The Kansas Board of Regents adopted a new policy Wednesday that subjects faculty and staff speech on social media to vaguely-worded and broad restrictions. The nine-member board approved the policy, which governs dozens of colleges and universities across Kansas, with little, if any, input from professors. While a press release issued by the Board claims that the policy relies on language from the U.S. Supreme Court and has been approved by the state attorney general, professors and civil libertarians have pointed to several aspects of the policy that put professors’ First Amendment rights at risk.
The policy change comes in the wake of the controversy surrounding University of Kansas (KU) professor David Guth, who was put on administrative leave and then assigned to non-classroom duties after he posted a constitutionally protected, but controversial, tweet in September. Breeze Richardson, a spokesperson for the Board, said that the incident “indirectly” motivated the Board to create the policy.
Among other things, the policy allows for professors to be fired for disturbing “harmony” in the workplace:
The chief executive officer of a state university has the authority to suspend, dismiss or terminate from employment any faculty or staff member who makes improper use of social media. ... "Improper use of social media" means making a communication through social media that:
ii. when made pursuant to (i.e. in furtherance of) the employee's official duties, is contrary to the best interest of the university;
iv. subject to the balancing analysis required by the following paragraph, 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.
The categories of speech declared punishable by this policy are problematic in their breadth. What’s more, the policy itself will likely impede the functioning of the university system. When professors are afraid to disagree, to propose new ideas, and to challenge the way things are being done, progress will be stymied by an intolerable pall of orthodoxy as faculty members learn to keep quiet instead of risking their jobs. As associate professor at KU and president of the Kansas Conference of the American Association of University Professors (AAUP) Ron Barrett-Gonzalez notes, “A healthy body of faculty will be a deliberative structure, and they will not always agree.” AAUP associate secretary Anita Levy pointed out also that the policy grants administrators broad power to subjectively decide what speech is punishable.
A statement from the Board’s general counsel was seemingly offered to reassure concerned citizens but demonstrates a worrying attitude. The Chronicle of Higher Education reported:
Julene Miller, the board's general counsel, said the policy does not eliminate academic freedom and whistle-blowers’ rights, and merely “gives the university CEO’s a tool and some guidance to use in determining whether discipline is appropriate” based on fact-based analyses of given cases. “It is up to them how they utilize it,” she said.
In other words, the language makes suggestions as to what might be punishable, but it remains to be seen whether it will be enforced with any consistency, or whether it will be used to infringe on professors’ academic freedom or to punish their speech as private citizens. Whether it is in fact used to punish a broad range of protected speech, or whether it is enforced selectively, protected speech will likely be chilled. Selective enforcement in particular could be motivated by viewpoint discrimination, a particularly troublesome result in higher education, where students and faculty should be exposed to a range of opinions and ideas. Unfortunately, such action apparently would be supported by some of Kansas’ legislators—back in September, several state senators called for Guth to be fired specifically because of the content of his message.
The AAUP has raised similar concerns in their statement regarding the policy:
[The policy] makes a mockery of faculty members’ rights to speak as public citizens on matters of public concern, including speech about university affairs. Under this policy, if a faculty member disagrees with an administration policy and as part of official duties serving on a university committee speaks out against it, this could lead to termination. Under this policy, a faculty member who dissents from university policies or simply disagrees with colleagues online may also be terminated for impairing “discipline” or “harmony,” vague criteria that all but invite gross abuse.
The decision to adopt the policy may have serious negative repercussions for KU and its students. Barrett-Gonzalez stated that he has received dozens of emails from people considering working for Kansas colleges who were concerned about how the policy would affect them. And prospective professors at Kansas colleges and universities are right to hesitate before working in a system that adopts policies that can so easily be used to punish protected speech, particularly in light of progress for professors’ rights elsewhere.
Read more analysis and remarks from concerned professors in The Chronicle of Higher Education.
UPDATE: FIRE, the ACLU Foundation of Kansas, and the National Coalition Against Censorship have sent a letter to the Kansas Board of Regents outlining our concerns and urging the Board to rescind the new policy. Read it here (PDF).
Image: Chi Omega Fountain, the University of Kansas - Wikipedia