On Tuesday, the University of Iowa issued guidance to its faculty restricting speech on the topics of COVID-19 vaccinations and mask usage. Perhaps recognizing that the guidance was unconstitutional, UI removed it from the provost’s website today to make revisions. FIRE calls on UI to ensure the revised guidance fully respects faculty members’ First Amendment rights and academic freedom.
The original FAQ-style guidance placed various restrictions on how faculty could discuss the issues of vaccinations and masks, with troubling implications for academic freedom. For instance, the guidance had this to say about classroom speech:
You may only make statements regarding mask usage or vaccinations in the context of course material discussions of health-related issues. Outside that context, if you are asked, you may share your personal choice regarding the decision to wear a mask or be vaccinated without making a statement regarding the value of the choice or any value judgments about decisions not to be vaccinated. Remember that there is a power differential between you and your students, and they may perceive you asking them to wear a mask or if they have been vaccinated as a requirement that they do so.
This policy would intrude on faculty members’ First Amendment rights and academic freedom, and UI must leave it out of the revised guidance.
First, the restriction on making “statements” about mask usage or vaccinations is overly broad. It is true that neither the First Amendment nor principles of academic freedom give faculty members the right to persistently fill their lectures with discussion of subjects irrelevant to the course. But UI’s policy would censor even incidental remarks about specific topics. Moreover, the restriction of comments about mask usage or vaccinations to “course material discussions of health-related issues” excludes many other contexts in which those topics could be relevant. FIRE Executive Director Robert Shibley illustrated that point by noting, for example, that “a discussion about mask usage or vaccinations would be entirely appropriate in a philosophy course dealing with issues of collective action, despite the course not being about ‘health-related issues.”’
Second, UI has no authority to prohibit its faculty from making “value judgments” about the decision to wear a mask or get vaccinated. Academic freedom encompasses a professor’s right to express personal views in the classroom, which students are, of course, free to reject or criticize. As the American Association of University Professors has recognized, faculty members’ “freedom in the classroom applies as much to controversial opinions as to studied agnosticism.” UI’s own policies enshrine this freedom. The university endorses the AAUP’s 1940 Statement of Principles on Academic Freedom and Tenure, expressly acknowledging faculty members’ right to “discuss subjects—including controversial issues that are relevant to the subject—in their classrooms.” UI likewise “encourages faculty members to express new ideas and divergent viewpoints and to make inquiries unbounded by present norms.” And the Iowa board of regents’ policy on free expression states “universities must strive to ensure the fullest degree of intellectual freedom and free expression allowed under the First Amendment.”
It is disappointing to see colleges and universities use laws banning mandates about conduct as an excuse to ban speech.
UI’s appeal to the “power differential” between faculty and students places too little faith in the ability of students, who are adults, to simply hear different views without feeling coerced to adopt those views or take a certain action. Yes, professors can abuse their power, but that is true in myriad circumstances, not just this one. Putting aside the guidance’s restrictions on faculty asking students to wear a mask or inquiring into their vaccination status, the existence of this “power differential” in no way limits a professor’s right to express personal opinions or make value judgments, especially on matters of public concern.
The original guidance also restricted faculty members from asking colleagues about their vaccination status:
We ask that everyone respects the privacy of their co-workers and colleagues by refraining from asking about their vaccination status. Vaccination status is a personal matter and should be treated as such. Asking someone about their vaccination status may cause them to feel pressured to share personal or private information. By avoiding questions regarding vaccination status, we are helping to ensure that everyone feels respected.
Here, UI’s “power differential” rationale often wouldn’t even apply. And the university has no basis to restrict its faculty members from discussing topics of public concern among themselves. As Keith Whittington noted at Reason:
Outside the classroom, faculty are recognized to have extensive freedom to communicate their personal view to others. The provost’s stern admonishment to faculty not to ask anyone about their vaccination status is at odds with freedom of intramural speech. Your colleague has the right not to tell you, but you have the right to ask.
UI’s guidance appeared to be an overreaction to an Iowa law prohibiting K-12 school districts and local governments from imposing mask mandates, and an accompanying policy from the board of regents. Though the law doesn’t even apply to higher education, the board of regents instituted a policy stating that students and faculty at state universities are not required to wear masks except under limited circumstances, nor may they be required to show evidence of vaccination for COVID-19. (The policy also states that all on campus are “strongly encouraged” to receive a vaccination, or wear a mask if unvaccinated.) Of course, none of this justifies the overbroad speech restrictions in UI’s guidance, which extended well beyond speech ordering individuals to wear a mask or show proof of vaccination.
A similar scene is playing out at Collin College in Texas. In July, Gov. Greg Abbott issued an executive order prohibiting most government entities in the state from requiring an individual to wear a face covering. In response, Collin College apparently banned faculty from even “encouraging” or recommending on course syllabi, signs, or in person that anyone wear a mask, “to comply with the governor’s executive order.” Incredibly, the executive order itself says individuals are “encouraged” to wear masks in areas where the COVID-19 transmission rate is high. Surely Collin College does not believe that the governor’s executive order is violating itself? Like the Iowa law and board of regents policy, it simply bans mandates.
It is disappointing to see colleges and universities use laws banning mandates about conduct as an excuse to ban speech. Even if these laws did ban constitutionally protected speech, that would be, well, unconstitutional, and schools would have no authority to enforce them.
Faculty must retain wide latitude to communicate material and ideas to their students as they see fit — including expression of personal views — without administrative interference or censorship.
Nevertheless, we are glad to see that UI is revising its guidance. As it does so, FIRE urges the university to keep in mind its faculty members’ rights under both the First Amendment and UI policies protecting academic freedom.
Faculty must retain wide latitude to communicate material and ideas to their students as they see fit — including expression of personal views — without administrative interference or censorship. To avoid unduly restricting academic freedom and chilling classroom speech, the requirement of pedagogical relevance must be construed broadly, and faculty cannot be penalized for off-hand comments deemed “irrelevant” by administrators. Faculty must also remain free to comment outside of the classroom on issues of public interest or institutional matters. And conversations with colleagues should be free from regulation as long as they don’t veer into harassment or some other form of unprotected speech.
FIRE will keep an eye out for UI’s revised guidance, and continue to stay vigilant of similar threats to free speech at colleges and universities around the country.
FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If your rights are in jeopardy, get in touch with us: thefire.org/alarm.
We're joined by First Amendment attorney Marc Randazza and British journalist Brendan O'Neill to discuss the state of free speech in the United States and Europe. Randazza is a First Amendment attorney and the managing partner at Randazza...