September 2013
Push and pull between administrators and faculty unions during contract
negotiations is to be expected. But some faculty members at the University of
Oregon say administrators in their contract negotiations are attempting to gut a
particularly sacred university policy: academic freedom.
Oregon’s existing policy calls free inquiry and free speech “the cornerstones of
an academic institution committed to the creation and transfer of knowledge.”
The belief that an opinion is “pernicious, false, and in any other way
despicable, detestable, offensive or ‘just plain wrong’ cannot be grounds for
its suppression,” it says.
In
the spring, Oregon’s Faculty Senate approved a new policy on academic freedom, a
near-identical version of which the United Academics, a union affiliated with
the American Federation of Teachers and the American Association of University
Professors, soon adopted for negotiation purposes. Oregon faculty voted to
unionize lastyear and they are working on their first contract. The Senate
statement on academic freedom has yet to be finalized, pendingits own
negotiationswith the administration.
The
union’s proposed statement is similar to existing policy, calling free inquiry
and free speech “essential components” of academic freedom. The statement is
also more expansive, and includes language guaranteeing faculty the “right to
engage in internal criticism, which encompasses the freedom to address any
matter of institutional policy or action, whether or not as a member of any
agency of institutional governance."
Faculty advocates say that language was included in response to the 2006 U.S.
Supreme Court ruling in
Garcetti v. Ceballos,
which limited the speech rights of public employees. The decision, which
concerned the Los Angeles district attorney’s office, noted that the ruling did
not deal with identical issues to those found in public higher education, but
some courts have been applying the ruling to faculty disputes at public
universities (others have not).
Since then, faculty leaders nationwide have been pushing for
clarification of university policies as a way to protect free speech rights amid
the uncertain legal environment.
The
unionstatement also guarantees the right to free speech in public debate, “free
from institutional censorship or discipline.” At the same time, the statement
notes that faculty members have “special obligations,” including as de facto
public representatives of the university.
But
the
university’s
counterproposal decouples academic freedom and free speech,
addressing them separately. Academic freedom is “necessary to teaching and
research,” it says, with no mention of the role of academics in speaking out if
not related directly to teaching and research. Rejecting explicit union language
on free speech, the counterproposal instead guarantees protections afforded by
the First Amendment and state law.
The
university statement mentions civility twice in a section on faculty
responsibilities, including that faculty are responsible for treating "students,
staff, colleagues and the public fairly and civilly in discharging his or her
duties and in accordance with this agreement." Civility clauses have long been
of concern to advocates for professors. While it’s hard to find people who are
anti-civility, many academics note that requiring civilitycan become atool for
punishing those professors who speak out against their bosses or who push
unpopular positions.
Margaret Paris, professor of law and president of the Faculty Senate, has not
been involved in union negotiations but said that the union statement likely
would influence the ultimate Senate document, since it would be difficulty to
work off two different policies when most of the faculty belong to the union
(although law professors do not).
Paris also said she was aware of the university’s preference to decouple
academic freedom and free speech in the final Faculty Senate statement, and that
she would likely support it. Because the policies "spring from different sets of
values," it makes sense that each deserves individual attention, she said.
Oregon’s administration works closely with the Faculty Senateand Paris is
looking forward to a collaborative process finalizing the document, she said.
But
those involved in union contract negotiations said otherwise.
Bill Harbaugh, professor of economics and moderator of the "UO Matters" blog,
which is frequently critical of university policy, said decoupling academic
freedom from free speech left room for administrators to punish those faculty –
like him – who say things administrators don’t like. He also objected to the
idea that administrators would be the ones deciding what qualifies as "civil."
The
university has previously
publicly accused
Harbaugh of including “consistently anti-university” statements on his blog.
“The university is place of higher learning,” warranting explicit protections of
free speech, Harbaugh said. “The new policy takes out all the pro-free speech
stuff and instead includes many restrictive rules about how faculty can be
engaged in free speech. It’s aimed in part at limiting the critical faculty
right to criticize the administration outside of [the formal university
setting].”
Michael Mauer, an AAUP senior labor adviser involved in contract negotiations,
said the university’s counterproposal gutted union language that protects
faculty free speech, in light of Garcetti.
“It
limits that to whatever the courts currently say is protected by the First
Amendment, and we think it should be broader than that,” Mauer said,
particularly as the counterproposal also rejects some union language
guaranteeing faculty members the right to engage in criticism of institutional
policy.
And
while there’s nothing wrong with an “aspirational” mention of civility,he said,
including it as a “faculty responsibility” opens the door to potential
disciplinary action for words that should be accepted within the "scope of
vigorous debate."
David Hubin, executive assistant to University of Oregon President Michael R.
Gottfredson, said that he wasn’t involved in contract negotiations but that the
university’s desire to divorce academic freedom from free speech “reflects the
president’s sentiment that each of those two things are very important historic
privileges and that they can be stated more clearly separately. When they are
conflated it has the potential to not give the focus on academic freedom that we
feel is critical.”
Asked about the civility clause, Hubin said Oregon has a long history of
promoting respectful discourse – one that’s covered by the university’s existing
policy on academic freedom and free speech: “It is the responsibility of
speakers, listeners and all members of our community to respect others and to
promote a culture of mutual inquiry throughout the university community.”
Any
determination of what’s civil would likely include faculty input, he said.
In
e-mail, President Gottfredson said: “Academic freedom and freedom of speech are
both central to the strength and integrity of our academic community – they are
cornerstones of the public university.
Discussionswith the University of Oregon Senate last spring resulted in a draft
statement that combined these two freedoms. I believe these tenets are of such
central importance to our academic mission that they deserve to be considered
individually and developed separately into two strong policies.I communicated
my views to the former Senate president, and look forward to moving the
discussion forward with our new Senate president when our academic year begins
later this month.”
Harbaugh, however, said Gottfredson’s views lagged behind that of his former
employer, the University of California. The system’s Board of Regents recently
expanded speech rights
for faculty. Gottfredson is the former provost of the University of
California at Irvine.
Robert O’Neil, a free speech expert and former University of Virginia president
and law professor, didn’t suspect any nefarious intent on the part of the
administration based on the counterproposal, but said that a first contract is
an important opportunity to "get it right" when it comes to understandings of
academic freedom.
The
union is particularly well-positioned to flesh out language regarding free
speech in light of this month’sU.S. Court of Appeals for the Ninth Circuit ruling onpublic
college and university free speech rights, O’Neil said.Instead
oflimitationsset by the Garcetti ruling, the lower court — in whose
jurisdiction Oregon sits — found that a more general First Amendment analysis
protects those rights.
"They need to make sure the adequate language currently reflects Demers,"
he said, referring to the appeals court case regarding David Demers, former
professor of communications at Washington State University at Pullman.
Additionally, he said, the civility language is "fuzzy" and needs definition.
Inside Higher Ed, September 12, 2013.
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