Category Archives: Free Speech

President Schill drops policy proposal for TPM restrictions on free speech

2/14/2017:

From: Mike Schill <mschill@uoregon.edu>

Subject: Time, Place and Manner rules

Date: February 14, 2017 at 5:51:47 AM PST

To: Chris Sinclair <csinclai@uoregon.edu>, William Harbaugh <harbaugh@uoregon.edu>

Hi Bill and Chris,

After discussing the matter with you two, Kevin Reed and other senior staff, I have decided to withdraw our proposal for time, place and manner rules.  While I still believe that these rules are advisable to protect content neutrality, I am also convinced that we need to do more work in educating the community and building consensus around them.  The UO has no shortage of pressing issues, difficult problems and wonderful opportunities for us to work on together now.  Therefore, I am putting the time, place and manner proposal on hold for the foreseeable future.

Best,

Mike

12/07/2016: For informational purposes and background, please see previous senate motion:

This policy contains elements related to free speech activities on campus.

11/27/2016 update: After weeks of of not responding to Senate requests for an updated draft of the TPM free speech restrictions policy, General Counsel Kevin Reed has now submitted one to the administration’s Policy Advisory Council.

Continue reading President Schill drops policy proposal for TPM restrictions on free speech

UO postpones plan to impose unacceptable Acceptable Use Policy

Dear Senators –

At last week’s meeting I discussed the problems with the computing resources “Acceptable Use Policy” that the administration was proposing to implement. This policy governs everything we do when we use a UO computer, a computer bought with grant money, or when we connect our own computer or phone to the UO network. It applies to students, faculty, librarians, staff, and OA’s.

Greg Bryant, John Bonine, and Colin Koopman – a.k.a. the Senate’s Info Tech Task Force – had identified a host of problems with this policy. The administration addressed some issues, but would not respond to simple questions about other problems.  On Wednesday,  after I brought up this issue in the Senate, the Board of Trustees Secretary emailed me to propose a meeting between a few UO faculty and the relevant Assistant General Counsel. I responded by asking for a meeting with the Senate Executive Committee, because of the importance of this policy. The BOT Secretary did not respond to that request.

Today I met with the Provost’s Chief of Staff. She told me that she would yank the AUP proposal from the policy process, agreeing that the policy as put forward needed some work that would best be done when we have a new CIO, and she thanked the ITTF for their edits and comments, without of course committing to accept them.

Meanwhile the current AUP remains in effect. It is at https://it.uoregon.edu/sites/default/files/UO_Acceptable_Use_of_Computing_Resources_Policy_13Nov2015.pdf  It is a bit dated, but seems far preferable in terms of its protections. For example, here is the Prohibited Conduct section:

Current language: “The University Conduct Code, OAR 571-21-030, also applies to electronic forums. The code prohibits, among other things, lewd or indecent conduct, threat of imminent physical harm, sexual or other harassment, stalking, forgery, intentional disruption of university services, and damaging or destroying university property. Similarly, the code’s prohibitions against illegal discrimination, including discriminatory harassment and sexual harassment, also apply to electronic forums.”

The University Conduct Code is actually the Student Conduct Code, at https://policies.uoregon.edu/vol-3-administration-student-affairs/ch-1-conduct/student-conduct-code. It only applies to students. It is also very specific:

16. “Harassment” means:

a. Intentionally subjecting a person to offensive physical contact;

b. Unreasonable insults, gestures, or abusive words, in the immediate presence, and directed to, another person that may reasonably cause emotional distress or provoke a violent response (including but not limited to electronic mail, conventional mail, social media and telephone) except to the extent such insults, gestures or abusive words are protected expression; or

c. Other types of prohibited discrimination, discriminatory harassment, and sexual harassment as defined by law.

In contrast, the administration’s proposed new policy language was vague and expansive and included no language about protected expression:

“6.6 Shall not use UO IT resources to transmit any communications that reasonably could be considered obscene, harassing, threatening or discriminatory by the recipient or another viewer.  For more information on UO policies in this area, see the Office of Affirmative Action & Equal Opportunity web site.”

