Education Commissioner Criticized for Trip to Brazil, But Is that the Real Story?

The Kentucky Commissioner of Education is taking some political heat for going on trips to locations that include Brazil that were financed by NCS Pearson Inc., which has a contract with the state to develop standardized tests for Kentucky students. Critics are suggesting that it wasn't appropriate for the commissioner to take such trips on the company's dime.

In reading the story what amazed me, however, was that the state has a contract with the Pearson to pay the company a guaranteed $7.6 million thus far and the amount could reach $64.6 million to provide testing services through 2018, according to news accounts.  In terms of educational policy, I just can't help but wonder if we may have reached a certain level of accountability obsession.  If the state is spending this much on one set of tests, how much does the rest of the state's education budget go to accountability measures and systems? At what point do we actually get more bang for our education bucks by spending those funds elsewhere, such as towards classroom instruction?

Edjurist now has a cousin in HigherEducationLaw.org

I've been away from posting a while, but I've been working on a little project and wanted to announce that Edjurist now has a younger relative.  Fortunate enough to have assembled what I think is a pretty neat bunch of folks, we have just launched HigherEducationLaw.  The site, as the really creative name implies, will focus on legal issues in higher education. We're just getting started, but I think that we'll soon be putting out some really good content.

I've really enjoyed being a contributor on Edjurist and plan to stay on as long as I can keep stealing the password from Justin. My hope is that the two sites can reference each other often and share content of interest to both audiences.  For those of you interested in higher education legal issues, I hope that, along with the Edjurist, you'll add HigherEducationLaw to the blogs that you follow.

And now that I've got the site up and going, I also plan to be able to pick up the pace with posting on here.

Proposed Bill in Kentucky would bar undocumented students from attending public colleges and universities

A bill filed for the upcoming session of the Kentucky legislature would deny undocumented students admission to public postsecondary institutions.  The issue of permitting undocumented students to enroll at public colleges and universities has resulted in national debate and in pointed conflicts in several states.  Some states, such as California, have opted to allow admission and to permit qualifying undocumented students to pay in-state tuition.  Recently, in Martinez v. Regents of the University of California, the California Supreme Court held that the state’s policy did not violate federal law.  Other states prohibit undocumented students from receiving in-state tuition rates.  The proposed legislation in Kentucky would follow the approach taken in South Carolina and ban enrollment by undocumented students.  Federal legislation, the DREAM Act, to permit undocumented students a path to legal status through enrollment in postsecondary education or enlistment in the military has failed to gain traction in Congress for several years.

 In Plyler v. Doe, 457 U.S. 202 (1982), the U.S. Supreme Court held that a state could not deny a free public elementary or secondary education to undocumented students, but the decision did not apply to higher education.  Thus, a sharp legal contrast exists for undocumented students when it comes to access to higher education in comparison to elementary and secondary educational opportunities.  From my point of view, the proposed legislation in Kentucky represents ill-conceived policy.  Immigration policy in the United States is certainly in need of revision, but denying a higher education to students who were brought to this country by their parents, often at a very young age, and who consider this nation their home makes little sense and comes across as less than humane. Rather than solving any problems, the proposed legislation would only exacerbate the types of challenges we face with our national immigration policy.  

Courts' seeming concern with educational che guevaras in relation to teacher speech

I was reading the recent decision involving teacher speech from the Sixth Circuit, Evans-Marshall v. Bd. of Education.  Scott Bauries posted about the decision if you’re not familiar with the case.  The Evans-Marshall decision cites Mayer v. Monroe County Cmty. Sch. Corp., 474 F.3d 477 (7th Cir. 2007), and a facet of Mayer, one found in other opinions involving teacher speech and the Garcetti standards, continues to annoy me (okay, multiple things about Garcetti irk me, but I’ll just focus on one in this posting).  In a case like Mayer, the court only really conceptualized teacher speech in relation to major curricular and pedagogical issues and decisions in justifying application of the Garcetti standards.  But Mayer involved the school claiming that the First Amendment didn’t apply to a teacher’s speech in relation to responding to a student’s specific question rather than involving some big curricular choice or defiance of some official board policy.  The court didn’t focus on the type of speech at issue in the case or the context in which it actually took place.  Instead, the opinion contextualized teacher speech more in relation to “big picture” curricular and pedagogical decision-making issues. 

