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The Incoming Chair of the Faculty Senate Comments on Academic Freedom Proposal

This is one of several posts on TA about a proposal to change the faculty contract with the UW.  That contract is passed as legislation by the Faculty Senate but has similar meaning as any contract between a union and its employer. The key issue here is that rights of free speech have been challenged by administrations at other state universities.  The issue is very complex, sometimes hinging on conflicts in the laws that protect students rights from discrimination or embarrassment.  The key issue is who has the power to decide that a faculty member’s speech is violating the University’s interests?  For that matter who determines what those interests are? The state legislature? The administration?  The regents?  However these questions are answered, under UW administrative law, the faculty gets to vote on its own Code.
Over at the AAUP Listserv, Katherine O’Niell has called attention to the strong language of the opening paragraph of the proposed legislation that supports academic freedom.  Professor O’Neill,  a Professor of Law, is the first UW attorney to weigh in on this issue.  The opening paragraph states:

Academic freedom is the freedom to discuss all relevant matters in teaching, to explore all avenues of scholarship, research, and creative expression, and to speak or write without institutional discipline or restraint on matters of public concern as well as on matters related to shared governance and the general welfare of the University.

If you look at my original listserv email or the post here on TA, I have a large , blue checkmark next to this!  When I read it, I was very impressed.
I also gave the same positive remarks to the following paragraph:

Faculty members have the right to academic freedom and the right to examine and communicate ideas by any lawful means even should such activities generate hostility or pressure against the faculty member or the University. Their exercise of constitutionally protected freedom of association, assembly, and expression, including participation in political activities, does not constitute a violation of duties to the University, to their profession, or to students and may not result in disciplinary action or adverse merit evaluation.

One concern I still have here is that the text does not say that free speech is protected by the University.  Is this implicit in oddly  negative statement at the end “may not result in disciplinary action or adverse merit evaluation?”
That concern for me arose because of the next paragraph and the following text:

A faculty member’s academic responsibility requires the faithful performance of professional duties and obligations, the recognition of the demands of the scholarly enterprise, and the candor to make it clear that when one is speaking on matters of public interest, one is not speaking for the institution.  …   may not be carried out in ways which that injure individuals and damage institutional facilities or disrupt the classes of one’s instructors or colleagues. Speakers on campus must not only be protected from violence, but also be given an opportunity to be heard. Those who seek to call attention to grievances must not

Why does this text belong in the same section as the paragraphs affirming academic freedom?  As a naïve non attorney, this seems to me to be like adding words about responsibilities associated with free speech to the First amendment of the US Constitution .. exactly the sort of thing that was done to limit the Soviet Constitution’s guarantees of free speech.
The responsibility text seems to condition the freedom clause above on someone’s judgment of “academic responsibility” and of “professional duties and obligations.”  Am I wrong that as written, this trumps the statement of academic freedom much as actually happened in Colorado?      I suggest faculty interested in how this legislation would have worked read the discussion on the Washington Post Blog.   
 The issue of “someone” was exactly my reason for concerns I raised at THE Ave.US and the subsequent statement of an attorney there about the text that the proposed text leaves out any statement of assignment of authority over rights.  Does that authority reside with the Administration or with the Faculty?  If I may be excused for using the Wikipedia:
The Soviet Constitution included a series of civil and political rights. Among these were the rights to freedom of speech, freedom of press, and freedom of assembly and the right to religious belief and worship. In addition, the Constitution provided for freedom of artistic work, protection of the family, inviolability of the person and home, and the right to privacy. ….
Unlike Western constitutions, the Soviet Constitution outlined limitations on political rights, whereas in democratic countries these limitations are usually left up to the legislative and/or judicial institutions. Article 6 effectively eliminated partisan opposition and division within government by granting to the CPSU the power to lead and guide society. Article 39 enabled the government to prohibit any activities it considered detrimental by stating that “Enjoyment of the rights and freedoms of citizens must not be to the detriment of the interests of society or the state.” Article 59 obliged citizens to obey the laws and comply with the standards of socialist society as determined by the party. The government did not treat as inalienable those political and socioeconomic rights the Constitution granted to the people. Citizens enjoyed rights only when the exercise of those rights did not interfere with the interests of the state, and the CPSU alone had the power and authority to determine policies for the government and society. For example, the right to freedom of expression contained in Article 52 could be suspended if the exercise of that freedom failed to be in accord with party policies. ,,, freedom of expression did not entail the right to criticize the government. ….

