1 Welcome to Academic Freedom New Faculty Orientation August 11, 2009 Prof. Peter B. Bayer, Boyd School of Law, UNLV

2 Important Sources to Determine Scope and Limits of Academic Freedom: The First Amendment of the United States Constitution. Nevada System of Higher Education Code, Regent’s Handbook, UNLV Bylaws. Professional Associations such as AAUP Good judgment & good sense.

3 The Logic of Academic Freedom: “Academic freedom creates the space for questions, takes some of the risk out of experimentation, and protects unpopular ideas until they find their own place in the spectrum of what’s thinkable—or until they disappear of their own accord.” Association of American University Professors (AAUP), Academic Freedom and Freedom of Expression, an AAUP Position Paper (June 2003)

4 NSHE Code, Title 2, Chap.2, sec “Higher Education and the Common Good. Institutions of higher education are conducted for the common good and not to further the interest of either the individual member of the faculty or the institution. The continued existence of the common good depends upon the free search for truth and knowledge and their free exposition.” (borrowed from AAUP 1940 Statement of Principles on Academic Freedom and Tenure)

5 NSHE Code, Title 2, Chap.2, sec Academic Freedom. “Academic freedom is essential to these purposes and is applicable to both teaching and research. Freedom in teaching is fundamental for the protection of the rights of the teacher in teaching and of the student in learning. Freedom in research is fundamental to the advancement of truth and knowledge. A member of the faculty has freedom and an obligation, in the classroom or in research, to discuss and pursue the faculty member's subject with candor and integrity, even when the subject requires consideration of topics which may be politically, socially or scientifically controversial.” (Emphasis added.)

6 NSHE Code, Title 2, Chap.2, sec , con’d. “In order to insure the freedom to seek and profess truth and knowledge … the faculty member … shall not be subjected to censorship or discipline by the Nevada System of Higher Education on grounds that the faculty member has expressed opinions or views which are controversial, unpopular or contrary to the attitudes of the Nevada System of Higher Education or the community.” (B/R 4/02)

7 Academic Freedom in the Library UNLV’s Lied Library has a number of policies related to the vigorous protection of researchers’ academic freedom, including not filtering internet access, internet usage record retention policies, and such.

8 First Amendment, U.S. Const. In a public university, academic freedom is a special category of 1 st Amendment- protected free speech, based on a fundamental 1 st Amendment value: the search for truth, or creation of knowledge, is best undertaken within a free marketplace of ideas.

9 More on the First Amendment The First Amendment is never absolute; Interests in free expression are always balanced against competing interests; e.g., crying “fire” in a crowded theatre? Falsely yelling “fire” in a theater (and causing a panic) has no protection because safety may trump free expression if the threat is dire enough and the expression creates a “clear and present danger” of imminent harm; What other countervailing interests limit academic freedom?

Employment Matters Vs. Free Speech Professing to the public, to the profession and to the classroom clearly are protected by the First Amendment. But, what about memoranda, discussions at faculty and other meetings and similar expressions of opinion or dissent as part of contexts “internal” to the government employer? 10

Government As Employer Some federal courts have ruled that faculty opinions regarding hiring, curriculum and similar subjects expressed during the course of private faculty meetings or in internal memoranda, are not necessarily protected as academic freedom under the U.S. Constitution 11

Pending Proposals of the Academic Freedom & Ethics Committee (1) the Senate should both recommend an amendment to the HESC Code and enact bylaws revisions clarifying that academic freedom includes all expression of opinions regarding all academic matters including hiring, retention and other employment issues, regardless whether the expressions of opinion are made publically or in contexts such as faculty meetings which are outside of immediate public review; 12

AF&E’s Proposed Code Provision on “Arbitrariness” The following conduct, being incompatible with the purposes of an academic community, is prohibited: any adverse employment action not based on good cause, including, but not limited to, any adverse employment action that is arbitrary, capricious, retaliatory, vindictive, contrary to the principles of an academic community or otherwise is based on reasons unrelated to cause or to legitimate business needs; 13

AF&E’s Proposal Re Contracts The Senate should urge that the foregoing protections be incorporated into employment contracts. (AF&E’s analyses and proposals do not and are not intended to constitute legal opinion.) 14

15 In Sum The First Amendment, Nevada-specific codes and regulations, and good judgment all use the same analytical framework: academic freedom is balanced against academic responsibility

16 Academic Responsibility According to: -- the First Amendment cases; -- the Nevada System of Higher Education Code; -- much of the writing about academic freedom; and -- good sense the competing interest is the academic’s responsibility to maintain professional standards of teaching and scholarship.

17 Academic Freedom & Responsibility, NSHE Code., Title 2, Chapter 2, Section 2 Section 2.1Section 2.1 Declaration of Policy Higher Education and the Common Good Academic Freedom Academic Responsibility Acts Interfering with Academic Freedom Section 2.2Section 2.2 Applicability Section 2.3Section 2.3 Freedoms and Responsibility Freedom in Research Freedom to Publish Freedom in the Classroom Faculty as Citizens Obligations and Responsibilities

18 NSHE, Title 2, Chap. 2, sec Academic Responsibility. “The concept of academic freedom is accompanied by the equally demanding concept of academic responsibility. A member of the faculty is responsible for the maintenance of appropriate standards of scholarship and instruction.”