So, setting aside speech related to major curricular and pedagogical choice issues (and I know that Evans-Marshall dealt with just such issues), it bugs me that many courts won’t acknowledge that teachers engage in all kinds of extemporaneous speech on a daily basis.  If courts want to reinforce managerial control over teachers, then be intellectually honest in opinions--and a decision like Mayer isn’t really--that we’re also often talking about more extemporaneous-type teacher speech rather than just, say, pre-meditated plots to subvert the approved curriculum or pedagogy.  Just be honest that unsuspecting teachers acting in good faith and striving to satisfy district policies and standards are also fodder for the Garcetti standards along with those educational Che Guevaras seemingly lurking in the school halls (at least that seems to be the case based on the rhetoric found in some of these opinions).

And school districts need to be honest that in failing to adopt voluntary free speech standards for teachers, they are sending a message that they are not really seeking educators in the classroom but are really more interested in what I’ll call content technicians.   

NLRB looks ready to revisit issue of collective bargaining by graduate teaching and research assistants

The National Labor Relations Board looks set to revisit a 2004 ruling that prohibited graduate student research and teaching assistants at private colleges and universities from engaging in collective bargaining activities protected under the National Labor Relations Act (NLRA).  The 2004 ruling (which actually overturned another NLRB decision) determined that graduate students do not constitute employees for purposes of the NLRA.  I plan to have more to say on this later.  For now, let's just say that I'm glad the NLRB is taking up the issue again.  Any new stance by the NLRB will only apply to graduate teaching and research assistants at private colleges and universities, as the NLRA leaves the issue of collective bargaining for public employees (including those in public higher education) to regulation under state law.

Thoughts Prompted by Recent Chronicle of Higher Education Commentary on Academic Freedom

As someone whose research interests center on speech issues in higher education, I read with interest a recent commentary by Joan DelFattore in the Chronicle of Higher Education entitled "To Protect Academic Freedom, Look Beyond the First Amendment."  I recommend the commentary, and the author makes several good points regarding current debates over First Amendment protection for academic freedom.  For instance, and significantly, even if the Supreme Court ultimately decides that professorial speech receives some degree of constitutional protection, then any such constitutional safeguards for faculty speech will not be equivalent to professionally grounded protections for academic freedom, such as those provided through tenure.  As the commentary notes as well, problems arise in evaluating the quality or competency of faculty speech in relation to academic freedom concerns (though as dicussed below, I'm not sure the problem is as severe as the author suggests). 

                                                                   

However, the author’s positions regarding First Amendment protection for academic freedom are questionable on several fronts.  In general, the Garcetti v. Ceballos decision, which is discussed in the article, has been criticized for creating a bright line rule for public employee speech in general.  Under Garcetti, a public employee is not entitled to First Amendment protection for speech made pursuant to carrying out his or her professional employment duties.  Thus, the decision is worrisome in the creation of a standard that denies any hope of First Amendment protection to public employees in many circumstances.  The Garcetti decision, however, explicitly left open whether it applies to faculty speech.  For a discussion of Garcetti's application at the P-12 level, see Scott Bauries' recent posting and the accompanying comments.

 

I think that one problem with the commentary is not taking a broader view of Garcetti as a poor decision generally, one that I hope future Supreme Court decisions might carve out reasonable exceptions to in relation to public employees overall (including P-12 teachers) and not just for higher education faculty members.  I suggest, in contravention to the logic of the majority in Garcetti, that a place should exist for the possibility of First Amendment protection for speech by public employees in special circumstances.  Accordingly, I think the author is somewhat off the mark by only focusing on Garcetti in relation to faculty members and not considering  the decision in a somewhat broader context and the fact that Garcetti represented a poor decision in many respects in relation to public employees in general.   

