By William K. Black

Wednesday, December 18, 2013, the Kansas Board of Regents drastically curtailed tenure and academic freedom. The state attorney general aided this action. The Regents decided that when university faculty use common forms of modern communication (“social media”) they no longer have the protections of tenure and academic freedom. The Regents’ policy change does not even mention tenure or academic freedom. The Regents acted without consulting the faculty and without any open debate.

The Regent’s policy begins with a broad definition of “social media” that includes the primary means that many faculty members engage in academic discourse, such as “blogs” and videos of lectures, interviews, and congressional testimony posted on line, but also “any” “online publication.” Academics frequently publish their research “online” and even when they publish in print they often publish a version of the paper “online” (see, for example, my SSRN page) so that other academics can easily read it.

The chief executive officer of a state university has the authority to suspend, dismiss or terminate from employment any faculty or staff member who makes improper use of social media. “Social media” means any facility for online publication and commentary, including but not limited to blogs, wikis, and social networking sites such as Facebook, LinkedIn, Twitter, Flickr, and YouTube. “Improper use of social media” means making a communication through social media that:

The Regent’s policy then allows the CEO to fire any faculty remember, regardless of tenure, who makes any comment that the CEO decides:

ii. when made pursuant to (i.e. in furtherance of) the employee’s official duties, is contrary to the best interests of the University; iii. discloses without authority any confidential student information, protected health care information, personnel records, personal financial information, or confidential research data; or iv. subject to the balancing analysis required by the following paragraph, impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impedes the performance of the speaker’s official duties, interferes with the regular operation of the university, or otherwise adversely affects the university’s ability to efficiently provide services.

Subpart “ii” begins the amazing assault on academic freedom. As an academic our “official duties” include research and presenting our policy views arising from that research. Tenured professors in Kansas universities can now be fired for making statements that the CEO decides are “contrary to the best interests of the University.” The Regents’ staff and the Kansas Attorney General assure the reader that such a vague standard is constitutional. Note that they ignore tenure and academic freedom in their discussion, presumably because neither exists in Kansas for any practical purpose if the CEO gets to fire tenured professors for expressing views that the CEO decides are “contrary to the best interests of the University.” Any tenured professor can be fired for saying anything under such a standardless “standard.”

Subpart “iii” at least has a legitimate core concern, but it is drafted in a fashion that allows selective abuse. Professors often have to communicate grades, health information, student financial need, and research data that students have helped collect to other university employees and in the case of research data to the world. It is often unclear which university employees the professor is supposed to communicate grade, health, and student financial aid information to. Something as innocuous as telling a student in front of other students that she got the high grade in the class would violate this rule. Note that as the Regents wrote the policy a professor can be fired for an inadvertent or unknowing violation of an unwritten disclosure rule of which the professor had no notice. The rule does not require that the professor have any intent to violate the disclosure rules or even be reckless in failing to comply with a rule.

The provision allowing the CEO to fire any professor who discloses a student’s “confidential research data” is even more pernicious. First, professors frequently work with students to research “data.” Are the “data” the student’s or the professor’s or both parties’ “data.” Second, a student (or a helicopter parent) who is upset with the student’s grade may claim that the data are the student’s data and that the data are “confidential” (a term that the Regents do not define). As professors, we often use blogs to praise our graduate students’ research. This gets them attention in the academy in their field and improves their chances of finding an academic position.

Subpart “iv” also ignores tenure and academic freedom and has only the barest, phony, pretense of valuing free speech. The phony aspect is the “balancing.” There are three key facts to keep in mind about this supposed “balancing.” First, the CEO does the “balancing.” That makes the CEO the de facto prosecutor and judge. Second, tenured professors no longer have any right to academic freedom (a concept that disappears in the Regents’ policy). Third, any value the CEO chooses to give to the professor’s expression of views can be outweighed (by the CEO) if the CEO views that expression as causing the CEO even minor inconvenience in virtually any conceivable manner. One can only marvel at the breadth of things that can now upset a CEO enough to fire a tenured professor in Kansas. A professor can be fired for any statement the CEO decides:

“impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impedes the performance of the speaker’s official duties, interferes with the regular operation of the university, or otherwise adversely affects the university’s ability to efficiently provide services.”

One of the small joys of this travesty is that Kansas public universities CEOs and lesser administrators will now all claim that they need a “close working relationship” with faculty and that the tenured faculty’s “personal loyalty” to the administrator is essential and that they cannot work “efficiently” with tenured faculty in whom they do not hold “confidence.” They will all embrace Zen and rhapsodize about the need to maintain “harmony” by firing those who express discordant ideas. Here’s a hint: no part of our function as scholars should be showing “personal loyalty” to the university president. Bad university CEOs already surround themselves with high-salaried sycophants as fellow administrators. They do not need the faculty to become obsequious to feed their delicate egos.

Here is the Regents’ language about their purported “balancing.” Notice that tenure and academic freedom disappear and are replaced simply by the rights of general citizenship. Then notice that in Kansas the “rights” of general citizenship have also ended.

In determining whether the employee’s communication constitutes an improper use of social media under paragraph (iv), the chief executive officer shall balance the interest of the university in promoting the efficiency of the public services it performs through its employees against the employee’s right as a citizen to speak on matters of public concern, and may consider the employee’s position within the university and whether the employee used or publicized the university name, brands, website, official title or school/department/college or otherwise created the appearance of the communication being endorsed, approved or connected to the university in a manner that discredits the university. The chief executive officer may also consider whether the communication was made during the employee’s working hours or the communication was transmitted utilizing university systems or equipment. This policy on improper use of social media shall apply prospectively from its date of adoption by the Kansas Board of Regents.

This passage deliberately makes no reference to tenure or academic freedom because it effectively ends tenure and academic freedom, but note that it also ends a “citizen’s” “right” to free speech in Kansas. The “right” becomes a non-right subject to the whims and ideological preferences of the CEO and Regents. The “right” to speak can be outweighed by the CEO’s view that discordant speech would reduce the university’s “efficiency.” In both substance and dishonesty of presentation the Regents’ policy is literally Orwellian.

I need to emphasize again that many academics communicate primarily through electronic means that constitute “online publication and commentary.” As an academic, my “working hours” are unlimited. I’m preparing this blog article in the midst of at least my 50th all-nighter this calendar year. The Regents’ policy would treat this article as suspicious because I am writing it during my “working hours” on my university computer and because my blogs show my UMKC title. This is significantly insane because these are all normal aspects of being a highly productive academic. Collectively, “online communications” by academics are vital to our universities and the advance and dissemination of knowledge.

The Regents did provide that the tenured faculty members their CEOs fire when they find that their exercise of academic freedom is “inefficient” are entitled to bring a grievance. The reader will likely not be surprised that given the Regents’ transcendent embrace of “efficiency,” the CEO who conducts the “balancing” and fires the tenured professor for the high crime of reducing “harmony” by expressing a view the CEO finds uncomfortable, will also decide the grievance. The Regents’ policy states that the CEO’s decision on the grievance is “final” and not subject to any independent review by the university system or the Regents.

Kansas is trashing the only remaining jewel in the state, its superb university system. The ideological purge that removed virtually all of the “moderate” Republican conservatives from the Kansas legislature has now set its assault rifle sights on the universities. Their view of the glorious “harmony” made possible only through ideological purity perverts a “right” of free speech or “academic freedom” into an act of disloyalty. The new “efficiency” regime founded on “truth” as it was revealed to the Koch brothers and the NRA will gradually sweep discordant views from Kansas’ universities. The purge leaders will eventually celebrate the date, December 18, 2013, on which the Kansas university system was officially Koched and NRAed.