The Kansas Regents’ (Unintentional) Honesty about Academic Freedom

By William K. Black

I published a column this morning about the Kansas Regents’ effective elimination of academic freedom of tenure.

In thinking about the rule I realized that I had failed to make in blunt terms five points about how radical a rule it was.  I circulated these five points about an hour ago to a number of my contacts.

1. The Regents’ rule allows the CEO to terminate tenured faculty upon their arrest for a felony.  There is no requirement for a conviction and no provision for reinstatement if not convicted.
2. Truth is no defense.  The comment that tenured faculty makes can be accurate and the faculty member can still be fired by the university’s CEO.
3. Lack of ill intent is no defense.  The faculty member can make an accurate statement of fact or well-founded statement of opinion for exemplary purposes and can still be fired.
4. There are no meaningful “standards” so the statement by the faculty member could unknowingly subject him/her to dismissal because the faculty member did not know that the CEO was a global climate change denier (or partisan) and believes that those with the opposite view pose a grave threat.  The concepts are so vague and subjective (“harmony” and “efficiency”) that a faculty member’s only sure means of safety is to say nothing.
5. The rule creates different levels of (not very) protected speech.  The same statement by a professor in a traditional physically published journal – if not posted online (recall that most print publishers also make one’s article available on line) — enjoys greater protection that any comment published “online.”

But upon further review as they now say in the NFL, I realized that I failed to point out the most fundamental aspect of the Regents’ rule changes.  In an odd way, this aspect suggests a certain degree of (unintentional) honesty by the Regents.  There is nothing in the Regents’ rule changes that evidences any understanding that universities are not businesses run for the purposes of whatever the CEO defines as “efficiency.”  There is no fig leaf provided by any clause in the rule changes that suggests that the Regents believe there is any value to academic freedom.  The Regents have not crafted a word in the rule changes purporting to value vigorous debate and inquiry, the expression of diverse and unpopular views, or academic integrity in “speaking truth to power.”  Instead, they had their lawyers craft the most draconian restriction on “online” academic free speech that they believed could pass constitutional review.  They never inquired whether that was a good way to run what was, until yesterday, a top university system.  The Regents have made clear that they want to crush academic freedom because they do not value it.