                                                                                                                                                                    

Turning specifically to faculty, my stance is that a public college or university should not be able to invite and/or insist upon a faculty employee providing his or her honest views and opinions, and then be able to pull out the "speech rug" from under the employee and engage in retaliation for speech not pleasing to the employer.  While not arguing that some kind of forum has been created, I would argue that something somewhat analogous may be created by public employers for their employees.  If a college or university adopts an academic freedom policy that applies to faculty members, then it shouldn't also be able to rely on Garcetti to claim ownership of that speech when in an official policy it previously claimed that it wanted unfettered (independent) views and discussions from the faculty in teaching and research and institutional governance matters. While most public employers may not create such policies, they have been created at colleges and universities, and courts should not ignore them in relation to the applicability of the Garcetti standards.                                                                                                                                                               

Thus, I would argue that while the First Amendment is certainly no replacement for professional standards and legally enforceable protections in relation to faculty provided through such mechanisms as tenure, I still think that courts should be able to protect faculty speech in special situations, such as when officials clearly seek to quash speech, especially that taking place in the classroom or involving scholarship, with which they simply disagree and act without professional justification.  The author seems to suggest (at least to me) that courts would be left to evaluate the content of a faculty member’s speech if the First Amendment applies to faculty speech.  I actually think much of the inquiry could, instead, focus on whether school officials had acted in accordance with accepted professional standards and in alignment with official institutional policies and practices in taking action against a faculty member on the basis of his or her speech.

 

With faculty members, another issue not raised by the author concerns the difficulty in drawing the line between a faculty member speaking as a public employee or as a private citizen (where First Amendment protections would certainly apply).  When I give a presentation at a professional conference, am I speaking as a private citizen or as a public employee?  What about a blog posting that notes I am a faculty member?  As Robert O’Neil has pointed out, Garcetti, if applied to faculty members, would mean that they would often not enjoy at least the possibility of First Amendment protection for speech related to their areas of professional expertise.  To deny even the possibility of First Amendment protections in such circumstances seems somewhat strange indeed, especially when it may be difficult to classify when a faculty member is speaking as a private citizen versus as a public employee.

 

As a final note, the author doesn’t really address the changing nature of the faculty in the commentary.  The current reality is that public colleges and universities increasingly rely on faculty members hired off the tenure track, with more than half of faculty members now working in part-time positions, and many full-time faculty members also are employed without the possibility of tenure.  Many of these faculty members, especially those employed part time, work in an at-will capacity, with very limited legal protections.  And while the author mentions collective bargaining, what about those states that prohibit collective bargaining by faculty members in public higher education?  Institutions haven’t exactly embraced putting official policies and practices into place designed to protect faculty members employed off the tenure track. 

 

While I believe that we should certainly strengthen employment protections for non-tenure track faculty, including in relation to issues involving academic freedom, given the current employment reality for many of these faculty members, I hope that the First Amendment will continue to provide at least a minimum source of legal protection for them in relation to professional speech made in such contexts as the classroom.  I take this stance especially because college and university administrators, rather than seeking to work with faculty to bolster institutional policies and practices related to academic freedom in the wake of Garcetti, have, instead, tended to use the decision as a means to challenge speech claims by faculty members, including tenured ones, in legal decisions.  In such an environment, I believe it's critical to advocate for First Amendment speech rights for faculty.

for-profit colleges in the news

Some recent stories on for-profit colleges caught my attention and made me think about how states and the federal government increasingly have some important regulatory decisions to make regarding this sector.  The first story involves proposed rules seeking to address concerns over student loan debt levels and default rates of those enrolled in for-profit schools.  Proposed “gainful employment” regulations would withhold funding from for-profit institutions enrolling too many students likely to earn salaries that wouldn't be high enough for them to repay their loans based on projected student debt levels.  Not surprisingly, for-profit institutions are challenging the expanded regulation and argue that distinctions shouldn't be made between for-profit and non-profit institutions.  While for-profits can point out some similar problems with non-profit institutions, the default rates are indeed much higher among for-profit schools.

