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FIRE, ACLU of Kansas, and NCAC Send Letter to Kansas Board of Regents; Board Hints at Changes

By December 23, 2013

On Friday, FIRE, the ACLU Foundation of Kansas, and the National Coalition Against Censorship (NCAC) sent a joint letter (PDF) to the Kansas Board of Regents urging the Board to rescind its controversial new policy restricting the use of social media by faculty and staff at public colleges and universities across the state.

Among other things, the policy allows for a professor’s employment to be terminated when his or her speech “impairs … harmony among co-workers” or if, in the sole opinion of a university’s chief executive officer, the speech is “contrary to the best interest of the university.” After a wave of criticism (PDF) from the American Association of University Professors and other supporters of faculty rights, The Kansas City Star reported that the Board may already be rethinking the policy.

In our letter, FIRE explained how these provisions could be used to punish a significant amount of speech that not only is constitutionally protected but also directly serves the purpose of higher education:

For example, under Chapter II.C.6.b.iv, a Twitter argument between two economics professors with competing theories on the efficacy of quantitative easing would provide grounds for punishment if, in the entirely subjective opinion of a university administrator, the discussion merely appeared to “impair harmony.” This is an unacceptable result and cannot be squared with our nation’s long-established commitment to protecting academic freedom. While the university, as a government employer, may seek to ensure its efficient operation, it may not do so by violating the academic freedom rights of faculty members.

Additionally, we pointed out that the vague and subjective language of the policy is likely to create a chilling effect on faculty speech:

Because Chapter II.C.6.b permits punishment for subjective judgments by university administrators after assessing nebulous concepts like “harmony,” “loyalty,” and “confidence,” it is impossible for faculty members to reasonably determine what social media expression will constitute a violation of the policy. As a result, rational faculty members will simply refrain from exercising their First Amendment rights, lest they face censorship or punishment as a result of the reactions of their peers or the judgment of their superiors, however unreasonable or unfounded.

The Kansas City Star noted the widespread and negative reaction to the new policy, as well as the Board’s apparent step back:

After its unveiling on Wednesday, the policy was quickly denounced by faculty groups nationwide, including the American Association of University Professors, which said it raised “significant questions about academic freedom.”

By Thursday, the regents appeared to be backpedaling. A spokeswoman said the policy was intended as “a guidance document” for universities, not a mandate.

It is unclear whether the many other policies in the Board’s chapter on governance of state universities also merely serve as “guidance” or how one can read flexibility into statements that “[t]he chief executive officer of a state university has the authority to” fire professors based on their use of social media.

But regardless of whether universities must enforce these provisions against faculty, the fact that the Board of Regents is clearly stating that they may do so is what creates the infringement on faculty free speech rights. The Kansas City Star is right in its response to the Board’s statement:

[T]hat’s not good enough. Kansas needs great universities that do not suppress speech, ideas or blog posts. The Board of Regents should get this confusing, stifling policy off of its books.

FIRE will keep a close eye on the situation. Check back to The Torch for updates.

Schools: University of Kansas Cases: Kansas Board of Regents Approves Vague and Overbroad Social Media Policy University of Kansas: Anti-NRA Tweet Results in Professor’s Suspension