Academic Freedom and Free Speech at Eastern Illinois University
By Leo Welch
On November 19, 2003 the state officials and Employees Ethics Act went into effect. This act was pushed by former Illinois governor Rod Blagojevich, who now awaits trial on ethics violations and other charges. Like many acts that have passed, there were many unfortunate consequences of this Act. One such impact of this law is that all state employees are required to undergo annual ethics training under the auspices of the Office of Executive Inspector General. The major item required was to take and pass a test on “ethical” behavior.
Those individuals required to take the test included anyone that was considered a state employee. This became somewhat of a logistic nightmare in higher education to round-up employees to ensure that they took and passed the test. This unfunded mandate resulted in the twelve public universities and forty-eight community college spending thousands of dollars and many hours away from other duties to take this simplistic test.
The frustration over the test requirement, especially by faculty, resulted in a lawsuit filed by Marvin Zeaman, president of the faculty union at Southern Illinois University in Carbondale, and Walter Wallis, also of SIUC. The suit was filed against James Wright, Inspector General, and the Executive Ethics Commission. There were 159 SIUC employees deemed to be in non-compliance because they took the test too fast, even though there were no published information regarding the time required to take the test. The state could have imposed discipline up to and including termination of employment for failing to meet test requirements.
There is also another major component of the Act that also raises concerns more serious than taking the “ethics” test. This section of the Act is “prohibited political activity” which includes a significant number of “thou shall not” items. Item (1) states that an employee may not be involved in:
“Preparing for, organizing, or participating in any political meeting, political rally, political demonstration, or other political event.”
This component came to a head in 2004 during the presidential election campaign. At the University of Illinois, Urbana-Champaign it was announced that prohibited political activities would be enforced including a ban on employees attending political rallies and a ban on bumper stickers that were politically partisan in nature. No motor vehicles would be allowed to use university parking if these types of bumper stickers were displayed.
The uproar that followed gained not only widespread coverage in the media, but apparently got the attention of some legislators as to the impact of the ethics act on political discourse.
The action of the administration at the University of Illinois and faculty and staff protests led to two public acts signed into law in 2009 that blunt certain aspects of prohibited political activity.
Public Act 96-0147
Synopsis as Introduced
Amends various Acts relating to the governance of public universities and community colleges in Illinois. Provides that a university or community college may not prohibit any faculty or staff member from (i) displaying political buttons, stickers, or patches while on university or community college property, provided that such display by any member of the faculty in an instructional setting is for a purpose relevant to the subject of instruction; (ii) attending a partisan political rally, provided that the employee is not on duty; or (iii) displaying a partisan bumper sticker on his or her motor vehicle. Effective immediately.
Public Act 96-0148
Synopsis As Introduced
Amends various Acts relating to the governance of public universities and community colleges in Illinois. Provides that all faculty and staff members of a university or community college are free to communicate their views on any matter of private or public concern to any member of the legislative, executive, or judicial branch of government, State or federal, without notice to or prior approval of the university or community college, so long as they do not represent that they are speaking for or on behalf of the university or community college. Effective immediately.
Although the two public acts overturn some of the prohibited political activities many other troubling components of the “ethics act” remain.
Another blow to speech rights to higher education faculty and staff came when the U.S. Supreme Court narrowed First Amendment protection for public employees. In Garcetti v. Ceballos, 126 S. Ct. 1951 (2006) the Supreme Court ruled that a public employee invoking First Amendment rights must now establish not only that the speech pertained to a matter of public concern, but it was not made pursuant to official duties. If the statement was made pursuant to the employee’s official duties, then the speech is not entitled to constitutional protection and the government employer prevails.
The Court did make a statement on the impact of the decision on the principles of academic freedom. Even though the Supreme Court provided a cautionary note “not decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”
However lower courts have issued decisions based on Garcetti that narrow the scope of public employees' free speech. The end result is that when public employees make statements that are “pursuant to their official duties” their employers can discipline them even if their speech also deals with matters of concern to the public at large.
As Chairman of the Eastern Illinois Board of Trustees Policy and Regulations Committee, I decided to try to incorporate language of Illinois Public Act 96-0147 and Public Act 96-0148 into the Eastern Illinois Board of Trustees Governing Policies. I submitted the language to the General Counsel of the University, Robert Miller.
He advised that the new language be amended to the Academic Freedom and Responsibility policy that currently existed.
That recommendation was followed, and the First Reading of the amendment, were formally presented at the regular meeting of the Board of Trustees on November 20, 2009. The Second Reading and potential adoption would take place at the next meeting of the Board of Trustees on January 22, 2010. During discussion after the First Reading was presented Trustee Robert Webb spoke in opposition of the proposed amendment. One of his objections was that since the amendments already existed as law there was no necessity to amend the current policy. He also believed academic freedom existed only as speech related to a professional discipline in the classroom and publication.
After the board meeting I presented the amendments to John Allison, President of the local chapter of the University Professionals of Illinois, affiliated with the American Federation of Teachers, and John Pommier, Chair of the Faculty Senate. I asked for their review and comment prior to the next board meeting.
In early January of 2010, an invitation was sent by John Pommier to Robert Webb and I to appear at a Faculty Senate meeting to be held on January 12, 2010. The amendment to the academic freedom statement was to be on the agenda as an action item.
I accepted the invitation and planned on attending. I was later informed that Robert Webb had submitted his objections to the amendment and John Pommier invited me to send written rationale for the inclusions of the amendment. On the same day of the meeting, I was further informed that I would not be invited to personally attend the meeting. I complied.
After requesting the results of any action by the Faculty Senate, I received a copy of the memo sent to the President of Eastern Illinois University, William Perry, dated January 14, 2010.
The memo stated that a motion to not support the amendment was recorded (12-0-2) by the Faculty Senate. The stated rationale was “there are many laws that pertain to Eastern Illinois University, though it would be impractical to include them all in the Board Governing Policy.”
At the January 22, 2010 Board of Trustees meeting I presented the amendment to the Academic Freedom and Responsibility policy. John Allison, President of the University Professionals of Illinois, asked to be recognized and gave, what I consider, an outstanding statement of support for the amendment as well as indicating that the Executive Committee of the UPI supported the amendment. The only board member opposed to the amendment was Robert Webb and he again reiterated his argument opposing any expansion of his definition of academic freedom.
The board voted 5-1 in favor of the amendment. One trustee was absent.
After publication of this amendment it is hoped that other boards in public universities and community colleges may act in a similar fashion. It is also a distinct possibility that this amendment language will find its way into collective bargaining agreements.