Larry Catá Backer

AAUP Member with a faculty appointment at

Pennsylvania State University

AAUP Annual Conference June 11, 2015

Washington, D.C.

DEVELOPING SOCIAL MEDIA POLICIES FOR UNIVERSITIES:

BEST PRACTICES AND PITFALLS

The Broad Picture – On the one hand,

• we have embraced the idea of universities as a place of deep and sometimes fractious open discourse, where students and faculty work diligently in the pursuit of knowledge, wherever it may take them, and for its dissemination through instruction that is meant to challenge and train

– . On the other hand, • we have increasingly come, again, to view faculty the way

aristocrats once thought of the tutors for their children-- as staff that ought to be careful about their place and their role.

The Price of Speech on Campus – Social Media policy a battleground

• Management of faculty speech and conduct is part of a larger project to control the behaviors of faculty BOTH:

• In the course of employment• Beyond the scope of employment

• Engagement in the Development of Policies:– Typologies– Accessibility– Formulation

Bleeding Kansas

• In September, 2013 the University of Kansas suspended David W. Guth, a tenured journalism professor, after he responded to the shootings at the Washington Navy Yard with this comment on Twitter: – "#NavyYardShooting The blood is on the hands of the #NRA. Next

time, let it be YOUR sons and daughters. Shame on you. May God damn you." Jason Jaschik, Fireable Tweets, Inside Higher Education, Dec. 19, 2013).

• In response, and in the face of a supposed absence of rules for dealing with this sort of old fashioned malediction or curse, the Kansas Regents rushed in with a broad effort to control the behavior of its academics.

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The Tweeting ProfessorOn a Sunday, 2 June 2013, Geoffrey Miller, an evolutionary psychology professor resident at the University of New Mexico and visiting at N.Y.U. University, sent the following tweet:

– The University of New Mexico formally cesured him.NYU allowed him to finish hisVisit.

The Salaita Affair.

Two sets of issues:--legal contractual--Social media and speech rights (bound up in notions of collegiality and fitness for the job)

The Chicago ApproachReport of the Committee on Freedom of Expression:In a word, the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose. Indeed, fostering the ability of members of the University community to engage in such debate and deliberation in an effective and responsible manner is an essential part of the University’s educational mission.

As a corollary to the University’s commitment to protect and promote free expression, members of the University community must also act in conformity with the principle of free expression. Although members of the University community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe. To this end, the University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.

The AAUP• Academic Freedom and Electronic Communications

Download: Academic Freedom and Electronic Communications.pdf• It "recommends that each institution work with its faculty to develop

policies governing the use of social media. – Any such policy must recognize that social media can be used to engage in extramural

utterances, which are protected under principles of academic freedom.”– The report also argues that in electronic communications "faculty members cannot be

held responsible for always indicating that they are speaking as individuals and not in the name of their institution, especially if doing so will place an undue burden on the faculty member's ability to express views in electronic media."

The ImplicationsSocial Media Policy Efforts Touch on Fundamental Changes

-(1) Redrawing of power relationships from states to institutions as centers of regulatory power

--(2) Transformation of rule structures from command to management (assessment and objectives based management);

--(3) Opening a wider scope of discretion exercised by administrators (now overseers)—enter collegiality; anti-bulling; civility

--(4)Scope of the meaning of “service” widens to the benefit of employer institutions;

--(5) Production of inversion: speech rights of institutions widen as individual speech and employee speech is

increasingly regulated and privatized

The Way Forward?--Separating work related form non work related communications;

--detaching the individual from the institution;--building a wall containing the privatized regulatory authority of institutions

to work related service.

--using university technology, equipment, networks, servers, etc.--ownership is regulatory power?

--who exercises discretion to judge and enforce?--limits on exercise of administrative discretion--limits of the scope of authority to impose discipline beyond faculty

centered mechanisms

--more robust rights to protect against and punish retaliation

A Model?• Policy Goals in a Social Media Policy?

• WHEREAS, In keeping with The Pennsylvania State University’s commitment to the principles of academic freedom, the University supports the responsible use of existing and emerging communications technologies, including social media, to serve the teaching, research, and public service missions of Penn State.

• WHEREAS, the University remains respectful of the individual human dignity of its faculty, staff and students, and recognizes that its authority to as an employer cannot justify or extend to efforts to control the lawful expressive conduct of individuals not made in the course of their employment, narrowly but reasonable defined.

• WHEREAS, faculty are mindful of their position as members of a learned profession, whose expressive conduct may touch on their professional as well as personal roles, and their obligation to respect the interest of the University in its own reputation.

A Model?• 1. Social media means any facility for online publication and commentary.

• 2. The guidelines shall suggest non-exclusive ways in which social media technologies may be used to serve the university’s mission and shall encourage these uses. In doing so, the guidelines shall assure all employees that improper use of social media shall not be interpreted to include any use of social media in the following:

• i the content of any academic research and other scholarly activities; ii the content of any academic instruction; iii the content of any statements, debate, or expressions made as part of shared governance at a university whether made by a group or employee; or, iv in general, any communication via social media that is consistent with First Amendment protections and that is otherwise permissible under the law.

• 3. The guidelines shall remind employees that their authorship of content on social media may violate existing law or policy and may be addressed through university disciplinary processes if, but only if, it:

• i is intentionally directed to inciting or producing imminent violence or other breach of the peace and is likely to incite or produce such action; ii violates existing employee policies addressing professional misconduct that do not contradict or are inconsistent with these guidelines; iii discloses without lawful authority any confidential student information, protected health care information, personnel records, personal financial information, or confidential research data.

A Model?• 4. The guidelines also shall advise employees that when using social media to speak as a citizen they

should be mindful of the balance struck by the 1940 Statement of Principles of the American Association of University Professors: – College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they

speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution .

• 5. The guidelines shall recognize the rights and responsibilities of all employees, including faculty and staff, to speak on matters of public concern as private citizens, if they choose to do so, including matters of public concern involving the university.

• 6. The guidelines shall recognize the rights and responsibilities of the university for the operation of social media that it hosts, and recognizes that the university may impose reasonable rules for the use of these university owned or operated sites.

• 6. The guidelines on use of social media shall apply prospectively from its date of adoption by the University.

Conclusion--Social media policies bound up with issues of control, administrative discretion and the extent to which an institution can control the lives of its faculty beyond the workplace.

--social media policy might serve as a useful vehicle for limiting employer rights over the lives of employees.

--Legal standards will likely be of little help.