The Kansas Board of Regents made the '10 Worst Colleges for Free Speech in 2014' list, announced today by the Foundation for Individual Rights in Education, or FIRE.
Regarding the Regents and the lone other non-university list-maker, FIRE's announcement explains: “Two of the institutions listed aren’t colleges but still deserve inclusion for the profound effect they had on campus expression throughout the country last year.”
FIRE's beef with the Regents is the controversial social media policy approved last year. KU is now in the process of establishing a procedure to follow when someone is accused of violating that policy. Here’s the FIRE list, which you can read more about here.
• Brandeis University
• California State University, Fullerton
• Chicago State University
• Georgetown University
• University of Illinois at Urbana-Champaign
• University of Iowa
• Marquette University
• Modesto Junior College (Modesto, Calif.)
• Kansas Board of Regents
• U.S. Department of Education
Coincidentally, I wrote at more length than usual about this very issue — and other high-profile conflicts over academic freedom — in today’s paper. ICYMI, click here to read that story, ‘Academic freedom: Scholarly concept sparks lively mainstream debate.’
Some of you on the hill might remember a little incident last September involving a Kansas University journalism professor, a politically charged sentiment about the Navy Yard shootings in Washington, D.C., and a social media platform that disseminates statements of 140 characters or less.
Guth put KU and the journalism school in the national spotlight for reasons both entities would probably like to forget. But Guth wasn't alone among college professors who have come under fire for making politicized statements in an age of rapid-fire social media communication.
This week the Chronicle of Higher Education detailed the story of Rachel Slocum, an assistant professor of geography with the University of Wisconsin at La Crosse.
Like Guth, Slocum referenced current events in digital communication, only in this case the medium was email and it was directed at her students.
When last fall's government shutdown stalled a class assignment, which depended on government data from websites that were on hold with the shutdown, Slocum made an overt reference to the politics around the shutdown.
According to the Chronicle, Slocum wrote to her class in an email:
Some of the data gathering assignment will be impossible to complete until the Republican/Tea Party controlled House of Representatives agrees to fund the government… [the rest of the project] will have to wait until Congress decides we actually need a government."
A student in Slocum's class, who was then interning at the anti-tax advocacy group Americans for Tax Reform and who had a different view on the politics behind the shutdown, posted a picture of the email on Twitter with the message: "Can't do my homework for class; govt. shutdown. So my prof. blames Republicans in an e-mail blast…"
The fallout was swift and harrowing for Slocum and the university, much as it was for Guth and KU.
Among the similarities between the Slocum and Guth situations: Both stories were picked up by the college media site Campus Reform, which is affiliated with the Leadership Institute and other conservative outlets.
Guth, Slocum and administrators at their respective universities received vitriolic messages from strangers outside the university. Guth even received death threats.
Administrators in both cases publicly denounced the faculty members under fire.
Some called for Slocum to be fired. Same holds for Guth, and some state legislators joined in the demands for his job. Both universities saw legislative funding come under threat.
And, of course, both stories spread like wildfire through social media.
The speed with which news travels through social media strikes fear into the heart of university officials. In response, some universities and state boards are looking to somehow contain social media wildfires, as another Chronicle article points out.
That list includes Kansas. If it weren't for David Guth's tweet, the Kansas Board of Regents would probably never have introduced the controversial new social media policy giving university CEOs the power to fire employees over "improper" social media use.
That policy has gained at least as much notoriety as Guth's tweet. It sparked dismay and outrage among Kansas university employees and has brought condemnation from national groups and newspaper editorial pages around the state. Critics say the policy restricts academic freedom and free speech.
(Shortly after passing the policy, the regents said they would take a second look at it in response to the outcry. The work group tasked by the regents with reviewing it recently approved a rewrite that would take an advisory, rather than disciplinary, role. Campuses have largely lauded the proposed draft so far.)
The regents, as KU Provost Jeff Vitter has said, were trying to protect universities from political backlashes and funding risks such as that which followed the Guth imbroglio. In the process the regents found themselves at the center of a national debate over free speech in higher education.
