In January, the Kansas Board of Regents created a “workgroup” of public university faculty and staff to review the Board’s controversial new policy on “improper use of social media.” Recognizing the serious threat that some of the Board’s provisions pose to protected expression, the workgroup vowed to do more rewriting than reviewing. Yesterday they delivered, releasing a draft approved on Friday that stands in stark contrast to the Board’s original policy.
The group’s draft emphasizes freedom of expression and academic freedom early and often in mandatory terms, while statements about refraining from certain types of speech either track existing law or are framed as best practices and social considerations. The draft states that each university shall adopt its own guidelines, but specifically states that “improper use of social media” shall not include:
i. the content of any academic research and other scholarly activities;
ii. the content of any academic instruction;
iii. the content of any statements, debate, or expressions made as part of shared governance at a university whether made by a group or employee; or,
iv. in general, any communication via social media that is consistent with First Amendment protections and that is otherwise permissible under the law.
And while the draft urges university employees to “be mindful” that their statements may affect the public’s view of the school or of them, it also states that “guidelines shall recognize the rights and responsibilities of all employees … to speak on matters of public concern as private citizens, if they choose to do so.”
These unequivocal affirmations of the First Amendment rights of faculty and staff are critically important, particularly in light of the University of Kansas’ punishment of professor David Guth for his protected speech on Twitter and some Kansas legislators’ threat to withhold funding if Guth wasn’t fired. If these provisions are enacted, they will provide a necessary clarification to faculty and staff—and to administrators at Kansas’ public universities—that speech must not be censored or punished merely because it causes discomfort or, as the Board’s current policy says, “impairs … harmony among co-workers.”
The draft’s limitations on speech are narrow and leave little discretion to school administrators:
[C]ontent on social media may violate existing law or policy and may be addressed through university disciplinary processes if it:
i. is intentionally directed to inciting or producing imminent violence or other breach of the peace and is likely to incite or produce such action;
ii. violates existing employee policies addressing professional misconduct;
iii. discloses without lawful authority any confidential student information, protected health care information, personnel records, personal financial information, or confidential research data.
Though “existing employee policies” on professional misconduct might, at some schools, be more speech-restrictive, the workgroup’s careful declaration that schools must recognize employees’ rights should help to keep that provision in check.
FIRE commends the workgroup for its attention to the principles of free speech and academic freedom. The workgroup members are soliciting feedback from their respective universities, and the group was asked to make recommendations to the Board by April 16. However, after the Board’s refusal to suspend its current policy during the review process, it is not at all clear that the Board will swiftly follow the workgroup’s lead in upholding employees’ First Amendment rights.
Check back to The Torch for updates, and read the full draft on the University of Kansas website (PDF).