“Call off your dogs”

“[A] form of prior restraint of academic freedom”

On September 4, 2015 over one hundred Florida Atlantic University professors gathered to discuss a proposed post-tenure review policy poised for adaptation by FAU administrators that had almost no faculty input.

In the lead-up to this discussion two constitutional law professors protested the fact that FAU administrators were using FAU’s vague and deceptive “Outside Activities/Employment Policy” (OAP) against a junior faculty member in their department who had written a guest editorial in the local newspaper that some administrators disagreed with. The professors alongside other faculty argued that the policy could be arbitrarily used against virtually any FAU faculty member for exercising their right to free speech.

This very policy was then utilized by FAU officials three months later to terminate Associate Professor James Tracy for writings on his personal blog. When Tracy filed a civil rights lawsuit against FAU and specific administrators, the defendants contended that Tracy was fired for insubordination by not complying with a policy–a policy that in fact administrators and faculty to this day cannot understand, and thus cannot comply with.

In the exchange below proceeded in full view of FAU President John Kelly and Provost Gary Perry, Faculty Senate President Chris Beetle sought to curtail debate on FAU’s OAP, and refused to allow the matter to be referred to the Senate’s Academic Freedom and Due Process Committee for further consideration or recommendations.

Following TracyvFAU discovery and after summary judgement favoring FAU that gutted the case of its vital civil rights dimensions, the federal court refused to allow the jury to have any knowledge of the September 2015 Faculty Senate meeting, arguing that it would be “unduly prejudicial” to Defendant FAU.

Now an established matter of law based on the TracyvFAU decision, Florida colleges and university administrators may use the OAP as a cudgel to police faculty and staff off-campus speech. As such many employees intimidated by the policy’s wanton enforcement continue to express confusion and dismay on how they may comply with and avoid similar disciplinary measures.

The constitutionality of the OAP contested by FAU faculty four years ago will be subject to review by the Eleventh Circuit Court of Appeals later this month, on September 19, 2019.

Transcript of 9/15 Senate Meeting Excerpt

Lenz Deposition

APPEARANCES:

CHRIS BEETLE, Professor, Physics, Faculty Senate President

TIM LENZ, Professor, Political Science, Senator

MARSHAL DE ROSA, Professor, Political Science, Senator

RON NYHAN, Associate Professor of Public Administration, Senator, Former Faculty Senate President

GARY PERRY, University Provost, Non-voting Senate member

ROBERT RABIL, Associate Professor, Political Science
FRED HOFFMAN, Professor, Mathematics, Senator

JENNIFER LOW, Professor, English,

BILL BOSSHARDT, Associate Professor, Business, Senator

MS. DIANE ALPERIN, Associate Provost, Non-voting Senate member

THEREUPON:

MR. BEETLE: Okay. This brings us down to the business items, and there are two. The first is that as many of you may know community engagement is a key part of the strategic plan for the university. And as faculty, it behooves us to involve ourselves as much as possible in figure be out what our community engagement at this university is going to look like in the future.

For that reason, I am going to form an adhoc committee to examine this question — committee of faculty, one person representative from each college. You’ve seen the charge. It’s attached to the agenda here today, and the members of this committee will be invited to certain on the President’s Task Force which is chaired by some guy called Ron Nyhan.

And so, anybody who is serving on this committee will be invited also to play a role in that other committee, but this will be a senate committee. The membership of this committee is opens to senators, of course, but also to all faculty in the university, and we will be taking nominations.

You can email them to Arcadia and we will be hoping to form that committee at the next senate meeting.

MR. LENZ: Would you take questions on this?

MR. BEETLE: I will take questions about this.

MR. LENZ: In the spirit of providing the administration with advice about this initiative I’d like to say one thing, and that is please call off your dogs until you get your act together when it comes to community engagement.

And by calling off the dogs I mean the administration has been sending faculty members who are engaged in outside activity, nasty letters, letters of discipline or letters that threaten faculty members who are engaged in outside activity with discipline.

