Why the AAUP Is Wrong about Secret Recordings

BY JOHN K. WILSON

Earlier this year, the AAUP issued a statement against targeted online harassment of faculty.

This statement has added significance with the news that Princeton professor Keeanga-Yamahtta Taylor has cancelled several speeches after receiving death threats in the wake of a commencement speech in which she called Donald Trump “a racist, sexist megalomaniac.” I might be biased as the author of a book that repeatedly calls Trump a racist, sexist megalomaniac, but I think there can be broad agreement that death threats should not be tolerated.

Yet I have some criticisms of the AAUP statement. For one, I don’t think it goes far enough in fighting death threats. One recommendation declares, “The AAUP urges administrations, governing boards, and faculties, individually and collectively, to speak out clearly and forcefully to defend academic freedom and to condemn targeted harassment and intimidation of faculty members.” This is certainly true, but the AAUP should also call for universities to lead the way in a campaign against death threats and other illegal forms of targeted harassment.

But my deeper criticism is aimed at the other recommendation in the statement: “The AAUP recommends that administrations and elected faculty bodies work jointly to establish institutional regulations that prohibit the surreptitious recording of classroom discourse or of private meetings between students and faculty members.” I believe this is a bad idea.

The one-year suspension of a conservative Orange Coast College student for secretly recording a professor’s anti-Trump rant sparked a national debate about surreptitious recordings. The professor had to go into hiding after receiving death threats.

The suspension was quickly overturned by the Board of Trustees (after threats from the local newspaper and politicians to go after the college), and the attempt to punish the student generated support from conservatives for secret recordings.

Conservative columnist Dennis Prager declared, “I would encourage every student who cares about truth and intellectual honesty to record what their professors say in class.” According to Prager, “Most professors objecting to being recorded know on some level that they are persuasive only when their audience is composed largely of very young people just out of high school. They know that if their ideas are exposed to adults, they may be revealed as intellectual lightweights.” Of course, this is just silly. Being exposed as a “lightweight” is pretty much last on the list of why professors fear being recorded. In truth, they fear threats and harassment and the loss of their jobs if some provocative comment gets taken out of context and used against them. Not all conservatives agreed with Prager. Ramesh Ponnuru at the National Review offered numerous reasons why secret recordings were a bad idea.

But how is a tape recording of a professor in class fundamentally any different from a student who takes careful notes on a professor’s comments and publicly reports them? Yet, I doubt that the AAUP would ever maintain that a student can be punished for taking notes and telling people what a professor has said.

The 2003 Report of the AAUP Special Committee on Academic Freedom and National Security in a Time of Crisis called secrecy “fundamentally incompatible with freedom of inquiry and freedom of expression.” For the AAUP to suddenly demand secrecy in the classroom (and the punishment of students who violate it) seems like a double standard.

Surreptitious recordings can serve a valuable role in our society, by revealing the truth about what happens behind closed doors. The secret recordings of Mitt Romney (“47 percent”) and Donald Trump (“grab them by the pussy”) were critical to showing people who these men really are, and contributed greatly to them losing the popular vote for president. Remarkable documentaries like “Tickled” or “Hooligan Sparrow” rely on secret recordings to tell their story.

Secret classroom recordings rarely accomplish any good, since they are often aimed at trying to fire professors for their controversial opinions. But should we ban students from recording evidence of racial discrimination, sexual harassment, threats, and genuine misconduct by a professor? A ban on secret recordings is absolute, and covers a wide range of circumstances where a secret recording might be the right thing to do. James Klyczek, the president of Niagara County Community College, resigned on April 26 after secret recordings of him were aired on local media in which he called a sexual assault victim “dumber than a doorknob” for taking a man on a tour of the campus.

A ban on secret recordings would likely extend far beyond the classroom, and could be used to punish professors and others who gather evidence as whistleblowers on campus.

The notion that we can protect the vibrant exchange of ideas by seeking to keep classrooms safe spaces for secret discussions is a mistake. In fact, when we endorse the enforcement of secret classrooms, we contribute to the viewpoint that professors shouldn’t be speaking to a broader public about important issues, but only belong behind the ivory towers of the university. When we ban recordings, we send a message that professors should only be free to express themselves in the private, secretive space of a classroom.

Nor will a ban on secret recordings help protect faculty. A ban won’t prevent anyone from making false allegations about a professor, since the misremembered allegations of a hostile student are sometimes worse than an actual recording.

Moreover, the overwhelming majority of the targeting of faculty is because of their openly expressed extramural comments, such as tweets. We cannot be satisfied with a system that protects professors only in the classroom.