The Constitution also failed to provide political and judicial mechanisms for the protection of rights. Thus, the Constitution lacked explicit guarantees protecting the rights of the people….. The Supreme Court had no power to ensure that constitutional rights were observed by legislation….

So, my questions are these:
Do the following paragraphs override the first two paragraphs?
While I know that the regents can over ride the Faculty Code, who below them decides what this Code means?

previous emails from the listserv are below:

On Sun, Jan 5, 2014 at 11:29 AM, Kathleen M. O’Neill <kateon@uw.edu> wrote:

I would like to emphasize one additional and important improvement the proposed legislation makes to the meaning of academic freedom in this public institution in this state.
The new language states:
“Academic freedom is the freedom to discuss all relevant matters in teaching, to explore all avenues of scholarship, research, and creative expression, and to speak or write without institutional discipline or restraint on matters of public concern as well as on matters related to shared governance and the general welfare of the University.”
That new language is important because Washington courts (and some others) have recently taken a narrow view of public employees’ rights to express themselves on matters of public concern, effectively limiting the right to speak on matters directly within the employees’ job duties and requiring that the employee express themselves within the “chain of command” in an organization before making public statements.  If those kinds of decisions were applied to an institution like ours, they would have a seriously limiting impact on faculty academic freedom.  The new language makes it clear that this institution, as an employer, has adopted a much more expansive right for faculty to express themselves on matters of general public concern and on matters concerning the university.
In contrast, the existing code does not clearly protect faculty rights against expansion of these recent court decisions to academia.
Kate

Kate O’Neill Professor University of Washington School of Law Box 353020 Seattle WA 98195-3020 206 543-0928 kateon@u.washington.edu
View my research on my SSRN Author page: http://ssrn.com/author=48888

From: aaup-bounces@mailman2.u.washington.edu [aaup-bounces@mailman2.u.washington.edu] on behalf of Stephen Schwartz [stephenm.schwartz@gmail.com] Sent: Sunday, January 05, 2014 8:53 AM To: Faculty Issues and Concerns Subject: Re: [AAUP] Academic Freedom Legislation
Ana Mari’s post reassures me that the intent was good. I am also sure either that she believes ” that the < legislation> does expand protection for academic freedom.”   or that Ana Mari believes that passage of this is important to collaboration between the administration and the Senate.
 Unfortunately she does not address the issue of whether this is well written code.  I still have been unable to get an example of how this would have prevented the events in Colorado. So my reading is that she and other well meaning advocates see this as a political step, important to collaboration between the administration and the Senate.
That argument would be consistent with her statement that  “the fact remains that faculty senate HAS consistently communicated and consulted on this one and faculty leadership and administration  ”  My response is that the faculty and the Senate are (sadly) two very different things.  The failure to involve the faculty should be seen as a failure of both the administration and the Senate to communicate with the faculty.
There is no legal reason that we … the administration or the faculty could not have conducted this legislation in a more open way. Given the improvement in administration that Ana Mari  and Michael Young  signify, I had hoped (and have lobbied for) they might take the initiative and create a moderated blog where just such a discussion could have occurred.
I still intend to vote no.

On Sun, Jan 5, 2014 at 2:20 AM, Ana M. CAUCE < cauce@uw.edu> wrote:

Dear all,
Communication in a large, decentralized setting full of busy people is one of the most difficult and persistent issues that arises — whether it’s faculty or administrative leaders doing the communicating. We are all bombarded with information, selectively filter (we NEED to for survival) and too often blame others for failing to communicate. No good or bad guys – happens all the time.
But the fact remains that faculty senate HAS consistently communicated and consulted on this one and faculty leadership and administration have together come up with legislation that does expand protection for academic freedom. Does it cover everything that anyone or everyone might like – probably not. Is it a good step forward – no question.
Others have pointed out some issues with our adjudication system. I agree there is work to be done there, but the issues there are not primarily ones having to deal with academic freedom and this legislation does not affect them one way or the other.
This was good collaborative work and a good step forward for faculty. I join faculty senate leadership in strongly endorsing this legislation.
Ana Mari
Ana Mari Cauce

Provost
University of Washington
(206) 543-7632
Sent from my iPhone
On Jan 4, 2014, at 6:51 PM, “Stephen Schwartz” <stephenm.schwartz@gmail.com> wrote:

With all due respect,  I found John’s comments much less than convincing.