“[B]y calling off the dogs I mean the administration has been sending faculty members who are engaged in outside activity, nasty letters, letters of discipline or letters that threaten faculty members who are engaged in outside activity with discipline.”

And this should stop until the administration gets its act together. And by getting its act together I mean this initiative says that we’re supposed to increase outside activity, increase faculty engagement with the community. We support this. But the very actions that I’ve been describing are discouraging this activity. There’s a lot of fear and uncertainty.

And if you read the language in our collective bargaining agreement about outside activity it says that like the collective bargaining at other universities in the state that we have to report all professional related activity paid or unpaid if it’s not part of our assignments. No one knows what that means. The deans don’t know what this means. Faculty supervisors don’t know what this means.

And until there’s some clarity about what outside activity has to be reported I would recommend, as a good piece of advice, that any new faculty member who asks their supervisor or their peer about what kind ever outside activity they would engage in I would say do nothing because any outside activity exposes you to risk. And that risk includes discipline up to dismissal from the university.

This is serious, and no one knows what outside activity the university is targeting. There has been a change in the language in the collective bargaining agreement. And I understand where this comes are from.

The president is right to try to get more control of the university. The previous administration had to deal with some scandals. And this effort to gain control of faculty makes some sense, but the way this is being done is creating major problems.

For you to come to us asking for more faculty engagement in outside activity while some other arm of the university is sending these nasty letters, that’s a problem.

And it’s a problem that eventually will probably have to be addressed with the Freedom of Information Act request because there’s a great deal of suspicion that you can say or write or do something, but if you say, write or do something that the administration disagrees with you are going to get one of these nasty letters put in your personnel file.

And that’s — , and it’s not what we want. We want to encourage this activity. This is serious. It’s an extremely important part of the university’s future, growth and development. But you’re doing things which are frustrating.

MR. BEETLE: So, let me respond to some of the points you’ve made. So, at least one of the specific instances that you’re talking about I became aware of this Tuesday, and since to then I have been doing a bit of leg work. I’ve had lengthy conversations both with Peter Hall, the VP for public affairs, and with Provost Perry about this very issue, and I agree that there are some things to be clarified.

If the terms of the collective bargaining agreement are to be changed that, of course, is something to be bargained, and that should run through the Union, and we should have a conversation about that.

I came away from the meetings that I’ve had less concerned than I was at the beginning. And I understand that Peter Hall has reached out to the person that I heard from on Tuesday and that there is an attempt to resolve the situation.

One of the things that all of us as faculty should be aware of — I put it this way to Peter. FAU, since I have been here certainly, has been the epitome of a do it yourself university. Grab that paintbrush and do it, right?

And in this instance there was an event coming up that a faculty member had organized and in fact had secured external funding to help support, which is exemplary of what faculty should be doing at this university and should definitely be encouraged.

However, it needed to be advertised. And so, in an effort to do that the faculty member had not gone through the Public affairs Office and the Media Relations Department. What I want to tell — the message that I want to get out to faculty generally is that the Media Relations Department has a renewed vigor and an eagerness to assist with exactly that sort of problem.

And we, as faculty, need to recognize first of all that those resources are there for us to use, and second of all that we have a responsibility to take advantage of them because we don’t want to have every department at the university or even every individual faculty member running their own media relations operation.

We have to proceed strategically on many, many fronts. And I think it behooves us as faculty to approach this administrative wing first rather than after the fact. And so, this is one of the things that I came away with.

The other thing, I still have some questions to ask and some conversations to have. And so, I don’t know if we should talk further about that because I still need to find the facts about — in order to just have my own opinion and you’re asking me the question.

MR. LENZ: This is far — this problem is far broader that’s just who gets to speak for the university, speak to the press. It’s for example, if a faculty member publishes a book and wants to get a talk at the Boca Raton Library do they have to go to this vice-president to get permission to do that? These are the kinds of questions that have to be addressed —

MR. BEETLE: Right.

MR. LENZ: — because no supervisor can tell their faculty member that they can do that without getting permission. And if someone says something in a public address that the media covers and the university acts strongly [against] that they’re going to be exposed to discipline.