Even as the latest wrangling over regulation of for-profit colleges goes on, other stories made me think about how the growth of this sector has and will continue to change higher education.  Wal-Mart has announced plans to partner with a for-profit school to provide classes to its employees (they would get a reduced tuition rate), and I suspect that a number of non-profits wouldn’t look down on the up to $50 million that Wal-Mart reportedly may spend in the next three years on this venture.  Given Wal-Mart's size, this may be a model that influences other corporations so it's something to watch. I also noticed that one of the two-year schools in Kentucky has announced that students can now earn some credits through StraighterLine, which offers pre-packaged classes at $39 a pop after an enrollment fee of $99, according to the company's website.

While many in the non-profit higher education world like to ignore these institutions and would just like to have them go away, this doesn’t seem likely and ignoring them is becoming harder.  For-profit colleges account for up to 10 percent of the students enrolled in higher education.  Just look at the University of Phoenix to better understand this trend in the growth of for-profit schools.  It has enrollment numbers that are flirting with the half million mark, and I’ve noted with interest how I now see cars with Phoenix bumper stickers. . . . And don’t forget the University of Phoenix Stadium.

So, no grand observations on my part for now, but the stories reminded me of the growth of for-profit colleges, how the for-profits are continuing to alter the higher education landscape, and how some really important regulatory issues exist regarding these institutions.



Va. Atty. General Not A Believer In Global Warming But Is Hot Under The Collar

The Attorney General of Virginia, Kenneth T. Cuccinelli, is seeking documents through a civil subpoena from the University of Virginia (UVA) related to the work of a former professor at the institution, Michael Mann, who is now employed at Penn State.  Mann is one of the scientists involved in what has been dubbed Climategate, an incident in which emails between climate scientists were released to the public after they were obtained from a hacked computer at a climate research center in England.  Many opponents of global warming have sought to use the emails as proof that scientists have been rigging the climate change data. 

An inquiry at Penn State has thus far partially cleared Mann of any research misconduct, but the Virginia Attorney General wants to investigate Mann to determine whether he defrauded taxpayers in obtaining state-funded grants while employed at UVA.  While tempted to comment more directly on the motivations of Cuccinelli (this is a fellow who had to clarify, after trying to play it up with an audience, that he was not one of the “birthers” doubting whether President Obama was born in Hawaii), I’ll focus on some of the interesting legal questions raised by the Attorney General’s actions.  These questions are complicated enough anyway that they make for too long of a blog post already.

At first, UVA officials had indicated that they would comply with the Attorney General’s demands, but the university is now considering its legal options to challenge the subpoena.  Not surprisingly, the university has invoked the concept of academic freedom as a justification for its lukewarm response to the Attorney General, but this incident highlights the general uncertainty that currently exists regarding First Amendment protection for academic freedom.

Since the request relates to the work of an individual professor, let’s pretend that Mann was still employed at UVA and was named individually in the subpoena and wanted to challenge it on academic freedom grounds.  Well, such a challenge would have to deal with the fact that it is unclear the extent to which the First Amendment protects individual academic freedom.  I say unclear because I think there are some good constitutional arguments that support its existence, but many individuals already consider it a moot issue, an amusing side note to constitutional history.  I don't hold to that view, but let’s just say that if individual academic freedom under the First Amendment were a patient, she or he probably wouldn’t be making any plans for too far into the future.

In fact, a professor at a public university in Virginia would face a particularly difficult challenge in asserting a constitutional claim of academic freedom.  In Urofsky v. Gilmore, the U.S. Court of Appeals for the Fourth Circuit (which includes Virginia) held that faculty members at public colleges and universities possess no other First Amendment rights than those held by any other public employees.  The court also stated that academic freedom, if it exists at all as a constitutional doctrine, represents a right that is enjoyed at the institutional level and not possessed by individual professors. 

The challenges facing the professor would only become magnified when the Urofsky case is coupled with the Supreme Court’s decision in Garcetti v. Ceballos.  In that case, the Supreme Court held that public employees do not engage in speech for First Amendment purposes when communicating pursuant to carrying out their official employment duties, though the majority opinion explicitly left open whether the decision applies to speech by faculty members.  State and lower federal courts have issued conflicting decisions regarding the case’s applicability to faculty speech, but I’ve posted before on how some courts have not hesitated to apply the Garcetti standards to faculty speech.

