In April, the Kansas Board of Regents revised their board policy manual to reflect recommendations by the Social Media Work Group on their controversial social media policy.
Among the changes implemented was the separation of the social media policy into its own subsection, rather than leaving it in the “Suspensions, terminations and dismissals” section where it was initially assigned.
“Our goal was to create something that was not punitive in language, but rather advisory in language,” said Julia Keen, faculty senate president and one of K-State’s two work group representatives, in an April 16 Collegian article about the group’s proposed changes. “The work group was tasked with reviewing the policy that is currently on the books, while addressing the concerns that have been expressed by many.”
While various changes were made to the regents’ policy based on the work group’s recommendations, some K-State faculty still remain vocally upset with the policy. One such faculty member is Phil Nel, university distinguished professor of English. Nel said he began protesting the policy as soon as he heard about it on Dec. 18, 2013.
“It’s a violation of our First Amendment rights because it’s unclear,” Nel said. “It’s unclear what is my professional speech and what is private.”
Nel said the other problem with the policy is that it limits the open exchange of ideas.
“The way you discover whether or not something is true, whether or not one idea is better than another is through debate; it’s through argument,” Nel said. “That’s how you figure out your idea wasn’t as good as you thought it was. In order to do that, you need freedom of speech.”
Nel said that throughout the school year, he has been protesting the policy by hanging posters and by not mentioning K-State on Facebook or in any of his published works. During the summer, Nel said he is not as active during the summer because of the decreased number of faculty and students on campus.
“At this time of the year, you’re not really going to get a movement rolling,” Nel said.
Still, Nel said he plans to continue leaving K-State out of any of his work.
“That will be true as long as I am at K-State,” Nel said. “I will keep speaking out. I’m not going to be silenced over this.”
Breeze Richardson, associate director of communications and government relations for the regents, said the regents agree that academic freedom of speech is important to the functioning of the academic system.
In creating and wording the policy, Richardson said the regents consulted with the office of the Kansas Attorney General to make sure the policy was legal.
“I understand that there is disagreement with what the Supreme Court said,” Richardson said. “But that is a problem with the law, not with the policy.”
However, those against the policy say a recent Supreme Court ruling, Lane v. Franks, could end up impacting the situation. The case involved Edward Lane, an employee of Central Alabama Community College, who fired another college employee after discovering while conducting an audit that his colleague was implicated in tax fraud. He was then subpoenaed to testify against the employee in federal court. Afterward, university President Steve Franks fired 29 college employees, including Lane. Though Franks later rehired 27 of them, this excluded Lane and one other employee. Lane sued the president, citing a violation of his First Amendment rights, and his suit was upheld on appeal by the Supreme Court
Frank LoMonte, executive director of the Student Press Law Center, said the audit Lane conducted was not necessarily in his job duties and that testifying against the employee was similar to speaking out on social media.
“The portion [of the court opinion] that talks about the distinction between the job speech and speech about your job goes much beyond the context of just your testimony,” LoMonte said.
LoMonte said he is unaware of any court cases yet involving the policy directly, in part because nobody has been punished for it.
“I think that’s when you’re likely to see a challenge,” LoMonte said. “The moment someone gets suspended or fired for something that they tweet.”
LoMonte said the policy could potentially cause Kansas universities to miss out on recruiting top-professor talent.
“So far this is the most extreme policy anywhere in America,” LoMonte said. “So, I think it could absolutely be a deterrent to someone choosing between jobs.”
The regents have agreed to review the policy a year after implementing it. However Ron Barrett-Gonzalez, president of the Kansas Conference of the American Association of University Professors, said the damage has already been done.
“In many ways, it’s immaterial that the policy will be reviewed in a year,” Barrett-Gonzalez said. “The damage that has been done reputationally and to the regents’ institutions is irreparable.”
Barrett-Gonzalez said even if a court case was opened and the policy was overturned, the fact that so many news agencies have reported on the policy means professors Googling any of the regents universities would still see the stories about the policy.
Another debate Barrett-Gonzalez said haunted Kansas schools in the same way was the evolution debate, in which schools were reluctant to teach evolution until a court decision forced them too.
“This is the type of debate that will damage regents universities’ reputations for decades,” Barrett-Gonzalez said.
