The Kansas Regents (Casually) End Academic Freedom

By William K. Black

Wednesday, December 18, 2013, the Kansas Board of Regents drastically curtailed tenure and academic freedom.  The state attorney general aided this action.  The Regents decided that when university faculty use common forms of modern communication (“social media”) they no longer have the protections of tenure and academic freedom.  The Regents’ policy change does not even mention tenure or academic freedom.  The Regents acted without consulting the faculty and without any open debate.

The Regent’s policy begins with a broad definition of “social media” that includes the primary means that many faculty members engage in academic discourse, such as “blogs” and videos of lectures, interviews, and congressional testimony posted on line, but also “any” “online publication.”  Academics frequently publish their research “online” and even when they publish in print they often publish a version of the paper “online” (see, for example, my SSRN page) so that other academics can easily read it.

The chief executive officer of a state university has the authority to suspend, dismiss or terminate from employment any faculty or staff member who makes improper use of social media. “Social media” means any facility for online publication and commentary, including but not limited to blogs, wikis, and social networking sites such as Facebook, LinkedIn, Twitter, Flickr, and YouTube. “Improper use of social media” means making a communication through social media that:

The Regent’s policy then allows the CEO to fire any faculty remember, regardless of tenure, who makes any comment that the CEO decides:

ii. when made pursuant to (i.e. in furtherance of) the employee’s official duties, is contrary to the best interests of the University;

iii. discloses without authority any confidential student information, protected health care information, personnel records, personal financial information, or confidential research data; or

iv. subject to the balancing analysis required by the following paragraph, impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impedes the performance of the speaker’s official duties, interferes with the regular operation of the university, or otherwise adversely affects the university’s ability to efficiently provide services.

Subpart “ii” begins the amazing assault on academic freedom.  As an academic our “official duties” include research and presenting our policy views arising from that research.  Tenured professors in Kansas universities can now be fired for making statements that the CEO decides are “contrary to the best interests of the University.”  The Regents’ staff and the Kansas Attorney General assure the reader that such a vague standard is constitutional.  Note that they ignore tenure and academic freedom in their discussion, presumably because neither exists in Kansas for any practical purpose if the CEO gets to fire tenured professors for expressing views that the CEO decides are “contrary to the best interests of the University.”  Any tenured professor can be fired for saying anything under such a standardless “standard.”

Subpart “iii” at least has a legitimate core concern, but it is drafted in a fashion that allows selective abuse.  Professors often have to communicate grades, health information, student financial need, and research data that students have helped collect to other university employees and in the case of research data to the world.  It is often unclear which university employees the professor is supposed to communicate grade, health, and student financial aid information to.  Something as innocuous as telling a student in front of other students that she got the high grade in the class would violate this rule.  Note that as the Regents wrote the policy a professor can be fired for an inadvertent or unknowing violation of an unwritten disclosure rule of which the professor had no notice.  The rule does not require that the professor have any intent to violate the disclosure rules or even be reckless in failing to comply with a rule.

The provision allowing the CEO to fire any professor who discloses a student’s “confidential research data” is even more pernicious.  First, professors frequently work with students to research “data.”  Are the “data” the student’s or the professor’s or both parties’ “data.”  Second, a student (or a helicopter parent) who is upset with the student’s grade may claim that the data are the student’s data and that the data are “confidential” (a term that the Regents do not define).  As professors, we often use blogs to praise our graduate students’ research.  This gets them attention in the academy in their field and improves their chances of finding an academic position.

Subpart “iv” also ignores tenure and academic freedom and has only the barest, phony, pretense of valuing free speech.  The phony aspect is the “balancing.”  There are three key facts to keep in mind about this supposed “balancing.”  First, the CEO does the “balancing.”  That makes the CEO the de facto prosecutor and judge.  Second, tenured professors no longer have any right to academic freedom (a concept that disappears in the Regents’ policy).  Third, any value the CEO chooses to give to the professor’s expression of views can be outweighed (by the CEO) if the CEO views that expression as causing the CEO even minor inconvenience in virtually any conceivable manner.  One can only marvel at the breadth of things that can now upset a CEO enough to fire a tenured professor in Kansas.  A professor can be fired for any statement the CEO decides:

“impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impedes the performance of the speaker’s official duties, interferes with the regular operation of the university, or otherwise adversely affects the university’s ability to efficiently provide services.”

