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UCOP’s Latest Threat to Faculty Freedom

Subject: UCOP’s Latest Threat to Faculty Freedom
By Rei Terada (UCI) and Robert Meister (UCSC)UCOP has proposed changes to the Academic Personnel Manual concerning faculty rights and discipline of faculty conduct. They are posted for comment athttp://www.ucop.edu/acadpersonnel/apm/review.html, and they need attention. A close reading of the proposed changes suggests that they enlarge in an unlimited manner the zone in which faculty are exposed to “administrative actions” without the due process specified by the Faculty Code of Conduct. Recently, three UC faculty have been charged with criminal offenses related to protesting UC policies: Celeste Langan of UC Berkeley, whose charges have since been dropped; Ken Ehrlich of UC Riverside; and Joshua Clover of UC Davis. None of them have yet been subjected to university discipline under the Faculty Code of Conduct. Could these events be related? Yes, indeed. By the logic of one of the changes proposed, in the future the university could discipline faculty in their position outside the guidelines of the Faculty Code of Conduct and without any peer review whatsoever.
UCOP here proposes changes to three sections of the APM: APM-010 on Academic Freedom; APM-015, Part I of the Faculty Code of Conduct, on Professional Rights of Faculty; and APM-016, University Policy on Faculty Conduct and Administration of Discipline. The proposed changes begin promisingly. To a sentence in APM-010 naming the freedoms that faculty currently enjoy–“freedom of inquiry and research, freedom of teaching, and freedom of expression and publication”—is added a new “freedom,” “freedom to address any matter of institutional policy or action when acting as a member of the faculty whether or not as a member of an agency of institutional governance.” It’s true that APM-015 already states that professors “maintain their right to criticize and seek revision” of University regulations” (APM-015, Part II C). But this statement has turned out not to be enough to protect faculty in all cases. In a recent federal lawsuit (Hong v. Grant), the Regents zealously and successfully defended UC Irvine for denying a merit increase to a Professor on the grounds that he publicly criticized his department for relying on adjuncts to teach required courses. The Ninth Circuit upheld UC’s position on the narrow grounds that “[i]t is far from clearly established …that university professors have a First Amendment right to comment on faculty administrative matters without retaliation.” Thus, in the new 015 UC seems to back down on its claimed right to retaliate against faculty who criticize it. The next proposed change, to APM-015, adds the new “freedom” a second time, in exactly the same language, to the list of Professional Rights in the Code of Conduct (“the right to present controversial material relevant to a course of instruction” and so forth). This “freedom” protects UC professors from being formally disciplined under the Faculty Code of Conduct for mere criticism of UC policy.
It is unclear, however, whether UC still claims the power to retaliate against its critics outside the Code. The proposed revision to APM-016, which deals with The Administration of Discipline, expands exactly such an area external to the Code of Conduct. To a sentence on the kinds of trivial sanctions to which faculty can be subject “like all other members of the University community,” it simply adds the word “policies”: “faculty members are subject to the general rules and regulations and policies of the University; such as these include, but are not limited to, those pertaining to parking, library privileges, health and safety, and use of University facilities. Faculty are subject to appropriate administrative actions for failure to comply with such rules and regulations and policies” (strikeout indicates deleted language; italics indicate new language). This passage of APM-016 involves those kinds of violations for which “faculty members may be subject to certain administrative actions which are outside the scope of faculty discipline” (our italics). These are “administrative actions” that don’t have to abide by the procedures specified by the Faculty Code of Conduct. The campus doesn’t have to meet the standards of the Code of Conduct to issue a parking ticket or a library fine. In this category, UCOP claims that it just wants to cover “failure to comply” with “policies” as well, since we’ve now acquired a new freedom to express disagreements with these “policies.”

But things are much more complicated. We must understand that the University already has two channels of disciplinary action available: the Faculty Code of Conduct, which under APM-015 requires “significant faculty involvement,” and “other forms of reproval or administrative actions” (APM-015, Part II) “in addition” (016), which do not require significant faculty involvement. The passage of the current 016 we cited above reads in full:

With respect to the imposition of disciplinary sanctions, the Faculty Code of Conduct deals only with the professional responsibilities, ethical principles, and standards of conduct that pertain to the professional obligations of faculty members. No disciplinary sanctions described in this policy may be imposed on faculty members other than through the procedures pursuant to this policy and the Faculty Code of Conduct. In addition, faculty members may be subject to certain administrative actions which are outside the scope of faculty discipline.