While the old policy prohibited physical threats with the specific language from free-speech case law,

“threat of imminent physical harm”,

the proposed new policy would apply threats of any kind, apparently including the familiar “If you miss one more class I will lower your grade” email threat. And they wanted to apply this broad policy language to all users, not just students. How would our General Counsel’s office find the time to deal with all these prohibited emails? Why would they want to try?

This new policy will come back to the Senate for approval someday. My explanation above covers just one of the many problems with it. Read more in the pdf below from the ITTF, which will continue to monitor the situation.

Thanks,

Bill Harbaugh, Senate Pres, Econ Prof

Draft UO Acceptable Use Policy – with Senate Task Force changes, Feb 1-1yoj5hr

Free Speech for student-athletes and the student press

1/23/2017 followup:

Dear GC Reed – 

I’m writing as Senate President, to ask you for an update on your investigation of the Duck AD for potential violations of UO’s free speech and academic freedom policies.

Thanks,

Bill Harbaugh Senate President, Economics Professor, University of Oregon

On MondayJan 23, 2017, at 8:30 PM, Kevin S Reed <ksreed@uoregon.edu> wrote:

I’m in deep interview mode.  Coming along swimmingly.

Kevin S. Reed | Vice President and General Counsel

Office of the General Counsel

219 Johnson Hall | Eugene, OR 97403-1226

(541) 346-3082 | ksreed@uoregon.edu

1/12/2017 update:

Register Guard reporter Austin Meek has a report on General Counsel Kevin Reed’s investigation of the Athletic Department here: http://registerguard.com/rg/sports/football/35172801-69/oregon-general-counsel-opens-review-into-athletic-department-media-policies.html.csp

12/1/2016 update: 

Yesterday I received an email from President Schill saying that he would instruct GC Reed to investigate these athletic department free-speech issues, and report to him. I assume that the Senate will also be given this report.

I’ve already talked with several current and former Duck sports reporters, who told me about many other potential similar violations of UO free speech policies by the Athletic Department in recent years, with respect to both student-athletes and student and professional reporters.

One noted the #blacklivesmatter protest by Dana Altman’s student-athletes during the National Anthem, reported by Tyson Alger in the Oregonian here:  http://www.oregonlive.com/ducks/index.ssf/2014/12/oregon_coach_dana_altman_says.html

screen-shot-2016-12-01-at-9-31-26-am

Altman chewed out his players and wouldn’t let them talk to the press afterwards.

The Senate will continue to look into these free speech issues.

From: UO Senate President <senatepres@uoregon.edu>

Subject: Free Speech for students and the student press

Date: November 27, 2016 at 10:13:14 PM PST

To: Kevin Reed <ksreed@uoregon.edu>

Dear General Counsel Kevin Reed:

We are writing you as President and Vice President of the Senate, regarding media reports that UO Athletic Department AAD Dave Williford told Oregon Daily Emerald sports editor Kenny Jacoby and other UO student-journalists that he would take away their Athletic Department issued press credentials, if the Emerald went ahead with their story on alleged assaults by UO football players. The news reports also say that the UO Athletic Department has a policy requiring that student-athletes not talk to the press without the Athletic Department’s permission.

The story is published here, https://www.dailyemerald.com/2016/11/17/oregon-tight-end-pharaoh-brown-accused-three-acts-violence-since-october-2014/ and the interview in which Mr. Jacoby explains the threat to take away his and other UO student reporters’s press credentials is here: http://www.oregonlive.com/sports/oregonian/john_canzano/index.ssf/2016/11/oregon_daily_emerald_story_dem.html.

This apparent threat from Mr. Williford, and these Athletic Department policies, procedures, or practices preventing UO students from talking to reporters may be in violation of the UO policies on Freedom and Speech and Inquiry, and on Academic Freedom. The former policy states:

The University of Oregon values and supports free and open inquiry. The commitment to free speech and freedom of inquiry described in this policy extends to all members of the UO community: Faculty, staff, and students. It also extends to all others who visit or participate in activities held on the UO campus.

Free speech is central to the academic mission and is the central tenet of a free and democratic society. The University encourages and supports open, vigorous, and challenging debate across the full spectrum of human issues as they present themselves to this community. Further, as a public institution, the University will sustain a higher and more open standard for freedom of inquiry and free speech than may be expected or preferred in private settings.

