Q&A: Colin Ramsey and Martha McCaughey on faculty copyrights

Colin Ramsey and Martha McCaughey are the authors of “Copyright for Academics in the Digital Age,” the lead feature article in the new issue of AcademeTheir article discusses the potential copyright problems that can arise for faculty and staff, what rights faculty have, and how best to protect those rights and ensure access to scholarly work. I spoke to them by e-mail about their article. My questions and their answers are printed below.

At one point in the article you write that copyright, in the hands of commercial publishers of academic articles, sometimes restricts the flow of scholarly information. Is this an inevitable result of copyright?

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Fisher v. Texas, Part Two

Last week, I wrote about the upcoming Supreme Court case Fisher v. University of Texas at Austin. I recently attended an event sponsored by the ACLU, discussing the upcoming court term, including this case. There are a few unusual elements to the case that I want to talk about this week. Once again I am indebted to Dennis Parker of the ACLU’s Racial Justice Program for explaining these issues and his thoughts on them.

The first is the unusually high number of amicus briefs filed in the case, mostly in support of the university (the AAUP has signed on to one of these briefs). Other briefs on behalf of the school came from:

Sixteen members of the US Senate and sixty-six members of the House of Representatives;

Thirty-eight members of the Texas legislature;

Dozens of Fortune 100 companies;

A bipartisan group of former commissioners of the FCC;

And the United States government itself.

There were many, many more. Read the full list here. The list of interested parties on both sides show that this case is about much more than affirmative action and the college admissions process—it raises questions of what “diversity” means, and what its value is or should be in our society. These questions affect not only schools, but businesses, governments, and individuals.

As Steven Shapiro, the legal director of the ACLU, put it last week, this case makes us confront the very idea of diversity. Is “diversity” just a statistical measure of students’ races? Will we get to the desired amount of diversity by just making sure that the percentages of students of each race match up to what we want? Or rather, is diversity about the student experience—ensuring that students interact with people different from them as they go about their college careers, particularly in the classroom? If it’s the latter, then ensuring diversity in its own way would be part of a school’s academic freedom.

When this case goes before the Supreme Court on October 10, Justice Elena Kagan will not be present. She has recused herself, presumably because her work while solicitor general included working on this case. What that means is that there’s a possibility of a 4-4 split by the eight justices who do hear the case. If that happens, the lower court’s ruling will stand—a win for the University—but there will be no official ruling, and the arguments and logic of the justices will not be able to set precedent for future cases. But for supporters of affirmative action, that would be a much better result than a ruling against the university.

To even get to a 4-4 tie, one of the traditionally conservative justices (Alito, Kennedy, Roberts, Scalia, or Thomas) will have to side with the three non-recused traditionally liberal justices (Breyer, Ginsburg, or Sotomayor). As in so many cases, Justice Kennedy seems to be the most likely swing vote. Kennedy opposed the affirmative action program at the University of Michigan in 2003’s Grutter v. Bollinger decision, but Shapiro speculated that Kennedy’s reasoning was primarily based on the fact that he thought Michigan’s policy was a thinly-veiled quota system. It is very, very hard to argue that the Texas policy is a quota system, since the majority of the students they accept are accepted automatically by virtue of being in the top 10 percent of their high school class. Of course, he may oppose it for another reason.

If five or more justices decide that the Texas policy is unconstitutional, then they will have to decide the question of how much of the Texas admissions policy needs to be revised. Remember that Abigail Fisher, the student who is suing UT in this case, did not automatically get admission by being in the top 10 percent of her class. She applied as part of the secondary policy, which considers race and other factors in filling the remaining slots. It is possible that the justices could decide to keep the top 10 percent policy, but forbid the school from considering race in the secondary process. This would effectively revert the Texas policy back to where it was from 1997-2003.

Or, the justices could go farther, and throw out the entire admissions policy, arguing that even the 10 percent plan was meant to increase racial diversity, and that any attempt to increase diversity is unconstitutional. This would constitute a major setback for affirmative action, and would be surprising, since it would overturn the Grutter decision, which is still less than a decade old.