19 The Limits on Academic Freedom Our interests in free expression are balanced against our interests in “appropriate standards of scholarship and instruction” What are “appropriate standards of scholarship and instruction”? Perhaps best analogized to “time, place and manner” regulation under the 1 st Amendment.

20 Academic Responsibility – Professionalism in General “Academic responsibility requires professors to submit their knowledge and claims to rigorous and public review by peers who are experts in the subject matter under consideration; to ground their arguments in the best available evidence; and to work together to foster the education of students.” (Association of American Colleges & Universities, Board of Directors' Statement, Jan. 6, 2006, at 1)

21 Appropriate Standards of Teaching (Academic Responsibility) Freedom in the Classroom. A member of the faculty is entitled to freedom in the classroom in discussing a subject, but the faculty member should be careful not to persist in discussing matters, which have no relation to the subject taught. (NSHE Code sec , emphasis added)

22 Appropriate Standards of Teaching (Academic Responsibility) The Nevada System of Higher Education Code tells us explicitly: Do not persist in discussion of unrelated subjects (e.g., persistent discussion of gay rights in math class is not protected by academic freedom)

23 Appropriate Standards of Teaching (Academic Responsibility) Do not discriminate on the basis of race, color, religion, gender, national origin, ancestry, age disability, veteran status, or sexual orientation; -- whatever you say or do about race, gender, sexual orientation, religion, and the like, should be based on sound academic & pedagogical goals; -- creating a hostile learning environment can be considered discrimination and otherwise may disrupt learning &/or intimidate students;

24 A General Guiding Rule The more clearly your comments to students reflect & support sound educational goals, the more likely they are protected by academic freedom.

25 e.g., comments about a student’s sexual attractiveness are not likely to be protected under academic freedom. (What is the educational purpose? Sexual harassment is not protected by academic freedom.) e.g., comments about racial differences are appropriate when based on expertise and relevant to the subject, but can create a prohibited, hostile environment if not based on expertise or not relevant.

26 One Important Aspect of Higher Education “[I]t is inevitable that students will encounter ideas, books, and people that challenge their preconceived ideas and beliefs.” […] (Association of American Colleges & Universities, Board of Directors' Statement, Jan. 6, 2006)

27 “Students do not have a right to remain free from encountering unwelcome or “inconvenient questions,” in the words of Max Weber. Students who accept the literal truth of creation narratives do not have a right to avoid the study of the science of evolution in a biology course; anti- Semites do not have a right to a history course based on the premise that the Holocaust did not happen. …” (Association of American Colleges & Universities, Board of Directors' Statement, Jan. 6, 2006)

28 “Students do have a right to hear and examine diverse opinions, but within the frameworks that knowledgeable scholars—themselves subject to rigorous standards of peer review—have determined to be reliable and accurate.” (Association of American Colleges & Universities, Board of Directors' Statement, Jan. 6, 2006)

29 Recap of Appropriate Standards of Teaching (Academic Responsibility) Persistent discussion of unrelated topics is not protected by academic freedom; Harassment (e.g., racial, sexual, tormenting students) is not protected by academic freedom; Words or conduct that create a discriminatory, hostile, or intimidating learning environment are not protected by academic freedom; Lack of professional competence in your subject area is not protected by academic freedom.

30 Faculty as Public Citizens Faculty as Citizens. A member of the faculty is a citizen of the community, a member of a learned profession and an employee of an educational institution. A faculty member speaking, writing or acting as a citizen shall be free from institutional censorship or discipline. (NSHE Code, Title 2, Chap. 2, sec )

31 Faculty as Public Citizens, con’d Obligations and Responsibilities. “The special position of a member of the faculty imposes special obligations and responsibilities. As a person of learning and an employee of an educational institution, a faculty member should remember that the public may judge the profession and the institution by the faculty member's utterances and acts.” NSHE Code, sec

32 Faculty as Public Citizens, con’d Obligations and Responsibilities (NSHE Code) Therefore, a faculty member should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others and should indicate clearly that the faculty member is not an institutional spokesperson. NSHE Code, sec (B/R 4/02)

33 Faculty as Public Citizens University policies prohibit the use of campus facilities, including mail and , for partisan political purposes; Faculty should not use the classroom for partisan political campaigning.

34 Faculty As University Citizens Not all business conducted by faculty or administrators of a public university is protected by the 1 st Amendment. Acting as would a citizen is Constitutionally protected. (E.g., writing letters to authorities concerning matters of true public concern.) Routine conduct of business – even vital business such as hiring/promotion/tenure -- may not be protected by the 1 st Amendment.

35 Academic Freedom Resources 1. For complete NSHE Code, UNLV Bylaws, use Faculty Senate website: 2.The Faculty Senate also has a Standing Committee on Academic Freedom and Ethics 3.American Association of University Professors (AAUP) Academic Freedom materials at 4. Association of American Colleges & Universities, Board of Directors' Statement, Jan. 6, 2006 can be found at: m