One of the small joys of this travesty is that Kansas public universities CEOs and lesser administrators will now all claim that they need a “close working relationship” with faculty and that the tenured faculty’s “personal loyalty” to the administrator is essential and that they cannot work “efficiently” with tenured faculty in whom they do not hold “confidence.”  They will all embrace Zen and rhapsodize about the need to maintain “harmony” by firing those who express discordant ideas.  Here’s a hint: no part of our function as scholars should be showing “personal loyalty” to the university president.  Bad university CEOs already surround themselves with high-salaried sycophants as fellow administrators.  They do not need the faculty to become obsequious to feed their delicate egos.

Here is the Regents’ language about their purported “balancing.”  Notice that tenure and academic freedom disappear and are replaced simply by the rights of general citizenship.  Then notice that in Kansas the “rights” of general citizenship have also ended.

In determining whether the employee’s communication constitutes an improper use of social media under paragraph (iv), the chief executive officer shall balance the interest of the university in promoting the efficiency of the public services it performs through its employees against the employee’s right as a citizen to speak on matters of public concern, and may consider the employee’s position within the university and whether the employee used or publicized the university name, brands, website, official title or school/department/college or otherwise created the appearance of the communication being endorsed, approved or connected to the university in a manner that discredits the university. The chief executive officer may also consider whether the communication was made during the employee’s working hours or the communication was transmitted utilizing university systems or equipment. This policy on improper use of social media shall apply prospectively from its date of adoption by the Kansas Board of Regents.

This passage deliberately makes no reference to tenure or academic freedom because it effectively ends tenure and academic freedom, but note that it also ends a “citizen’s” “right” to free speech in Kansas.  The “right” becomes a non-right subject to the whims and ideological preferences of the CEO and Regents.  The “right” to speak can be outweighed by the CEO’s view that discordant speech would reduce the university’s “efficiency.”  In both substance and dishonesty of presentation the Regents’ policy is literally Orwellian.

I need to emphasize again that many academics communicate primarily through electronic means that constitute “online publication and commentary.”  As an academic, my “working hours” are unlimited.  I’m preparing this blog article in the midst of at least my 50th all-nighter this calendar year.  The Regents’ policy would treat this article as suspicious because I am writing it during my “working hours” on my university computer and because my blogs show my UMKC title.  This is significantly insane because these are all normal aspects of being a highly productive academic.  Collectively, “online communications” by academics are vital to our universities and the advance and dissemination of knowledge.

The Regents did provide that the tenured faculty members their CEOs fire when they find that their exercise of academic freedom is “inefficient” are entitled to bring a grievance.  The reader will likely not be surprised that given the Regents’ transcendent embrace of “efficiency,” the CEO who conducts the “balancing” and fires the tenured professor for the high crime of reducing “harmony” by expressing a view the CEO finds uncomfortable, will also decide the grievance.  The Regents’ policy states that the CEO’s decision on the grievance is “final” and not subject to any independent review by the university system or the Regents.

Kansas is trashing the only remaining jewel in the state, its superb university system.  The ideological purge that removed virtually all of the “moderate” Republican conservatives from the Kansas legislature has now set its assault rifle sights on the universities.  Their view of the glorious “harmony” made possible only through ideological purity perverts a “right” of free speech or “academic freedom” into an act of disloyalty.  The new “efficiency” regime founded on “truth” as it was revealed to the Koch brothers and the NRA will gradually sweep discordant views from Kansas’ universities.  The purge leaders will eventually celebrate the date, December 18, 2013, on which the Kansas university system was officially Koched and NRAed.

