Know Your Rights as Faculty

Know Your Rights as Faculty:
Protest, Free Speech, and Academic Freedom

Over the last few weeks, we have seen a wave of student protests on campuses across the country against U.S. support for the war on Gaza. Many faculty at these universities have acted in solidarity with student protesters, either through public speaking, addressing the topic in their classes, signing petitions, contributing resources to encampments, joining the camps, interposing themselves between police and students, and in a few cases being arrested with students when camps have been swept by police. Increasingly, these protest encampments are being met with a militarized police response. These actions have at times involved violations of free speech, protest, political speech, and academic freedom rights at university and college campuses, and these violations have been condemned by AAUP National.

At the University of Oregon, peaceful protestors have been encamped on the Memorial Quad since April 28th. This peaceful encampment is anticipated to continue, indefinitely, until the university administration makes some movement towards addressing the protester demands (which the President’s recent letter indicates he has no intention of doing). This brief is intended to inform faculty of their rights related to acts of solidarity with the student protesters.

1. ACADEMIC FREEDOM (Speech in classes, content of assignments, comments in faculty meetings, committees, or other faculty governance settings, professional writing, or academic presentations in a setting related to your discipline, etc.)

Faculty rights to academic freedom are robust and extend to all faculty—Tenure-related, Career, and Limited Duration. The most important source of these rights is Article 5 of our Collective Bargaining Agreement between the UO Administration and us as a unionized Faculty. This contract has the binding force of state law and cannot be amended by administrative fiat.

In classes or other instructional settings, faculty have the right to talk about controversial subjects. Our contract states “Faculty members must be able not only to disseminate to their students the results of research by themselves and others in their profession, but also to train students to think about these results for themselves, often in an atmosphere of controversy that, so long as it remains in a broad sense educationally relevant, actively assists students in mastering the subject and appreciating its significance.” The contract also states “The University encourages and supports open, vigorous, and challenging debate across the full spectrum of human issues as they present themselves to the university community.” This means that as long as there is some reasonable connection to the subject matter being taught, the faculty can use their judgment in how to speak about the protests and related matters in instructional settings.

The University policy is also explicitly supportive of faculty judgment and right to determine their curriculum. University Policy No. 01.00.16 on Academic Freedom states “The University's responsibility to help students to think critically and independently requires that members of the university community have the right to investigate and discuss matters, including those that are controversial, inside and outside of class, without fear of institutional restraint. Matters brought up in class should be related to the subject of courses or otherwise be educationally relevant, as determined primarily by the faculty member in charge of the class.”

These academic freedom rights extend to statements made in faculty meetings, committee meetings, and other forms of shared governance undertaken as a part of our work as faculty at UO. This includes the right to question and critique university policy and actions without fear of reprisal. Policy No. 01.00.16 states that “Members of the university community have freedom to address, question, or criticize any matter of institutional policy or practice, whether acting as individuals or as members of an agency of institutional governance.”

Faculty academic freedoms, of course, include the right to publish and present at academic conferences anything they deem appropriate, “limited only by the standards and methods of accountability established by their profession and their individual disciplines” (UO Policy 01.00.16).

On Monday, May 6, the Division of Student Life sent a message to all students, asserting that “no student should be encouraged or compelled by UO employees to be exposed to the protest or encampment. This,” the message continued, “includes visiting the encampment for any academic or instructional purpose, including class or office hours.” The Division of Student Life then provided means for students to report faculty who disobey this instruction. United Academics believes that this instruction is inconsistent with the university’s own policies on academic freedom, the CBA, and the First Amendment of the U.S. Constitution.

2. INDIVIDUAL PUBLIC SPEECH (Any speech outside of scholarly disciplinary forums.)

Faculty public speech is broadly protected by the CBA, University policy, and the guarantees of freedom of speech in the U.S. Constitution. Faculty are not limited in such settings to speak only about their area of expertise, but enjoy the right to speak about any matter publicly regardless of how informed you are about it. UO Policy 01.00.16 states “Public service requires that members of the university community have freedom to participate in public debate, both within and beyond their areas of expertise, and to address both the university community and the larger society with regard to any matter of social, political, economic, cultural, or other interest.”

The only constraint on this right of expression is that both the CBA and University policy indicate that “In their exercise of this freedom, university community members have the right to identify their association or title, but should not claim to be acting or speaking on behalf of the University unless authorized to do so” (UO Policy 01.00.16).

3. COLLECTIVE STATEMENTS (with groups independent of the University.)

Similar to individual public speech rights, statements made as part of collective groups not directly affiliated with the university are broadly protected by general public free speech rights laid out in the CBA, University policy, and the U.S. Constitution. This includes petitions, statements of non-profit groups, political parties, advocacy groups, group letters to the editor, etc. Faculty have the right to name their association with UO and title, but not to claim to speak on behalf of the institution.

4. COLLECTIVE STATEMENTS (with units that are formally institutional parts of the University—Departments, Colleges, Research Centers, etc.)

The CBA makes extensive provisions regarding faculty governance and unit (Department, College, Research Center, etc.) policies regarding matters such as promotion and tenure, workload, curriculum, evaluation. There is little, however, in the way of guidance regarding units passing resolutions about ethical or political matters or issuing statements about world events. It is possible that individual units have developed their own policies about such things, policies which would require the approval of the relevant Dean and the Provost. In that case those policies should be followed.

In the case that no such policies exist, if faculty in a unit wish to make a collective statement as a department (for example) without waiting to amend unit policies, it is always possible to do so by issuing a letter as a collection of individuals who happen to be Faculty in that particular department. For example it would open with a preamble like “We, the undersigned faculty in the Department of Agnotology, wish to express…” This kind of action is protected as a part of individual Academic Freedom and Public Speech Rights.

