Still Digging: Kansas State Board of Regents’ Latest Social Media Policy Remains Flawed

Way back in January, I wrote a post here on The Torch telling the Kansas State Board of Regents to reacquaint itself with the first rule of holes: If you’re in one, stop digging.

Unfortunately, the Board didn’t take my advice. So here we are in May, still talking about how the First Amendment rights of faculty members at Kansas’ public universities are threatened by the Board’s deeply flawed attempt to regulate social media. To label this lack of progress “disappointing” would be an understatement.

The Chronicle of Higher Education reported yesterday that the Board of Regents appears ready to pass a newly revised policy governing social media use (defined as everything from blog posts to tweets) by faculty. This new policy, accessible on page 32 of the agenda for the May 14–15 meeting of the Board of Regents, responds to the overwhelming criticism sparked by the Board’s last attempt to regulate faculty speech online, a shockingly broad set of restrictions adopted in December that prompted blistering criticism from FIRE, the National Coalition Against Censorship, the ACLU Foundation of Kansas, the national American Association of University Professors, the Kansas AAUP chapter, and the Student Press Law Center. The Thomas Jefferson Center for the Protection of Free Expression awarded the Board of Regents a 2014 “Jefferson Muzzle,” a dishonor reserved for the nation’s most egregious censors. Questions were even raised about whether the restrictions adopted in December would threaten the University of Kansas’ accreditation.

After that kind of outcry, one might have expected the Board of Regents to have come to its senses and to have adopted a social media policy that protects the First Amendment rights of its faculty. To help the Board do the right thing, a committee of representatives from each school even drafted a model policy that provided sufficient First Amendment protection for faculty speech. But instead of endorsing the workgroup’s suggested policy and calling it a day, the Board has decided to mix-and-match parts of that policy with its own draft, and the results aren’t good. In other words, the Board continues to dig that hole deeper.

What’s wrong with the Board’s latest proposed policy? Here’s the scoop.

For one, the latest policy still threatens punishment for speech that “when made pursuant to (i.e. in furtherance of) the employee’s official duties, is contrary to the best interests of the employer.” As we explained in our last letter to the Board, sent on May 1, this reservation grants the university power to punish a wide range of protected speech:

While the Supreme Court held in Garcetti v. Ceballos, 547 U.S. 410 (2006) that public employees may be punished for speech made “pursuant to ... official duties,” it explicitly reserved the question of whether that holding is applicable to “expression related to academic scholarship or classroom instruction.” Id. at 425. Appellate courts have recognized this reservation in declining to apply Garcetti to faculty speech, and the Board should follow suit in order to ensure that its policies do not hinder the purpose of the university and its professors’ work. For example, if a professor researches a university’s effectiveness in teaching and concludes that the school is being outperformed by others, sharing those results may not be, in the Board of Regents’ view, in the “best interest of the university,” but it is nonetheless constitutionally protected speech. Chilling or censoring such speech is ultimately to the detriment of not only the faculty and its students but also the university itself. [Internal citation omitted.]

The policy makes reference to faculty members’ rights to academic freedom and the First Amendment, which is an improvement—but a superficial one. Those promises don’t mean much when the policy also allows for disciplinary action for speech that, in the sole subjective judgment of the Board of Regents, isn’t in “the best interest” of the university. Under this policy, a university would still be able to punish a professor for, say, anti-National Rifle Association tweets—which is exactly the situation that kicked off this mess in the first place.

Another problem is that the policy allows universities to discipline online speech that it subjectively believes is “academic instruction” outside of “the instructor’s area of expertise.” So if a professor wanted to explore new ideas outside of his or her field on a blog also used in class, and the university didn’t like it, it’s punishable. As we explained in our May 1 letter:

Such restrictions place particular burdens on faculty members who endeavor to undertake novel and groundbreaking research, without which the pursuit of knowledge will stagnate and wither. To allow protection under principles of academic freedom only for “experts” discourages not only research in areas where there are no experts, but also interdisciplinary research, doing considerable damage to the “marketplace of ideas” that institutions of higher education should strive to embody.

This restriction stands in sharp contrast to the workgroup’s proposed policy, which provides broad protection for academic research and teaching.

Perhaps the central problem with the Board’s latest policy, however, is its sheer density. The policy grafts First Amendment language on top of restrictions on protected speech, leaving it "internally contradictory," as Henry F. Reichman, chairman of the AAUP’s Committee A on Academic Freedom and Tenure, put it to the Chronicle. It’s perhaps commendable that the Board attempts to track First Amendment jurisprudence, but the policy does so in a convoluted, uncertain way that will inevitably signal to non-legal faculty that it’s probably best just to shut down their Twitter accounts altogether. This concern is voiced in the Chronicle piece by Ron Barrett-Gonzalez, president of the Kansas AAUP chapter:

Mr. Barrett-Gonzalez, an associate professor of aerospace engineering at the University of Kansas, described the policy as "crafted by lawyers to be read by lawyers and acted on by judges." It is now so confusing, he said, that it will lead to misunderstandings throughout the state’s public universities. "To laypeople," he added, "what this says is, if your president or chancellor does not like what you say, you can be fired."

And as I told the Chronicle, "the average faculty might conclude that he or she is better off to keep their mouth shut." That’s a terrible result for students, faculty, Kansas’ public universities, and society as a whole. Unfortunately, the back-and-forth about the policy is already having an chilling speech and hurting faculty recruitment, per the Chronicle:

Among those who submitted their views, Richard J. Harris, a professor psychological sciences at Kansas State University, wrote that "many of my junior colleagues are seriously worried about losing their jobs if they say something unpopular."

Kirk McClure, a professor of urban planning at the University of Kansas, argued that the policy should be completely abandoned because it had so hindered his efforts to recruit new faculty members.

There’s still time for the Board to get it right, correct the missteps of these past five months, and adopt the workgroup’s policy. FIRE urges the Board to do so, and quickly.