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Proposed University of Maine System policy unduly restricts faculty political activity

The University of Maine System Board of Trustees will consider a policy revision at a meeting later this month that would restrict how university employees engage in political activity. The policy, called “Institutional Authority on Political Matters,” unnecessarily restricts faculty political expression and needs some revisions before being adopted.

For example, the policy would prevent faculty from using “UMS or university . . . computers, copiers, email, UMS- or university-issued cell phones and other communications equipment . . .” when engaging in political activity. While it may be legitimate to prohibit employees from using university resources like copy paper and ink when engaging in private political activity, the university’s resources are not depleted when a professor sends an email from his or her office computer.

The Board of Trustees cites the IRS as a reason why it is considering restricting faculty speech. It’s true that the IRS can withdraw an institution’s tax exempt status if an institution violates IRS rules on political activities for nonprofit colleges, but even if the IRS rules on this issue were overly strict (they aren’t), this would not justify censoring protected speech. Unfortunately, over the years, FIRE has seen universities use the IRS as a scapegoat many times to restrict political expression on campus. In fact, administrators have restricted student and faculty political expression so often that FIRE testified about the problem before Congress in 2016 and issued a “Policy Statement on Political Speech on Campus 2016,” as we also did in 2008 and 2012, to inform students and administrators alike what restrictions are, and are not, permissible under IRS guidelines. As we wrote in our statement:

Tax exempt colleges and universities are prohibited from participating in political campaigns as institutions, however, individual students, student groups, and faculty members do not endanger their institutions tax-exempt status by engaging in partisan political speech when such speech is clearly separate and distinct from the institution’s views or opinions. The presumption is that such speech does not represent the views of the university as an institution. Moreover, this presumption applies with particular vigor when speakers clearly indicate that they are not speaking for the university. The risk of appearance of institutional endorsement may be greater when the speaker is a high-level university administrator, but it decreases as one moves down the chain of command to lower-level administrators. Additionally, this risk does not apply to students or student groups, or to faculty who do not hold a position as an administrator or department head.

The proposed restrictions on faculty speech go further than necessary to remain compliant with IRS guidelines. As written, the policy jeopardizes a professor’s ability to use his or her expertise while communicating with legislators or legislative staff or commenting on pending legislation.

UMS does have an interest in ensuring that it remains compliant with IRS guidelines. UMS also has an interest in ensuring that employees acting in their official capacity and speaking on behalf of UMS follow the system’s policies and procedures. However, as we said in our “Policy Statement on Political Speech on Campus 2016,” there is a strong presumption that professors do not speak on behalf of the institution, and they should not be forced to tack a disclosure to that effect onto their private legislative or other protected activities.

FIRE would be happy to work with the UMS Board of Trustees to ensure that any policy adopted by the Board does not unduly restrict the ability of UMS faculty to express their opinions or communicate with legislators or legislative staff.

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