UC Berkeley Faculty Association

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September 12, 2014
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CUCFA Statement on “Civility” and Academic Freedom

On Friday Sept. 5, Chancellor Dirks of UC Berkeley circulated an open statement to his campus community that sought to define the limits of appropriate debate at Berkeley. Issued as the campus approaches the 50th anniversary of the Free Speech Movement, Chancellor Dirks’ statement, with its evocation of civility, echoes language recently used by the Chancellor of the University of Illinois, Urbana and the Board of Trustees of the University of Illinois (especially its Chair Christopher Kennedy) concerning the refused appointment of Steven Salaita. It also mirrors language in the effort by the University of Kansas Board of Regents to regulate social media speech and the Penn State administration’s new statement on civility. Although each of these administrative statements have responded to specific local events, the repetitive invocation of “civil” and “civility” to set limits to acceptable speech bespeaks a broader and deeper challenge to intellectual freedom on college and university campuses.

CUCFA Board has been gravely concerned about the rise of this discourse on civility in the past few months, but we never expected it to come from the Chancellor of UC Berkeley, the birthplace of the Free Speech Movement. To define “free speech and civility” as “two sides of the same coin,” and to distinguish between “free speech and political advocacy” as Chancellor Dirk does in his text, not only turns things upside down, but it does so in keeping with a relentless erosion of shared governance in the UC system, and the systemic downgrading of faculty’s rights and prerogatives. Chancellor Dirks errs when he conflates free speech and civility because, while civility and the exercise of free speech may coexist harmoniously, the right to free speech not only permits, but is designed to protect uncivil speech. Similarly, Chancellor Dirks is also wrong when he affirms that there exists a boundary between “free speech and political advocacy” because political advocacy is the apotheosis of free speech, and there is no “demagoguery” exception to the First Amendment.

Before the slippery slope of civility discourse we remark that the right to free speech is not limited to allowing the act of speaking or engaging in communicative actions to express ideas publicly, nor is it contingent on the notion that anyone else needs to listen, agree, speak back, or “feel safe.” The right to free speech is constituted through prohibitions on the infringement of speech by the state and other public institutions and officials. Moreover, while civility is an ideal—and a good one—free speech is a right. The right to free speech does not dissipate because it is exercised in un-ideal (un-civil) ways.

Second, we underline that the right to freely speak on public and institutional issues is one of the three pillars of academic freedom. Academic freedom is a specific—though not exclusive—right of professors. The three pillars of academic freedom that extend to individual members of the professorate are: (1) the freedom to conduct and disseminate scholarly research; (2) the freedom to design courses and teach students in the areas of their expertise; and (3) the right to free speech as laid out in the 1940 Statement of Principles of Tenure and Academic Freedom which in this context prohibits the professional penalization of professors for extramural speech. Ensuing from academic freedom is the right and duty of faculty to decide, collaboratively and individually, standards and thresholds for teaching and research, without interference from administrators, alumni, or donors. Those determinations are based on standards of scholarly excellence and achievement, which manifest through hiring, academic publishing, and peer review processes in which an individual’s academic record is judged by peers. Those who administer institutions of higher learning bear a responsibility for the protection of academic freedom, which includes free speech in the ways described here.

The University of California bears an especial burden to respect these rights. For the rights of academic freedom and the 1st Amendment right to free speech cohere in a way peculiar to a public university. As a public university the University of California is called upon to affirm not only the guild rights of Academic Freedom but the more expansive rights of the 1st Amendment—which after all, are possessed by students and staff as well as faculty.

