Balancing the Mix of Speech Protections for Faculty, Students and Staff

Transcription

1 Balancing the Mix of Speech Protections for Faculty, Students and Staff Constitutional Issues in Higher Education Symposium The University of Arizona June 21, 2018 Presented by: Daniel B. Griffith

2 Agenda 1. Explore General Speech Considerations for Faculty, Students, and Staff Why this discussion matters Overview, Compare and Contrast, etc. 2. Examine approaches for engaging groups (particularly faculty and staff) in meaningful conversations on issues that matter in ways that foster civil discourse Process Considerations for Civil Discourse Examples from IUPUI 3. Takeaways 4. Q & A

3 Why Does This Discussion Matter? You can't have a university without having free speech, even though at times it makes us terribly uncomfortable. If students are not going to hear controversial ideas on college campuses, they're not going to hear them in America. I believe it's part of their education. Donna Shalala, former Secretary, Department of Health and Human Services, and former President, University of Miami Employees also want to have conversations on difficult topics Institutional mission and values on speech should be inclusive (not just for students and select faculty) Organizational context for conversations may be different, but they are still important Find ways to support this while managing conflicts, work issues, etc. (don t fear it)

4 Student vs. Employee Speech Protections 1. Wide protections for students 2. These do not apply to employees in the workplace 3. Can restrict employee engagement in campus free speech activities during work 4. Speech outside work may have consequences if: Perceived as speaking for the institution Impacts reputation of the institution Considerations: Institutional profile (public v. private, etc.); Employee status (faculty, staff, tenure, etc.) Context (classroom, other work space, public spaces, disruption to others, etc.)

5 Institutional Profile 1. Private - Do not generally enjoy 1 st Amendment protections 2. Public Have 1 st Amendment protections - As long as speech doesn t interfere with getting work done 3. Religious - Can require adherence to religious tenets, mission, etc.

6 Political Activity Public Institutions 1. Parameters based on need to preserve 501(c)(3) status, prohibiting participating or intervening in any political campaign on behalf of or in opposition to any candidate for public office 2. Employees may generally express political viewpoints, etc. in personal capacity 3. Concerns arise when speaking in representative capacity, or appear to do so, and - Openly endorse or criticize a candidate - Advocate for legislation - Or take other political positions in a clearly partisan manner

7 Choices When Responding to Controversial Faculty Speech 1. Discipline (depending on faculty status; not easy) 2. Remain silent; tolerate 3. Disclaimer (Respect right to speak; distance institution from message) Professor Jarrar s conduct was insensitive, inappropriate and an embarrassment to the university. [But] we have concluded that Professor Jarrar did not violate any CSU or university policies and that she was acting in a private capacity and speaking about a public matter on her personal Twitter account. Her comments, although disgraceful, are protected free speech under the First Amendment of the U.S. Constitution. Joseph Castro, President, Fresno State

8 EO and Protections Against Discrimination and Harassment 1. Can restrict speech that creates hostile work environment based on protected status (race, religion, etc.) 2. Uncivil speech restrictions must be uniformly applied - e.g., Can t restrict only religious speech if other forms of speech permitted - Policies should address disrespectful and uncivil conduct without regard to message content

9 Employee Conduct 1. Work Rules regarding: Productivity Civil conduct, bullying, etc. Customer service Safety Workplace violence 2. Performance Management 3. Discipline "Employees will engage in misconduct on and off the clock -- and when the incident is tied to public protests, free speech, and matters of public concern emotions can run high. Institutions should be thinking about where they want to and can legally draw the lines ahead of a headline news incident. Having a policy spelled out and employees put on adequate notice ahead of enforcement is important for fairness and transparency (but also enforceability). Maureen De Armond, JD, Assistant Vice President for Human Resources, University of Florida Source: Griffith, D. (Dec. 18, 2017), Talking about Controversial Topics at Work, HigherEdJobs.com (online)