Free inquiry and free speech are the cornerstones of an academic institution committed to the creation and transfer of knowledge. 

(at https://policies.uoregon.edu/policy/by/1/01-administration-and-governance/freedom-inquiry-and-free-speech)

The latter policy 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.

(at https://policies.uoregon.edu/content/academic-freedom-0)

We are asking that you investigate this incident, and the relevant UO Athletic Department policies, practices, and procedures, and give a report to the Senate giving your interpretation of whether or not the UO policy on Free Speech and Inquiry and the policy on Academic Freedom, or relevant State or Federal laws, have been violated. 

In particular, We ask you to address the following questions:

1) Is requiring student-athletes not to speak to the press without Athletic Department approval in conflict with UO free speech policies and law?

2) Is taking, or threatening to take, the press credentials of UO student journalists if they publish a story in conflict with UO free speech policies and law?

3) Were Mr. Williford’s actions – i.e. apparently attempting to discourage student-athletes from talking to the press, and threatening to take away the press credentials of these reporters, consistent with current UO policy?

We would appreciate it if you would send this report to the Senate by January 10, 2017. Please let us know if you have any questions. 

Bill Harbaugh, Economics Prof., Senate Pres

Chris Sinclair, Assoc. Prof. Math, Senate VP

Open Mike: Balancing principles

From: “President Michael H. Schill” <pres>

Subject: Open Mike: Balancing principles

Date: January 9, 2017 at 11:55:25 AM PST

Dear Colleagues,

Over the past couple of months, the University of Oregon’s handling of events associated with Professor Nancy Shurtz’s decision to wear a controversial Halloween costume has garnered significant media attention, both locally and nationally. A number of editorials, letters to the editor, and blog posts have engaged in discussions on the topic. Some of the coverage has been, in my opinion, thoughtful but some has, perhaps not surprisingly, sensationalized and caricatured what is a very serious incident that deeply affected our students and, by extension, our entire university community. A number of colleagues have asked me for my own views on the matter. I hesitate to burden you with this personal reflection, but because this incident has polarized our community I have decided that it would be useful for me to share some of my own thoughts about the matter.

At the outset, I should state that, under university policies, the provost, not the president, is the figure whose job it is to respond to complaints against faculty members. Therefore, I have not played a formal role in responding to the incident. I write this to clarify my institutional role and not to decline responsibility. To the contrary, as president, I am ultimately responsible for everything on our campus.

When Professor Shurtz invited her two classes to her home for a Halloween party on October 31 and dressed up wearing blackface, she created a conundrum that is the stuff of a very difficult law school examination question. Two very important principles were potentially in conflict—the right of students to be free from racial harassment and the right of faculty members to exercise free speech. A law firm that the university hired to do an impartial investigation of the matter interviewed students and faculty members who were at the party and made a factual finding that at least some of the students felt compelled to attend their professor’s party and that they would potentially suffer negative consequences if they left early, despite being deeply offended and affronted by Professor Shurtz’s costume and its strong connotations of racism. The investigators made a factual finding that the behavior by Professor Shurtz constituted racial harassment under university policy V.11.02.

Of course, this is only part of the story. Professor Shurtz told the investigators that she didn’t intend to act in a racist manner. Instead, she said she was dressed “as a book” she had recently read that highlighted the shortage of black doctors in the medical profession. She also told the investigators that she was making a statement about the paucity of African American doctors. The law firm weighed the harms from the harassment against the value of her conduct and determined that, according to the balancing test prescribed by Pickering v. Board of Education, the former outweighed the latter, rendering her conduct unprotected. The provost accepted the findings of the investigation and, pursuant to university policy, took appropriate actions to make sure that Professor Shurtz understood the gravity of the incident and would not behave in a similar fashion in the future. I am not able to divulge the nature of these actions because university policy mandates confidentiality.

As I consider the case of Professor Shurtz, I have to admit I am torn. I believe that freedom of speech is thecore value of any university. When faculty members pursue their avocation—teaching students and conducting research—they must be able to say or write what they think without fear of retribution, even if their views are controversial, and even if their research and their views risk causing offense to others. Otherwise, advances in learning will be stunted. This freedom of speech includes the freedom to share political views, academic theories, good ideas, and even bad ones, too. It includes speech that offends others. Without academic freedom we could scarcely call the UO a university.