While questions generally exist regarding whether the Garcetti case applies to faculty speech, the Urofsky decision would seem to answer this question in the Fourth Circuit.  Thus, it would seem that a UVA professor would appear to have to take an individual academic freedom case all the way to the U.S. Supreme Court in order to make a successful claim based on First Amendment grounds.

Well, then, what about institutions being able to assert an academic freedom right?  It appears that UVA may be exploring this option, and some commentators, with J. Peter Byrne of Georgetown University Law Center a notable example, contend that protections for academic freedom properly reside at the institutional level.  And cases such as Grutter v. Bollinger (permitting race as a factor in higher education admissions) seemingly indicate some sort of judicial recognition of some type of institutional academic freedom under the First Amendment.  But, and this is significant, a case such as Grutter involved a public university and a federal constitutional standard.  UVA, a state institution, is facing a demand from another part of state government.

This scenario runs into what I view as the biggest problem with the institutional academic freedom position.  I’m just not all that convinced that a public university would be able to assert much of a First Amendment right against another division of state government.  I tend to agree with Robert M. O’Neil that it’s pretty speculative that courts would recognize much of an institutional right of academic freedom for a public institution that would operate against another division of state government.  Like Byrne, O’Neil is another formidable figure in relation to academic freedom issues and, coincidentally, has served as President of UVA and is the founding director of the Thomas Jefferson Center for the Protection of Free Expression.

So, I think this incident at UVA highlights some real limits with the concept of institutional academic freedom.  As politicians perhaps seem increasingly attracted to going after pesky academics and academic programs to score political points (incidents involving legal clinics in Maryland and Louisiana are two other recent noteworthy examples), there may be some very real limits (legal and political) with how far institutions are willing or able to go to protect an individual faculty member.  UVA appeared ready at first to respond to the Attorney General’s request with no hesitation, and I wonder if institutions with less standing and political clout would really want to engage in this kind of legal tussle with a state’s attorney general. 

While this incident involves a premier institution, just imagine a powerful state legislator angry at a faculty member at a community college or at a regional university.  We often discuss academic freedom in the context of high-profile incidents, but I think its worth to society also operates on a more localized and everyday kind of way.  This post is already too lengthy and I'll save some thoughts for another time, but I wonder about the long-term impact of having individual academic freedom not receiving any kind of constitutional protection, especially considering how many faculty members now work off the tenure track.  The UVA incident provides a useful context to think about this issue.



Second Circuit Strikes a Blow Against Teachers' Speech Rights

I noticed that Education Week’s School Law Blog had posted about a case from the  U.S. Court of Appeals for the Second Circuit that marks yet another disturbing use of Garcetti v. Ceballos in relation to speech claims by educators (a copy of the case is also available at the site).  Previously, I wrote about a state court decision involving faculty speech and the Garcetti decision.  In Garcetti, the U.S. Supreme Court held that a public employee does not speak for purposes of the First Amendment when engaging in communications made pursuant to carrying out his or her official employment duties.

In this case, Weintraub v. Board of Education of the City of New York, a teacher alleged that administrators retaliated against him on the basis of making a union grievance.  The teacher claimed that he lodged the grievance after school officials failed to discipline a student who threw a book at him on two occasions.  The teacher, among his claims, stated that superiors retaliated against him for filing the grievance, such as giving him negative classroom evaluations.  There were other serious issues involving the teacher, including allegations of sexual misconduct and assaulting another teacher, so I’m certainly not weighing in on the particulars of this individual’s fitness to teach.

But from a First Amendment perspective, this decision represents another extension of Garcetti that makes little sense.  In his lawsuit, the teacher claimed that the school district violated his First Amendment rights by retaliating against him for the filing of the grievance.  Two judges on the panel determined, however, that the filing of the grievance was made pursuant to the teacher fulfilling his employment duties.

Pointing out that the Supreme Court and lower federal court decisions had not restricted the types of communications covered under Garcetti to “required” employment duties, the court determined that the filing of the grievance was made pursuant to the teacher’s official job duties.  According to the opinion, the teacher filed the grievance because of concern over maintaining classroom discipline, which meant it was an issue that was “part-and-parcel” of his employment duties.