Universities have evolved in part to be institutions of democratic instruction and the free debate of ideas. The invention of tenure was meant to shield university scholars from political reprisals by people who don't like their ideas or ways of expressing them.
It's understandable that taxpayers and tuition payers would want to limit classroom conversations to the assignment at hand, and to keep hot-button politics out of education. At the same time, universities are the places where many learn to think, talk and write critically about political, social, philosophical, scientific and commercial ideas for the first time.
Trying to keep politics out of the classroom, or social media, for education's sake might ultimately be self-defeating.
Kansas University students have joined in the call for the Kansas Board of Regents to suspend a social media policy passed in December.
The KU Student Senate passed a resolution this week urging the regents to ax the policy while a regents-created work group reviews it and recommends revisions.
Garrett Farlow, a KU freshman in journalism, was one of the primary authors of the resolution, which states the social media policy "inhibits free speech of faculty and staff, depriving them of the academic and personal freedoms necessary to effectively educate students."
Farlow said he was concerned that the policy could inhibit faculty members who engage with peers and students on social media. "Although the policy is directly targeted at faculty and professors, it obviously affects students," he said.
The policy allows university heads to suspend and fire employees for social media posts that conflict with the best interest of the university or its ability to perform services, among other violations.
After passing the policy unanimously in December, the regents announced they would review it in response to widespread criticism that it was too broad and could restrain free speech.
The regents established a work group of faculty and staff from state universities to study the policy and make recommendations to the board by April. But faculty and staff groups have repeatedly asked the regents to suspend the policy until the work group makes its findings. Yesterday the regents pushed back against those calls.
Farlow said the issue hasn't gotten much attention from students largely because they don't follow media accounts as closely as faculty and staff. But Farlow is trying to make it an issue with students, starting with last night's resolution.
"The more people that know about this, the more impact that we can have," he said. "The First Amendment is very near and dear to my heart."
Almost immediately after the Kansas Board of Regents passed a new policy on improper social media use in December, people across the state and country took to social media to express their views.
They tweeted. They Facebooked. They started email chains.
A Facebook group called "Kansas Universities Faculty & Staff Against Regents' Speech Policy" sprang up the next day. As of now, it has 1,765 likes.
Now some critics of the policy are using social media to test its reach.
The regents passed the policy unanimously in December. It allows presidents of regents universities to discipline, up to firing, employees that make posts on social media against the best interests of the universities or that interfere with their operations, among other violations.
The regents have said they are open to revising the policy and have set up a work group to review it and make recommendations. In the meantime, with the policy as written still in place, several groups of faculty and staff members have called for the suspension of the social media policy while under review.
This week Phil Nel, a distinguished professor of English at Kansas State University and vocal critic of the policy, began what he called "an experiment in civil disobedience."
Using the Twitter hashtag "#ksspeech," Nel encouraged his followers and colleagues to "tweet anything you like" to find out just what you can and can't say on social media if you're an employee of the university. As Nel writes on his blog Nine Kinds of Pie:
So, friends, Kansans, and allies of freedom of speech everywhere, join me in a little experiment in civil disobedience. If you’re on Twitter, tweet something and tag it #ksspeech — that’s “ks” (the postal abbreviation for Kansas) plus the word “speech.” If there’s still room, tag @ksregents as well. What should you tweet? Anything you like. A quotation. A recipe. A hypothesis. An observation. A pun. Something else.
I will be tweeting one such statement each day until the Kansas Board of Regents rescinds its unconstitutional social media policy. But I don’t see why I should have all the fun. Join me!
A sampling of the tweets so far:
"What is freedom of expression? Without the freedom to offend, it ceases to exist." - Salman Rushdie #ksspeech— Roger C. Adams (@KYfoodie) January 30, 2014
Last week the Kansas Board of Regents announced the names of a work group created to review the social media policy that the board approved last month. The policy, for those returning to campus from holiday hibernation, allows presidents of Kansas public universities to discipline, up to firing, employees for social media posts that conflict with the best interests of the university or its ability to provide services.
That the regents agreed to review the policy has done little to quiet those who have vocally opposed it. With the work group set to report back to the regents in April, that leaves at least four months, and quite possibly more, for it to sit in the regents' policy book in its original wording.
Distinguished professors from Kansas State University and Kansas University have asked the regents to suspend the policy while under review. Last week the faculty senate presidents of regents universities also asked the regents to suspend the policy.
The regents refused. Regents chairman Fred Logan explained their position, saying they had passed the new rules on social media use "in good faith."
Not everyone agrees. Philip Nel, a K-State distinguished professor of English, and a vocal critic of the policy who has helped organize multiple faculty responses to it, wrote in a recent blog post that he originally thought the policy "must have been a mistake." He writes:
Unlike previous Boards, this one had — for instance — been asking the Kansas Legislature to fund the state universities in Kansas. Adopting a social media policy that suspended freedom of speech and (in effect) eradicated tenure was surely because the hastily passed proposal was ill-considered.
His thinking has changed, though.
Before voting on its new social media policy, the Kansas Board of Regents ran it by the Kansas attorney general's office to make sure it stood on solid legal and constitutional ground. Confident in its constitutionality, the regents passed the policy unanimously in December.
The fact that the regents took the policy to the attorney general Nel takes as evidence that the policy was not a blunder or hastily crafted and little-thought-upon blip:
The policy is not a mistake, but a carefully executed plan to muzzle free speech. This is why the Board passed the policy as faculty and staff were grading exams and preparing to leave town (indeed, many had already left town). This is why, though the policy has been panned with near unanimity from both within and beyond Kansas, the Board is not backing down.
Logan said last week that he believed that the policy is a re-statement of existing law. But whether the policy could survive a legal challenge in court is an open question.
The constitutional issues involved are fairly nuanced and complicated. Although I suppose if these things were simple and straightforward, we wouldn't need courts or lawyers. In a conversation earlier this month with Rick Levy, a distinguished professor of law at KU, pointed to parts of the policy that could potentially be challenged on legal and constitutional grounds.
Levy, who is always careful when talking about the policy to point out that he is not expressing any opinion one way or the other, said, "Normally the state cannot discriminate or take action against speakers based on the contents of their speech." That's a core First Amendment protection. But there are some exceptions to it. One being speech that is, as Levy explains, "directed toward inciting imminent unlawful" behavior.
That provision to free speech comes with standards. Such speech must be likely to provoke unlawful conduct, and the speaker must have intended for the speech to incite unlawful behavior, Levy said. (Without those standards you'd get a lot of perverse legal and social outcomes. Imagine J.D. Salinger being on the hook for Mark David Chapman's murder of John Lennon because of Catcher in the Rye.)
The regents seemed to address speech inciting illegal behavior in their social media policy. Included in the types of improper social media are any posts that "directly incites violence or other immediate breach of the peace." But Levy said this "doesn't match the standard directly. It may be broader or permit action under broader grounds" because it "does not clearly require intent or likeliness" in its wording.
Another potential issue relates to the "void for vagueness" doctrine in constitutional due process. Under the doctrine people are "entitled to fair notice of whether your conduct is valid or not," Levy says.
The regents policy allows university heads to punish employees for any social media post that "impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impedes the performance of the speaker's official duties, interferes with the regular operation of the university, or otherwise adversely affects the university's ability to efficiently provide services."
Under a constitutional challenge to the policy, the regents would have to prove this gives university personnel adequate information about what kinds of speech would cause them to be disciplined or fired, Levy said.
Finally, there's the question of whether faculty and employees at a university are subject to the same legal precedents under free speech law as other public employees. The regents policy appears to apply principles that came out of the Gracetti v. Ceballos Supreme Court decision, in which the court decided that when employees make statements "pursuant to their official duties" (very similar language can be found in the regents policy), they are not engaged in civic speech protected by the First Amendment.
Levy said that, because of language in the court opinion, lower courts have typically ruled that those principles don't apply to universities, where teaching and scholarship have a unique function among other government activities.
Head spinning yet? All this of course could be sorted out by regents once the work group reports back. If not, there's a chance it could go to court to be sorted out.
If you have your own legal opinions on the matter or, better yet, KU news tips, send them along to firstname.lastname@example.org.