For me, stating that principle in the abstract is easy and uncomplicated. But here is the problem—figuring out when and whether there are legitimate limits on freedom of expression actually is complicated. In general, it is not acceptable for someone to use her rights to deprive another of her rights. I should not be able to use my speech to deny others of their right to be free from racial or sexual harassment. I can hold—and share—controversial views. But that does not give me the right to harass specific individuals or to speak in any way I wish to, in any place, or any point in time.

But, when exactly does offending someone turn into proscribed harassment? Only a small number of legal commentators would say that faculty members should be immune from all harassment charges on academic freedom grounds. Instead, most of us recognize that speech rights are extremely important, but they also fall on a continuum. For whatever it is worth, I personally am fairly close to the end of the spectrum that believes speech should be maximally protected. But even I believe that there are cases when speech or conduct is of relatively minimal value compared to the great harm that it may do to our students—particularly to students who already struggle with isolation and lack of representation. For example, imagine a required class in which a professor repeatedly uses the “N” word for no apparent reason except to elicit a reaction. Could African American students forced to sit through this class have a claim of harassment? I think so. Similarly, imagine a class in which a professor makes repeated, sexually explicit remarks to a student or students for no educational purpose. Free speech principles should not, in my view, prevent the university from taking appropriate actions to make sure these actions stop and do not recur in the future.

To be sure, the case of Professor Shurtz is not quite as clear-cut. The events took place in her home, not in the classroom. Her stated intention ex post was not to offend, but to draw attention to systemic racism. Still, some of her students felt that they were in a similar situation to students in a classroom being subjected to harassing speech, as they felt pressure to attend and to remain at the event. They felt that they could not leave without jeopardizing their standing in the class, and they also felt that the offensive nature of the blackface was the equivalent of hearing the “N” word. In these circumstances, should the university have ignored the event or should it have taken action proportionate to the offense? What lesson would we be teaching our students if we let the incident end without even an official letter of reprimand? These were the very difficult questions that Provost Coltrane had to grapple with, and I am supportive of the process he used and the fairness he displayed in making his decision.

Some commentators have taken to the barricades, and suggested that any finding or action taken with respect to Professor Shurtz will ultimately open the door to firing professors for expressing their political views. Really? In law, we call this the “slippery slope” argument or “the parade of horribles.” While I have tossed and turned for nights over the fact that the university found that a professor’s expressive conduct constituted harassment, I think the reaction of those commentators is overly dramatic and not supported by anything that took place in this case. Go online and you will find that Professor Shurtz remains a member of the law school faculty. Name a single faculty member who has been punished by the provost for his or her political views. This has not happened and you have my vow it won’t happen as long as I occupy my office in Johnson Hall.

The blackface incident has been a painful one for everyone in our UO community. It came at a time of heightened emotions with respect to the treatment of African Americans on our campus and on campuses throughout the nation. It also came at a time of turmoil and recrimination in our national politics. In my opinion, each of us should be uncomfortable with the harassment that our students experienced at the home of a senior faculty member. Each of us should also be uncomfortable with the fact that the provost felt it necessary to take remedial actions with respect to a faculty member in connection with her expressive conduct. Maybe I am just being a Pollyanna, but ultimately I hope that this discomfort will serve a good purpose. I hope that we come out of this experience with a greater understanding both of the value of free speech and the ways in which our speech can harm each other.

Sincerely,
Michael H. Schill
President and Professor of Law

 

A note from Senate Vice President Sinclair

[updated 12/23/2016]

The fallout from the black face halloween incident (BFHI) has divided our community at a time when it is least welcome. Higher education is, or soon will be, under an unprecedented assault from our own government. At this moment the BFHI-divided campus is in no position to present unified resistance to this threat.

Regarding the BFHI, I would suggest to the free speech folks (FSF) that sometimes words and actions are as terrifying and damaging as threats of physical harm. I would say this doubly so to FSF who, due to no fault of their own, have not had the experience of living outside the comfort of a social majority. To the social justice folks (SJF) I would suggest that sometimes damage inflicted is inflicted out of ignorance, and in such situations isn’t forgiveness (together with a liberal dose of education) warranted? I say this doubly to those SJF who do not understand that the no-prisoners response to the BFHI has many on campus afraid that one day they too may be run out of town on a rail for some ignorant, but well-meaning act.