The change in text is at best subtle and offers no hint of a change in process that would have protected a faculty member from the current UW process of adjudication by  lawyers, UW administration represenatives, rather than by the faculty adjudication process already in the code.

As I can testify from my own experience, this process submerges any concept of academic freedom under threats made by the UW attorneys. Faculty  members who do not acquiesce to an  administrative decision face legal fees in the tens or even hundreds of thousands of dollars.

Finally,  with all due respect to John’s comments about Senate process, any process that legislates something of this importance with so little public discussion is a failure of democracy.

Stephen Schwartz Professor Editor.  THE-Ave.US

On Jan 3, 2014 7:11 PM, “John M Lee” <johnmlee@uw.edu> wrote:

Dear faculty members,
Happy new year, and welcome to the rapidly approaching winter quarter!  I hope your break was as relaxing and/or fruitful as you wanted it to be.
I just sent out a reminder to voting faculty members about the pending Academic Freedom legislation.  In case you missed it, here’s what I wrote:
Happy new year!  Before we all get too overwhelmed by the responsibilities of a new quarter, here’s a reminder to vote on the Class A legislation regarding academic freedom, if you haven’t already done so.  To vote, go to the website below and log in with your NetID:

https://catalyst.uw.edu/webq/survey/secfac/220648

The deadline is next Wednesday, January 8th, at 5 p.m.
This is a really important vote. The proposed legislation amends the part of the Faculty Code titled “A Statement of Principle: Academic Freedom and Responsibility,” by adding language about academic freedom where there was none before.  (There was a lot about responsibility!)  In order to become part of the code, it needs to be approved either by a majority of eligible voting faculty, or by 2/3 of those who actually cast votes. (In practice, it’s usually the latter.)
There will be a lot coming up in senate meetings this winter and spring.  You’ll be hearing more about the upcoming issues from me soon. Meanwhile, enjoy your weekend.
Since there’s been some discussion on this list about the process by which this legislation came to a vote and about its merits, I’d like to take this opportunity to say a little more about the procedure and the substance of the proposal.
Changing the Faculty Code is, by design, a slow and cumbersome process.  I know it can sometimes appear as though all of the code revisions are worked out behind closed doors and then sprung on the faculty for a vote, but that’s really not the way it works.  This academic freedom legislation has been under discussion by your faculty representatives for a full year, starting with a proposal from the local AAUP chapter, and followed by discussions first in the Faculty Council on Faculty Affairs, then in the Senate Executive Committee, and finally in the Senate. At each stage of the process, there were significant changes, all of which (in my opinion) served to strengthen the protections offered by the new language.  I wasn’t directly involved in the drafting, but I think it’s fair to say that the substantive changes all came from faculty members; the changes requested by administrators were basically just minor clarifications.
None of this was hidden from the faculty. Jim Gregory announced that it was being considered in his message to all voting faculty members last May, and I announced it in my introductory remarks to the faculty in September, and on my blog in October and December (which I pointed to in emails to all voting faculty). Every version of the proposed legislation that came up for a vote has been publicly available in the agendas and minutes of the SEC and the Senate.
After being passed out of FCFA, the proposal was approved (with amendments) by the SEC, then approved by the Senate, then approved again (with a few more amendments suggested by the Code Cops) by the SEC, and approved again (overwhelmingly) by the Senate.  The way the Faculty Code works, once a proposed code change has received its second approval from the Senate, it goes to the full voting faculty for an up or down vote.  Knowing that the vacation was coming up, we waited until the last possible day allowed by the code before sending it out to the faculty for a vote, so that the voting period would not expire until several days into the winter quarter.  It’s always awkward when something gets passed in the last senate meeting before a vacation (which includes half of all senate meetings!), but it’s our code and we have to work within its rules.
Because the time for amendments has passed, the only real question you need to ask yourself now is whether the proposed language is better than the language that’s currently there. Steve Schwartz has raised some important questions about the language, but with all due respect to Steve, I would argue that there’s really no contest: the new language provides vastly more protection than the old.
After a long discussion of academic responsibility, the current code offers academic freedom to faculty members only in the following somewhat ambiguous sentence:
It is the instructors’ mastery of their subject and their own scholarship which entitle them to their classrooms and to freedom in the presentation of their subjects.

