A couple of weeks back, I linked to a report by Phil Jack on AFT’s Face Talk about the case of Margaret West, a 20-year veteran part-timer at Edmonds Community College in Washington State, and the incoming president of its AFT union local, a mixed unit that bargains for faculty serving both tenurably and nontenurably. She has joined administrators to testify on behalf of education funding and led the faculty team in six bargaining negotiations.

Even though her performance had won her several guarantees of continuing employment under her AFT contract’s “Assurance of Employment” clause, the new dean of her college didn’t renew West’s contract when it came up, on the verge of her becoming the first faculty member serving part-time to helm the local. Asked why, the dean consulted his diploma from the Dick Cheney school of human relations, thrust out his lower lip, and shrugged.

“Because I can,” he said.

But maybe he can’t. As Jack explains in his follow-up, AFT Washington is slamming the administration with a publicity campaign, two grievances, an unfair labor practice charge, and a human-rights complaint on the grounds of age discrimination.

“All of this activity and attention has also resulted in several legislators and the Governor’s office beginning to look into the situation,” Jack says.

In my first post, I asked about the “Assurance of Employment” clause, and subsequently discussed it with the president of Washington AFT, Sandra Schroeder.

She explained that it is only a term-to-term guarantee for faculty serving part-time. “It only ‘assures’ employment for a year at a time,” she noted.

Schroeder called the bargaining climate in Washington–which legally limits the scope of bargaining to a cat-fight over the raise pool between institutions and bargaining units–”hellaciously hard,” especially at the two-year schools, “which are ground zero for the worst of the academic staffing crisis.”

“We would all say Edmonds ‘assurance’ needs to be strengthened,” she said, “but it is slow going.”

Of course Bob Dole’s ranting response to Scott McClellan’s memoir of his years in the Bush mob makes it clear that real men don’t need no stinking academic freedom.

“There are miserable creatures like you in every administration who don’t have the guts to speak up or quit if there are disagreements with the boss or colleagues,” Dole opined, “because if all these awful things were happening, and perhaps some may have been, you should have spoken up publicly like a man, or quit your cushy, high-profile job.”

Thanks to the U.S. Supreme Court’s decision in the Garcetti case, however, even the most obscure civil servant who “has the guts to speak up” had better be prepared to be demoted, disgraced, or terminated for disagreeing with the political hacks appointed to be her boss. Thanks to Garcetti, in a way Dole’s right: “speaking up” for civil servants has become a test of courage in a way that we haven’t seen for many years.

By the way, I checked in with my academic freedom guru, John Wilson, author of a prescient book on Obama as well as the essential Patriotic Correctness: Academic Freedom and its Enemies, on the applicability of the Garcetti case.

Most recent academic freedom cases are tests of the tension between the philosophically tenuous but nonetheless steadily more concrete claim of administrations to “institutional academic freedom” (construed as freedom from judicial intervention) and the actual speech rights of individuals. Increasing “freedom” for institutions often means greater encroachments on the faculty.

The Hong case seeks to give “institutional academic freedom” the cover of Garcetti, at least for public institutions. Regarding this strategy, however, Wilson snorted with derision via email: “First, Garcetti v. Ceballos was wrongly decided by the Supreme Court, and wrongly applied here to academic speech. [Clearly] when faculty are performing their official duties, academic freedom protects them from being fired for expressing controversial views.”

Referencing what he described as the equally flawed Parate v. Isibor, he noted that “It clearly stands for the right to express a viewpoint. The administration can overrule a professor’s grade under the ruling, but it can’t fire a professor for expressing a certain viewpoint.”

But while UC-Irvine didn’t fire Hong, it did retaliate, and the Ninth District upheld that retaliation under the Garcetti standard. So unless Hong v. Grant is overturned on appeal, you better get ready to live in Bob Dole’s world. Kinda like playing Gary Cooper’s role in High Noon.

AAUP senior counsel Rachel Levinson has taken to sending occasional emails to AAUP members about the truly scary state of case law affecting traditional faculty rights. Her latest, on the retaliation against Irvine professor Juan Hong for speech in direct performance of his governance duties, is one of the most-forwarded emails of the past year, appearing on half-a-dozen lists and blogs that I regularly read. It’s a chilling ruling that crudely applies the Garcetti case (permitting retaliation, including demotion and discharge, against public employees for speech in relation to their duties).

Yeah, you read that correctly. He was retaliated against for speech in direct relation to his governance duties, and the court upheld it. If he had issued pro-Nazi sentiments, he would have been safe. But because he said permatemping is bad, they could drive him out with impunity. (He has since retired.)

I’ve reproduced Levinson’s remarks in full below, and you can read a pdf of the complete amicus brief that she prepared for Hong’s appeal. The AAUP pays for Levinson’s (highly-discounted) work, its extensive advocacy efforts, lobbying, scholarship, and policy statements, and the travel & meeting expenses of a fleet of faculty volunteer officers like myself–out of the dues of just 45,000 members. That number is 1/2 the number of dues-paying members in 1972, and the total annual budget is smaller than that of many disciplinary associations.

Forgive my bluntness, but, dude, you want this work to continue? Then click here and join. Like, right away. Faculty serving contingently and graduate employees pay highly discounted rates.

Faculty Speech and the First Amendment
by Rachel Levinson, AAUP Senior Counsel

Imagine that you are teaching at a public university that not only supports but encourages your participation in institutional governance. You speak up on several matters that you think undermine the faculty role or your students’ experience—and for your trouble, you are denied a raise, saddled with additional work, or even fired. Do the university’s actions violate the First Amendment?

