Yesterday, the Kansas Board of Regents adopted a new policy requiring all state universities to target social media, in retaliation for David Guth’s tweets (see my previous defense).
In one mindless decision, the Kansas Regents have instantly adopted one of the worst campus speech codes ever seen in the entire country. This policy is clearly unconstitutional and breathtaking in how moronic it is.
First of all, a policy targeting only online communications makes absolutely no sense (according to the policy, it’s okay to make death threats and release confidential student records in a flyer posted everywhere on campus, as long as it’s not on a blog). So the entire policy needs to be removed. (Interestingly, the Regents policy is so stupid that it provides a funny little loophole. The policy only regulates employees from “making a communication through social media.” So, as long as someone else actually makes the communication by posting it online, faculty and staff cannot be punished, even if they wrote it and even if it’s on the faculty member’s blog.)
But what’s really troubling about the new policy is the incredibly vague content of it. One section bans any comments “contrary to the best interest of the university,” whatever that means. Another section allows punishment of faculty and staff if an online comment “impairs discipline by superiors or harmony among co-workers.” The new policy also prohibits anything that might have “a detrimental impact on close working relationships for which personal loyalty and confidence are necessary.” The policy even prohibits anything that “impedes the performance of the speaker’s official duties” (do they know in Kansas that you don’t “speak” into the internet?).
All of these regulations are a dire threat to freedom of speech, because they would allow faculty and staff to be punished for virtually any reason. As in the case of David Guth, faculty could be punished because the reaction to a comment harmed the university in some way, even if there was no wrong with what an employee said.
This deeply misguided attempt at repression needs to be overturned immediately. Even if it can never be legally enforced, it sends a message that academic freedom is not welcome in the state of Kansas.
The national AAUP has now released a formal statement condemning this foolish policy. You can read it here: http://aaup.org/news/social-media-policy-violates-academic-freedom
Much of the text of the new code — especially the section on the “balancing” test — appears to be out of the playbook of Garcetti and of the Waters v. Churchill extension/clarification of Pickering. Cases abound where the “regular” media and public employee expression of opinion were engaged; “social media” would appear to be a new form of “publication” which the board apparently fears may escape earlier legal precedents.
It is therefore noteworthy that what does not appear contemplated in the policy are the uses of “social media” in instruction and research, where the dicta in Garcetti carve out a potential “absolute” safe haven. Until the U.S. Supreme Court handles the conflicts in the circuits, we can likely expect more of these tinkerings with what used to be perceived by the courts as individual (vs. institutional) academic freedom rights and free speech rights.
What is surprising, however, is the final section of the policy (linked in the posting above) where the Regents surrender their own authority, leaving the judgment of the chief executive officer to reign supreme in these matters without possibility of further appeal or review. Such abrogation bears examination for potential violation of responsibilities of the Board as might be enunciated in formal state legislation. While such a “policy governance” tactic is adopted by many boards in the private sector — never interfering with a CEO decision but evaluating CEOs for overall performance in the achievement of broad goals and policy — such sweeping surrender of oversight might not be consistent with the legislation in the state governing the Board of Regents. As this commenter is unfamiliar with the particulars of the legal parameters of the authority of the Kansas Board of Regents, this idea is communicated for consideration by those who are.
Pingback: The Brave New World of Academic Censorship | feimineach
Pingback: The Brave New World of Academic Censorship
Pingback: You are not alone. | The Academe Blog