This is followed immediately by a rather ominous qualification:

Because academic freedom has traditionally included the instructor’s full freedom as a citizen, most faculty members face no insoluble conflicts between the claims of politics, social action, and conscience, on the one hand, and the claims and expectations of their students, colleagues, and institutions, on the other. If such conflicts become acute, and the instructor’s attention to his or her obligations as a citizen and a moral agent precludes the fulfillment of substantial academic obligations, he or she cannot escape the responsibility of that choice, but should either request a leave of absence or resign his or her academic position.

By contrast, the proposed new language is unequivocal:

Academic freedom is the freedom to discuss all relevant matters in teaching, to explore all avenues of scholarship, research, and creative expression, and to speak or write without institutional discipline or restraint on matters of public concern as well as on matters related to shared governance and the general welfare of the University.
Faculty members have the right to academic freedom and the right to examine and communicate ideas by any lawful means even should such activities generate hostility or pressure against the faculty member or the University. Their exercise of constitutionally protected freedom of association, assembly, and expression, including participation in political activities, does not constitute a violation of duties to the University, to their profession, or to students and may not result in disciplinary action or adverse merit evaluation.
Is it perfect?  Undoubtedly not.  It’s true, as Steve has pointed out, that the guarantee of academic freedom in the classroom is subject to the “responsibility of the faculty members to present the subject matter of their courses as approved by the faculty in their collective responsibility for the curriculum,” and one might reasonably wonder whether this could be used to prevent a faculty member from teaching a point of view that’s unpopular with his or her departmental colleagues. But this language is essentially unchanged from the prior version of the code, so it’s not relevant to the question of whether the new language is better than the old. If you feel that the proposed language is better than before, but that this section (or some other) ought to be reworded too, you should vote for this proposal and then start a new conversation about what further changes need to be made.  Your senators and faculty councils are always willing to hear suggestions.
I wish you all the best in the new quarter.  And if you haven’t voted yet, do it now!
Jack Lee
_______________________________________________ John M Lee, Professor of Mathematics
UW Faculty Senate Chair
36 Gerberding Hall, University of Washington
Seattle, WA 98195-1271

_______________________________________________ AAUP-UW FACULTY ISSUES AND CONCERNS listserve aaup@u.washington.edu Listserve guidelines and information about AAUP-UW:  http://depts.washington.edu/uwaaup/listserve.htm

_______________________________________________ AAUP-UW FACULTY ISSUES AND CONCERNS listserve aaup@u.washington.edu Listserve guidelines and information about AAUP-UW:  http://depts.washington.edu/uwaaup/listserve.htm

_______________________________________________ AAUP-UW FACULTY ISSUES AND CONCERNS listserve aaup@u.washington.edu Listserve guidelines and information about AAUP-UW:  http://depts.washington.edu/uwaaup/listserve.htm


— Stephen M. Schwartz Pathology

_______________________________________________ AAUP-UW FACULTY ISSUES AND CONCERNS listserve aaup@u.washington.edu Listserve guidelines and information about AAUP-UW:  http://depts.washington.edu/uwaaup/listserve.htm


— Stephen M. Schwartz Pathology


0 Comments Add Yours ↓

  1. Roger Rabbit #
    1

    If this says the university, by pledging its support of academic freedom, isn’t authorizing faculty members to engage in political protest by setting fire to the library or throwing rocks at the windows of campus buildings, I don’t have a problem with it. The really intriguing question, though, is what else the university’s bureaucratic lawyers will discover reposing between these lines when the administration wants to “get” somebody. We all know what the First Amendment says: “Congress shall make no law … abridging the freedom of speech ….” We also know it doesn’t mean exactly that, and what really matters is not the words themselves but who gets to interpret them.

  2. theaveeditor #
    2

    Roger,

    I have a question. Remembering that this is the work contract for employees, if the Seanate were using an attorney would she r he have proposed this language?

  3. Roger Rabbit #
    3

    It doesn’t look like a lawyer wrote it, but the drafter may have consulted with someone having a legal background.