On the basis of all of the above, CUCFA Board deems necessary to release the following declaration and to ask its members, and all UC faculty to press their Senates to pass it as a resolution:

Taking note of the concurrent rapid growth in non-academic administrative positions in most colleges and universities and the significant reductions in state/government funding for public universities during the last decade,

Concerned by numerous accounts across the United States of senior administrators, management, boards of trustees, regents and other non-academic bodies attempting to influence, supervise and in some cases over-rule academic hiring, tenure and promotion decisions, as well as policy and evaluatory decisions traditionally under the purview of Academic Senate and other faculty bodies,

Concerned further by the attempts of senior administrators in the UC system and at many universities across the United States to narrow the boundaries of academic freedom and permissible speech by faculty, students and other members of the university community, and, in particular by the inappropriate and misleading appeal to concepts like “civility” and “collegiality,” deceptively used to limit the “right” to free speech, and as criteria for hiring, tenure, promotion and even disciplinary procedures,

We reaffirm,

That all professional evaluations related to hiring, tenure, and promotions of either present or potential faculty are the sole purview of designated committees composed of faculty members, department chairs, and deans as peers and/or academic supervisors of anyone under review and/or evaluation,

That senior campus and University/system-wide administrators, as well as Regents and other governing boards, or donors to the university and/or its foundation(s), do not have any right to interfere in these processes, and that final decisions on appointment and promotion must be based solely on information in the candidate’s file that is related to established categories of teaching, research, and service and that has been added by established procedures of peer academic review.

That we oppose any insinuation that civility, per se, be added either formally or informally as a valid category in the academic personnel process, as well as any attempt by external parties, including donors to the university, government officials, or other forces, to interfere in any personnel decisions, especially through the threat of withholding donations or investments should certain academic policies or personnel decisions be made.

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(CUCFA — The Council of University of California Faculty Associations — is a coordinating and service agency for the several individual Faculty Associations — associations of UC Senate faculty — on the separate campuses of the University of California, and it represents them to all state- or university-wide agencies on issues of common concern. It gathers and disseminates information on issues before the legislative and executive branches of California’s government, other relevant state units dealing with higher education, the University administration, and the Board of Regents.)

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September 7, 2014
by Admin 2
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Press Release – Berkeley Faculty Association Supports Call for UC Divestment

The Berkeley Faculty Association urges the Regents of the University of California to divest from fossil fuels at its meeting on 17 September 2014.

As a public university the University of California has a special duty to help lead the campaign against fossil fuels and climate change. Just as in the past faculty at the University of California have lent their voices in support of divestment from companies doing business in apartheid South Africa (1985) and from tobacco interests (2001), so we again call for action in the name of the public interest.

With a General Endowment Fund worth around $6.5 billion the University of California has a historic opportunity to deliver an important message to the industries most directly responsible for exacerbating climate change.

In doing so, it will join thirteen other campuses across the country—from Stanford to Hampshire College—who have recognized that divestment does not just make ethical sense, it can be introduced with minimal negative impact upon their endowment incomes.

UC researchers already top the field of climate science, and are setting an example of how the university’s research and teaching is intended to enrich the world for future generations. President Napolitano has committed the UC system to carbon neutrality and sustainable practices by 2025, including green building standards, sourcing our energy from clean sources, and encouraging faculty, staff and students to drive less. Divestment aligns with these contributions and commitments. It is necessary and should happen now.

Colleen Lye and James Vernon
Co-Chairs, Berkeley Faculty Association

 

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July 7, 2014
by Admin 2
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CUCFA Concerns re: Rescission of 1989 Guidelines on University-Industry Relations

On July 6, CUCFA sent the following letter to UC President Janet Napolitano in response to the June 26, 2014 announcement that she has rescinded a policy that barred the university from investing directly in companies that commercialize technology that has emerged through UC research:


President Janet Napolitano
Office of the President
University of California
1111 Franklin Street, 12th Floor
Oakland, CA 94607

Dear President Napolitano,

The Council of UC Faculty Associations (CUCFA) is concerned by both the substance and the process associated with your recent announcement that you have rescinded the 1989 Guidelines on University-Industry Relations.

The policy you rescinded contained restrictions on direct UC investment in companies commercializing technology based on UC research. These provisions in Sec. 13 of the 1989 Guidelines are thoughtful and prudent. Sec. 13 includes the following statement: “If the University were to be an equity participant in the work of one or more faculty members, it could be seen as favoring those faculty members, and could be in conflict with the University’s role to support scholarship and allocate institutional resources in an even-handed manner.” In our view, this rationale for the restriction in the guideline remains valid. We support the full statement of the Sec. 13 justification and the guideline itself, which are quoted at the end of this letter. They should not be rescinded without a compelling justification.

