Last week, University of Oregon (UO) President Michael Gottfredson signed a broad new academic freedom policy, granting UO faculty and staff what are among the strongest free speech protections in the country. The policy covers students as well, but is especially critical for faculty and staff after the Supreme Court’s decision in Garcetti v. Ceballos (2006), which opened the door for government employers to punish their employees for their speech.
To review briefly, the Court held in Garcetti that the First Amendment does not protect public employees from punishment by their employers for “speech made pursuant to the employee’s official duties.” However, recognizing that this would present serious problems for teachers and professors, who are hired to share new and challenging ideas, Justice Anthony Kennedy explicitly reserved the question of whether the ruling would apply to “expression related to academic scholarship or classroom instruction.” Since then, federal appeals courts have split on the issue of whether Garcetti applies to professors at public universities, though professors have won some important recent victories.
According to AroundtheO, UO’s news site, the Garcetti holding motivated President Gottfredson to sign UO’s new “Academic Freedom Policy.” Specifically, the section on shared governance was crafted to “ensure[ ] that academic freedom at the UO will not be narrowed by the U.S. Supreme Court’s decision in Garcetti v. Ceballos.”
The policy, approved by the faculty senate last month, contains sections on “scholarship,” “teaching,” “policy and shared governance,” and “public service.” Although these topics are of particular concern to faculty and staff, each provision grants freedom to “members of the UO community” broadly—meaning that the policy could serve as an additional tool for students as well. Here is the bulk of the policy, worth looking to as a model for other institutions:
a. SCHOLARSHIP. The University’s research mission requires that members of the UO community have autonomous freedom to conduct research and produce creative work, and to publish and disseminate that work, limited only by the standards and methods of accountability established by their profession and their individual disciplines.
b. TEACHING. The University’s responsibility to help students to think critically and independently requires that members of the university community have the right to investigate and discuss matters, including those that are controversial, inside and outside of class, without fear of institutional restraint. Matters brought up in class should be related to the subject of courses or otherwise be educationally relevant, as determined primarily by the faculty member in charge of the class.
c. POLICY AND SHARED GOVERNANCE. Members of the university community have freedom to address, question, or criticize any matter of institutional policy or practice, whether acting as individuals or as members of an agency of institutional governance.
d. PUBLIC SERVICE. Public service requires that members of the university community have freedom to participate in public debate, both within and beyond their areas of expertise, and to address both the university community and the larger society with regard to any matter of social, political, economic, cultural, or other interest. In their exercise of this freedom, university community members have the right to identify their association or title, but should not claim to be acting or speaking on behalf of the University unless authorized to do so.
The Kansas Board of Regents, which recently adopted a troubling social media policy, should take special note of UO’s language here. For example, UO—unlike the Kansas Board—recognizes that professors’ rights to openly discuss topics should not be limited to their “areas of expertise.” As FIRE noted in our May 1 letter to the Kansas Board about its recently revised policy on the “improper use of social media” by faculty and staff, the Board’s decision to restrict faculty speech in this way will curtail teaching in developing or interdisciplinary areas of study.
It is refreshing to see UO taking quite the opposite approach here, enumerating only narrow grounds for limiting speech, such as lack of germaneness for a class (“as determined primarily by the faculty member in charge of the class”) or “professional incompetence.” Even in the case of professional incompetence, the policy promises “formal procedures involving judgment by relevant peers.”
The new policy builds on UO’s “Freedom of Inquiry and Free Speech” policy, which has existed in its current form since 2010. That policy not only states that “[f]ree inquiry and free speech are the cornerstones of an academic institution committed to the creation and transfer of knowledge” but also particularly emphasizes that someone’s “belief that an opinion is pernicious, false, and in any other way despicable, detestable, offensive or ‘just plain wrong’ cannot be grounds for its suppression.” It even implicitly prohibits heckler’s vetoes, supporting “the right of protesters to engage with speakers in order to challenge ideas, so long as the protest does not disrupt or stifle the free exchange of ideas.” Though the First Amendment contains much simpler language, these provisions are helpful in light of many universities’ misunderstandings about what kinds of speech are constitutionally protected.
Overall, these UO policies serve as a great example for institutions that wish to truly foster a free “marketplace of ideas” for students, faculty, and staff. In passing the academic freedom policy, President Gottfredson and the faculty senate have demonstrated a strong commitment to First Amendment rights. FIRE would be happy to work with UO to bring the rest of its policies in line with the policies discussed above. With the Academic Freedom Policy and the Freedom of Inquiry and Free Speech policy as guidelines, UO could easily earn FIRE’s highest rating, a “green light,” in our Spotlight database.