47 Responses to The Kansas Regents (Casually) End Academic Freedom

  1. Hang in there Professors Kelton, Black, Hudson, Wray. We’ll be watching closely, and we’ve got your back!

  2. As the Japanese say, it’s the nail that stands out that gets hammered down. That being said, this whole policy came about because of a rather imprudent and somewhat ambiguous tweet by a journalism professor about the mass shootings at the Naval Yard in Washington. Governor Sam Brownback and his personally selected Republican legislators wanted the professor fired, but when the University only suspended the professor with pay, Sam’s appointees on the Board of Regents decided to change the rules to not only allow but even to force the University to fire anyone who should venture into their murky swamp. If you want to go there, be sure to wear your waders.

  3. Scott Nearing had these problems back in 1916 at Wharton. Business leaders were unhappy with his vocal position on child labor, among other social-economic issues. At the time, 3 million kids, from the ages of 8 to 13 were working up to 12 hours a day, six days a week in mines, factories and textile mills.

    He ended up in the Vermont woods, growing carrots.

  4. A scary precedent though!
    Really hopes this does not spread, since it seems most universities really do care more about the $ and operating like a business than education…

  5. roger erickson

    This is not German in origin. This is pure aristocracy in action, imported primarily from the British imperial practices.

    There’s a very useful review here. Mostly based on the precedent of Churchill’s “finest” moments.

    A Very Perfect Instrument – The ferocity and failure of .. sanctions [as a policy] apparatus
    http://harpers.org/archive/2013/09/a-very-perfect-instrument/

    those who don’t learn history really are condemned* to repeat it?
    * by those who whitewash it

  6. Ironic that one (rather childish and vile) assault on a constitutionality protected freedom by Guth would result in another by the Kansas Board of Regents. I guess this is a case of sauce for the goose and sauce for the gander not tasting quite the same.

  7. For anyone who chuckled and yuk-ed their way through “What’s the Matter With Kansas?” – a timely lesson. This is not a game. The looniest Right in American history is coming after every shred of freedom they chance upon, as they blunder around in the darkness they have spawned. Coming for us all, with lock, stock and both smoking barrels. They are out to roll back the New Deal, the Constitution of the United States, the Enlightenment and any vestige of empirical science or philosophy that’s left after that. Yeah, their schtick is pretty funny and very ugly. But, as Thomas Frank wrote in his follow-up book (“The Wrecking Crew”):

    “Do you know what it’s better than? It’s better than *nothing*.”

    Which is what the Democrats, the looser-liberals and even most of the self-styled Progressives have got in the way of real push-back, organized action or other-than-online resistance. This event looks like a watershed to me, even from four states away in Wisconsin. I’m pretty sure this is unprecedented in American academic history – I’ve never heard of anything remotely as sinister. If it stands legally – and Professor Black hasn’t said that it won’t – the chilling effect will settle like a deathly pall over every state with a unitary Republican government. Which would include my own. These festivals of oppression tend to spread quickly now, as the wacko-birds vie for the real-life version of the title, “Bull-Goose Loonie”. *

    Beware. For both Hell and Kansas are full, and the Dead walk abroad amongst us.

    *See “One Flew Over the Cuckoo’s Nest”.

  8. Mark Robertson

    It’s hard to believe that Kansas was once a hotbed of progressive left-wing populism. Kansas even has a city called “Liberal” (the county seat of Seward County).

    Now Kansas continually sets new records in right-wing extremism, so that the rich can continually widen the gap between themselves and the rest.

    The same disaster happened to Wisconsin. It too changed from populism to extreme right-wing elitism.

    In the late 1800s, average people in Kansas were concerned about freedom and equality. Today they are concerned about everything BUT freedom and equality. Steal their homes, and they will protest in front of abortion clinics. Steal their money, and they will attack immigrants. Lay them off, and they will register to vote Republican. Bob Dole was the Kansas version of Ronald Reagan.