The AAUP and the Thomas Jefferson Center for the Protection of Free Expression recently filed an amicus (“friend of the court”) brief in such a case. The brief, which was filed with the U.S. Court of Appeals for the Ninth Circuit, supports the appeal of Dr. Juan Hong in his First Amendment lawsuit against the administration of the University of California, Irvine. The case could have significant implications for faculty members at all public colleges and universities—and, ironically, could have the strongest negative impact on faculty that are encouraged to participate in university governance.

Dr. Hong, a full professor at UCI, allegedly angered university administrators by opposing certain faculty hiring and promotion decisions and the university’s use of lecturers in place of professors. After Dr. Hong was denied a merit salary increase and given an increased workload, he filed suit, claiming that the university violated his First Amendment right to free speech.

A federal trial judge in California rejected Dr. Hong’s claim. The judge reviewed Garcetti v. Ceballos, in which the Supreme Court ruled that the First Amendment did not protect public employees from discharge for statements made “pursuant to their official duties” but declined to decide whether its ruling extended to “speech related to scholarship or teaching.” The judge in Dr. Hong’s case concluded that Dr. Hong’s participation in faculty governance was “pursuant to his official duties,” and that the university’s retaliation therefore did not violate the First Amendment. The court failed to acknowledge, however, that the Garcetti decision explicitly set aside the question of protection for academic speech, and held that “UCI is entitled to unfettered discretion when it restricts statements an employee makes on the job and according to his professional responsibilities.”
The AAUP’s amicus brief focuses on the unique status granted to academic speech, and its relation to shared governance. The brief notes that faculty speech has been accorded special First Amendment protection by the Supreme Court since Sweezy v. State of New Hampshire, 354 U.S. 234 (1957). The hallmark of such cases, the brief notes, is the recognition that academic freedom merits distinctive First Amendment protection against repressive action from within or outside the campus community.
The AAUP brief argues that participation in faculty governance is part and parcel of professors’ First Amendment-protected right of academic freedom to speak without fear of retaliation. The brief also observes that the court failed to distinguish between faculty rights and responsibilities, and argues that the court’s decision will empower universities with strong policies in favor of shared governance to discipline faculty members who annoy administrators through their involvement in university governance.

I may have a third segment’s worth in the conversation with Cary Nelson, who is running for re-election as AAUP president. As it happens, I’m also running for re-election, to the national Council. It actually doesn’t matter whether I’m re-elected–my “opponent” is just as committed to the issues as I am, and I expect both of us will continue to serve the cause whether we’re on the Council or not. This is the case with many of the Council races: as it should be, they’re a win for the AAUP either way. Nonetheless, the presidential election in which Nelson figures is quite important with genuine philosphical differences between Nelson and his opponent: if you’re an AAUP member, you will have recently received a ballot. I urge you to read both candidates’ statements and VOTE.

If you’re not an AAUP member, you really should join, especially if you’re a graduate student or faculty member serving contingently. Why do I think that? In partial answer, I’ve copied my candidate statement below

The wholesale permatemping of the academic workplace is the global warming of our professional lives. Forty years ago most faculty were in the tenure stream. Today, the overwhelming majority are contingent faculty and graduate students. Many graduate students are laboring in the only academic job they’ll ever have. The turnover among contingent faculty, including full-time contingent faculty, is extraordinarily high, because their pay, benefits, security, and rights to due process—including those protecting academic freedom–are appallingly low.

This explosion of ill-paid, ill-protected contingent work hurts everyone concerned with higher ed, not just contingent faculty themselves. Undergraduate students are particularly harmed, suffering lower retention and graduation rates in connection with the insecurity, uncertain intellectual freedoms, and substandard employment conditions of the new majority.

The tenure-stream faculty are harmed as well. In the short term, individual groups of tenurable faculty may have the sense of retaining their status and benefits by acquiescing to representations of the “necessity” for ever-more contingent faculty and graduate employees. However the long term consequence of over-reliance on insecure faculty is quite the opposite. Just as in any other field of endeavor, academic wages and workplace rights trend in the direction of the poorest paid and least protected, as is already obvious by the steadily growing wage inequality between tenured faculty in fields where contingent labor is most employed and those where it is least employed.

The association has for years been moving in the right direction to serve our “new majority,” with significant policy statements, reduced fees, leadership roles, and the devotion of staff positions. But we can and must do more: devote additional staff time, interlock more vigorously with accreditation agencies, initiate public policy debate in federal and state venues devoted particularly to the substitution of flex labor for tenurable faculty, engage in public relations examining the relationship between teaching conditions and learning conditions, and so on. Over the next eighteen months the association can, and must, communicate to every member of the majority faculty that their needs are concretely and unwaveringly central to its mission.

In the first segment of our interview, the 49th president of the AAUP suggests that the shift to a majority contingent faculty is not only an economic phenomenon.

It’s an intellectual sea change as well–for the faculty and for their students.

Instead of intellectual freedom, many of the majority contingent faculty can be fired for contradicting the administration, can’t choose course texts or create syllabi, and are afraid to challenge students to think and learn, or raise controversial issues.

“It’s a question of teaching in a climate of fear, versus teaching in a climate of freedom and honest interchange with your students,” Nelson warns. “The American academy has shifted from a place where there is a great deal of reinforcement for the intellectual independence of its faculty, to a place where there is very little.”