But it’s hard to guess just how the justices will decide, though it seems reasonable to me to say that the best supporters of the university can hope for is a 4-4 split (I don’t think Alito, Roberts, Scalia, or Thomas will budge on the issue, though I am not a professional court-watcher by any means). Oral arguments will be on October 10, 2012, and transcripts and audio should be available on the court’s website soon after that.

Q&A: Jacob Rooksby on higher ed patents

Jacob Rooksby is an assistant professor of law at Duquesne University’s law school. His research looks at the intersection of intellectual property law and higher education, and he is a contributor to the newest issue of AcademeHis article is “Sue U.” and explores what happens when universities get into the game of developing, licensing, and protecting patents. I spoke with him by e-mail about the issues raised in his article.

What do you think every faculty member or researcher should know about university-owned patents?

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Love It or Leave It: Does ISU’s Code of Student Conduct Violate the First Amendment?

Illinois State University (ISU) has received an undesirable designation: it has been named “Speech Code of the Month” for September by the Foundation for Individual Rights (FIRE), a libertarian organization that criticizes restrictions on student free speech.
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Cary Nelson’s Media Strategies

Cary Nelson recently ended a six-year stint as president of the AAUP, and while in the office, he made a priority of media outreach. In “Media Matters,” Nelson’s article in the newest issue of Academe, he gives readers tips on successfully getting the AAUP name and viewpoint into the news and into public awareness. It’s good advice for AAUP leaders at any level, whether you are looking to be quoted in a local paper or the New York Times.

Nelson offers advice about how to work with the media, both logistically – knowing a reporter’s schedule so you can make sure to give them a quote or an interview in time – and creatively, by giving many examples of his more successful media campaigns. His examples include the different strategies he used when Yale left the most controversial images out of its book The Cartoons That Shook the World; when Rutgers-Camden first learned that it might be cut out of the Rutgers system; when BP tried to interfere, in Nelson’s view, with academic freedom in the aftermath of the 2011 Gulf oil spill; and more. In short, a wide variety of situations, and hopefully you can take inspiration from these examples to help get the news out about faculty issues on your campus or in your state. Read the full article here.

Access in the Academy

In the September-October issue of AcademeStephanie L. Kerschbaum writes that administrators and other leaders can take positive steps to help ensure access for all faculty, before specific needs arise. For example, braille nameplates next to all offices can be the norm, so that faculty who need them will feel included from the start. Kerschbaum also points out that some accommodations can be useful to everyone–for example, a closed captioning system for lectures and events can help everyone ensure that they know what the speaker is saying, even if they aren’t deaf.

Kerschbaum’s key point is that accommodating faculty means more than just finding individual solutions to specific needs. Doing the latter sends the message that the faculty member’s needs are a problem that have to be solved, and will always be reactive. By being proactive, schools send a message that all are going to be welcomed. The article concludes with an extensive list of ideas for how to achieve meaningful accessibility for all members of the university community.

Academe has published several recent articles about access for faculty members who have disabilities, and the AAUP recently released a major report on the subject.

Queensborough Community College: At an Impasse?

Twenty years ago, I was a teacher/administrator at a New York City private school. About halfway through the year, the head of the school asked me to conduct a vote among the faculty. I did so, and took the results back to the chief administrator. He looked at them, shook his head, and said, “No.” It was then that I knew I would not be returning the next year. I could not lie to the faculty, making appear they had choices when they did not.

Unless you are willing to accept the choice made, asking someone to choose is meaningless.

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Fisher v. Texas: A Primer

On October 10, 2012, the United States Supreme Court will hear arguments in Fisher v. University of Texas at Austin, a major affirmative action case that could fundamentally change college admissions for many students. At issue are questions of how schools achieve racial diversity in their student bodies—or if they should even be trying. The AAUP has signed on to an amicus brief by the American Council on Education in support of the University of Texas.