MR. BEETLE: So, Senator, I share your opinions about this, and I want the faculty — I think that there should be the ability to take initiative in these efforts that we’re going to have. I’m still trying to figure out exactly what the policy is at the moment, and I’m not sure that I understand. So, we can have a conversation about that when the time comes.

I would also suggest that this might be the very type of issue that is going to come up in the community engagement committee that we’re trying to put together. We need to have an approach to this problem that is going to work for the faculty because the faculty will be the face that’s engaging with the community in many events. Ron, did you have a comment that you wanted to add?

MR. NYHAN: No. On the, again, I don’t know about the particular issues, all of the issues that have been raised, but the intent of the community engagement initiative is one that I think that could benefit the faculty a great deal.

And to the extent that there are misunderstandings if there are or adjustments that need to be made I think the purpose is to move forward can every opportunity for the faculty to have to render engagement in the community, and also to communicate that.

So, perhaps to the extent that our issues are to be raised, and obviously you’re raising some here today, that’s why the Senate should have a committee doing this not only separate from but also incorporated into the large university one.

So, I thank you for bringing up the issues, and hopefully more people who have real concern in this area, as well as want to expand it, will be a part of the committee.

MR. LENZ: We need a moratorium on sending these letters threatening discipline for faculty members who are engaging in legitimate outside activity until this occurs.

“We need a moratorium on sending these letters threatening discipline for faculty members who are engaging in legitimate outside activity until this occurs.”

MR. BEETLE: Chris? I want to — I think that — so, I’m going to take a comment from Provost Perry because I think it’s germane to what’s been said before —

MR. DE ROSA: Well, this is germane too. Let’s hear it.

MR. BEETLE: — and then I’m going to call on you.

MR. DE ROSA: Okay.

MR. BEETLE: Provost?

PROVOST PERRY: Okay. Thank you, Mr. President. And let me applaud you a second there, by the way. I would just like to say we — all of us, want to encourage public comment by our faculty. You are experts in your field, that’s why you are employed here at Florida Atlantic University.

But when you make such a public comment all we ask is that you follow what is laid out in the collective bargaining agreement. And I’ll read you the section that is pertinent to this. It’s article 5.3, Section D. This had been a part of the BOT/UFF Connective Bargaining Agreement for many years.

When speaking on any matter of public interest the faculty member shall make clear when comments represent personal opinions and when they represent official university opinions. That’s a simple statement. Thank you. And all we ask, all of us at the university, not just the administration — of events that we abide by the rules of our own collectively bargained agreement.

MR. BEETLE: Senator De Rosa?

MR. DE ROSA: I’ve chaired the academic freedom of due process committee, I guess at least going on a third year, and this is a very serious matter.

I have a couple questions. One of which is by what authority is the vice-president of the public affairs writing letters to faculty members?

I also have a concern that the collective bargaining agreement — and I agree with the programs, absolutely. If you’ve issued a disclaimer that you’ve not speaking on behalf of the university, I mean, that’s almost a no-brainer, but we have to get prior approval.

I would consider this a form of prior restraint of academic freedom for academics to engage in community without getting the permission note from the administration.

I have a colleague that was taken into the wood shed because he wrote an op-ed latter to the local newspaper. This is highly inappropriate. I don’t think we need a committee for community engage when it comes to academic freedom. And to be quite frank, I don’t care what the collective bargaining agreement is. We have certain rights as academics to engage in the community, to speak our minds, to engage and participate in the marketplace of ideas.

And I agree with Tim. We need to have a cease and desist order from this vice-president, who is not an academic, to stop writing letters to professors. I don’t want to have to get a permission note before I write something on the internet or go to a meeting some place that’s unrelated to the university. This is absurd; it’s insane. And secondly and thirdly, the scandal that Tim referred to, that’s not a scandal from faculty members; that was a scandal of the administration, the previous at ministration and how they handled it.

“I don’t want to have to get a permission note before I write something on the internet or go to a meeting some place that’s unrelated to the university. This is absurd; it’s insane.”

