BY HANK REICHMAN

In Fall 2017 the California Faculty Association (CFA), an AAUP-affiliated union representing nearly 28,000 California State University (CSU) faculty, librarians, counselors, and coaches, and CSU management agreed to extend their collective bargaining agreement.  As part of that agreement, the sides agreed to continue negotiations over academic freedom and intellectual property with the condition that no changes to the contract would be made unless CFA and CSU management reached agreement on both issues.

After a final meeting this week, CFA today reported the following:

Despite our team’s best efforts, mutually agreeable contractual changes on both issues could not be negotiated.  CFA’s leadership and Bargaining Team concluded that no changes (maintaining the status quo) is the best outcome given the nature of the changes the Chancellor’s bargaining team had proposed.

“Their proposals would have resulted in decreased faculty rights and an increase in management discretion,” said Bargaining Team Chair Kevin Wehr, “The status quo contract language is far superior to management’s final position.”

For academic freedom, CFA proposed a new article in the contract which would have used the American Association of University Professors’ 1940 Statement of Principles on Academic Freedom and Tenure as a basis, in an effort to make faculty’s rights to academic freedom explicit.

CFA’s proposal was responsive to members’ concerns about the current political climate, in which non-academic forces seek to regulate and limit faculty speech. CFA proposed that management has an obligation to support faculty speech, stating “The University shall vigorously defend its faculty members against non-University forces who seek to weaken Academic Freedom.”

Given that academic freedom extends beyond the classroom to a myriad of pursuits from scholarship and creative activity to online communications, our proposal made it clear—and defensible—that academic freedom is a fundamental right of all faculty members.

In response, CSU management proposed additional language to the preamble of our contract and an appendix, which included a list of prohibitions on faculty speech and expression. Not only was the substance of the management proposal inconsistent with generally accepted definitions of academic freedom, even worse was the fact that their proposal could have subjected faculty to disciplinary action, which would not be allowed under our current faculty contract.

Regarding intellectual property, management proposed that intellectual property would default or be licensed indefinitely to the CSU with no or minimal financial and institutional support.

Current language in Article 39 is the inverse of their proposal: faculty members can enter contracts with the campus administration that provide an exchange of rights for a specific monetary amount known as “extraordinary support,” in all other cases faculty maintain control of everything they produce.

“One particularly galling aspect of management’s proposal was that the CSU asserted a claim to perpetual license of all faculty course materials, whether there was extraordinary support or not,” said Antonio Gallo, Chair of CFA’s Contract Development & Bargaining Strategy Committee. “No faculty member would ever give up their intellectual property in such a manner.”

Management’s proposal also did not speak to CFA’s stated concern about faculty members’ control of course material, particularly material that is available to students through course management systems, and it became clear that our perspectives on intellectual property were far apart.

The current contract language remains in place, and nothing prevents campus Academic Senates from passing policies that clarify and elaborate on faculty rights and freedoms, as long as those policies are consistent with our faculty contract.

Under the current contract, CFA successfully defends faculty from discipline surrounding unpopular speech and expression, and Article 39 will continue to protect our intellectual property.

This is quite unfortunate, given that numerous CSU managers, including several presidents and provosts, have publicly stated their support for academic freedom.  Interestingly, the CSU’s position contrasts with that taken recently by the administration of the University of California.  After embarrassing themselves by proposing in contract negotiations to deny academic freedom protections to librarians, UC managers retreated and agreed to support a revised system policy that extends the already strong academic freedom protections enjoyed by Senate faculty to all faculty, librarians, and academic staff.  That policy is currently under review, but is expected to be approved.

With respect to intellectual property, UC has to its shame compelled faculty members to sign a draconian patent acknowledgement pledge, which assigns to the university all patents and similar rights resulting from faculty research, a flagrant violation of the principles of academic freedom.  But at least the UC has not sought — yet — to control copyrighted materials, much less course materials, as the CSU has now done.

As the AAUP has declared, “Faculty members’ fundamental rights to direct and control their own research do not terminate when they make a new invention or other research discovery; these rights extend to decisions about their intellectual property—involving invention management, IP licensing, commercialization, dissemination, and public use.  Faculty assignment of an invention to a management agent, including the university that hosted the underlying research, should be voluntary and negotiated, rather than mandatory.”