University of Louisville Responds Admirably to FIRE Concerns about New Policies
January 25, 2010
by Adam Kissel
Back in June, as Will wrote, the University of Louisville was inviting comment about proposed changes to the school's Code of Conduct, including a new Values Statement. FIRE was invited to review the drafts of the new policies by a faculty member concerned about possible violations of individual rights. We communicated a few comments and concerns to the university, and we learned today that essentially all of our concerns have been addressed in the new campus-wide Code of Conduct.
Most of all, we recommended that the university follow Penn State's lead in separating aspirational values from specific standards of conduct:
We are very pleased to report that Louisville has essentially done just as we recommended, separating its "Values" statement from its "Standards of Conduct" section. Louisville should be congratulated for doing so. This separation helps students and faculty members understand that they cannot be punished simply for failing to demonstrate, for instance, sufficient "[e]nthusiasm for discovery and innovation."
Louisville can [include] language indicating to students that the Values Statement is purely aspirational and does not represent official policy. Indeed, Penn State did exactly that to remedy a similar problem earlier this year. FIRE wrote Penn State President Graham Spanier to point out the ambiguity of the school's Penn State Principles, which required students to "respect the dignity of all individuals within the Penn State community." President Spanier acknowledged the problem and added additional language to the Principles to clarify that they were aspirational and not mandatory commitments.
A remaining ambiguity here, however, is that the "Values" statement is placed in a section called "Guiding Principles," which more closely links the values to the standards of conduct than a purely aspirational statement might have done. Indeed, there is a second statement of "Ethical Considerations"—placed in the "Guiding Principles" section rather than the "Standards of Conduct" section—which warns of "disciplinary action" for violations. While there is no such warning in the "Values" statement, there is a slight ambiguity in the structure of these sections that might lead individuals at Louisville to fear punishment for holding the "wrong" values.
FIRE also registered concerns about two of the values, namely, "[r]espect for diversity in all its human dimensions" and "[c]ivility in our interactions." Last year, Will wrote about these policies:
While likely well-intentioned, this statement unfortunately is ambiguous about whether or not students will be required to conduct themselves with "civility" and "respect for diversity." As a public university, Louisville cannot require that students do either; indeed, the vast majority of instances of "uncivil" or "disrespectful" speech are protected by the First Amendment.
While the university has a right, as a public employer, to require faculty members to comport themselves in a reasonable and professional manner, a vague, open-ended "civility" requirement like this could potentially be used to silence certain faculty members in their interactions with students and colleagues, particularly if their speech is unpopular. It is unfortunately not difficult to imagine an academic argument over a particular theory or interpretation of data prompting a charge of "disrespect" or "incivility," thus possibly resulting in unjust and unconstitutional punishment (not to mention short-circuiting a potentially useful exchange of ideas).
The wording of both of these values has now been changed in a way that permits a wider variety of values to be acknowledged.
Louisville also has changed the "[r]espect for diversity" value to read "[r]espect for diversity and all individuals regardless of position," which notably removes the idea that each person at Louisville should value "all" the dimensions of diversity. A faculty member who, for instance, does not respect cultures that are run by theocracies should have nothing to fear about stating that, in the professor's view, all cultures are not equally worthy of respect.
In addition, Louisville changed the word "civility" to "professionalism" in the other value, tracking FIRE's advice above.
As for the requirement to be "civil" in the Standards of Conduct, Will wrote:
Again, the fix here is clear: Louisville's Code of Conduct must make plain that with regard to faculty, the requirement to be "respectful" and "civil" can in no way be interpreted to supersede the university's clear guarantee of academic freedom for faculty, which is contained elsewhere in the code.
I think that Louisville attempted to respond to this concern with a disclaimer near the top of the overall document is intended to signal that the requirement does not apply in any unconstitutional way to faculty members and students:
This Code reflects Board and University policies and procedures. It does not create additional or different rights or duties.
This "savings" clause, if that's what it is, is probably well-intentioned, too, but it doesn't quite do the job. My colleague Azhar Majeed points out the deficiencies of "savings" clauses in his article in the Georgetown Journal of Law & Public Policy, "Defying the Constitution: The Rise, Persistence, and Prevalence of Campus Speech Codes." The article is reprinted in FIRE's journal, The Lantern, here.
All told, however, we are quite pleased that Louisville did such a good job of responding to FIRE's concerns.