Abstract: This paper presents a warning related to academic labor issues, academic freedom, and free speech that explains why we need unions, lawyers, the desire to stand up for our rights, and the will to support those who are standing up for their rights.
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas–that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. (from Justice Holms’ dissenting opinion to Abrams v. United States 1919)
Introduction
This essay explores two events, the questioning by faculty of dual credit policies and an administratively engineered disciplinary action that functioned to have a chilling effect on free speech and quell academic freedom. The dual credit story comes in the form of a narrative essay previously published as a Facebook note, a kind of blog entry. That embedded essay presents the tale of a colleague who advised for the College newspaper and myself, exercising our academic freedom to critically engage a community college administration’s violations of Illinois State dual credit laws. That essay also reveals an administrative response to our decision to contact the Higher Learning Commission (HLC) and the Illinois Community College Board (ICCB).
Spoiler alert—in the narrative essay draft published as a Facebook note, administrators summon me to a meeting. After attending the meeting, I drafted the essay, which was then posted to Facebook. The narrative is also used in the section immediately following this introduction (The Context: An Essay Posted on Facebook). That narrative essay draft was then used by human resources to initiate an investigation. Though revised overall, the specific content from the narrative that was used by human resource administrators is included as it was in the Facebook draft.
The resulting issues associated with the administrators’ investigation and how the investigation process and subsequent determinations functioned to chill free speech and quell academic freedom are then discussed within the sections that explain why I posted the essay (and other types of writing) and what happened after posting. As a whole, the essay you are now reading presents several realities: 1) in terms of the intersection of free speech and academic freedom, the First Amendment does not protect our liberty to critically engage our administrators because the it only protects against government intrusion; 2) human resource administrators have the power to chill our free speech rights and quell academic freedom by using relatively unregulated in-house consequences that do not cause economic harm; and 3) teacher-scholar-activists can still use call administrative impropriety into question, although we must be willing to be disciplined, endure emotional hardships, risk our jobs, and possibly pay for legal services.
The Context: A Revision of an Essay Draft Originally Posted on Facebook
One light illuminated the office, a soft-white bulb within the yellowed burlap-upholstered confines atop a standing lamp. Five of us had gathered. To my left and behind me stood our vice president of instruction and acting president, a former math teacher and colleague recently promoted from dean to vice president of instruction shortly after organizing with exuberance a school-wide painting spree that never reached completion. To my right and in front of me stood my academic dean—a former music teacher and practicing trumpet player then charged with overseeing the Department of Humanities, Languages, and Journalism. In front of him and sitting was my department chair, a long-bearded philosopher who dressed in handmade Civil War era work clothing and often spoke and wrote emails about his ongoing prescribed morphine use. To the left and just behind the vice president’s empty chair sat my union president... for obvious reasons.
The events leading to the meeting started four months earlier. A colleague, the advisor for the school paper, told me student reporters discovered the administration was not following the Illinois (110 ILCS 27/) Dual Credit Quality Act. Student reporters doing a routine story on dual credit (high school classes taught most often by high school teachers counting as both high school and college credit), discovered inconsistent responses from administrators. Rather than shying away from the story, my colleague helped the reporters learn how to ask difficult questions. On one occasion, I remember seeing a student reporter and former marine marching out of the newspaper office and off toward the deans’ balcony, his glasses bandaged together with white tape, a notebook in his shirt pocket.
The administrators started refusing to comment on the topic, choosing instead to rely on an intermittent banter of half-truths and equivocations. My colleague then showed the reporters how to file FOIA requests, revealing the administration did not have documentation showing how State laws were being met. Claiming teachers’ right to privacy, the administration even refused to reveal educational credentials of dual credit teachers, who are required to have a master’s degree in the discipline or a master’s degree in a related field with 18 semester or 27 quarter hours of graduate-level study in the discipline.
Using campus email, my colleague, other faculty members, and I wrote letters to the academic community. Senate representatives responded with internal discussions culminating in interviews with my colleague and me about the program. We explained are analysis of the mismanagement and violations of State laws. Our faculty senate then met with administrators, including the vice president of instruction, who refused to answer when asked if the College was violating State law, sidestepping instead with a tearful claim that dual credit constituted ten percent of the enrollment. After the meetings, the vice president of instruction posted an announcement on the College website stating the administration had reached a limit in terms of free speech—the announcement removed sometime thereafter. After the interviews with administrators, our faculty senate voted to decline a motion to call for an end to the dual credit program and refused as a collective to investigate administrative impropriety, the then faculty senate president telling me at one point the College’s lawyer could tell us if there were any violations of State law. Union leadership also refused to support our well-documented case.
Each escalation kept showing me how powerless faculty members were to call administrative impropriety into question and also how unwilling many faculty members were to critically engage administrators, but, when I began questioning myself, my colleague, the student newspaper advisor, pointed out the facts to me: our administration had created a dual credit program that violated State law. I kept pushing forward because I could not believe the administrators were able to violate State law with impunity.
My colleague and I collaboratively authored letters to the Higher Learning Commission (HLC) representatives and to the Illinois Community College Board (ICCB) members in charge of dual credit programs. The HLC responded with an email ceding authority to the ICCB. Not long after, the journalism advisor, another colleague, and I were offered a phone interview with ICCB representatives.
