[Vision2020] UI President Vetoes Faculty Free Speech Rights

[Nicholas Gier]

Greetings:

The new UI president has not got off to a good start: first, an
inappropriate comments about students; and second, this slap in the face to
the faculty.  The full version is attached as a PDF file.

The short version appeared in the Daily News this morning and the long
version may appear in the Idaho State Journal on Sunday.  I say "may"
because the new publisher supports the ISU president, the worst Idaho
campus executive in my 42 years in the state.

Nick

*UI PRESIDENT VETOES FACULTY FREE SPEECH RIGHTS*

By Nick Gier, President, Idaho Federation of Teachers



            On April 29 the UI general faculty voted 176-0 to support their
right “to speak or write freely without institutional discipline or
restraint on matters pertaining to faculty governance and university
programs and policies.”

Appealing to precedents at North Idaho College, Boise State University, the
University of Minnesota, and the University of California, I proposed,
drawing on their policies, this new language to a faculty committee in
November 2012.  I want to thank UI faculty leaders who helped make this
unprecedented unanimous vote possible.

            If we had been at a medieval university or its contemporary
European fully democratic equivalent, this vote would have been the end of
the matter.  At American universities, however, there is veto power at
every administrative level with no option of overrides. I ask you to savor
the irony for faculty who are entrusted to prepare students for life in a
democratic society.

We could not celebrate our free speech rights until we heard from our new
President and the Board of Regents. At its June 18 meeting the Regents
voted 7-0 to express “concern” about the new language, and they returned it
to President Staben for his decision.  Relying on the UI Counsel’s opinion,
Staben vetoed the proposals, primarily because these changes “could result
in slanderous or libelous speech or writing going without remedy within the
institution.”

Citizens libel their public officials every day, but campus collegiality
keeps uncivil comments to a bare minimum. I believe that Staben’s fears are
unfounded, and they are obviously not sufficient grounds to deny faculty
basic First Amendment rights.  If UI administrators believe they have been
libeled, then they can sue for damages in state court.

In its 2006 decision *Garcetti v. Ceballos*, the Supreme Court ruled that
public employers can limit their employee’s constitutional right to free
speech in the performance of their official duties. Many lower court judges
have cited *Garcetti* against faculty who were fired for speaking out
against their administrators.

These judges, however, have ignored Justice Anthony Kennedy, who wrote that
this decision would not “apply in the same manner to a case involving
speech related” to university professors. Anthony Souter concurred: “I have
to hope that today's majority does not mean to imperil the First Amendment
protection of academic freedom in public colleges and universities, whose
teachers necessarily speak and write ‘pursuant to official duties.’”

On March 28, 2013, federal judge Lynn Winmill ruled that former ISU
professor Habib Sadid had “no First Amendment right to comment on faculty
administrative matters without retaliation.”  Even though the ISU Faculty
Senate voted overwhelming for Sadid’s reinstatement, ISU President Arthur
Vailas terminated him for insubordination on October 30, 2009.

In his decision Winmill limited academic freedom to research and teaching,
and that allowed him to conclude that “at no point did Dr. Sadid tie his
grievances to his research, scholarship, or teaching.”  If the new language
for UI had been in place at ISU, Sadid, an award winning teacher and
researcher, would still be serving Idaho’s students.

On September 4, 2013, free speech rights for professors were finally
affirmed by the Ninth Circuit Court of Appeals.  In 2010 WSU professor
David Demers filed suit alleging that he had been disciplined by WSU
administrators for criticizing plans to restructure academic programs in
the Murrow College of Communication.

WSU had argued that Demers’ critique was not related to scholarship or
teaching, so it was not protected by the Constitution.  The judges
disagreed, ruling that Demers was exercising his First Amendment rights.

The UI Counsel appears to be unaware of either campus or legal advances on
this issue, and the fact that UI faculty reside in the Ninth Circuit. So it
is imperative for UI faculty to stand firm on this language that protects
professors’ First Amendment rights.

Nick Gier of Moscow taught philosophy at the University of Idaho for 31
years.
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