Judge Guido Calabresi’s dissent in the case highlights how the majority opinion interpreted “pursuant to” much too loosely.  More generally, the way that a number of lower courts have applied Garcetti seems to validate concerns that it marked a decision that would unduly chill the speech rights of public employees, including educators. I am among those that has not voiced a favorable opinion of Garcetti, and this case indeed highlights the kinds of problems that were predicted to arise as a result of the decision.  One only hopes that the Supreme Court will sooner rather than later provide guidance that, at a minimum, reins in the meaning that lower courts may give to what kinds of communications satisfy the "pursuant to" language of Garcetti.

AAUP launches new journal focused on academic freedom

The American Association of University Professors (AAUP) has launched a new online publication, the AAUP Journal of Academic Freedom.  I spent some time perusing some of the articles in the inaugural edition.  Not surprisingly, as a journal sponsored by the AAUP, it provides scholarly articles supportive of academic freedom.  Given the often strident debates regarding academic freedom and the generally unfavorable view of faculty members held in some quarters, the new journal will not be viewed by some as making a meaningful contribution to scholarship or to public policy debates related to academic freedom.

As a professor, I admit a personal interest in academic freedom, and as a scholar who focuses on higher education issues, I also support the concept of academic freedom.  So, these views and concerns predisposed me to having some warm fuzzies for the journal.  And after looking at some of the articles, I have to say that I came away with a favorable impression.  The articles I sampled were well written and informative and reflected several disciplinary perspectives.  Even if you don’t happen to feel warm fuzzies for the AAUP or the concept of academic freedom generally, the articles are thought provoking and represent solid scholarship.  So, for those with an interest in academic freedom and faculty issues, I suggest keeping the journal in mind.  

New Tennessee Higher Education Bill Ties Funding to Graduation Rates. A Good Thing? Maybe . . .

The Tennessee Legislature has passed a new higher education bill with some interesting reforms.  Just as my home state of Kentucky is considering legislation that would make transfer from two- to four-year institutions easier, one part of the legislation in Tennessee aims to standardize transfer.  I found the most intriguing component of the new legislation, however, a change in funding for public colleges and universities.  Funding for institutions will now be tied, in part, to how well they do in terms of retaining and graduating students, as opposed to just the number of students enrolled. 

With this move, I think Tennessee has embarked on an approach with both promise and peril.  The promise is that the legislation might help nudge the state’s public institutions in a positive and meaningful manner to focus on issues related to student retention and graduation.  Of course the danger is that institutions’ concern with graduation rates will result in watered down academic standards in an effort to retain (appease) students.

The challenge for Tennessee public colleges and universities will be to focus on enhancing retention and graduation efforts in ways that align with sound educational practice and promote academic quality.  Given the difficult budgetary times in which we exist, however, this may not prove an easy task.  Doing things like making sure there are sufficient numbers of academic advisors for students and making improvements to student support services in general may well entail additional costs and also potentially cause friction by challenging entrenched institutional practices.  A path of lesser resistance might be for institutions to further cater to the “student as customer” concept that presents some serious challenges for higher education.  For instance, instructors may end up feeling increased pressure (especially non-tenured faculty or those working off the tenure track) to avoid failing students or to assign less challenging assignments in order to obtain favorable student evaluations.

I’m certainly not saying that such a situation will develop in Tennessee, and I am an advocate of efforts to improve the educational experiences of students, but a focus on output (graduation rates) does not automatically equate with improved educational outcomes.  It will be interesting and informative to observe how institutions in the state respond to this legislative initiative.

Recent (and troubling) State Court Decision Involving Faculty Speech

This past month, a state court in Idaho dismissed the suit of Habib Sadid, a tenured professor at Idaho State University (ISU), who claimed that he was retaliated against for criticizing the actions of university officials.  Among his claims, Sadid argued that the university’s actions violated his First Amendment rights.  A copy of the decision can be found on the American Association of University Professors' (AAUP) website.

The case marks yet another decision in which a court has relied on Garcetti v. Ceballos, 547 U.S. 410 (2006), to hold that a professor had not engaged in speech protected by the First Amendment.  In Garcetti, the Supreme Court held that a public employee engaging in communication pursuant to carrying out his or official duties does not engage in speech for purposes of the First Amendment.  But, the Court left open the question of whether the decision applied to speech by faculty members.  Still, several courts have applied Garcetti to faculty speech with no reasoned consideration of the extent to which, if any, that the case should apply to such speech.  In Sadid’s case, for example, the court relied for persuasive authority on a federal district case, Hong v. Grant, 519 F. Supp. 2d 1158 (C.D. Cal. 2007), where the court also reflexively applied Garcetti. 

The interesting (and troubling) twist in Sadid’s case involves the court’s determination that he did not write newspapers articles critical of the university as a private citizen.  The court held that the “tone” of the letters was that of an employee, deeming it especially important that he identified himself as an ISU employee.

The case was another example of how several courts have used Garcetti in faculty speech cases with no consideration of the fact that the Supreme Court left the door open of whether the decision should even apply to faculty speech.  Even proponents who argue that First Amendment protection for academic freedom should, at most, accrue to institutions versus individual professors have not embraced the idea of applying Garcetti to faculty speech.  The case especially touched a nerve with me since I wrote a recent article on the issue of individual academic freedom under the First Amendment with a special focus on the Garcetti decision.  Feel free to check it out if you’re so inclined.  The article is:  A Confused Concern of the First Amendment: The Uncertain Status of Constitutional Protection for Individual Academic Freedom, 36 Journal of College and University Law 145.

Step Away from the Chalk ….

A graduate student at the University of Arizona was arrested this week after writing on school sidewalks (and perhaps other campus property) using, oh my, chalk.  Check out the story at the student daily paper, the Arizona Daily Wildcat.  According to news accounts, the chalk drawings merited a 911 call to report the incident and analysis by university police officers of surveillance tape to identify the offending student (perhaps the university CSI team also dusted the student’s hands for chalk residue). 

The university’s claims that the cost of washing off such chalk drawings—school officials put the tab at $1,000—and their interference with the campus’ aesthetics could arguably survive some type of First Amendment challenge (though a lot more facts are needed such as the exact language of the ordinances used to charge the student and if chalk is covered, whether the university has even handedly enforced such prohibitions on chalk drawing on its sidewalks, and why the dean of students can give permission to some individuals or groups to engage in chalk drawing if it is in fact so harmful).  But the school’s actions, even if legally permissible, strike me as just really, really silly.  The student made the drawings as part of an education rally to protest tuition increases and appeared to be engaging in exactly the type of political speech that campuses should embrace.

Even assuming that the university was warranted in taking action against this rogue act of chalking, calling out the university police rather than looking to other avenues of response such as the student judicial code strikes me as somewhat baffling.  Surely, a public university can find better ways to use its police officers’ time than responding to a student engaging in the very kind of speech/involvement that institutions regularly seek to promote on their campuses.  Even if (and this may be a pretty big if) this particular student got a little overzealous with the chalk, is this how a campus should respond to student speech, especially from an educational and student development standpoint?  Hopefully, university officials will take the incident as an opportunity to reconsider appropriate institutional responses to student speech issues, and how the institution can seek to support such speech, even if it legitimately needs students to hold off on the chalk.  Otherwise, I guess this means that Silly String warrants the campus SWAT team.

Are Personal Emails of Wisconsin School District’s Employees Subject to the State's Open Records Law?

The Wisconsin Supreme Court has agreed to review a case dealing with whether the personal emails of employees of a school district sent using district email accounts and district-owned computers are subject to release under the state’s open records law, even if the emails did not in any way relate to the employee’s job duties.  Oral arguments in Schill v. Wisconsin Rapids School District are scheduled to take place in November.  The school district’s computer use policy permitted employees to use district email accounts for occasional personal use, and the district had not considered any of the individuals to be in violation of the usage policy.  The citizen seeking the emails, describing the request as a “fishing expedition,” wanted them to assess if it appeared employees were abusing the district’s occasional use policy.  Representing a question of first impression in Wisconsin, the case is of likely interest to observers in other states as well.