MR. BEETLE: So, let me —

MR. DE ROSA: Would somebody please explain to me, perhaps the president could, why this vice-president is writing letters to academics to professors and more or less chastising them for engaging in their 1st Amendment Rights?

MR. BEETLE: So, I can say that I don’t believe that the VP was actually the person that wrote that letter. I have not seen the letter at this point, but he seems to be surprised that there had been some further discussion. So, again, I agree with a lot of what you said.

MR. DE ROSA: What don’t you agree with?

MR. BEETLE: I do think that it’s important to have a robust academic environment here where academic freedom can be exercised. I think that there is a conversation to be had about this issue of what needs to be reported and what does not.

MR. DE ROSA: But what —

MR. BEETLE: And we certainly must not end up with a —

MR. DE ROSA: — what needs to be reported?

MR. BEETLE: Excuse me.

MR. DE ROSA: It throws —

MR. BEETLE: We certainly must not end up with a situation where the content of what a faculty member says ends up being the deciding factor in whether action is taken, right?

So, I think that particularly as we push forward on this initiative, which is essential to the university’s strategic vision for where we want to go, that we need to think very seriously about these issues. And I think that the situation that all of us are talking bleakly about is an example that we should keep in mind as we have these conversations.

But I think that we need to have these conversations civilly and to try to come to some sort of shared vision of how this process is going to work at FAU. And that is what we need to focus on going forward, I think.

MR. DE ROSA: But see, there’s the problem.

MR. BEETLE: So, —

MR. DE ROSA: We’re going some place, and where that place is seems to be a departure from academic freedom. If there’s academic freedom and a professor or an academic makes the —

MR. BEETLE: So, —

MR. DE ROSA: — disclaimer I am not speaking on behalf of my employer —

MR. BEETLE: What I’ve just said was that we need to have a conversation about how this scenario would play out in the future, right? And how and what role academic freedom has played in this and to what extent academic freedom may or may not have been comprised in this scenario, and how the process should work in the future to minimize any adverse impact —

MR. DE ROSA: Well, it’s —

MR. BEETLE: — on academic freedom.

MR. DE ROSA: Sir, would you —

MR. BEETLE: So, I’m going to ask to —

MR. DE ROSA: — to the committee?

MR. BEETLE: — table any further discussion or questions about this because it is premature, because I don’t know enough about the specifics of this instance. And I welcome any of you to talk to me privately about this. I don’t know if we can go future playing this oblique game —

MR. DE ROSA: This is the faculty senate, Chris. This is where we have these discussions. There’s not to be private about. It impacts the faculty. The senators represent the faculty.

MR. BEETLE: But at the moment it is not a fact that is before this senate what the impact has been. So, this is not a conversation that we can have properly at the moment.

MR. DE ROSA: I don’t understand what not. That’s why we’re here. This is a discussion forum.

MR. RABIL: Can I say something, please?

MR. BEETLE: Yes, you may.

MR. RABIL: Can I say something? Thank you. Well, I work where the media a lot and I’m asked from Iran, China, Saudi Arabia and everybody to comment. But what I can tell you is this, I will never say anything that goes against the interests of the university. And I make that sure when I go over any TV or I write or go over including U.S. Government meetings, and I go to them on a frequent basis. But this is — it’s okay with me.

But what you are saying here, and this is where it does not sit well with me — and I felt kind of disappointed, really when I received an email, and this is what the email said and it’s extremely important to know that FAU has requirements including but not limited to receiving permission from the Office of University of Communication and the Office of the Provost prior to speaking to the media including student media every single time you engage in such activity. So, what you are saying, already you have movement in the direction to curb us from talking to the media. And here I am someone that I consider myself extremely loyal and I love FAU, and I have FAU my home. So, this is where it is really conflicting to us.

MR. BEETLE: And okay. So, I am not aware of this email. And I think that this is an issue where we need to have a conversation about how this is supposed to work at this university. I don’t know that this is the place for it because we have not had an opportunity as a group to look at the facts around this situation. So, what I am asking is that we approach this at a later meeting.