As for extracurricular student or faculty groups, they should consult their organizational charters.

5. CONTRIBUTION OF RESOURCES TO STUDENT GROUPS OR THE ENCAMPMENT (money, food, tents, other supplies.)

There are no known restrictions on providing material support to students at the encampments. It is not illegal to donate money or supplies to students. Additionally, no records are being kept of such donations.

6. DIRECT PARTICIPATION IN THE PROTEST (speaking at the encampment, interposing oneself between police and students, joining the encampment.)

There are many ways faculty members have directly participated in protests at campuses across the country in recent weeks. We will address faculty rights related to three common forms of participation: speaking at the encampment; pitching a tent and becoming a resident of the encampment; forming a human barrier between police and students.

a.   Speaking at the encampment.
This is protected by aforementioned contract language and policy about Academic Freedom and/or Protected Speech (see #1 & #2 above).

b.   Pitching a tent and becoming a resident of the encampment.
This is not legally protected activity. The President can order the encampment to be cleared at any time. Refusal to do so will constitute an act of trespass. There are different levels of laws regarding trespassing. Simple Trespassing (unintentional) is a misdemeanor. Criminal Trespassing occurs when someone knowingly enters or stays on another person’s property without their consent. In Oregon, Criminal Trespass in the 2nd degree is a Class C misdemeanor and can result in up to 30 days in jail and a fine of up to $1250. The charge can be raised to the level of a felony criminal trespass if the trespass includes destruction of property, the possession of firearms, or having a prior criminal record. In all the circumstances we have been able to identify (note that our research has not been comprehensive), faculty present at other sites of protest who have refused to disperse for whatever reason have been charged with misdemeanors and released relatively quickly—from hours to 3 days.

c.   Forming a human barrier between police and students.
The pattern at other campuses has been that faculty present at the site and refusing to disperse for whatever reason have been charged with misdemeanor Trespass (see 6b. above).

Criminal trespass charges are often accompanied by a prohibition from entering the property for up to one year. In the cases we have read about, the university often provides a means through which students and faculty can have the prohibition waived. (Also see here and here.) Faculty are advised to honor the prohibition until it is formally waived. At UCLA, faculty charged with trespass conducted their classes by zoom until such time they could get the waiver.

7. CONDITIONS UNDER WHICH FACULTY CAN BE DISCIPLINED OR TERMINATED

All faculty have extensive and robust academic freedom rights and free speech rights. Faculty cannot be terminated without due process and “cause.” Under Article 24 the CBA, discipline must be progressive – that is, it must progress from lesser forms of discipline, such as letters of reprimand, to more escalated forms. In what follows we cite policies that explain what constitutes “cause” for discipline or termination.

Relevant policies for understanding the “causes” that can result in discipline or termination related to the student protests:

CBA Article 37—Ethics and Professional Responsibility states that “Bargaining unit faculty members are responsible for becoming familiar with the laws and regulations pertinent to their areas of responsibility and professional competence, and for ensuring that they are in compliance with all applicable laws and regulations at all times.” Generally, this article refers to research practices and conditions, but could be cited as cause for discipline should a faculty knowingly break the law related to their work on campus.

University Policy—Chapter 7: Proscribed Conduct (Formerly Oregon Administrative Rule (OAR) Chapter 580 Division 22, Section 0045) states that “Procedures to impose applicable sanctions may be instituted against any person engaging in any of the following proscribed conduct [we include only the ones relevant to acts of solidarity with the protesters]:

(1) Obstruction or disruption of teaching, research, administration, disciplinary procedures, or other institutional activities, including the University’s public service functions or other authorized activities on University owned or controlled property;

(2) Obstruction or disruption interfering with freedom of movement, either pedestrian or vehicular, on University owned or controlled property;

(3) Unauthorized entry to or use of University facilities, including buildings and grounds. Unauthorized use includes but is not limited to using non-residential facilities and spaces for residential purposes (e.g., prolonged sleeping, bathing in restrooms lacking shower facilities or that are not open to the general public, cooking, camping), and entering into any areas that are not open to the public without advanced authorization;

[...]

(6) Malicious damage, misuse or theft of University property, or the property of any other person where such property is located on University owned or controlled property, or, regardless of location, is in the care, custody or control of the University;

(7) Refusal by any person while on University property to comply with an order of the President or appropriate authorized official to leave such premises because of conduct proscribed by Section A of this policy when such conduct constitutes a danger to personal safety, property, educational, or other appropriate University activities on such premises; and

(8) Inciting others to engage in any of the conduct or to perform any of the acts prohibited herein. Inciting means that advocacy of proscribed conduct that calls on the person or persons addressed for imminent action, and is coupled with a reasonable apprehension of imminent danger to the functions and purposes of the University, including the safety of persons, and the protection of its property.

As you can see, joining the encampment, resisting displacement by police, or seeking to inhibit a police action to vacate the camp will violate several of these prescribed codes of conduct. This does not mean that doing so will automatically result in discipline or termination. We do not know of a case anywhere in the nation where faculty have received severe discipline or termination for seeking to defend student protesters or for participating in the encampments themselves. We share this so faculty understand the full range and limits of their rights in this moment.

If you are acting in solidarity with these protests and should the administration make any violations of your rights, your colleagues at United Academics (UA) will defend you. If you are called in for disciplinary purposes you are entitled to have a UA representative accompany you to those meetings as a third party witness. UA is also available to respond to questions or offer consultation about these matters. Email us at [email protected] or call (541) 636-4714 if you would like support.

ADDITIONAL RESOURCES:

What follows are links to additional sources of information about faculty rights related to the campus protests.

The following are resources from AAUP National:

Additional UO Documents: