This week, the AAUP legal team took action on two matters related to faculty rights, filing an amicus brief to support the right of faculty at religious institutions to be protected by antidiscrimination law, and, separately, a comment seeking a copyright exemption for researchers who work on motion pictures and literary works.
The AAUP authored and filed yesterday an amicus brief in support of a lower court decision holding that Margaret DeWeese-Boyd, a professor at a Christian college, is not a “minister” and thus was protected by Massachusetts antidiscrimination laws. DeWeese-Boyd had sued her employer, Gordon College, alleging that it violated Massachusetts discrimination law when it denied her a promotion because of her activity on LGBTQ issues. Gordon College argued that, as a religiously affiliated institution, it was exempt from employment discrimination law because it claimed DeWeese-Boyd was a “minister” within the First Amendment “ministerial exception.” The amicus brief used the AAUP’s well-established principles and standards to provide guidance to the Massachusetts Supreme Court in applying the “ministerial exception” in the context of higher education institutions. You can read a summary of the amicus brief and download a PDF of the brief here.
Also yesterday, we contributed to a long-form comment seeking an exemption from a prohibition on circumventing technological protection measures for text and data mining of lawfully accessed motion pictures and lawfully accessed literary works distributed electronically. The comment was submitted yesterday to the US Copyright Office with Authors Alliance and the University of California, Berkeley, School of Law (the Berkeley Clinic). The AAUP supports the exemption because faculty and academic researchers are and will continue to be adversely affected in their ability to make fair use of motion pictures and literary works if they are prohibited from accessing certain classes of works. Read more and download the comment here.
Read more about the AAUP legal department’s work here.
It’s very simple: members of Congress and their staffs should not be in the business of threatening faculty members. Why does this need to be said? It happened last week. Join 1,000 faculty members who’ve already taken action and sign an open letter standing strongly against this kind of behavior by powerful legislators.
Here’s what happened. Ari Kohen, an associate professor of political science at the University of Nebraska–Lincoln, came across this photo on a progressive blog’s Facebook page.
He hit “like” because it amused him, and moved on with his day. Later that week, the staff of Nebraska congressman Jeff Fortenberry’s office combed through the names of people who’d liked and shared the photo. Then the chief of staff to Fortenberry, Reyn Archer, made a 53-minute call to Kohen to lambaste and threaten him for exercising his well-established right to free speech. He not-so-subtly implied that he could use his position and power to bring down a rain of harassment on Kohen. “We have a First Amendment opportunity to basically put you out there in front of everybody…we could do that publicly, would you like that?,” said Archer in the call. Archer also contacted Kohen’s employer.
It should go without saying that a legislator and his staff should not harass and threaten a faculty member based on his or her social media activity, and that it is absurd to equate “liking” a Facebook joke with support for vandalism. However, it’s clear that, in the current political climate, this DOES need to be said. We’re calling on Fortenberry to publicly repudiate his chief of staff’s actions to threaten and harass Professor Ari Kohen, and to stand unequivocally for academic freedom and free speech for all faculty.
Welcome to fall! Like many AAUP members who taught classes, pursued research projects, and organized around campus issues, national AAUP leaders and staff have been busy this summer. We aim to make these final months of 2018 as productive as possible as we work with all of our members and chapters to advance academic freedom and the faculty voice in decision making.
One thing we did over the summer was to launch investigations into cases at the Maricopa Community Colleges in Arizona and St. Edwards University in Texas. Investigations are conducted a few times a year in cases where extreme violations of academic freedom or shared governance prove irresolvable through other means. When an administration responds by improving its policies and practices, the changes broadly benefit faculty and higher education.