In order to give upper-level administrators an opportunity to prepare, I revealed to lower-level administrators that my colleagues and I would be chatting with the ICCB representatives. Three days before the interview, I received an email summoning me to a meeting—a rebuke the only response to a question about the meeting’s content. And so it was that I ended up in the dimly lit room surrounded by what my institution calls our “chain of command.”
After we were seated in the room, the vice president (not then technically the College’s president, although later promoted to the position) put the College’s counseling center pamphlet on her faux wood table. Fingertips resting on the glossy pamphlet as though it were an Ouija planchette, she slid it toward me, to a place just beyond my reach, saying in an icy tone, "Galen, we are deeply worried about your current emotional state. You are happy one moment and then sad the next."
I laughed. Really laughed. A deep, authentic belly laugh. This was the same person who knew about my book and article publications and who had asked me about developmental teaching strategies and methods of reducing costs and while increasing student success by focusing resources toward more effective forms of support. Prior to her promotion, the vice president and I had served on the union executive committee together. We had broken bread together. She knew and still knows I am a disciplined former marine who aspires to Patrick Sullivan’s ideal of the teacher-scholar-activist, a scholar who theorizes activism as a foundational aspect of my being a two-year college English teacher (331). I laughed because I wanted her to know that she did not have what it takes to intimidate me. The vice president paused and then said, "Oh, you laugh, but we are serious." She moved past me, leaving the glossy pamphlet just out of my reach, and sat down in a chair to my left and in front of where my union president silently hunched over a yellow legal pad.
A collective silence followed. From behind my department chair's seat, the dean, who would later serve as acting vice president of education, said, "I hear ya sing and dance in the classroom. Ya aren't doing that now, are ya?"
It's true: I sing and dance in my community college classrooms as a pedagogical tool. In order to communicate the idea that adverbial structures often move and can be identified because of that characteristic, I do what I call the adverb dance. The strategy promotes students understanding of grammar, not as an area of study, but rather, as a set of “grammatical categories which most effectively aid in the improvement of style” (Noguchi 18). And students learn to sing traditional Nez Perce Indian songs in my humanities classes, songs the chair of my department described in an email correspondence as “caterwauling” after being asked why he had pounded on the walls of my classroom while students were singing. As a former marine, I knew that when you’re called on the carpet, you keep your emotions in control, and you speak the truth. So I just looked at him and chose to ignore his taunting.
Then arrived my chair's turn. With the voice of a sickly man barely able to force a whisper, he said my psychological condition was deeply troubling to him. I asked if he realized that his philosophy degree hardly put him in a position to hand out a psychiatric diagnosis. Again, a hush fell across the dimly lit room. My chair scratched at the cheek somewhat hidden under his pure white, belly-length beard. The vice president commented on something I have since forgotten.
Another silence followed, and then the chair asked what degree I held. I said I had a master’s degree in rhetoric and composition theory. He asked how that degree made me any more qualified than he to diagnose my own psychological condition. I scoffed, saying, "The voices in my head tell me I'm just fine." (Just to make it clear, I don’t hear voices in my head beyond the kind of inner voice, the echo of our own vocalizations many hear while reading or thinking.)
I don’t recommend saying something similar in such a situation. Every time I tell a lawyer what I said, the lawyer chastises me and then sternly informs me I should never have said such a thing. Fortunately, none of the administrators governing the inquisition process knew enough to utilize my indiscretion.
My union president said nothing—not a single word the entire time between greetings and leave-taking. She just kept looking down and taking notes. After the meeting, she scolded me, saying my approach to questioning the administration about its lack of adherence to State law was the same strategy used by Tea Party leaders in response to Obama administration proposals. I let her comment pass, knowing she did not fathom the critical theory motivating my engagement with authority.
After the taunting ceased, the vice president got to the point: “So is it true that you are going to have a phone conversation with ICCB representatives?” I confirmed I would. She wanted to know with whom, specifically. She quizzed me on a few of her other concerns about the phone conference and informed me that I was not allowed to represent the college in any way. I remember smiling and nodding as she lectured. When she paused, I invited her to participate in the conference. At first she agreed, but then, a couple of minutes later, said the notification did not provide her enough time to prepare.
Silence again smothered the darkened room. "Is that all? Are we done now?" I asked. Soon after, the meeting was dismissed.
That was near the end of the spring semester 2014. By that summer, an online class I taught was taken away without notification; the chair told me in an email that if I continued to question the loss of that class, he would take away other classes to keep me from “burnout.” My colleague and student newspaper advisor retired that semester, and the president of the College Board of Trustees, perhaps in violation of (110 ILCS 13/) the College Campus Press Act[i], denied emeritus status, claiming my colleague had acted inappropriately as advisor to the newspaper and, therefore, should not be awarded emeritus status. The next fall, students in my basic writing class were given a departmental barrier examination, formally called The College English Department Exit Examination, in the fourth week of an eight-week session, an examination normally completed in the sixth and seventh weeks. I let the chair and assistant chair know I would not support that sort of high-stakes, high-stress practice. The assistant chair scheduled the next barrier examination for the eight-week class at the start of the third week.
