Today's post is by the associate Jay Kucia.
Free speech is one of the founding commitments of our state and our nation (not to mention our firm). Historically, college and university campuses have been places where students and faculty can use their academic freedom to freely share thoughts and debate ideas. Former Cabinet member and congresswoman Donna Shalala expressed this truth well when she said:
You can’t have a university without free speech. The Supreme Court has established the same principle in our law. In the 1967 case of Keyishian v. Board of Regents of the University of the State of New York, the Court proclaimed:
Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. The classroom is peculiarly the marketplace of ideas. The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection.
To protect academic freedom, colleges and universities have established a job protection known as tenure. As defined by the American Association of University Professors,
a tenured appointment is an indefinite appointment that can be terminated only for cause or under extraordinary circumstances such as financial exigency and program discontinuation. Designed to be carefully granted to deserving and experienced faculty members, tenure is a tool that schools can use to attract and retain quality scholars. Tenure is also essential to ensure that scholars can speak their minds about issues of public concern. Tenure protects faculty members from losing their jobs simply for voicing unpopular opinions or controversial ideas. As the iconic Judge Posner has written,
the purpose of tenure is to protect academic freedom—the freedom to teach and write without fear of retribution for expressing heterodox ideas. Tenure is so essential that the Mississippi courts have declared it a constitutionally protected property right.
But what would happen if politicians decided that outspoken academics were becoming an inconvenience? What if those in positions of power decided to come after scholars who voiced those
heterodox ideas that Judge Posner wrote about? What if these politicians decided to change the rules so that faculty members could lose their jobs for stepping away from the establishment line?
It appears that the Mississippi Institutions of Higher Learning is doing just that. Made up of political appointees, the Board of Governors of the IHL is, in its own words,
the constitutional governing body responsible for policy and financial oversight of the eight public institutions of higher learning. Put more plainly, the IHL is the state government agency that regulates our public universities. Recently, the IHL decided to use its regulatory power to change the rules.
First, the IHL has begun systematically inserting into every employee's contract language stating that their schools' handbooks are not part of the contract. This means, in essence, that handbooks can be enforced against the employees, but that their schools no longer have to comply with them. This takes away significant job protections for all school employees.
In addition, tenured professors can lose their jobs for a number of poorly defined reasons. The IHL’s new rules say tenured academics can lose their jobs for a lack of
effectiveness in interpersonal relationships,
congeniality, essentially allowing universities to dismiss professors who are not popular enough in the office. But, even more troubling, IHL has now decided that quality professors can lose their livelihoods for a lack of
effectiveness, accuracy, and integrity in communications. While these vague words may sound harmless, the IHL shows its hand in explaining this new rule.
The Board endorses the American Association of University Professors’ (AAUP) Statement of Principles on Academic Freedom and Tenure, which states in part:
When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence, they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.
Beyond seriously misrepresenting the AAUP’s principles, this explanation suggests that there are politics afoot at the IHL. After all, universities could use these new rules to target tenured professors for all sorts of politically incorrect speech. A university could fire a conservative professor who questions the effectiveness of government mask and vaccine mandates for a lack of
accuracy. A university could terminate a progressive professor who calls for tougher rules against campus sexual assault for not
exercising appropriate restraint. And, a university could claim a lack of
respect for the opinions of others to remove a moderate professor who criticizes both conservative and the progressive professors for being too political. This kind of politicization of tenure is a grave threat to academic freedom in Mississippi.
Beyond threatening academic freedom, the IHL’s new rules are unconstitutional under the constitutions of both the United States and Mississippi. The First Amendment to the United States Constitution prohibits governments from restricting speech using vague and overbroad rules. It is hard to imagine rules less precise than the ones the IHL has now passed. This bedrock of American law also prohibits the government from discriminating against viewpoints that it disapproves of. Here, the IHL is seeking to crack down on communications it deems to be
inaccurate. That is, tenured professors could lose their jobs for not towing the state-sanctioned line about what is true and false. These rules are even more suspect under the Mississippi Constitution which has been said to be even more protective of free speech as it states that
the freedom of speech and of the press shall be held sacred.
So what can we do in the face of this assault on free speech and academic freedom? If you are a concerned citizen, contact your state legislators and the IHL to respectfully voice your opposition to these new rules. Politicians like those at the IHL should respond to outcry from the people they serve. If you are an academic, be aware of these new policies and understand the risks you face for speaking out until these rules are repealed. Be prepared to organize in groups, like joining United Campus Workers of Mississippi. And, if you feel like your rights are under threat from these unconstitutional rules, contact an attorney to see what you can do to protect your right to free speech.
Protecting academic freedom and the right to free speech requires the people to be vigilant and strong in standing for these principles.
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