Many courses, including online courses, are recorded or can be recorded. If colleges start punishing students for recordings, it is easy for students to anonymously post them. And, of course, colleges are required to allow students with certain disabilities to record classes. So the idea of the secret classroom is long past.

In the 1915 Declaration of Principles, the AAUP announced about speech by professors in the classroom: “Such utterances ought always to be considered privileged communications. Discussions in the classroom ought not to be supposed to be utterances for the public at large. They are often designed to provoke opposition or arouse debate. It has, unfortunately, sometimes happened in this country that sensational newspapers have quoted and garbled such remarks. As a matter of common law, it is clear that the utterances of an academic instructor are privileged, and may not be published, in whole or part, without his authorization. But our practice, unfortunately, still differs from that of foreign countries, and no effective check has in this country been put upon such unauthorized and often misleading publication. It is much to be desired that test cases should be made of any infractions of the rule.”

For many years, I would cite this provision as an example of how outdated the 1915 Statement was. How ridiculous, I thought, that anyone could believe that a student should be punished for quoting what their professor said in class. I noted back in 2014, “the belief that a professor’s statements in the classroom are ‘privileged’ is something the AAUP now correctly rejects, I hope. While there are still concerns about surveillance of what professors say and hidden recordings, the truth is that what professors say should not be a secret.”

Unfortunately, I might have been wrong to assume that the AAUP agreed with me about this. I hope that the AAUP will reconsider this new statement, or at least offer some arguments for why such the drastic step of punishing students is deemed necessary.

Is there a danger that professors will be afraid of expressing their views if someone might be recording them? Yes. That’s why we should (as the AAUP statement rightly points out) discourage secret recordings, condemn organizations and people who encourage students to record their professors, and defend the academic freedom of professors who are under attack. But when universities seek to punish students for secret recordings, they are taking a repressive step. Not all bad actions should be met with official punishment.

In a marketplace of ideas such as the university, enforced secrecy is antithetical to freedom. The assumption is that professors will never get in trouble for their classroom speech if only they ban secret recordings is naïve. We cannot embrace a false freedom that only protects professors who keep their actual thoughts away from the public ear, to be expressed solely within the confines of a protected classroom space. We must instead defend the right of professors to say controversial things, and not depend on a ban upon recordings to keep them safe. A freedom that depends on suppression is only a phantom of liberty.

4 thoughts on “Why the AAUP Is Wrong about Secret Recordings

  1. “…no effective check has in this country been put upon such unauthorized and often misleading publication.”

    This is surely the crux. The AAUP is making the same error as those who wish to ban Muslims entering the country, it is targetting the wrong thing. It is not the recording that is problematic – it is the inappropriate release of information deliberately deprived of its context to cause harm that is the problem.

  2. It is my understanding that any recording of classroom activities — authorized or otherwise — could potentially run afoul of current FERPA protections that prohibit the public identification of (here, other and third-party) students who may be enrolled in the class, as their presence may be incidentally or inadvertently revealed by the recording. I suspect that this contributes to surreptitious classroom recordings being completely decontextualized by those who release them to the public, in an attempt to avoid any liability for violating a third party’s FERPA rights.

    In addition, there are intellectual property issues that do not seem to be brought into play often enough in these situations. I have long included a couple of sentences in my syllabi that a) prohibit the unauthorized redistribution of my IP — specifically any and all lecture or discussion content verbatim, b) prohibit any form of content recording in my classroom other than note-taking, and c) establish failure in the course and being charged with violating the school’s honor code (specifically the “dignity,” “fairness,” “civility,” and “integrity” clauses) and/or our Academic Conduct Policy (specifically the “Disruptive Behavior in an Academic Situation” clause) as possible penalties for violating either of these prohibitions, depending on the severity of the transgression. I also include — in print — a broad disclaimer that positions argued for or against by the instructor are to be considered part of a Socratic method pedagogy and do not necessarily reflect the options of that instructor.

    That is what is has come to these days, but I do love our institutional legal counsel for their proactive advice and our IT for enabling us to post our syllabi in an online archive for anyone to find and review.

    • Since the abuse of FERPA rules is a pet peeve of mine, let me say that FERPA does not prevent students from publicly revealing the fact that other students are taking a class. So, saying “John Doe is in my Econ class” does not violate FERPA, nor would recordings.

      For intellectual property, fair use rules provide a very strong and broad exemption. You absolutely can’t ban students from quoting a limited quantity of your words using IP laws. And I would strongly object to failing a student for this. Students should be judged purely on their academic merit, and only punished with a bad grade if they engage in academic fraud. So grades should not be used to punish violations of the conduct code.

  3. Pingback: What John Wilson Gets Wrong About Secret Recording | ACADEME BLOG

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