This I Believed: Contemplating Beliefs about Free Speech and Academic Freedom
The experience, as noted in the introduction, led to my drafting a version of the narrative you have just read (above) and posting it as a Facebook note. Cut from that original posting was an analysis of the experience covering topics such as the rhetoric of Mien Kampf and Gobbles' Reichspropagandaleitung in relation to my administrators’ rhetorical patterns, campus-based forms of propaganda, the role of apathy in the rise of administrative authoritarian practice, and labor issues. That material was all part of my drafting process and figuring out how my administrators could justify that kind of meeting strategy. It seemed obvious I was experiencing a kind of authoritarianism, and I initially believed the answer resided in a kind of a reemerging authoritarianism, an authoritarianism reminiscent of Hitler’s fascism or in what Umberto Eco refers to as ur-facism in the 1995 article “Ur-Facism.”
Eventually, I removed that analysis for two reasons. First, of Eco’s fourteen characteristics of fascism, there were really only three clearly be connected to my experiences: the idea that what happened to me was rooted in irrationalism, a distrust of intellectualism, and a belief that questioning authority or the status quo is an act of treason. Though Eco allows for variance in the characteristics, I abandoned the idea that what I experienced was connected to a rising form of fascism because there was not enough similarity.
Secondly, I had just completed Sharon Crowley’s Toward a Civil Discourse: Rhetoric and Fundamentalism and was reminded of a passage from “The Rhetoric of Hitler’s “Battle’” in which Kenneth Burke writes, “the patterns of Hitler’s thought are a bastardized or caricatured version of religious thought” (199). Burke’s analysis of Hitler’s rhetoric and the subsequent realization that the three characteristics of Ur-fascism from Eco’s list fit well within Sharon Crowley’s discussion of the ethics of apocalyptism facilitated my shifting away from the perception that the authoritarianism I experienced was a kind of fascism and shifting toward the perception that the administrator’s in that office were more motivated by a kind of religious zealotry.
Crowley attributes the following characteristics (which I frame in secular terms, substituting “administrators” where Crowley refers to “fundamentalist Christians” or “apocalyptic”) to the apocalyptic ethos: an administrative belief system that offers little space for invention and no space for argument; an administrative offering of proscriptive truth attributed to an undefined authority that, when that truth is more closely examined, reveals itself to be a reactionary, divisive, antidemocratic mythology supportive of those in charge and their agenda; an administrative praxis that is antithetical to its foundational theoretical ideals[i] and that is, therefore, exclusionary and supportive of hierarchical dichotomies that favor those supporting administrative objectives over those who don’t; and the belief that those who are not supportive of administrative objectives are, in fact, enemies (130-32). Administrators of this ilk are authoritarians who are narrow, puritanical, and intolerant (141). In the system such authoritarian administrators hold dominion over, facts and reason cannot trump values reinforced by those who understand and agree with administrators’ desires (91). Crowley argues that a version of apocalyptism has had political and ideological success and now opposes liberalism’s hegemonic status within the American political spectrum (5). Her argument moved me to perceive the possibility that my administrators were more likely affected by the ethos of the apocalyptic right. Accordingly, I later chose to cut aspects of the analysis following the narrative draft published on Facebook (which I used to in this essay).
The main point here is I believed I had the liberty to draft to write, revise, and publish in public or in private. Yes, there are aspects of the essay I might have opted to omit, including the commentary on my chair’s drug addiction. But there is nothing illegal within the content. I had been thinking about my experiences by writing about my experiences. Scholars in my writing network made comments on my drafts, and, based on those comments, I revised aspects of the essay, including sentence-level errors, clarity issues, thesis issues, organizational issues, and conceptual issues. I believed I could do that on a social media website or in a blog or on a public list. In shaping my understanding of actual experience, I had nothing to hide, beyond the personal embarrassment of knowing my drafting process remains shamefully sloppy; regardless, I believed (and still believe) that the transparency of my writing process added credibility to the scholarship. That is, I am a developing writer. I’ve never been afraid of revealing my process, especially in terms of publicly presenting and revising ideas in order to promote the development of my versatility as a writer and thinker. I believed I could reveal my thoughts publically.
I am not a lawyer. I am an English professor who works at a community college. As a writer, I aspire in my local context and nationally to be a kind of public intellectual and activist. Studying the work of Henry Giroux, Peter McLaren, Ira Shor, and Jonathan Kozol inspires and humbles me. I also enjoy reading about free speech and law. As hinted at in the introduction, spending time in the substantive rights section of Constitutional Law Cases and Other Problems by Freund, Sutherland, Howe, and Brown introduced me to the writing of Justice Holms and also the words of his colleague, Justice Brandeis, who authored the following contemplation on free speech and the right to assembly in his concurring opinion for Whitney v. California (1927):
[Those who won our independence] valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protections against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. (1141-2)
Those ideas represent well the ideological framework I had when posting my narrative essay, poems, and other works to Facebook. Brandeis’ ideas also explain my motivation for writing in a general sense. As an English teacher, reading such beautifully penned and inspiring material afflicted me with the desire to communicate similar ideas and to engage in public discussion as a kind of political or civic duty. I am no great Shakes, no Justice Holmes or Brandeis, but I do what I can with what I have and strive daily to increase my versatility. As an academic and aspiring literary artist, writing is part of an epistemological-ontological-creative process: I essay to be aware and to affirm my being. I posted work on Facebook as an aspiring essayist who believed I could collaboratively draft and publish most wherever and about almost whatever, as long as my writing did not pose, as per Justice Holmes’ test, “a clear and present danger” that would be, as Justice Brandeis describes the condition, “so substantial as to justify stringent restriction interposed by the legislature” or some other form of authority (Fruend et al. 1143, 1132).
