BY HANK REICHMAN

Non-disclosure and confidentiality agreements are much in the news these days.  Most notably, the “aggressive and unconventional” use of such agreements by the Trump White House has attracted attention because, as the Washington Post pointed out, “most legal experts believe such agreements are not legally enforceable for public employees.”  In this context comes the stunning news, revealed by the AAUP, that Purdue University Global — the totally online entity created when Purdue, ignoring protests by faculty and community leaders, acquired for-profit Kaplan University — is requiring its employees, including its instructional faculty, to accept an especially restrictive version of such a non-disclosure agreement.  The revelation is something of a bombshell because Purdue Global clearly indicates at the top of its website home page that it’s “a public, non-profit university.”

It sure isn’t behaving like one.  The agreement is, as Greg Scholtz of the AAUP’s Department of Academic Freedom, Tenure, and Governance put it, “breathtakingly inappropriate in higher education,” adding, “I’ve never seen anything like it.”

Neither have I.  The four-page detailed agreement — most likely carried over from how the old for-profit Kaplan U. conducted business — reads as if its purpose were to protect nuclear secrets.  “In the course of your employment,” the agreement ominously begins, “you may be granted access to, or become acquainted with Purdue Global’s Confidential Information.  When we say ‘Purdue Global Confidential Information,’ we mean any non-public information about Purdue Global you may receive, including” among a litany of other things, “course materials, methods of instruction, [and] research reports.”  Expanding on this in a lengthy section on “Intellectual Property,” the agreement states that any work product “or other intellectual property that arises in any part in the course of your employment at Purdue Global is commissioned and owned by Purdue Global as a work-for-hire and may not be used, duplicated or distributed outside of Purdue Global.”

To be sure, Purdue Global “waives its employer right to own your copyright to a work that is not part of education delivery at Purdue Global or Purdue University” — as if it had claim to such a right in the first place — and also “waives its employer right to own your copyright to a work that you have authored primarily to express and preserve scholarship as evidence of academic advancement or academic accomplishment, including scholarly publications, journal articles, research bulletins, monographs, books, plays, poems, musical compositions and other works of artistic imagination.”  But there’s small comfort in that, given that the very next paragraph declares, “Notwithstanding anything in the foregoing to the contrary, for any work that is not owned by Purdue Global as a work-for-hire, Purdue Global retains a perpetual nonexclusive, royalty-free license to use, duplicate and distribute all such copyrightable works for all research and educational purposes of Purdue Global and Purdue University.”  In other words, if you agree to teach a class for Purdue Global and publish a book or article, or compose a song, or paint a picture, or invent something that Purdue wants to use, they can do so in any way they want — without paying you and without your permission.

The 1940 Joint Statement  of Principles on Academic Freedom and Tenure clearly states that “teachers are entitled to full freedom in research and in the publication of the results” and that “teachers are entitled to freedom in the classroom in discussing their subject.”  In the 1999 Statement on Copyright, the AAUP Council declared that

it has been the prevailing academic practice to treat the faculty member as the copyright owner of works that are created independently and at the faculty member’s own initiative for traditional academic purposes.  Examples include class notes and syllabi; books and articles; works of fiction and nonfiction; poems and dramatic works; musical and choreographic works; pictorial, graphic, and sculptural works; and educational software, commonly known as “courseware.”  This practice has been followed for the most part, regardless of the physical medi­um in which these “traditional academic works” appear; that is, whether on paper or in audiovi­sual or electronic form.

The Statement on Copyright adds that faculty members should retain copyright to “traditional academic works . . . [where] the faculty member . . . determines the subject matter, the intellectual approach and direction, and the conclusions . . . [T]traditional academic work that is copyrightable—such as lecture notes, courseware, books and articles—cannot normally be treated as work-for-hire.”

In 2013, the Statement on Intellectual Property, approved by Committee A and Council, added,

Standards should be set for the handling of faculty intellectual property rights in the design and subsequent use of instructional materials, including online courses.  Course syllabi at many institutions are considered public documents; indeed, they may be posted on universally accessible websites.  It is thus to be expected that teachers everywhere will learn from one another’s syllabi and that syllabi will be disseminated as part of the free exchange of academic knowledge.  Faculty lectures or original audiovisual materials, however, unless specifically and voluntarily created as works made for hire, constitute faculty intellectual property.  As components of faculty-designed online courses, they cannot be revised, edited, supplemented, or incorporated into courses taught by others without the consent of the original creator.  Nor can an online course as a whole be assigned to another instructor without the consent of the faculty member who created the course, unless, once again, the faculty member agreed to treat the course as a work made for hire with such ownership rights residing in the institution.  Faculty governing bodies have a special— and increasing— responsibility to ensure that faculty members are not pressured to sign work-for-hire agreements against their will.

With respect to both research products and teaching materials, academic freedom requires that faculty be free to produce work reflecting their own views and theories — not those of the institution’s management.  If all work belonged to the institution, as this policy would have it, then its content would also have to be controlled or at least accepted by its administration.

