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.