10 Can t break the law in the exercise of free speech

11 Student Affairs Crossing the Line? "I think they are stepping over a line if at any point they lose that sense of who they are as educators. Gwendolyn Dungy, former Executive Director, NASPA "You have to put your personal views aside, because you ve got a job to do. The state s not paying you to go out and protest for them or against them. Shannon Ellis, Vice President for Student Services, University of Nevada at Reno

12 Free Expression v. Institutional Responsibilities It is critical that we support the right of student affairs professionals to express their opinions freely on difficult and challenging issues that may question established protocols and practices. This is a core value of higher education and the student affairs profession. At the same time, across all of higher education, we are struggling with the challenging intersection of free expression with the sometimes competing issues around being an institutional representative. Dr. Kevin Kruger, NASPA President July 12,

13 Some Considerations for Addressing Employee Speech Allow Acting as private citizen on own time discussing a matter of public concern Speaking, blogging or tweeting on own time Unless statements constitute threat or a crime Controversial speech: support free speech rights while distancing institution from message Address as performance issue, as warranted: Employees at work, using institutional resources, during work, not contributing to job, etc. Faculty behaviors in classroom (e.g., student objections to content or delivery, misuse of academic freedom, etc.) Violation of policy (EO, conduct codes, etc.) Speech and actions in representative capacity that cross the line Must be uniform in application (not based on message content) Recommendation: Support opportunities for dialogue and learning over punitive or reactive measures (whenever possible)

14 Process Considerations for Civil Discourse 1. Process advocates wanted 2. You can say whatever the!*#%*$ you want, but should you? Do you want to be heard or simply rant? As employee (faculty or staff), are the (tangible and intangible) consequences worth it? 3. Focus on supporting dialogue and learning over determining right or wrong on sensitive topics 4. Attend to process at every step in the conversation, dialogue, forum, etc. Before: What can we learn? During: What are we learning? After: What did we learn?

15 Supporting Civil Discourse (IUPUI Examples) 1. IUPUI Civility Statement 2. IUPUI Common Theme Project: Find Your Voice, Hear My Voice: Creating Civil Conversation 3. Civil Discourse Initiative 4. Intergroup Dialogue

16 IUPUI Statement on Civility : IUPUI Statement of Civility - Created in response to racial incident - Withdrawn following free speech issue that drew attention from Fire.org : Revised Civility Statement - IUPUI Equal Opportunity Office and EO Council facilitated effort to revise and adopt new statement - Vetted to address free speech concerns (it s not perfect) - Endorsed by Chancellor, faculty/staff councils, and other groups

17 Creating Civil Conversation

18 Main Book Selections/Author Visits Focus: Civil Discourse and Civility Focus: Forgiveness, Reconciliation, Social Justice 18

19

20 Civil Discourse Initiative Civil Discourse Symposium: Presenting Models for Civil Discourse

21 Civil Discourse Initiative Critical Conversations: A Space for Informal, Unfussy, Intellectual Dialogue about Timely Events

22

23 Intergroup Dialogue (IGD) 1. Convening: Group Beginnings: Creating Shared Meaning of Dialogue 2. Learning: Identity, Social Relations & Conflict 3. Dialogue: Issues of Equity, Fairness and Inclusion 4. Growth and Commitment: Alliances & Empowerment 1. Convening: Support formation of dialogue; Build relationships across difference; Establish norms and rules 2. Learning: Explore meaning, increase awareness, promote understanding 3. Dialogue: Support and challenge risk-taking 4. Growth and Commitment: Acknowledge contribution and celebrate collective effort with action

24 IGD: Dialogue After the Dialogue

25 Three Takeaways (among others) 1. Support (and don t fear) meaningful conversations on important issues for all (students, faculty, staff, etc.) context, focus, and process will vary based on speech parameters for specific groups 2. Attend to process (how we talk) as much as, if not more than, substance (what we talk about) before, during and after conversations 3. Whenever possible, use free speech excesses as opportunities for dialogue rather than punitive or reactive measures (even if you can)

26 Thank You! Questions? Daniel B. Griffith, JD, SPHR, SHRM-SCP Director, Conflict Resolution and Dialogue Programs Office of Intercultural Literacy, Capacity and Engagement IUPUI Division of Diversity, Equity and Inclusion (317)