MS. LOW: Would it be appropriate to send it to the academic freedom —

MR. BEETLE: I don’t think that that is warranted at this time. The academic freedom and due process committee should — there is nothing to send to them at the moment —

MR. HOFFMAN: Of course there is.

MR. BEETLE: — as far as —

MS. LOW: Okay.

MR. BEETLE: No, there’s not.

MR. HOFFMAN: Of course there is.

MR. BEETLE: There is not, Fred. All right. I see four more hands that are up. Bill?

MR. BOSSHARDT: But I assume, Chris, that in your deliberations over the next week or two that if you do find some cause that you would refer it to the committee?

MR. BEETLE: Yes, I would.

MR. BOSSHARDT: Okay.

MS. LOW: So, do we put this on the agenda for next meeting?

MR. BEETLE: I do not know what’s going to be on the agenda for next time about this.

MS. LOW: Now, the request has been made that until it’s settled, what the policy is, that we should not be — a request has been made that until the policy is settled that no more threatening letters should be sent.

“[A] request has been made that until the policy is settled that no more threatening letters should be sent.”

I don’t know where they originate from, and certainly it seems as if it’s not always clear, but I think it does seem like a reasonable request, so I think that it can be forwarded and hopefully addressed because it’s impossible. It seems as if the letters aren’t an indication that a policy has been made without our input then a policy is being enacted without being fully vetted.

MR. BEETLE: Thank you.

UNIDENTIFIED MALE: The problem is very simple. Hypocrisy and freedom of expression are incompatible, okay? Thank you.

MR. BEETLE: Fred, and then we will —

MR. HOFFMAN: Yeah. I think — that shutoff. Is that working? Okay. Yeah. Just the point here, Tim said — raised the question does a person wanting to speak at the public library to discuss his book possibly even to sell copies of it, does he need permission from the Office of Public Affairs before making such a speech.

We know that he has to say any opinions that I express here do not represent the university. If he doesn’t do that he’s in trouble, and he should be in trouble. But does he have to get permission?

Tim asked the question; Robert gave an example of where he was told he needed to ask permission before giving a talk or suggested that by — it was suggested by the nature of that correspondence. Can we know from — we’ve got top administrators here. Can we know the answer to that question and why is it not appropriate for that question if there is a conflict on it to be referred now to academic freedom and due process?

That’s how I understood what academic freedom and due process was supposed to do.

MR. BEETLE: Okay. Does anybody want to comment on that?

PROVOST PERRY: As Provost I would just restate what I said earlier. We welcome our faculty to make public comments and to give the appropriate attributions as necessary as stated, very simply, in the collective bargaining agreement.

I will just call out and say Robert, I’d love to see that email because I can assure you no such policy has been issued from the Office of Academic Affairs.

MR. BEETLE: I will also add that one the of things that I’ve done this week is to look at the form that needs to be filled out, and it’s a little bit — it’s confusing about whether it applies in this hypothetical scenario that you’re talking about. I understand that there is a revision to that form because of new Federal Laws surrounding grants and conflicts of interest and so forth. So, the form is currently being revised, and I hope we will see a draft of that form soon so that it becomes clear, you know, how it would work in that scenario.

MS. ALPERIN: Are you talking about the outside employment forms?

MR. BEETLE: I am.

MS. ALPERIN: Yeah. We are — we’ll definitely give you a draft. We’ve been trying to get it changed to that for about two years. We’re still working on it, but I agree with you there needs to be clarity in that form as to what we need —

“Are you talking about the outside employment forms? … We’re still working on it, but I agree with you there needs to be clarity in that form as to what we need”

MR. BEETLE: Right.

MS. ALPERIN: — for their — their needs to be, especially from the division of research, clarity of — there’s conflicts that all we’re trying to — I think it’s rare that we took that amount of time.

MR. BEETLE: Okay. So, I am very pleased to see how passionate everybody is about this issue. This is a very good sign for the university. So, let us go on to our — to the second business item here which is the draft of the sustained performance evaluation policy.

(Thereupon, the requested portion of the meeting was concluded.)