In your announcement, you did not mention consultation with the Academic Senate, and we have not been able to find evidence that such consultation took place. Since your stated policy change affects faculty research, faculty involvement in relations with industry, and the investment of University funds, it clearly falls within the established scope of topics appropriate for consultation with the Senate.

Thus we request that you provide CUCFA and the larger University community with an account of your reasons for rescinding the Guidelines and with a description of the process that led to your decision. We also strongly encourage you to engage with the Senate in consultation on the desirability of reinstating the 1989 Guidelines or on the structure of a replacement policy that will also contain appropriate safeguards such as those in Sec. 13 of the 1989 Guidelines.

We will welcome an opportunity for further discussion of these issues with you.

Sincerely,
Joe Kiskis
Vice President for External Relations
on behalf of the Board of the Council of UC Faculty Associations

enclosure: Excerpt from Sec. 13 of the 1989 Guidelines on University-Industry Relations

cc: Academic Senate Chair William Jacob, Provost Dorr, CIO Bachher, Senior Vice President and Chief Compliance and Audit Officer Sheryl Vacca, and Vice President Steven Beckwith.


From Sec. 13 of the 1989 Guidelines on University-Industry Relations:

“Primarily because of its need to be even handed in its support of faculty members and in its openness to competing commercial enterprises, the University has not arranged for investment in firms whose products derive from University research, when the principal purpose is to promote faculty inventions. If the University were to be an equity participant in the work of one or more faculty members, it could be seen as favoring those faculty members, and could be in conflict with the University’s role to support scholarship and allocate institutional resources in an even-handed manner. Moreover, this kind of relationship with certain companies could preclude or inhibit research sponsorship by other competing companies.

“Guideline: In general, it is not appropriate for the University to invest directly in enterprises when such investment is tied to the commercial development of new ideas created or advanced through University research.”

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May 19, 2014
by Admin 2
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The Erosion of Faculty Rights

Colleen Lye and James Vernon are co-chairs of the Faculty Association at the University of California at Berkeley. http://chronicle.com/blogs/conversation/2014/05/19/the-erosion-of-faculty-rights/

In the rush to online education, faculty have been signing contracts that abrogate the ownership of their classes, erode their collective interests, and threaten the quality of higher education. As the numbers of companies providing online platforms have proliferated in recent years, so have the number and type of contracts that both universities and faculty have signed with them. No standard (let alone best) practice has yet emerged, and faculty are largely in the dark about what is at stake.

The stakes are huge. Online education is the new monetary frontier where the traditional rights of faculty and the quality of instruction are up for grabs. It is a frontier that threatens to turn all faculty, including tenure-track faculty, into teachers who “work for hire.”

In some ways, our own campus, at the University of California at Berkeley, is typical. In 2013, without any faculty consultation, the administration signed a contract with MIT-Harvard’s edX in a scramble to join the club of private elite universities and private spin-offs that are developing online education platforms and course content targeted at underfunded public-education markets. Within Berkeley itself, there are in-house platforms developed by a newly established, relatively under-the-radar entity called the Berkeley Resource Center for Online Education that operates fully online or hybrid master’s degree programs at the School of Public Health and Haas School of Business, as well as a variety of undergraduate, summer, and extension online courses now being offered for certification and for credit.

Meanwhile, other professional schools at Berkeley, including the schools of information and of law, have gone into business independently with external platform providers such as 2U and Canvas to deliver fully online or hybrid degree programs. As these administration-led online education programs have proliferated, the faculty senate has been hard pressed to keep pace with them. It is unclear whether the vaunted “dual governance structure” of faculty and administration is adequate to reckon with the consequences of these online contracts for faculty rights and curricular oversight, either at Berkeley or beyond.

The University of California system’s existing policy is that all teaching on campus—including the materials instructors create for classes, whether they be lecture notes, multimedia presentations, or web-ready content—is protected by copyright and the creators of the material have exclusive rights to their uses.