This morning, I attended an event sponsored by the American Civil Liberties Union discussing the case (and other cases expected to be heard in the upcoming term). In this blog post, I will outline the history of the Texas program and the specific circumstances of this case, and next week, I’ll write about the ACLU’s view of the case and how the justices might decide on it. I’d like to thank Dennis Parker, of the ACLU’s Racial Justice Program, for explaining the issues in this case and answering my many questions about it.

The University of Texas has a long history of litigation over issues of race and admissions. After trying to increase the diversity of its student body in the 1980s and 1990s, the university was sued by four white applicants to the UT law school, who were not accepted—because, they say, of their race. The Fifth Circuit court agreed, and, in the 1996 decision in Hopwood v. Texas, ordered the university to stop considering race at all in its admissions. There was an immediate 40 percent drop in the number of African American students at UT the following year.

In 1997, the Texas legislature responded to the Hopwood decision by passing a law that guaranteed admission to the University of Texas for the top 10 percent of every high school’s graduating class. Since then, 60 to 80 percent of UT’s undergraduate classes have been filled by students under this system. To fill the rest of the spots, UT considers a “personal achievement index” of other factors—like extra-curricular activities, personal characteristics, and school leadership positions. The 10 percent plan did increase racial diversity at UT, but not to the levels that had been reached before the Hopwood decision.

Administrators got their chance to increase racial diversity in 2003, after the Supreme Court ruled in Grutter v. Bollinger that schools can take race into account in certain narrow ways. This ruling in practice overturned the Hopwood decision, and, using this new case as justification, UT began to consider race as one of the factors in the personal achievement index.

And that brings us to the current case. In 2008, a Texas student named Abigail Fisher applied to UT. She was not in the top 10 percent of her class, so she did not get admitted automatically under that system. The school then considered her under the secondary, personal achievement system, and declined to offer her admission. Fisher says that this decision was because of her race—that had she not been white, she would have been admitted. She sued the university, saying that because the admissions policy takes race into account, it is unconstitutional.

So far, no court has agreed with Fisher’s argument. A US District Court, a three-judge panel of the Fifth Circuit Court, and the full Fifth Circuit Court have all decided the case in favor of the university. The Fifth Circuit ruled that the Texas system was acceptable under current law and precedent, because it considers each applicant as an individual, with race being just a part of who they are. It does not assign a specific number of extra “points” to students of certain races. It does not have quotas for accepting a certain number of applicants from particular races. In all, the circuit court found that the Texas policy was in keeping with the Supreme Court’s decision in Grutter. Now the Supreme Court will decide for itself whether the current policy violates its precedent—or whether to overturn that precedent and institute stricter rules about how race plays into university admissions.

Next week, I will look more at the case as it stands before the Supreme Court, including the dozens of amicus briefs filed on each side and the possible arguments of some of the key justices. You can also learn much more about the case by reading the documents and articles about it at SCOTUSblog.

Interdisciplinarity at Wesleyan

In 2010, Wesleyan University began offering courses and holding events in its new College of the Environment, a new interdisciplinary school and associated think tank. Each school year, the College has a broad theme (the first three were stress and vulnerability, water, and environmental justice) and approaches that subject from a variety of viewpoints. In an article in the new issue of Academe, a group of professors at Wesleyan talk about the motivations behind the college and the successes they have had so far.

One of the college’s goals is to let students and faculty from different departments work together and learn from each other in a way no single discipline can offer. They point out that different disciplines don’t just study different topics; they use different methods. It’s helpful for teachers and researchers, of course, to be exposed to different methods (and see which ones should be tried in their own fields), but the authors point out that it’s especially important for students, who can learn about multiple fields and methods before deciding in which direction to pursue their studies (the College of the Environment offers a four-course concentration, it is not in itself a major).

Read “The World through an Interdisciplinary Lens” to learn more about the college’s goals and progress, and perhaps get ideas for your own institution.