    Six days ago in Kansas the FBI pulled off its latest “anti-terrorism” charade. Their patsy was one Terry Lee Loewen, 58. The FBI found him, funded him, equipped him, and encouraged him so they could arrest him in front of the news cameras. The FBI continually does this in order to justify its ever-growing power and budget.

    Kansas underwent a horrendous shift in the mass mind. Rich elitists accomplished it by having their toadies and the corporate media focus on issues like gay marriage, gun control, abortion, affirmative action, school prayer, and so on, so that the masses became angry with “liberals.” And while the masses bickered, the rich robbed them blind, and continue to do so.

    I call it “distract-and-rob,” a condition where fiscal conservatism becomes the universal norm, while impoverished slaves squabble about hot-button cultural issues.

    This phenomenon is nationwide, but Kansas was an important early laboratory for its deployment.

    Now we have this outrageous new assault by the Kansas Board of Regents who oversee six state universities in Kansas, plus nineteen community colleges, five technical colleges, six technical schools, and a municipal university. The nine Regents are each appointed by the state governor. The current Kansas governor (Sam Brownback) is a notoriously right-wing Republican.

    If any of you ever visit that area, take a drive from Kansas City Missouri across the river to Kansas City, Kansas. You will start in a large modern city, and cross a bridge into a dystopian wasteland of sod-busting nit-wits. Welcome to Tea Party Paradise. Abandon all hope, ye who enter here.

    • Mark, while I agree with much of what you wrote, I do believe your characterization of everyone living on the western side of the Missouri River as sod-busting nit-wits is over drawn. Having lived in both Kansas and Missouri, I can attest that both states have their share of nit-wits, though few are still busting sod since there is little of the native prairie left unturned. Although Kansas City, Kansas does have its blighted areas, equally dystopian areas can be found on the Missouri side of the border and indeed in most large American Cities, especially in the rust belt. Kansas was (is) an early laboratory for the practice of distract-and-rob capitalism because it happened to be the home of two of its early practitioners, the Love and Koch families, founders of the John Birch Society. I am doing all I can to oppose and overturn this myopic and destructive policy, and I hope you will join in.

      • roger erickson

        interesting history on Kansas [Love & Koch families];
        paints Kansas as faintly reminiscent of Russia?

        what is it about plains and steppes that breeds ruthlessly clever gangsters?

        room to roam, hide & not get caught? victims are isolated by nature?

        those attributes can be arranged in other dimensions as well … hmm; “unregulated spaces”

        classic parasite strategy …. regardless of the setting? from viruses to bacteria to [e.g., malaria] to Control Frauds

        they all share some key characteristics

        we need to adapt & evolve our Cultural Immune Response, while avoiding cultural-autoimmune-disease (fascism?)

        Do they know about the theory of Evolution in Kansas? :) or rather :-(

        • Just a couple of points: Stalin, you will recall, was from mountainous Georgia, not the steps of Russia. There are “Russian” immigrants in Kansas, but most are descendents of the German-Russian Mennonites. Those I have met are among the kindest, most open and caring people you can imagine, and nearly all are pacifists. Just for the record.

      • Mark Robertson

        Sunflowerbio writes, “I believe your characterization of everyone living on the western side of the Missouri River as sod-busting nit-wits is over drawn.”

        I was intentionally being caustic, because the topic of Bill Black’s article made me furious.

        Yes, Missouri has some bad parts. I’ve seen them. Every state has problems. The state where I live is as right wing as Kansas, perhaps more so, and is very depressed economically.

        And yes, I have seen some rust belt cities. In Detroit the despair was almost palpable, like static electricity in the air. Cleveland was the quietest big city I’ve ever been in. Not dilapidated; just silent. It was surreal, like a ghost town, despite the people and cars. Camden NJ was like ground zero of a 50 MT nuclear blast. I dared not exit my car. New York was nothing unusual; just another large city. I’m originally from Los Angeles.

        Thanks for your comment.

        • I share your anger and frustration. Many faculty in Kansas are just as appalled. I hope they will be able to get this policy changed, but the right wing plague is spreading with no antidote in sight.