At Maricopa Community Colleges, we’re investigating apparent departures from widely adopted standards of academic governance. The matter stems from a February 2018 resolution of the college’s governing board that terminated a “meet-and-confer” provision of the faculty policy manual and ordered the creation of a new manual that would severely limit the participation of the faculty in institutional governance. Of particular concern is the governing board’s directive that the new manual, to be prepared unilaterally by the administration, may not allow faculty to participate in matters related to “compensation, benefits, accountability, and organizational operations.” Not only would such a change modify the structure and procedure for faculty participation, the resulting changes would themselves be at odds with principles of academic governance, which call for meaningful faculty participation in decisions that affect all of these areas. We’ll notify you when the investigation is completed, likely in late fall or early winter.
At issue in the St. Edwards case is the summary dismissal of two tenured faculty members who were apparently fired for questioning the administration’s efforts to assert control over their department. Before launching an investigation, the AAUP communicated extensively with the administration, expressing our concern about the apparent lack of key elements of academic due process. We also stressed that academic freedom, as widely understood in American higher education, includes the right to express dissenting and critical views regarding one’s institution, its policies, and its administration. When the administration failed to address these concerns or provide the faculty members with due process, an investigation was authorized, and the investigating team visited St. Edwards in August. We’ll share the results when the investigation is completed.
Earlier this week, we wrote to you about another recent case in which our intervention protected academic freedom. At the request of our Rutgers University AAUP/AFT chapter, we provided an analysis of a troubling report by that university’s Office of Employment Equity, which concluded that a faculty member’s Facebook posts on gentrification were not protected by the First Amendment and violated the university’s policy on discrimination and harassment. A day after chapter leaders gave the letter to Rutgers president Robert Barchi, he ordered another review.
We’re also working with members like you to protect academic freedom against another line of attack–the growing trend to privatize higher education. In August, together with AAUP activists in Indiana, we broke the news that Purdue Global, an online branch campus of the Purdue University system, is requiring instructional faculty to sign a nondisclosure agreement. (You can sign onto a petition protesting the practice here if you haven’t already. Spread the word!) The resultingpublicity is putting Purdue on the defensive.
Purdue’s actions are part of a larger trend wherein for-profit companies like Academic Partnerships, Kaplan, Wiley, and Pearson are increasingly contracting with public and private not-for-profit universities to perform core academic functions. Simultaneously, wealthy donors like the Koch Foundation and others are establishing secretive, strings-attached gift agreements with public institutions that end up shaping the university without input from faculty, students, or taxpayers. Both of these trends undermine shared governance, academic freedom, student learning conditions, and democracy within a state’s public higher education system. This fall, we’ll be offering a toolkit and trainings on how you can tackle this issue at your institution and more broadly in higher education.
Our work on academic freedom is about to get even more local with the creation of our Academic Freedom and Shared Governance Fellowship program. We’ll work with a cohort of fellows to deepen their knowledge about academic freedom and shared governance. At the end of the program, fellows will work on improving the culture on their campuses through trainings, presentations, and conversations with faculty and students. Stay tuned for the application materials later this fall!
The AAUP has a long history of fighting for faculty and academic freedom, and as readers of history we’re pleased to announce our new fall book club. We’ll be reading Democracy in Chains, an examination by Duke University professor Nancy MacLean of a relentless campaign to eliminate unions, suppress voting, and privatize public education. We’ll host a discussion and a Facebook Live with MacLean. We’ll send more information later this fall when the book club officially launches.
In addition to the recent and upcoming activities described here, we continue to file amicus briefs, conduct research, and develop tools for chapters–all different methods that we use to further the same aims: advancing academic freedom and shared governance, promoting the economic security of faculty and other academic professionals, and ensuring higher education’s contribution to the common good.
We couldn’t do it without you! Our work as educators, union members, and advocates has never been more important than it is now. Together, we say loudly and clearly that strong universities and well-educated citizens are essential to our survival as a democracy. One easy way you can stay engaged and up-to-date is to follow and share our social media posts. Here’s the link to our Facebook page and Twitter feed.