Studying free speech and academic freedom led me to sources like the American Association of University Professors (AAUP) and the National Labor Relations Board (NLRB) websites. I was aware of the online AAUP article “Academic Freedom and the First Amendment” by Rachel Levinson as it related to my expressions about institutional matters and the subsequent need for caution since, up to 2007, Supreme Court decisions had made it unclear how much freedom faculty members had and under what circumstances. Two concepts from those websites influenced me: 1) Levinson’s AAUP article prompted me to believe the issue of an administration’s violating State law would be within the range of public concern; 2) the issue of administrators subjecting a faculty member to allegations of mental instability and moving colleagues to understand and act on the administration’s violation of State law seemed well within the range of my NLRB employee right “to induce group action” (“Employee Rights”).
There were additional sources supporting my belief that I would be protected in the act of “speaking on behalf of [myself] and other employees about their terms and conditions of employment,” specifically the NLRB article “Datwyler Rubber and Plastics, Inc.” offered a case where an employer fired an employee for speaking in her workplace on behalf of herself and other employees about their terms and conditions of employment. The employee in that case had even called her boss “the devil.” The court decided in her favor. Moreover, as David Moshman expresses the idea in “Untangling Intricacies of Academic Freedom: An Interview between ReLeah Lent (an editor with whom I had worked) and David Moshman,” the ideas I was presenting were, again, public statements on matters of public interest (27). Specifically, in posting the narrative essay draft as a Facebook note, I believed I was protected because I had specific references to workplace issues, and the draft was part of an ongoing discussion in my posts related to the need for unions in academic contexts (“Regional News…”).
In terms of social media, I recognized that the NLRB had two specific points:
1) Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
2) An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.
My College employer had no detailed policies prohibiting me from posting my opinions. Certainly, I did not believe I was griping (expressing my outrage, yes, but not griping). I put far too much time into the drafts I posted for them to be simple gripes. Even my short satirical updates were drafted and edited and crafted and served as the kernel of future research and writing. Take the following for example, which was written in response to the assistant chair’s decision to administer the exit examination in the third week of an eight-week class (mentioned earlier):
"Hello, I inherited a writing assessment process. No, reliability and validity are not terms I care to understand. Mina P. Who-gassy? Look, I don't care who wrote whatever about assessment. Nor do I care how assessment is implemented in contexts other than my own. In fact, I am going to make changes to the assessment process, and I won't tell you what I have decided to do until after you start teaching the class. No, I don't care how that affects your scheduling. In fact, I have no problem making changes, even after the semester starts because... well, 'we' agreed that was how it would be. Ummm... no... testing students with an exit examination in the third week of an eight-week class is not something I should notice or think about prior implementing changes to the testing process. The reason that happened, the real problem, is that you did not remind me to think about how placing an exit examination in the third week of an eight-week class would influence the students in the class, even though you did complain about testing the same students in the fourth week of another eight-week class. Oh, and I am so sorry that I forgot to add your students' names to the list of students who do retakes of the test. And don't forget, your students' failure on this test will be monitored and then used as an indicator of your teaching ability, but only if 'we' decide to do that."
It seemed certain at the time that satire like the one I wrote would be protected by the First Amendment. After all, if Hustler could publish an emotionally traumatizing parody of the Reverend Jerry Falwell having a drunken sexual encounter with his mother while in an outhouse, how could a satire representing an unnamed writing program administrator and composed of factual experiences demonstrating outrageous levels of professional incompetence somehow be a punishable offense? Certainly, it was not slander or defamation of character because it was the truth, even though the content seemed so farfetched as to be the antithesis of best practices in the field. I believed that kind of satire would be within First Amendment protection.
Moreover, the topic (assessment and writing program administration) of the satire led to additional research as well. Over the course of the 2015-16 academic year, for example, I did a series of classroom-based assessments investigating how students were affected by the departmental high-stakes barrier examination mentioned in the satire after reading three texts: Race and Writing assessment (Inoue and Poe), Very Like a Whale (White, Elliot, and Peckham), and The Legal and the Local: Using Disparate Impact Analysis to Understand the Consequences of Writing Assessment (Poe, Elliot, Cogan, and Nurudeen). The assessments revealed that of the 95 basic writing students determined to be “fails” as a result of the departmental barrier examination, 77 percent were minority or multilingual minority students. That information indicated a high likelihood of disparate consequences in addition survey results showed that students experienced above normal levels of anxiety associated with the high-stakes barrier examination and adamantly disagreed with the process. The research facilitated my working with a knowledgeable and sympathetic dean who cut funding (over two years) to the exit examination process and formally made it so the exit examination administrator and the exit examination committee members could no longer override faculty evaluations (grades based on faculty assessment processes). I’ll spend a little more time with this topic later. For now, the point is I did not believe my posts constituted griping.