    • Mark:

      Good comment and Analysis here. This is something about US culture I struggle to understand. I am not from the US, but worked in a semi academic post in Appalachia for a spell. The ideology and behaviours you described seemed universal there – nearly everyone thought like that, and it seemed deeply entrenched. I quickly ascertained that it was useless in debating people. People living in desolate squalor, with signs posted on their run down trailers warning ‘the guberment’ to keep their hands off their property (which they clearly had none, while they were in desperate need for state spending on road maintenance and other infrastructure spending). Their was ZERO immigration to the region, but the population was rabidly nativist and xenophobic. Much of the population was in clear and visible need of single payer healthcare, yet their was palpable hatred of the idea. Despite their poverty and oppression, they were obsessed with ‘liberals’ and right-wing hot button cultural issues. There was a near religious reverance for the US military, police and the US flag that was disturbing.

      I have spent time in Canada, Mexico, Europe and South America and have never been exposed to this cultural phenemona like I was there.

    • Dale Pierce and Mark Robertson hit the nail on the head… If it can happen in Kansas… when will it spread to the rest of the states and their universities!?!?!?

  9. The language is telling “chief executive officer” or CEO. Education, research merely a business. “Impairs discipline by superiors”. The parasitic do-nothing administrators recently infesting US academia en masse, extracting princely salaries by ripping off students, are now the faculty’s “superiors”, who apparently merit “personal loyalty”.
    Most telling of all is “employee”. Gone are the days, and the faculties and “CEOs”, of the time of I. I. Rabi, irked by the president of his university referring to the faculty as employees, stood up and told him “We are not employees of Columbia University. We are Columbia University” – and formed a fast friendship with President Eisenhower as a result.

    • I wonder what wold have been the result of such a statement if it had been made to Larry Summers while he was President of Harvard University.

    • Mark Robertson

      Yes, Calgacus. In Kansas, each university has a “CEO,” because rich people and their puppet politicians openly regard higher education as a for-profit “corporation.” Indeed the Board of Regents has a CEO, plus a chairman of the board. The nine-member Board oversees all 38 institutions of higher learning in Kansas.

      These corporate creeps’ job is to boost profits, which means constantly increasing tuitions and student loan debt. Their job also includes shifting the curricula of higher education even farther to the right than it is now. Obviously these maggots would fire any professor who mentioned MMT to his or her students, since MMT would be “contrary to the best interests of the University.”

      Meanwhile Bill Black et. al. are on the other side of the Missouri River, in the state of Missouri. Their institution (University of Missouri / Kansas City) is more prestigious, and its campus more beautiful, than anything in Kansas.

      • Mark, if you’re going to post on here at least be honest and civil. Your comments delegitimize the very serious nature of the response to the Regents’ outrageous policy. There is a simple and innocuous reason why the Regents refer to the university leaders as CEOs: KU has a chancellor and every other institution has a president. And be careful lauding UMKC as academic heaven: they’ve had numerous problems of their own over the past decade.

        • Mark Robertson

          Kidlet, if you’re going to post on here, at least be clear in your accusations. Toward whom do you claim I am uncivil and dishonest? You? Your pet? Someone else in this blog? The Kansas pushers of this odious new policy? If it is the latter, they do not merit civility. It is they who are uncivil.

          You remind of the typical priest who condones the violence of capitalist exploitation, calling it “God’s will,” while condemning any questioning of that violence as a “sin.”


  10. Fourteen Defining
    Characteristics Of Fascism

    11. Disdain for Intellectuals and the Arts – Fascist nations tend to promote and tolerate open hostility to higher education, and academia. It is not uncommon for professors and other academics to be censored or even arrested. Free expression in the arts and letters is openly attacked.

    12. Obsession with Crime and Punishment – Under fascist regimes, the police are given almost limitless power to enforce laws. The people are often willing to overlook police abuses and even forego civil liberties in the name of patriotism. There is often a national police force with virtually unlimited power in fascist nations.

