academic and Cultural Boycott of Israel (PACBI) is an integral part of the BDS movement, which since its establishment in 2005 has been endorsed nearly by a consensus in Palestinian society. BDS seeks to realize basic Palestinian rights under international law through applying effective, global, morally consistent pressure on Israel and all the institutions that collude in its violations of international law, as was done against apartheid South Africa.As Judith Butler describes it, “The BDS movement has become the most important contemporary alliance calling for an end to forms of citizenship based on racial stratification, insisting on rights of political self-determination for those for whom such basic freedoms are denied or indefinitely suspended, insisting as well on substantial ways of redressing the rights of those forcibly and/or illegally dispossessed of property and land.”
If boycott, at the most fundamental level, constitutes “withdrawing ... cooperation from an evil system,” as Martin Luther King, Jr. taught us in another context, BDS fundamentally calls on all people of conscience and their institutions to fulfill their profound moral obligation to desist from complicity in Israel’s system of oppression against the Palestinian people.
To understand why the ASA boycott has attracted considerably more than its fair share of attacks from the Israeli establishment, Israel lobby groups in the U.S. and its apologists, one must examine the wider context, the trend of BDS growth worldwide.
The BDS movement set an impressive number of precedents in 2013. Weeks ago, in a letter of support to the ASA, the University of Hawaii Ethnic Studies department became the first academic department in the west to support the academic boycott of Israel. In April, the Association for Asian-American Studies endorsed the academic boycott — the first professional academic association in the United States to do so. Around the same time, the Teachers’ Union of Ireland unanimously called on its members to “cease all cultural and academic collaboration” with the “apartheid state of Israel,” and the Federation of French-Speaking Belgian Students (FEF), representing 100,000 members, adopted “a freeze of all academic partnerships with Israeli academic institutions.”
These and many other BDS developments have led to an explosion of interest in scrutinizing and criticizing Israel’s regime of oppression of the Palestinian people, or at least aspects of it. This has caused a heightened sense of alarm in the Israeli establishment as well as unprecedented debate there, to the degree that Secretary of State John Kerry reportedly said that Israeli leaders are terrified of the fast-growing BDS movement as much as they are scared of Iran’s rising influence in the region.
Indeed, the behavior of Israeli universities and their deep, decades-old complicity in Israel’s occupation and denial of basic Palestinian rights have been a key driving force behind the proliferation of academic boycott initiatives and union resolutions all over the world. ASA National Council member Sunaina Maira, a key organizer in the US Campaign for the Academic and Cultural Boycott of Israel, makes a compelling point that has largely been missing in the coverage of the ASA boycott. Most academics were moved into supporting the academic boycott of Israel by learning “what Palestinian scholars and students go through on a daily basis just to get to school, as they navigate these checkpoints ... the many conditions that obstruct their access to education” and searching for a “civil society response.”
The complicity of Israeli universities in human rights violations takes many forms, from systematically providing the military-intelligence establishment with indispensable research — on demography, geography, hydrology, and psychology, among other disciplines — to tolerating and often rewarding racist speech, theories and “scientific” research. It also includes institutionalizing discrimination against Palestinian Arab citizens, among them scholars and students; suppressing Israeli academic research on Zionism and the Nakba (the forced dispossession and eviction of Palestinian Arabs during the creation of the State of Israel); and the construction of campus facilities and dormitories in the occupied Palestinian territory, as Hebrew University has done in East Jerusalem, for instance.
In the first few weeks of the first Palestinian Intifada (1987-1993), Israel shut down all Palestinian universities, some, like Birzeit, for several consecutive years, and then it closed all 1,194 Palestinian schools in the occupied West Bank (including East Jerusalem) and Gaza. Next came the kindergartens, until every educational institution in the occupied Palestinian territories was forcibly closed. This prompted Palestinians to build an “illegal network” of underground schools.
Palestinian scholars and students are methodically denied their basic rights, including academic freedom, and are often subjected to imprisonment, denial of freedom of movement, even violent attacks on themselves or their institutions. If exercising the right to academic freedom is conditioned upon respecting other human rights and securing what Butler calls the “material conditions for exercising those rights,” then clearly it is the academic freedom of Palestinian academics and students that is severely hindered, due to the occupation and policies of racial discrimination, and that must be defended.
So when the ASA “unequivocally” defends academic freedom and argues that the boycott actually “helps to extend it,” it means that it is not only contributing to restoring academic freedom for those most deprived of it, but that it is also promoting unhindered, rational debate in the U.S. and beyond about Israel’s occupation that stands behind this denial of rights.
Some academics and lobbyists have vociferously attacked the ASA, and indeed the entire academic boycott of Israel, as undermining academic freedom, usually without specifying whose academic freedom they are taking about. None of them, clearly, had Palestinian academics in mind. Regardless, their critiques have failed to explain how the institutional boycott that the PACBI and its global partners uphold would in fact infringe upon academic freedom. In a desperate attempt to prove this supposed infringement despite ample evidence to the contrary, some have resorted to intellectual dishonesty by making the false claim that the Palestinian boycott targets and aims to isolate Israeli academics, completely distorting the fact that it explicitly and consistently targets Israeli institutions.
If the Palestinian-led academic boycott of Israel succeeds in isolating Israeli institutions, Israeli academics are likely to lose their privileges and perks, but certainly not their academic freedom. To understand the difference, one must reference internationally accepted definitions of the latter.
The United Nations Committee on Economic, Social, and Cultural Rights (UNESCR) defines academic freedom as including “the liberty of individuals to express freely opinions about the institution or system in which they work, to fulfill their functions without discrimination or fear of repression by the state or any other actor, to participate in professional or representative academic bodies, and to enjoy all the internationally recognized human rights applicable to other individuals in the same jurisdiction.” Nothing in the PACBI boycott conflicts with any of this.
Regardless, according to the UN, academic freedom itself, like any other right, is not an absolute right. The “enjoyment of academic freedom,” according to the UNESCR, comes with the basic “obligations” to ensure that contrary views are discussed fairly and "to treat all without discrimination on any of the prohibited grounds.” This rights-obligations equation is a general underlying principle of international law in the realm of human rights. When scholars neglect or altogether abandon such obligations, they can no longer claim what they perceive as their inherent entitlement to this freedom.
Those who are still reluctant, on principle, to support a boycott that expressly targets Israel's academic institutions while having in the past endorsed, or even struggled to implement, a much more sweeping academic boycott against apartheid South Africa’s academics and universities are hard pressed to explain this peculiar inconsistency. Unlike the South African “blanket” boycott of academics and institutions, the PACBI call explicitly targets Israeli academic institutions because of their complicity, to varying degrees, in planning, implementing, justifying or whitewashing aspects of Israel’s occupation, racial discrimination and denial of refugee rights.
What I call the “Stephen Hawking effect” – the entrenchment of BDS in the international academic mainstream – may well be a prelude to crossing a qualitative threshold. International scholars, and a fair number of conscientious Israeli scholars as well, are increasingly conscious that they carry a moral obligation to stand up for justice and equal rights everywhere and to refrain from lending their names to be used by an oppressive regime to cover up injustice and human rights violations. The ASA boycott of Israel will be remembered for many years to come as a crucial catalyst in this emancipatory process of reclaiming rights for all who are denied them.
Omar Barghouti is a founding member of the Palestinian Campaign for the Academic and Cultural Boycott of Israel (PACBI), and author of Boycott, Divestment and Sanctions: The Global Struggle for Palestinian Rights (Haymarket: 2011).
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.