Opinion: Regents’ policy has a silver lining

January 8, 2014


Several weeks ago, the Kansas Board of Regents adopted a new “social media policy” that authorized university “CEOs” (note the use of a corporate term rather than the official titles of chancellor or president) to “terminate” (a somewhat frightening term evocative of spy thrillers) employees who used social media to communicate messages that fell with a broad spectrum including any message that disrupts “harmony among coworkers” or “adversely affects the university’s ability to efficiently provide services.” The policy was adopted without consultation with state university faculty or staff and over the objection of a number of university senior administrators, including the president of Kansas State University and the chancellor and provost at Kansas University.

It has been obvious from the beginning that the policy was adopted in response not only to the Guth cause célébre earlier this year and the extreme reactions of several Kansas legislators who have threatened to defund KU for not firing Professor Guth. One might say that this hastily conceived and implemented policy was, perhaps, ill-conceived. The reaction among faculty, staff, and the national media was predictable.

Legal question

The regents explained in promulgating the policy that it had been approved by the Kansas Attorney General’s Office and was constitutional. Further, the broad language of the regulation was said to have been taken from several federal court decisions going all the way up to the U.S. Supreme Court. Nevertheless, a number of well-respected lawyers and scholars have challenged the constitutionality of the policy on First Amendment grounds.

Certainly, the fact that the language of the policy was taken from federal decisions does not guarantee its constitutionality. There is always a danger when one takes language out of context and, I suspect, that this is the problem here. While the broad phrase used in the policy may well have been part of constitutional decisions when read in context, but when the regents took them out of their original context and inserted them in the new policy, they may well have gone over the line.


The debate over the new policy has also revealed several misunderstandings on the part of the regents. The use of the term “CEO” in itself shows an unclear understanding of the role of a university senior administrator, at least so far as faculty understand it. Second, the adoption of such a controversial policy, without faculty consultation, again shows a lack of sensitivity, one that has ultimately resulted in a massive national uproar the will help neither the regents universities nor the state of Kansas. The broad, even draconian, language of the new policy has evoked echoes of the McCarthy era and of the 1970s protests over an issue that really needn’t have caused such a fuss. Third, the adoption and implementation of the new policy without the input and over the objections of senior university administrators illustrates a major problem in the relationship between the regents and senior university officials.

Of course, now the Regents have retreated somewhat on their new policy and have called for extensive consultation and possible revision. Nevertheless, the policy remains in effect until such time as it is revised. The danger in this is that the policy may well have a chilling effect on the use of social media by faculty and staff. What precisely is a communication that disrupts “harmony among coworkers” at a university. I agree completely with the Washington Post that noted that harmony was often the last phrase one would attach to a normal faculty; “snakepit” is often far more applicable.

If, indeed, the current policy does have a chilling effect on faculty and staff use of social media this would be directly contrary to the direction in which the university has been and must be moving. For many students, telephone conversations and email are old hat. If you want to contact them you need to use social media. Further, this chilling effect may convince KU faculty and staff to leave for universities with less draconian policies or deter scholars who might consider moving to KU from doing so. Can we risk losing an eminent engineer or pharmaceutical researcher to another university? How will this further our educational mission?

I also think that a massive misunderstanding of tenure underlies this controversy. Tenure is a contractual right that guarantees faculty will not be disciplined or dismissed because of controversial statements they might make. It is the practical aspect of academic freedom, a concept developed in Germany in the 19th century and one which envisions that university faculty must have the freedom to explore and expound upon even politically unpopular subjects without fear of retribution.

Tenure is not a guarantee of lifetime employment. A faculty member who threatens physical harm to a student or colleague will not be protected by tenure or academic freedom. Thus, if a faculty member “tweets” that he intends to attack a colleague at 9 a.m. the next morning, such a communication, in my opinion, would not be protected by tenure. On the other hand, a faculty member who tweets that he thinks that a colleague’s academic work is badly done, would generally be protected by tenure. In my experience, the “harmony” of the faculty would be equally disrupted by both statements. This is one reason why the current policy is problematic.

A silver lining

As the cliché goes, every cloud has a silver lining. This particular cloud has several. First, we have seen that President Shultz of KSU, Chancellor Gray-Little and Provost Jeff Vitter of KU have the courage to speak out to defend their faculty and staff even against the regents who are, ultimately, their superiors. This is commendable. Second, the controversy, we may hope, has reignited a dialogue about the importance of faculty governance at KU and KSU, a dialogue which needs to take place.

There are many threats to academic freedom possible in the current environment. Too many faculty tend to be passive and self-interested and only become involved when they fear that their own interests are at risk. Perhaps, this controversy will force faculty to realize that if they do not speak out on issues, then they will lose whatever self-determination they may once have had.

Finally, I think that all the parties involved should understand this as a “teaching moment.” I do not believe that the regents acted in bad faith. I believe that they acted impulsively and unwisely in not consulting with their senior administrators and with the faculties and staffs who would be affected. In the end, the regents have the legal right to set what policies they wish. But process is important because process can help avoid damaging controversy as has been the case here.

— Mike Hoeflich, a distinguished professor in the KU School of Law, writes a regular column for the Journal-World.


Kendall Simmons 4 years, 3 months ago

I just wish that Mike had re-read his column. As it is, I found it incredibly difficult to follow.

Yeah...I could guess.

But, jeez Louise, could he not have realized the communication problems he was responsible for with statements like "It has been obvious from the beginning that the policy was adopted in response not only to the Guth cause célébre earlier this year and the extreme reactions of several Kansas legislators who have threatened to defund KU for not firing Professor Guth".

I mean...if he's going to say "not only"...don't you think he could have included his "but also"??

And I'd certainly like to know what HE was referring to when he wrote "...and of the 1970s protests over an issue that really needn’t have caused such a fuss."

Oh well.

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