    13. Rampant Cronyism and Corruption – Fascist regimes almost always are governed by groups of friends and associates who appoint each other to government positions and use governmental power and authority to protect their friends from accountability. It is not uncommon in fascist regimes for national resources and even treasures to be appropriated or even outright stolen by government leaders.

    • On #14. I know modern day academics love to argue endlessly that fascism is hostile to intellectuals, academics and the creative class but that’s directly contradicted by history. Many early 20th century academics and intellectuals (George Bernard Shaw comes to my mind right away) were advocates for Italian and German fascism. Romania’s Iron Guard was largely made up almost entirely of students and academics when it began.

  11. I can’t believe there’s such a thing as CEO of a public university, but I suppose corporatism is deeply imbedded in American culture. The working class gleefully cutting its own throat in hopes of a pat on the head, and all that.

  12. In the private sector, I think they call this “employee at will”.

    I can easily see the opportunity for abuse you highlight. That’s the reasons Unions came to be, abuse by management because they “could”.

    The question is what are all the tenured employees at the Uof Kansas going to do about it? What can they do about it? Strike in protest? then they get fired for all the reasons listed above.

    The next step, if not already in progress, is why give any professors tenure? They can all be made part time contract employees with no benefits. It’s more “efficient” that way. It reduces the University expense (while hiking tuitions) so the fat cat administrators can unjustly reward themselves with even bigger salaries and bonuses…..just like entitled CEO’s in the corporate world….at the expense of those who actually do the work.

    Sheeeez. Good Luck UofK

    • Just a point of clarification. This policy applies to the entire Regent’s system, not just the University of Kansas.

  13. I keep saying we need to fire all the administrators so the universities can get back to their mission of teaching and research. The Kansas “CEO” proves how right I was.

    This is much worse than the dust-up at the University where the Regents fired the President in the dead of night because she was insufficiently enthusiastic about some hare-brained MOOC scheme.

  14. Kansas State Professor

    I hate to rain on the one positive comment in this article, but I can assure you, as a professor at Kansas State University, that the state university system is not superb.

    • roger erickson

      I admire your bravery, Sir! You surely know that you can be summarily fired for that comment? Or so your regents claim.

  15. Pingback: New Kansas social media policy is ‘amazing assault on academic freedom’ | MediaKC

  16. josh brahinsky

    y’all need a union

  17. It is really simple—-make a mockery of these admins/CEO’s. Anonymously expose every piece of dirty laundry in the closet. Skip the electronic media yourself and have non-employees or hired people leak everything you can get your hands on. Go “old school” and photocopy your work if needed. Get personal and leave nothing to the imagination—“wikileaks” of Kansas. Once they feel that stinging sensation of the massive leaks and humiliation they will understand the monster they created. If only only 10% of faculty leaked 10% of what they really know the general population would be amazed–think of all the juicy info in personnel committees, budget, payoffs, buyouts, admin spouses on staff, affairs, etc. Get tough and quit playing softball.

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  20. Buford T. Justice

    This isn’t a Kansas Regents problem it’s a technology problem. Intractable blogs & tweets and Facebook posts runs smack into the venality of large institutions. Fun to watch how it’ll pan out, & especially fun to watch the outraged dignity on display in fora like these.

  21. Amazing, I was just discussing this (almost) very thing today with a friend of mine who heads a department at a private “religious” university here in Texas. The better the tools become for free speech, the more free speech is stifled by “elites”. This is frightening.

    • roger erickson

      “The state attorney general aided this action.”

      So are they floating a trial balloon? Claiming that if faculty try to exercise Free Speech, then they abrogate their right to free speech?

      Don’t use it, or you’ll lose it? Will that soon be claimed as a legal precedent? Citing Kansas?

  22. I have a hard time believing that the new Kansas policy would stand up in court….

  23. Pingback: Bill Black: They’re Back: The Poltergeists in the Kansas Senate Renew their Attack on Education | naked capitalism

  24. colleen murray

    So, is it time for Podcast Free Kansas to be established?