I was ideologically committed to the idea, as expressed in the words of Justice Brandeis, that, as an American citizen and American scholar and American essayist, I could reveal the truth of my experiences. In both the essay about my experience in the darkened room and in my satire, I used the truth to critically engage professionalism as a significant work-related issue and was presenting a kind of public document that anybody could comment on. What I was doing was far from the rhetoric of “I hate my boss! He’s an asshole!” I believed I was engaging in a reasoned and clearly expressed critique of my work environment that was founded on truth and that opened the space for a kind of Burkean Parlor and additional research. Simply put, I believed what I was doing could not be characterized as griping.
I also believed I had a kind of journalistic liberty in that the material I was drafting could be confirmed by emails covered within the public records section of the Illinois Freedom of Information Act (5 ILCS 140/2). Since the material I was authoring on Facebook often had direct connections to the journalistic endeavors of my colleague and the student newspaper and, since a FOIA request could, for example, allow me access to all the email correspondences with my department chair, I thought my blog and Facebook notes could be used as types of journalistic publication after considering the 2nd U.S. Circuit Court of Appeals determination, which held that that First Amendment protections extend to “every sort of publication which affords a vehicle of information and opinion.”
Additionally, my ideological free speech perceptions had a history, a past precedence if you will. First, for years on my college’s email, I had been writing the kinds of posts and notes I’m describing. The majority of administrators where I worked had read my campus-based writing and were on my “friends” list. both places where I had critiqued administrative decisions many times and quite adamantly. None of the administrators ever complained or told me I was misrepresenting the events of which I wrote.
Within my profession, I had been doing the same kind of writing for years, starting with the graduate student email forum at Washington State University in the mid-90s and then NCTE-Talk back in 2000. We had heated debates on the graduate student email list. On NCTE-Talk, wonderfully knowledgeable scholars and editors and peers read my posts and journal entries about the place where I was working at the time, made comments, argued against or in support of my reasoning. Those dialogic interactions led to drafts that preceded my authoring chapters in books and journal articles (see Silent No More: Voices of Courage in American Schools and Becoming and Being a Teacher). In fact, prior to publishing in Silent No More: Voices of Courage in American Schools, I had contacted a lawyer in Moscow, Idaho (a town not too far from where I had been teaching) whose only question was, “Did you sign a contract that prohibited your writing about your workplace?” I looked at the contract. There was nothing in the contract that forbade my writing about the place. I called the lawyer again, and he told me that, since there was nothing in the contract, I had the liberty to write about the school where I had been working. Accordingly, I believed, based on past practice, professional acceptance, and the fact that nothing in my community college contract or the faculty handbook prohibited me from writing about my academic context, that writing openly and honestly on social media about my workplace experiences in post-secondary education was allowable.
Finally, the experiences of which I wrote facilitated the development of my academic focus, which is looking at contextually specific or micro realities in order to get at or open the space for discussions about issues associated with national and/or global sociopolitical realities, just as I am attempting to do with this essay. While penning the narrative essay, I believed, as I do now in the authoring of the essay at hand, that I was exercising my academic-journalistic-civic freedom to publicly draft an essay that ethnographically reported on the administrative authoritarianism in my teaching context and then analyzed my experiences as aspects of a rising authoritarianism in American educational contexts that somewhat matches the ethics of apocalyptism and is facilitated by a lack of protections for academic labor in addition to laws that function to encourage autocratic domination. In short, I believed my drafts could be revised either online or in private or through a process involving both.
It did not dawn on me that I should have been fearful of publishing my ideas on social media sites or that I needed to pay a lawyer to review material I posted or published. I believed I had done enough research of the NLRB, the AAUP, and other sources to know the basics of employee rights. I knew there were no clear-cut decisions regarding exactly what I was doing, but the case examples seemed to support my beliefs. Specifically, I had signed no contracts stating I would not write about my educational context. I was telling the truth. I had never been warned through any kind of training or administrative guidelines or specific content in our faculty handbook or in the Union-College contract that posting on Facebook or writing about the people and practices in my workplace could result in disciplinary actions up to and including my termination. Basically, I believed I understood fairly well both academic freedom and my First Amendment rights.
This I believed until I received the letter from the College human resources department requiring me to go to the post office and sign a Domestic Certified Mail Receipt.
Chilling Speech and Quelling Freedom without Causing Harm
On November 20, 2014, somebody informed the human resources department that I had “disseminated confidential information in violation of College policies and procedures.” Specifically, I received a letter from human resources dated November 26th telling me the following:
It has been brought to the College’s attention that you have publicly disseminated confidential information in violation of College policies and procedures. Specifically, you posted information in violation of such policies and procedures on November 20, 2014 and November 23rd 2014. Each of those posts contain confidential information prohibited from disclosure. At this time, we request that you remove any and all confidential information on your public Facebook profile or anywhere else you may have inappropriately shared this information. Further, we request that you cease and desist from any further behavior in violation of the College’s policies or procedures, or any other applicable local, state or federal law. Please note that any failure on your part to remove the confidential information will be considered an ongoing violation which could result in discipline, up to and including termination. Should you have any questions or need further clarification, please contact Human Resources at 309-###-####.