To the FSF who demand that speech be without consequences, I cannot stand with you. The BFHI has clearly damaged our campus and each of us must be held responsible for our actions, well-intended or otherwise.

To the SJF who say there can be no forgiveness for this act, I cannot stand with you. If you believe the perpetrator here is irredeemable then you are as guilty of dividing our community as she is.

To those who know that this situation lies on the complicated boundary between competing ideals, I stand with you. I stand with you ready to find a path forward.

Finally, to the administration (JH), I’d like to introduce you to the Kobayashi Maru. Do I think your reactions to the BFHI have been stellar? No. However, I doubt that I could have done any better (at least without the benefit of hindsight). I will offer a few critiques. Hiding in the bunker of Johnson Hall and waiting for this to blow over (ahem, denaming Deady Hall) is not leadership. Releasing a public report on the BFHI three days before Christmas, may be smart, but it is not leadership. Leadership is putting forth a plan that addresses both the fears of the FSF and of the SJF, and secures us as an institution that is known both for our stalwart support of free speech, but also for our inclusion and compassion towards others of different backgrounds and narratives.

Here is what I hope. I hope that JH can address both the fear that minorities on campus harbor (especially given the recent election), but also the fear that pitchforks await the next unwitting purveyor of social ignorance. I hope that JH can find a way to reassure campus that they are strong supporters of both free speech and campus inclusion. Finally, I hope that JH together with the SJF can orchestrate a path forward for the perpetrator of the BFHI to be brought back into the fold of the university. This would be real, unifying leadership, of the sort we are going to need over the next few years.

If I can help in some regard, please let me know.
Chris

[old stuff below]

Welcome back for fall!  As I write this I am in the last throws of teaching an 8-week calculus course.  Teaching this summer has been a bit of a mixed bag.  On one hand, my students have been great and being on campus everyday has been good for planning the various projects and initiatives that are in front of the Senate.  On the other hand, stepping into the Senate VP role has been plenty of work on its own without the additional time in the classroom.  Regardless, it’s been a productive summer, and I’m glad to be able to elaborate on some of the things I’ve been working on.

First and foremost, is this new website.  While I didn’t mean for it to be as all encompassing as it turned out, the obvious solution to the mountains of human-generated data produced by and for the Senate was a relational database: basically a spreadsheet with recorded relationships between rows in different tables.  This database is still evolving and growing as we update past and future information about committees, those who serve on them, the reports they produce as well the motions and legislation moved in the Senate.  The goal of this database is to keep this information in one central repository from which we can query and serve on these web pages.  There will undoubtedly be hiccups in the delivery of this information, and the information itself may not yet be the most up-to-date.  If you see any errors, please let me know so that I can address it.

Several lives ago, during a brief stint as a graduate student drop out, I was a web developer for a government research lab.  Technology has changed a lot in the intervening 20 years, and it has been nice to revisit and update those skills.

Besides teaching and web development, I have also spent the summer meeting with Senate President Harbaugh, Senate Executive Coordinator Betina Lynn and Senate Program Assistant Kurt Willcox. They have helped get me up to speed on the ins and outs of the business of running the Senate, and in particular the constellation of committees, advisory groups and task forces where so much of the work of the University is done.  One of my overarching goals for the upcoming year is to build an organized view of the committees, what they do, and who serves on them.  I hope to make it easy for people to see what the committees are doing and provide mechanisms by which people can share their thoughts about this work in a constructive manner.

In order for this to be successful, I will need your help.  Please let me know what sorts of information are useful for you as a constituent of the Senate or as a member of a committee.  Visit this site often, and share your opinions on topics of interest.  If you are on the Senate, I implore you share your ideas and debate the issues of the day so that we can fully vet all policy proposals, legislation and resolutions in a thorough manner.

As particular issues arise, I’ll add my thoughts to this thread.  Until then, I’m going to enjoy the prospect of a few weeks of Eugene summer before the whirlwind of fall quarter begins.

Thanks for reading this far, and here’s to a productive upcoming academic year!

Chris