Last week the national AAUP delivered a letter to the leaders of the Rutgers University AAUP-AFT chapter expressing concern about a report by that university’s Office of Employment Equity, which concluded that Facebook posts on gentrification made by history professor James Livingston “were not protected by the First Amendment and furthermore violated the university’s policy on discrimination and harassment.” We wrote that any discipline stemming from that finding would violate long-standing principles of academic freedom that are embraced in the university’s own policies and collective bargaining agreement. A day after chapter leaders gave the letter to Rutgers president Robert Barchi, he ordered another review of the professor’s social media posts, calling for a more rigorous assessment.
Barchi — who said he was not aware of the report before its release — wrote that “few values are as important to the University as the protection of our First Amendment rights.” In light of the “complexities of this matter and the importance of our considering these matters with exceptional diligence,” Barchi announced the formation of a special advisory group, consisting of First Amendment and academic freedom scholars and attorneys, to provide guidance on this and similar alleged violations of Rutgers policies. For more on the case, here’s an article from today’s Inside Higher Ed.
The model provided by Kent Syverud, chancellor of Syracuse University, is worth noting. When one of his faculty members was harassed for a controversial tweet, he said, “We are and will remain a university. Free speech is and will remain one of our key values. I can’t imagine academic freedom or the genuine search for truth thriving here without free speech. Our faculty must be able to say and write things — including things that provoke some or make others uncomfortable — up to the very limits of the law.”
Barchi’s move, while perhaps not finally laying this case to rest, marks a major win nonetheless. One can only imagine how Professor Livingston might have fared had the Rutgers AAUP-AFT and the national AAUP not been there to defend his academic freedom right to extramural expression.
In an amicus brief filed on Friday, the AAUP emphasized the importance of faculty being able to use controversial language and ideas to challenge students in the classroom, and argued that Professor Teresa Buchanan’s academic freedom was violated when Louisiana State University dismissed her for making statements in the classroom that the university improperly characterized as sexual harassment.
The brief explains that sexual harassment policies, particularly those focused on speech, must be narrowly drawn and sufficiently precise to ensure that their provisions do not infringe on rights of free speech and academic freedom. In public universities, these policies must meet constitutional standards under the First Amendment. LSU’s policies, and their application to the facts, failed this test.
The case originated when, in 2014, LSU’s Office of Human Resource Management found Buchanan guilty of sexual harassment based solely on her occasional use of profanity and sexually explicit language with her students, despite the fact that Buchanan did not use language in a sexual context and instead employed it to further educational objectives. Buchanan’s dean recommended her dismissal, and has stated that he did not condone “any practices where sexual language and profanity are used educating students.”
Subsequently, a faculty hearing committee recommended unanimously against the dismissal of Buchanan. While the committee faulted her for having violated LSU’s policies on sexual harassment by her occasional use of “profanity, poorly worded jokes, and sometimes sexually explicit ‘jokes’ in her methodologies,” it found no evidence that this behavior was “systematically directed at any particular individual.” Despite this, Buchanan was dismissed.
Professor Buchanan filed suit against the school, arguing that LSU’s sexual harassment policy violated her First Amendment rights because it was vague and overbroad both facially and as applied in her case, and that her due process rights were violated. The district court ruled against her, Buchanan appealed, and the AAUP filed an amicus brief in support of her appeal in the United States Court of Appeals for the Fifth Circuit.
The use of provocative ideas and language to engage students, and to enliven the learning process, is well within the scope of academic freedom and is protected by the First Amendment. Many things a professor says may “offend” or even “intimidate” some students. If every such statement could lead to formal sanctions, and possibly even loss of employment, the pursuit of knowledge and the testing of ideas in the college classroom would be profoundly chilled.
The AAUP recognizes the importance of combating sexual harassment and has long emphasized that there is no necessary contradiction between a university’s obligation to address problems of sexual harassment effectively and its duty to protect academic freedom. To achieve these dual goals, hostile environment policies, particularly those focused on speech alone, must be narrowly drawn and sufficiently precise to ensure that their provisions do not infringe on First Amendment rights of free speech and academic freedom.
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