No specific titles were provided then nor later when I met with the director of human resources. I was never shown or told what I posted that might have been a violation of confidentiality. In fact, I had more than twenty posts from those two days, including the two drafts (the narrative and the satire) used in this essay. At one point in the investigation, however, the third-party investigator hired by the administration on the recommendation of the AAEO officer asked if I had written about my chair’s morphine use. That question and the fact that the essay draft about the meeting that happened in the vice president’s office was posted on November 20th are the only clues I have as to what the confidential information I supposedly disseminated might have been.
In response to the letter, I chose to hide (appear to delete) all of my Facebook notes (drafts of essays, poems, editorials written for the local newspaper, everything) from November 20 and 23, change my user name, delete my place of work, and put my privacy settings on “friends only.” I then removed every “friend” from the Midwest region where I teach. While the investigation progressed, the AAEO officer orally commanded me to report any blogs I kept. I confessed to having one blog with around 600 entries and more than 15,000 views worldwide (a blog where I published what are essentially drafts of a book-length ethnography focused on alternative school education). The AAEO ordered me to take down any posts that might be perceived violations of privacy. I chose to take down the entire blog in order to avoid any possibility of violation, though none of those entries related to the college where I teach. I was worried that anything I wrote could be used to support my termination. I did not tell the AAEO officer or the investigator about past publications in College Quarterly and Teaching English in the Two-Year College in which I wrote about racism and my experiences at the college where I teach.
Here is what I did not know: at my community college, the human resources administrator or the AAEO officer or an outsourced representative becomes the decider in cases where a scholar’s writing is concerned. The academic charged with a violation associated with her/his writing can be subjected to an investigation in which only one administrative official is judge and jury. At my college, none of those (the AAEO officer, the human resources director, nor the outside investigator) determining my guilt or innocence had ever published or even worked in an academic context. The Union contract at my college allows for a kind of trial at the board level, but only after a human resources representative (and, therefore, the administration) decides to terminate an employee. Up to the point of being dismissed, however, a human resource representative has nearly unchecked authority to impose administrative will. Those who made the charges remain anonymous. The defendant does not have to be told what s/he did, nor does the burden of proof need to be fulfilled. That is, you are guilty because a human resources administrator tells you that you are guilty.
Two months later, I was convicted of violating the College Zero Tolerance Policy on Terror and Violence in the Workplace. Specifically, I was charged with being a perceived threat and obnoxious behavior directed towards authority… for reasons that could not be revealed to me. I was then banished from the floor of the building where my department holds meetings and the majority of my colleagues have their offices and sentenced to reeducation in the form of psychotherapy for an undisclosed behavior pattern in order to achieve undefined outcomes. When the psychotherapist contacted the AAEO officer to find out what I did and what behavior patterns needed to be changed, the psychotherapist was informed the information could not be disclosed beyond the notion that I had developed a change in behavior that needed to be modified. Another rule—had I refused to accept the disciplinary action, the administrators could have then legitimately subjected me to additional disciplinary actions up to and including firing (“What to Do…”).
At the disciplinary meeting, I asked how much the process cost taxpayers. The AAEO officer refused to reveal that information. Expenses aside, I still have no idea what I did. What I do know is that my publications were used to initiate the investigation and there were two faculty members who submitted complaints. I filed a grievance on the recommendation of several attorneys specializing in labor law. The grievance was denied by the president of the school, the same person who had summoned me to her darkened office when she was the vice president of education. As with Franz Kafka’s K., it appears the shame of it must outlive me (229).
The Unraveling of the Dual Credit Knot
In the fall of 2015, the community college was in two local newspapers for making changes to the dual credit program. Specifically, the administrators had discovered that teachers in the district did not actually have the required qualifications needed to teach dual credit classes. With no teachers available, a significant number of high school dual credit classes were tagged to be eliminated until the districts could find qualified teachers. The changes outraged secondary superintendents, parents, and other community members. College administrators eventually used distance learning broadcasts to appease community members. For no additional expense, high school students in dual credit classes were placed in front of TV monitors in order to be educated by teachers with the proper credentials.
There are other issues as well. According to the faculty member charged with direct supervision of one dual credit program, some high school students have not been paying for dual credit classes in the CNA program. At our school, high school students were paying forty-five dollars per dual credit course when the school paper investigated the program. That price increased. Regardless, the students who were not paying ended up getting a free ride as no money could be collected after the fact, nor could degrees be retracted. Were academic freedom honored at my college, I would be able to freely investigate and write about such issues on Facebook or in any other publication. No other colleagues are willing to critique the administration, not even the person who told me about the problem with the CNA program.
Ultimately, it is within reason to think that the College is still not in full compliance with State law. For example, neither the College nor the ICCB appear to be assessing dual credit courses and student learning at my college. Specifically, it appears likely that students taking dual credit classes are not being tracked administratively, though it is nearly impossible to know for sure as there is no real transparency.
There is a Japanese proverb: A single arrow is easily broken, but not ten in a bundle. In my context, there is no collective support for critical endeavors challenging the status quo. In order to determine if my suspicions are accurate, I would, on my own, have to send FOIA requests to both the College and the ICCB in order to acquire the information, and, even if I did find continuing violations of State law, nothing can be done legally because, as one lawyer informed me, I would have to prove harm, which is something a State employee can’t do (unless I could take up the case as a taxpayer or something like that). Additionally, writing critical works and publishing in venues easily accessible to those in my local context is out of the question: I would have to risk another go-around with administrators, and I am just not willing to do that because I do not feel safe as a single arrow.
