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Kansas Board of Regents Approves Self-Contradictory, Unclear Social Media Policy

By May 15, 2014

Yesterday afternoon, the Kansas Board of Regents approved a revised policy on the “improper use of social media” by faculty and staff at the state’s public colleges and universities. The widely criticized policy asserts a commitment to freedom of speech yet authorizes punishment for constitutionally protected speech, and it still leaves professors unsure of what speech a university might sanction them for.

Since last December, when the policy was originally enacted, FIRE, scores of professors at Kansas institutions of higher education, and other free speech advocates have repeatedly explained to the Board how its vague and overbroad provisions threaten free speech and academic freedom. A faculty workgroup created by the Board to review the policy drafted an excellent proposal in late February that would have protected faculty speech rights while allowing the university to punish unprotected speech. The Board included in its revisions some of the workgroup’s language about the importance of the First Amendment in academia, but left several problematic provisions in the policy. What’s resulted is a policy that is self-contradictory and still endangers freedom of expression both through its provisions on disciplinary action and through the chilling effect it will have on faculty speech.

To summarize, the policy allows the state’s public institutions of higher education to punish or even fire faculty for speech if, for example, it “impairs … harmony among co-workers.” An added section from the latest round of revisions at first seems like a step in the right direction, protecting “academic research or other scholarly activity.” But it goes on to specify that speech will not be considered “improper” when it is “academic instruction within the instructor’s area of expertise” (emphasis added). This suggests that professors might be in danger when they venture into areas arguably outside that area, including interdisciplinary studies and new fields of study in which few or no professors have established their expertise. FIRE detailed these problems and more in our May 1 letter to the Board.

Kansas State University Professor Stephen Wolgast spoke for many of his colleagues in a piece for The Kansas City Star published earlier this week when he discussed the difficulty of interpreting the revised policy:

My fellow faculty members are trying to figure out what that means. We think we have a clue from what we suspect was the regents’ motivation: the tweet from a University of Kansas professor that criticized the NRA after the Navy Yard shootings in September.

Indeed, the fact that it remains unclear whether a tweet like Professor David Guth’s would be covered under this policy is a stark illustration of how problematic it is. Wolgast continued:

Here’s an example of our confusion. The Regents have already decided that a firing offense is one that “impairs discipline by superiors or harmony among co-workers, (or) has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary.…”

Who will judge the loyalty of my Facebook post?

Plenty of faculty feel that criticizing the spending priorities of their bosses could now jeopardize their careers. The board’s chairman, Fred Logan, said at a committee meeting in April that suggestions that an instructor could be fired for criticizing a university president were “ludicrous.” But there’s no such protection in the rule he approved.

Wolgast’s point is well taken. After all, anyone well-versed in First Amendment law would call Guth’s punishment “ludicrous” too—his tweet fell far short of constituting a “true threat” and was posted on his personal Twitter account on his own time.

Oh, if only schools abided by an unspoken rule not to engage in “ludicrous” acts of punishment for protected speech.

If there’s anything uplifting about this story, it’s that faculty at Kansas public universities have zealously fought this policy even up to the moment it was passed, and they continue to speak out against it. The Council of Faculty Senate Presidents provided a statement at the Board’s meeting yesterday, reiterating concerns about the policy’s inevitable chilling effect and its potential to allow for a “‘heckler’s veto’ scenario for controversial speech.” Many protesters present for the vote wore T-shirts that read “Committee for Harmony, Loyalty, and Discipline.” The tireless efforts of the faculty and staff standing up for their First Amendment rights is worthy of praise and should serve as an example to students and faculty across the country.

We at FIRE are deeply disappointed in the Board’s decision to retain its policy’s unclear and overbroad language permitting discipline for constitutionally protected expression. It is especially worrying that, in the face of an overwhelming message from faculty that the policy is not clear enough, the Board has refused to better delineate the policy’s boundaries.

Check back to The Torch for updates.

Schools: Kansas State University 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