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Sunday, August 18, 2013

Sunday, August 18, 2013

The Rare Good Thing the Regents Did (and its limits)

At their July meeting, the UC Regents made several important changes to the Faculty Code of Conduct (Regents Policy 7401, APM, 015).  First, they expanded the list of protected characteristics against discrimination to include gender, gender expression and service in state military or naval service.  And second, they strengthened the right of faculty members to engage in criticism and commentary on University Policy and decision-making.  Under the new rule, the University is obligated to recognize and protect the:

freedom to address any matter of institutional policy or action when acting as a member of the faculty whether or not as a member of an agency of institutional governance.

The Regents now recognize this capacity as part of the fundamental conditions of university life and as a protected part of a faculty member's rights and responsibilities.

The question of the rights of faculty to engage in criticism and commentary on the University became an issue in the aftermath of the legal case Garcetti v. Ceballos.   In that case, concerning an employee of the LA District Attorney, the Supreme Court ruled that speech that flowed from a public employees duty was not protected by the 1st Amendment unless the speaker was operating as a private citizen.  (For those of you of a philosophical bent think Kant's What is Enlightenment?).  The Supreme Court left open the question of whether a University might operate outside of this restriction.  But in a follow up case, Hong v. Grant, (where the case turned on whether or not a merit increase had been denied because of Professor Hong's criticisms of departmental decisions and leadership, the 9th Circuit opined that "it is far from clearly established today, much less in 2004 when the university officers voted on Hong’s merits increase, that university professors have a First Amendment right to comment on faculty administrative matters without retaliation."  Although the 9th Circuit did not rule on this issue and the Supreme Court has not followed up, the Hong case made clear that there was fundamental uncertainty about the right of faculty to criticize University policy and decision-making without the fear of reprisal.

The Regents are to be commended for formalizing the right of Faculty to freely participate in the governance of the University.

But we need to be clear that we recognize what the Regents' action has and has not done.

First we need to recognize that the Regents action does not change the actual structure of University governance.   To take only one obvious example, nothing in the changes to the Faculty Code of Conduct alters the basically neo-feudal relationship that the Board of Regents maintains with its faculty and staff.    According to Regents Standing Order 105.2 (e), "the Academic Senate shall have the right to lay before the Board, but only through the President, its views on any matter pertaining to the conduct and welfare of the University."(emphasis added).  As with their process for choosing President-elect Napolitano, the Regents continue their basic attitude that faculty and staff should be seen but not heard (except at brief public comments sessions or when the President thinks it is okay).  If President-elect Napolitano genuinely wants to indicate that she recognizes the difference between her last place of work and her new one, a small step would be to persuade the Regents to drop the policy that the Board needs to be protected from the thoughts of faculty and staff.  They might gain a greater sense of how the University works.

Second, we need to acknowledge that this is a change to the Faculty Code of Conduct.  Despite the optimism of the Daily Cal's report on the new policy, there is no indication that this protection extends to staff as well as faculty.  Instead, staff will remain just as vulnerable for speaking their minds about departmental, campus, or university policy as they have ever been.  As the sorry history of "Operation Excellence" and its implementation demonstrates this is not a small problem.  But I am sure that anyone can think of stories from their own departments, divisions, or campuses to make the same point.

Ultimately, though, the Regents' change is a step forward--if faculty seize it collectively.  With a new President coming in, now is the time for faculty to increase their efforts to shape policies and to gain greater control of the the future of the University.  The changed language of the Faculty Code of Conduct may be partly symbolic.  But symbols matter if we make them matter.

2 comments:

cloudminder said...

Yudof did not agree with one of the statements in the Vice Provost's presentation on how Garcetti played out, 1:41 mark at the link below for this section on the video from the UC Regents meeting. Yudof's comments on whether or not UC invoked Garcetti are at the 1:49 mark.

link provided here

and there were UC Regents -like Pattiz- who asked something like 'what would be a reason for not voting for this?'-- did they really understand what they were voting on? or, did they just vote in favor of whatever was vouched for?

Who is right --Yudof, or the Asst Vice Provost who presented- on whether or not Garcetti was invoked by UC?
Imagine if Yudof made very different comments in response to Pattiz question.
Imagine there were a UC President who did not agree with the policy, who said it was a bad idea, would the regents have voted differently? Is it important to note that UC President Yudof disagreed with the assertion about Garcetti in the Asst Provost presentation? Is it important for the academic senate members to note this (hopefully when they are not at the 'cat food bowl')? Think so.

Michael Meranze said...

Cloudminder--

Thanks for the links and the questions. I haven't been able to determine who was right in the dispute between Carlson and Yudof although I suspect that Yudof was splitting hairs. What he seemed to imply was that UC was defending the Professors in question and that they invoked Garcetti as a way to suggest that UC had not done this and therefore the changed language was not necessary. If you look at the district court decision http://www.aaup.org/NR/rdonlyres/5556C028-6780-4B49-A8DE-F180A0E8C97F/0/HongvGrantCDCal.pdf You can see that the Judge makes a tremendous point of the implications of Garcetti as one in a long line of cases.

Yudof's comments also are not helpful in another way--his comparison with a private employer. It is true that the issue around this sort of speech concerns employer/employee relations but what is at stake in Garcetti and other cases is specifically the right of a public employee since by definition anything that has to do with a public institution could be considered in the public interest. Garcetti and other cases transpose the limiting disciplines of private institutions onto public institutions. Why Yudof would make that mistake is a question of course.

Obviously if Yudof had opposed this it would never have gotten to the Regents so your question about another President is a fair one. One interesting thing about Pattiz's question is that he doesn't seem to know that the Faculty Code of Conduct includes responsibilities as well as rights already. Another sign of how little the Regents actually know about the Institution they govern I guess.

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