Thoughts on Administrative Power, Labor Law, Free Speech, and Academic Freedom
The First Amendment has nothing to do with anything related to my being disciplined, regardless of the fact that my writing was used to initiate the investigation. Government and laws cannot be used to silence me, but, as an employee of the College, if I speak out, I can get fired. Based on my experience, it appears that employer law does not disallow community college administrators the legal means to enforce ideological zealotry within which a “…corrupt use of religious patterns comes to the fore” (Burke 201).
The administrative process operates on the condition of self-regulation. With no specific laws or guidelines in place, academic autocratic bosses can punish and intimidate faculty members who critically engage the administration, point out violations of State law, facilitate student journalists, and/or write about the educational environments within which they work. A community college human resources department and, hence, administration can start with an allegation associated with a publication (revealing personal information about my chair’s use of prescribed morphine) and then hire an outside investigator who has the liberty to fish for evidence. That is, a zero-tolerance policy composed of overly broad and nebulous descriptions of impropriety can be used to facilitate in-house disciplinary actions in which due-process protections are coopted to enforce Kafkaesque patterns of justice that function to chill the free exercise of speech and quell academic freedoms. The myth of the First Amendment is that we believe we have free speech.
The key—no harm was done. Specifically, the human resources branch of the administration did not cause my colleague or me pecuniary harm. The administrators likely could have fired me, but that would have caused harm. In a civil case providing relief for people who have been harmed because of wrongful acts, the plaintiff must show that the tortfeasor 1) was under a legal duty to act in a particular fashion, 2) breached that legal duty, and 3) created injury or loss by breaching the duty. I contacted six or so labor lawyers and a couple of First Amendment lawyers, none of whom would take the case. Usually, the problem for the lawyers was that no harm had been committed. Several helped me with the proper wording of terms needed to describe the administration’s not meeting the burden of proof, not allowing due-process, and in terms of the administration’s chilling of my First Amendment rights. One lawyer said that because I had commented on the chair’s prescribed drug use and had posted my essay drafts on Facebook that the case could not be defended. Others maintained I did have a case, one saying that for about 3,000 dollars she could get an injunction filed that would prevent the school from continuing to violate my First Amendment rights.
What I have learned is that I publish at my own risk, post to public media at my own risk, and blog at my own risk. I learned that human resource goons can and do creep my Facebook posts, my blogs, and my publications. I have also learned that, until the College administrators cause economic harm, by say firing me, and a lawyer subsequently accepts my case, I will never be able to afford to do what it takes to find out if my labor rights were violated. Administrators have virtually bottomless pockets when it comes to legal representation. They have no skin in the game because they can suck from the collective wealth of tax payers to defend antidemocratic labor practices that limit academic freedom and quell free speech.
I gave up calling legal representatives in the spring of 2015. The final straw came in the form of a lawyer who charged around 600 dollars an hour who said he would chat with me if I paid for an hour of time, but I have a daughter studying astrophysics at Berkeley: I decided her needs outweighed my desire and economic ability to pursue the matter of my employee rights. I made the right decision: this semester (spring of 2016) the president of the College Board paid the school lawyer for studying Roberts’ Rules in order to find a rule that allowed the president to reject a motion to revisit the advisor for the College newspaper’s emeritus denial and have another discussion and vote on the matter. The attorney’s letter was a couple of pages long. I once paid a lawyer 200 dollars for a letter that was one short paragraph. Obviously, there is no way I could ever compete financially against community college administrators who have that kind access to public funds.
In Fish’s Versions of Academic Freedom, the author writes the following about academic freedom:
No one doubts that classroom teaching and research and scholarly publishing are activities where the freedom in question is to be accorded, at least to some extent. But what about the freedom to criticize one’s superiors; or the freedom to configure a course in ways not standard in the department; or the freedom to have a voice in the building of parking garages, or in the funding of athletic programs, or in the decision to erect a student center, or in the selection of a president, or in the awarding of honorary degrees, or in the inviting of outside speakers? Is academic freedom violated when faculty members have minimal input into, or are shut out entirely from, the consideration of these and other matters? (5)
The scope of this essay is not broad enough to allow me to answer all of Fish’s questions, but I have learned enough to address a couple. First, the answer to Fish’s question about having the academic freedom to criticize one’s superiors (whom I’ve never considered superior, though I’ve had respect for a few of them) can be answered by answering this question: what would academic life in my context be if I had to fear for my job because I wrote this essay? And the answer is that academic contexts would become places where administrators had a kind unquestioned autocratic authority and such institutions would all too easily become organizations more akin to the CIA or the FBI or Homeland Security… or, more accurately, public elementary and secondary educational contexts.
