An awful policy

UA proposal guts academic freedom

Posted: November 9, 2017 at 2:55 a.m.

Tenure and academic freedom are designed to protect freedom of speech, thought, and expression on top of the limited remedies universally available in the law, so that learning and knowledge can flourish. This has been a bedrock principle in academia for a century and came in response to McCarthy-style red-baiting and loyalty oaths. These extra protections recognize the critical role of academics as truth-finders and truth-tellers.

But two weeks ago, we learned--for the first time--that University of Arkansas attorneys have been working behind the scenes for over a year to decimate the academic freedom and tenure rules that have been in place for decades across the UA system. It appears that their plan was to rewrite these rules systemwide to drastically diminish any real protections, and then hurriedly ask the Board of Trustees to approve the new policy before the proposal could be properly vetted.

That is not how any institution should operate, let alone one of higher learning.

The proposed changes are radical. For example, under the existing rules, faculty are explicitly free to provide "mere expressions of opinions," even "vehemently." Who could object to that? Answer: University counsel. Their proposal guts that protection--relegating that "right" to only limited and controlled circumstances. And lest there be any doubt that university attorneys were well aware of this, a Freedom of Information Act (FOIA) request uncovered the following statement by those working behind the scenes to eviscerate these free-speech rights: "This is limiting and may be controversial." Quite an admission.

Why would they propose such a change? Consider the description a few years ago by UA-Fayetteville's treasurer of the "overwhelming amount of evidence" at their fundraising division "that point[ed] to [a] lack of management oversight, noncompliance with university policies and procedures and deliberate efforts to disguise poor financial management." Faculty who report to authorities this very type of wrongdoing are protected today under the tenure and academic-freedom rules dealing with faculty governance and public service. The proposal drafted by university attorneys would eliminate those protections and permit the firing of faculty who report this type of wrongdoing.

Maybe we're just two overreacting law professors. After all, Nate Hinkel, the university spokesman, said recently that the new policy simply reflects "current law and best practices." However, the aforementioned FOIA request uncovered a different explanation altogether (albeit with just similar enough language to suggest intentional "spin" in the public statement). The university's general counsel, JoAnn Maxey, admitted in an internal email the following goals: "I think it might be good for our office to make the edits we feel are necessary to minimize legal risks and to make our policy consistent with our practices, and then we can pass onto others, who may be looking at 405.1 for other reasons." (Emphasis added.)

So university attorneys were focused on (1) minimizing the legal risks they confront and (2) getting approval to continue their current practices that, by their own admission, appear to be inconsistent with existing board policy. We wonder if the trustees know that they are being asked by university attorneys to validate practices that don't comport with current board policies.

Moreover, consider the harms that will result from undercutting tenure and academic freedom. First, there will be a "brain drain" from the UA System. Some professors will leave, and it will be far more difficult to hire faculty--because every UA campus will be at a considerable disadvantage when competing with other schools and states for talent. As a result, the overall quality of the university's faculty (including your doctors at UAMS) will drop.

Second, faculty will be much less likely to conduct research on controversial topics, discuss hot topics publicly, or whistle-blow regarding problematic university activities.

Third, when tenure protections are slashed, the impact is felt most keenly by minorities of all types--racial minorities, the religiously observant, and conservatives. To illustrate, the proposal will put conservative faculty in the cross-hairs because conservatives are in a distinct minority position on campus.

In short, the proposal drafted by university attorneys will (1) undermine faculty retention and recruitment, (2) critically limit faculty work, and (3) place particular pressure on unpopular perspectives--all of which will damage the teaching, research, and service performed across the university. Is that the type of school you want your children to attend? Given these harms, does it still look like we are overreacting?

Our state needs more college graduates completing their studies at institutions where they are taught to think critically by academics who can speak freely. The proposal drafted by university lawyers moves us in precisely the opposite direction. And, to boot, it permits the firing of faculty who speak publicly about wrongdoing at their schools. Whatever their motivations, university attorneys have written an awful policy via a fatally defective process.

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Joshua M. Silverstein and Robert E. Steinbuch are both professors of law at the University of Arkansas at Little Rock, William H. Bowen School of Law. The opinions in this column are solely their own.

Editorial on 11/09/2017