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U of M Faculty Consultative Committee statement on academic freedom

May 19, 2011

Following several news and blog accounts of recent discussions in University of Minnesota Faculty Senate committees, Professors Kathryn VandenBosch and Christopher Cramer, the chair and vice chair of the University of Minnesota’s Faculty Consultative Committee (FCC), the elected executive committee of the Faculty Senate, provided the following statement:

"We believe that some recent news accounts and blogs have inaccurately characterized discussions of academic freedom issues by the University of Minnesota’s Faculty Consultative Committee and Academic Freedom and Tenure Committee. We issue this statement to clarify the record.

"First, it was the FCC, not the University administration, that decided to pursue this discussion. Shortly after the February 7 written statements on the Markinson matter by General Counsel Mark Rotenberg and Regents' Chair Clyde Allen, the Secretary to the Faculty (Gary Engstrand) had an informal and impromptu conversation with General Counsel Rotenberg (a chance meeting walking across the Mall) in which Mr. Rotenberg said it had occurred to him that there were a number of general questions about the issues raised by the Markinson matter that might be of interest to the faculty. Dr. Engstrand mentioned the conversation to us and we agreed it would be useful to consider the broader implications. At our request, Dr. Engstrand asked Mr. Rotenberg to help us begin the conversation by articulating the issues he thought we might address. We thought that could be useful and later received the questions from Mr. Rotenberg. In his message conveying the questions, Mr. Rotenberg wrote that "While I'm not necessarily qualified to address them, here are some broad questions that the committee [FCC] may wish to address, or recommend for a broader discussion within the faculty community."

"Second, portrayals of this discussion as an effort to ‘muzzle’ or ‘silence’ a faculty member who is raising questions are simply wrong. The Faculty Senate, its committees, Mr. Rotenberg, and the University administration have been unwavering in their defense of academic freedom, even or even especially with respect to controversial or uncomfortable statements or events. The minutes of the committee meetings at issue demonstrate just that. Not only was there no intent on the part of any of the discussants to stifle criticisms of the kind made in connection with the Markinson matter, the committee members and members of the administration who spoke explicitly defended the right of the critics to speak out in the manner they did. At no point did any of the committee discussions suggest that any faculty member's right to criticize be constrained. Nor has Mr. Rotenberg, in any written or oral communications with us or the Academic Freedom and Tenure Committee, made any such suggestion.

"Third, the question from Mr. Rotenberg that has generated the most attention, "What is the faculty's collective role in addressing factually incorrect attacks on particular U faculty research activities?” was not intended nor was it used by either the FCC or the Academic Freedom and Tenure Committee to reinvestigate the correctness or incorrectness of the particular claims at issue in the Markinson matter. Others with appropriate background and training and who were charged with that responsibility have done so on several occasions. We have instead focused on broader questions: What responsibility, if any, do faculty members have, individually or collectively, to speak out when one of their colleagues continues to be criticized, even though the faculty member being criticized has been exonerated of misconduct by all of the available internal and external bodies constituted to render such judgments? Is it appropriate for faculty members, individually or collectively, to counter those who are delivering the criticism of their colleague? No one has yet reached any conclusion on those questions. Mr. Rotenberg's question was not focused on the bioethicists' statements, either directly (no one's name or publication was mentioned) or indirectly. Rather, his question was intended, and was treated as, raising a general concern—what should be done if attacks seen by others as factually incorrect were made on faculty research activities. It is inaccurate to characterize the question, or the ensuing discussion, as designed to elicit discussion or determinations of a particular matter or to stifle the criticisms themselves. Questions such as those discussed are entirely appropriate for governance committees to consider. Indeed, the suggestion that these questions should not be raised or discussed by faculty bodies is itself an attempt to constrict the faculty’s free exchange of ideas that is a hallmark of our university.

"Fourth, those in the media and elsewhere who are interested in the University's stance on academic freedom should be aware of actions undertaken at the University to expand the protections of academic freedom in especially relevant ways. The U.S. Supreme Court, in Garcetti v. Ceballos (2006), held that public employees who criticized the actions of their employer may be sanctioned or terminated. Although the court opinion said explicitly it did not rule whether the opinion applied to faculty members at public colleges and universities, there has been widespread concern that it might, and subsequent lower court decisions have confirmed that risk. Immediately after the Garcetti decision, the Academic Freedom and Tenure Committee took note of the case and, with the strong endorsement of Mr. Rotenberg, Provost Sullivan, and President Bruininks, recommended to the University's Board of Regents that it modify its Academic Freedom and Responsibility policy to explicitly include the freedom "to speak or write, without institutional discipline or restraint, on matters of public concern as well as on matters related to professional duties and the functioning of the University." The Board of Regents approved the change unanimously June 12, 2009. The current policy can be viewed here: http://www1.umn.edu/regents/policies/academic/Academic_Freedom.pdf. The national office of the American Association of University Professors and the Director of the Thomas Jefferson Center for the Protection of Free Expression wrote a joint letter to the Regents congratulating the University on making this change—one of the first institutions to respond to the potential danger posed by the Garcetti case. This policy change means that the University stands behind the right of individual faculty members to criticize institutional practices and decisions without fear that their academic freedom will fail to cover such activities.

"In conclusion, we are dismayed and disappointed that some of our colleagues have interpreted our discussions as an attack on academic freedom. We on FCC and our colleagues on Academic Freedom and Tenure are among the last people at the University who would be quiet about, much less advocate, a restriction on the academic freedom of any member of the University community. On the basis of our interactions with Mr. Rotenberg, and our understanding of the discussions that the Academic Freedom and Tenure Committee has had, we firmly believe that there was no explicit or unspoken intention on the part of anyone involved in these events to introduce novel restrictions on academic freedom. Nor, under our watch, will any such efforts be undertaken."

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