One reason Purdue Global wants to compel its instructors to sign away these rights is that, absent such an agreement, courts have tended to defer to the rights of faculty members to control both their own research and their teaching material. In the 1988 case of Hays v. Sony Corp., the U.S. Court of Appeals for the Seventh Circuit concluded that “[t]he universal assumption and practice was that, in absence of an explicit agreement as to who had the right to copyright[,] such writing belonged to the teacher rather than to the college or university.”  Similarly, in 2014 the Missouri Court of Appeal ruled that syllabi are the intellectual property of the faculty who created them. Lastly, in the 1969 case of Williams v. Weisser a California appellate court ruled that “the teacher, rather than the university, owns the common law copyright to his lectures,” adding that “[no] custom known to us suggests that the university can prescribe [the professor’s] way of expressing the ideas he puts before his students” and hence that university ownership of faculty lectures would create such “undesirable consequences . . . as to compel a holding that it does not.”  (This ruling may be the reason why the Purdue Global agreement also requires signatories to agree that they “do not primarily live and work in California.”)

The agreement also includes a sweeping gag clause that prohibits faculty members from disclosing “to anyone who is not specifically authorized to receive it,” even other Purdue Global employees, virtually any information received during the course of their employment. The long list of “trade secret information” covered includes course materials, methods of instruction, research reports, employees, finances, costs, expenses, and policies and practices.  Several of these topics are among areas of “primary responsibility” for the faculty, and all are subjects that the faculty should be able to discuss widely when participating in academic decision making.  As a result, the right to do so is protected under principles of academic freedom.

In addition, under the agreement former instructors may not “induce any employee of Purdue Global known by you to possess any Purdue Global Confidential Information to terminate their employment with Purdue Global or to become employed by, or to enter into a business relationship with any competitive business.”  So, I guess, if someone teaching at Purdue Global gets hired into a tenure-track teaching position at another institution, they can’t invite any other instructor they may know at Purdue Global to also apply for work there.  Nor can a former Purdue Global instructor “attempt to influence” any Purdue Global “customers,” known elsewhere in higher education as, well, “students.”

When the Purdue-Kaplan merger was first announced, faculty members like Rachel Hile, Associate Professor of English at Indiana University-Purdue University Fort Wayne and AAUP chapter leader, called the deal “a cynical bid to convert public money to corporate profits under the cloak of benevolently providing educational access.”  “This really undercuts the efforts of faculty in Indiana to preserve high quality public education against the encroachments of private entrepreneurs, distance education, and diploma mills,” added Alex Lichtenstein, President of IU-Bloomington’s AAUP chapter. “It is extraordinary that such a consequential decision, with a major impact on the curriculum, would be taken without consulting, let alone even alerting, the Purdue faculty.”

Nearly 100 faculty from Purdue and three other public Indiana universities signed a public statement opposing the arrangement as an attack on faculty governance and academic freedom.  They warned against “conditions of at-will employment for 3,000 . . . faculty and staff members [in the new online entity], with no common geographic location for face-to-face meetings, and no provision for shared governance, tenure, or oversight from a deliberative body of faculty who are professionally qualified in the relevant area of expertise.”  That warning went unheeded, but has now been revealed as frighteningly prescient.

The Purdue-Kaplan deal that created Purdue Global was pushed through by University President Mitch Daniels, the former Republican governor of Indiana.  As Bill Mullen, Professor of English and American Studies at Purdue, wrote on this blog a little more than a year ago,

Daniels is the Betsy DeVos of higher education (he openly supported her nomination to the Trump cabinet.)  . . .  Daniels seeks to turn public higher education into a laboratory for the dumbing down and privatization of a University degree.  In purchasing Kaplan to make money for Graham [Holdings, the private owner of Kaplan, which receives 12.5% of Purdue Global earnings each year], he has sold the Purdue brand to Wall Street, continuing the trend he began as Governor of Indiana when he slashed millions of dollars to public education, created the largest school voucher program in the country [now shown to be educationally ineffective], and attacked teachers and teachers unions.  Indeed, the Kaplan deal stabs Purdue faculty hard in the back.  They were never consulted about this plan, even though it is their work and excellence that has made Purdue one of the elite Universities in the world.  Daniels’s dirty deal with Kaplan permanently stains Purdue’s academic reputation and ruthlessly exploits the labor of its students, staff, and faculty.

As Inside Higher Ed reported after Purdue Global won accreditation in an irresponsible decision by the Higher Learning Commission, “Kaplan’s role with Purdue Global in some ways will resemble that of an online program management company, albeit one that charges a relatively small fee and with a long-term contract.”  In a damning 2017 report, the Century Foundation found that “the vast majority of public colleges and universities that offer online education programs or courses are now relying upon external companies to do so.”  Analyzing over a hundred agreements between universities and such managers, Century found “a traditional outsourcing model with a dangerous twist” in which these management companies “may prioritize profit over the interests of online students, to whom they owe no loyalty, financial or otherwise.”  The report found that “these programs are evading oversight from both sides, lacking the internal oversight that comes from a nonprofit or public structure and the governmental supervision that comes from operating a for-profit school.”  Its authors concluded that such “outsourcing of the core educational mission of public institutions of higher education, threaten[s] the consumer-minded focus that results from the public control of schools.”

Sadly, it now appears that Purdue Global is raising those problems to a new, even more dangerous level.