Yet in the Wild West of online education, faculty are being offered a variety of terms and contracts when they teach online classes. Some contracts accord course copyright exclusively to the university so that the courses are no longer considered property of their creators but as ‘works for hire.’ Other contracts establish joint ownership by the instructor and the university on the grounds that the university has invested substantial resources in putting the course online. Often faculty are offered no contract at all, and though the University of California course copyright policy states that copyright lies with the instructor, there is no assurance of judicial protection.

Even assuming that a faculty member has the resources to litigate, two recent decisions (Manning v. Board of Trustees of Community College District No. 505 (Parkland College) and Forasté v. Brown University) suggest that general university policies are not preventing courts from deeming courses as “work for hire” created by “employees within the scope of their employment.” Finally, there are contracts that accord copyright to the instructor but license the university to have the course taught by others and to modify it at will.

It seems likely that, because the costs of developing online classes good enough to attract paying customers (whether individuals or other campuses) are considerable, universities will increasingly seek to assert full or joint copyright ownership, and/or aggressive licensing agreements, so as to recoup their financial investment.

What does that mean for faculty? The Berkeley Faculty Association consulted an intellectual-property lawyer to find out. This is what we discovered.

When the university claims full ownership of a course, the university is free to re-offer it, revise it, license its use by others, or to transfer its ownership to a third party. The university would be able to do that without either seeking the approval of the instructor who developed the intellectual content of the course, or paying her any additional compensation. In contrast, the instructor would not be able to use the course materials without a license or permission from the university and could be sued for damages on the grounds of copyright infringement if she did so. The instructor would also be unable to use the course materials to create derivative works based on their content. Demanding that faculty sign over their course copyright is effectively a land-grab of the intellectual property and the academic reputation of the instructor.

In comparison, at first sight, joint ownership of copyright seems like a sensible compromise. It offers the instructor and the university the right to commercially exploit the course so long as they both share equally in the proceeds. Yet the instructor would still effectively lose control of the course and its materials. The university would still be able to offer the course in its original form for as long as it likes or in any number of derivative versions, without consultation or approval by the instructor. Thus the faculty individual would not be able to stop the university from offering a course she considers egregiously outdated or from offering dumbed-down versions of her lectures. As co-owner, however, the university would not be able to enter into an exclusive license agreement with a third party since such an agreement would harm the ability of the other joint owner to use or license the work.

When universities sign contracts with online platform companies, they have university lawyers to look out for their interest. Yet when faculty are recruited by their own universities to participate in these online initiatives, they seldom have access to the legal advice that could inform them of what they may be signing away. This is a problem for faculty who want to teach online courses. But it is also a problem for faculty who will never teach an online course.

At stake here is the erosion of the rights of faculty and their expert responsibility to guarantee the quality of education. When a university or online company claims full or joint ownership of a course because of its technological contribution to it, faculty lose the ability to maintain standards of excellence in their own courses. So does the university lose its ability to assure instructional quality, a standard of excellence that is founded on the reputation of its faculty and can only be partly enforced by course approval committees because these are generally not in a position to judge the expert content of a course. In embracing online education, universities run the risk of reducing their faculty to mere “content providers” whose value is considered secondary to—and less worthy of investment than—the technological platform. The university then is selling reputation detached from content, and the quality cannot be guaranteed.

Ironically, the result of the increased digital delivery of American higher education could well be a more static, less dynamic model of knowledge transmission—particularly when online courses are seen as a source of revenue savings by cash-strapped campuses. In a world where faculty may no longer own the intellectual content of our courses, university teaching is being modeled after textbook publishing, and less and less tied to the cutting-edge research that continually transforms what we know and how we teach our classes.

Last fall Rutgers faculty voted to block new online programs the university contracted with Pearson that would require faculty to license the university to have their courses taught in the future by others. Faculty at the University of Virginia, the University of Michigan, and Duke have also rebelled against Coursera contracts that incentivize their universities to claim ownership of faculty-created content. Faculty bodies at more universities should closely scrutinize the deals their administrations are making and the kinds of instructor agreements they’ll be seeking. Meanwhile, individual faculty who consider teaching online classes should at least make sure that they are not signing contracts injurious to themselves and, by extension, to us all.

Colleen Lye and James Vernon, co-chairs of the Faculty Association at the University of California at Berkeley.

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