The sentence about library fines and parking tickets follows. Placing failure to comply with “policies” here in APM-016, instead of among the types of acts subject to Code of Conduct procedures, then, is to place them outside the area of “significant faculty involvement”and the Code of Conduct’s formal consistency (including full recourse to the Academic Senate’s Committee on Privilege and Tenure).

Now, it is not clear how a “policy” differs from a rule or regulation. “Policies” could, potentially, be narrowly defined so as not to intrude on faculty rights or go beyond existing rules. But the current language does not do so, and faculty requests for clarification to the chairs of the Academic Senates at UCI and UCLA have received no response to the question of what “policies” means since April 6. The Irvine Faculty Association has been told that its Committee on Faculty Welfare, charged with considering the changes, has received no enlightenment and can give none on how a policy differs from a rule.

As a matter of jurisprudence, “policy” is often used to designate a general goal that is implemented by “rules.” So, UC may have policies such as privatization or increasing out-of-state enrollment or borrowing against tuition funds to construct buildings. UC can adopt and write up these policies at a high level—they are best understood as reflecting the administration’s priorities, and are frequently implemented by means of the budget. Implementing these policies by means of rules with which individual faculty members are expected to “comply” would require much more intensive Academic Senate review and could raise issues of conflict with principle, such as that of academic freedom.

The current changes imply, however, that “policies” in this broad sense can be treated as rules at UC’s discretion, without any of the normal safeguards that would accompany implementing policies by means of rules. A further source of ambiguity is that, while failure to comply with a rule means violating it, non-compliance with a policy frequently takes the form of resisting or undermining it. Such resistance can remain within the rules, but not if faculty can be sanctioned for “failure to comply” with an underlying policy whether or not it takes the form of a rule.

With respect to sanctions that, unlike library fines, must follow the Code’s procedures, the current APM-015 sets forth “a clear distinction” between “(1) ethical principles and (2) types of unacceptable behavior.” The APM’s positive ethical principles draw on other professional documents that go back a long way. “They are aspirational in character, and represent objectives toward which faculty members should strive”:

University discipline under this Code may be imposed on a faculty member only for conduct which is not justified by the ethical principles and which significantly impairs the University’s central functions as set forth in the Preamble. To the extent that violations of University policies mentioned in the examples below are not also inconsistent with the ethical principles, these policy violations may not be independent grounds for imposing discipline as defined herein. (APM-015, Part II)

APM-015 also notes that “professors observe the stated regulations of the institution, provided the regulations do not contravene academic freedom” (our italics; Part II, C). APM-016, in contrast, superficially seems to treat events that have no political significance. Are “policies,” however, especially policies with which one might want to exercise one’s freedom to disagree publicly as APM 015 now allows, ever without such significance? Assuming, according to the APM’s proposed new invitation to disagree verbally in 015, that we are talking about such policies throughout the proposed changes, UCOP wants the ability to disregard the ethical significance of resisting such policies by placing them under 016 instead of 015. According to 015, it’s impossible to penalize through the given process conduct that is justified by the Code’s own Ethical Principles. But in the new 016, even these would be susceptible to “other forms of reproval or administrative actions.” As though taking a cue from the Department of Homeland Security, the “policies” that fall into the no-man’s land of administrative exception from the Code are completely unlimited in the proposed language. Taken together, the positive and punitive proposals are saying: disagree verbally with the policies if you like, but comply with (don’t resist) them or else. In other words: talk all you like, because that’s not going to matter.

Now, the Faculty Code of Conduct is already quite restrictive with regard to protest at the University. The faculty who have recently received criminal charges may already be sanctionable under the Code through its provisions ruling out the “disruption” of University business (APM-015, Part II C). On the other hand, the APM is peskily ambiguous in its acknowledgment of areas where the principles it sets forth may collide—most of all in the phrase we quoted above, which recognizes the existence ofregulations that do contravene academic freedom. The proposed changes would extend beyond disciplining disruption and would no longer recognize a place for either active or passive nonverbal resistance to policies. Despite the new language’s proximity to trivial and distracting examples of parking tickets and the like, there is every reason not to enlarge in an unlimited manner the zone in which faculty are exposed to “administrative actions” without the oversight of their peers; without what due process is provided by the Code; and even if their resistance takes the form of mobilizing against policies that “contravene academic freedom.”

The proposed amendment to APM 016 should not be modified, but scrapped. We urge UC faculty to contact the chairs of their Academic Senates before the comment period ends on June 12.

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