That is, colleges and universities could become places where administrators in league with boards of education would have greater liberty to do whatever they wanted whenever they wanted, including controlling curriculum and teaching strategies. Scholars would then be more like those public employees who have very little authority to question their superiors’ actions and who could be easily disciplined internally or subjected to more sever forms of discipline such as job termination, all facilitated by human resource administrators enforcing corporate-emulating, autocratic administrators and boards of education. As we saw with Daniel Ellsberg, William Sanjour, Frederic Whitehurst, Linda Tripp, Janet Howard, Tanya Ward Jordan, Joyce E. Megginson, Marsha Coleman-Adebayo, William Binney, J. Kirke Wiebe, Edward Loomis, Sibel Edmonds, Joseph Wilson, Richard Convertino, Joe Darby, Samuel Provance, Samuel Provance, Russ Tice, Thomas Andrews Drake, Michael DeKort, Robert J. McCarthy, Chelsea Manning, Edward Snowden, and countless other elementary and secondary educators, scholars who chose to challenge such administrators would be making life-altering decisions and possibly subjecting themselves to employment termination and lengthy litigation battles. And how many of us could afford such court costs? Perhaps we can see why some academic administrators and legislators might be tempted by the power accompanying laws functioning to reduce academic freedom and eliminate the façade of free speech.
Fish also asks about academic freedom as the right to configure a course in ways not standard in a department. And it is here that I want to return to the satire which was posted on Facebook and mentioned earlier in the essay, and to the idea of my departmental exit examination. As explored in my satire about the writing program administrator who had never read Errors and Expectations, who had no desire to read anything from composition or assessment theory, and who managed a high-stakes barrier examination process that labeled mostly (77 percent) minority and multilingual minority students as “fails,” scholars without the academic freedom and/or liberty to exercise free speech might be faced with having to submit to departmental dictates that directly oppose best practices offered by professional organizations such as those found in white papers authored by leading scholars affiliated with NCTE. Competent scholars without the academic freedom and full liberty of free speech rights necessary to critically engage sadistic and unprofessional departmental policies would be coerced into supporting, for example, the kind of linguistic prejudice (covert racism) evidenced in my department’s high-stakes testing practices.
Not having the liberty to critically engage departmental administrators and not having the professional freedom to diverge from status quo pedagogies seems rather frightening to me, especially since I have experienced the condition firsthand. It’s frightening to think that petty departmental administrators and “just a job” minded colleagues (whose myth-based perceptions of professionalism are all too often founded on isolated and anti-intellectual practices) at American colleges and universities could subjugate the knowledge and practice of a pedagogy founded on disciplined research and merit-based perceptions of academic success. That is, the answer to Fish’s question about academic freedom as the right to configure a course in ways not standard in the department is this: people running around with their underwear on the outside of their pants ought not to have the power to force everybody else to follow in the same fashion
Conclusions
The reasons I have penned this essay are twofold. First, it’s a warning related to academic labor issues, academic freedom, and free speech, all of which are unified and necessary in the practice of teaching. The administrative aggression at my school is but an echo of what’s happening nationally: if administrators at a small college in Illinois can do the things my administrators did to me and my colleague (in addition to other aggressions directed toward additional faculty members), then administrators all over the country can do such things to academics who question policies, who question administrative actions, who question compliance with State law, or who have the audacity to write essays or voice opinions about workplace-related issues on Facebook or in blogs or in any other publication. As faculty members, my colleague and I had no idea there were laws (or the lack of legal protections) allowing community college administrators the power to quell what Justice Holms in his dissenting opinion in Abrams v. United States refers to as the “free trade in ideas” (Fruend 1134).
Second, I want to convey the idea that we need unions and lawyers a legal awareness and the desire to stand up for our rights as well as the will to support those who are standing up for their rights. Within the corporate-styled education now imposed upon us, community college English instructors and university professors alike need to understand labor law in addition to First Amendment law and laws associated with academic freedom. Part of developing such awareness comes with paying attention to the AAUP and similar organizations such as the Foundation for Individual Rights in Education (FIRE). Beyond that, what has become all too apparent to me is that individual scholars need to lawyer up as well, especially if they are teacher-scholar-activists willing to challenge the status quo. Finally, our professional teaching organizations need to lobby state and federal law makers, for that is like where the only truly protective changes can be made.
Like all American workers who value civil rights, I have no overt quest to lose my position, no desire of returning to the poverty my pursuit of education allowed me to escape, no desire to rob my children and my wife of the health benefits won by past unionists and civil rights leaders who put their lives on the line while resisting domination. Those activists, like others who fought the power of legislated interference in all its myriad forms, had to face autocratic domination in their communities and in the courts: they worked hard, by stuck together, and fought for their rights. We owe a great debt to those past unionists and civil rights leaders, and, consequently, a compelling moral obligation exists: we owe it to those past activists to keep up the fight so future generations of academics and other laborers will have healthy working conditions and enjoy their civil liberties and be able to speak truth to power or, as Milton wrote, “argue freely according to conscience.”
I still don’t fully understand what happened to me and my colleague. What I know is that I survived the Kafkaesque trial process and am still teaching at the school. I’ve learned that in the modern corporate-styled education from which trickles down the ideological consequences of Fish’s “it’s just a job” perception of academic freedom, I don’t really have the liberty of free speech or academic freedom beyond whatever I’m willing to fight for.
I am not afraid; however, I learned to think before I write or speak and to pick my battles carefully. I am just a single arrow when abandoned by my colleagues and the union, so I’ve learned to protect myself somewhat. As noted earlier, my Facebook page and blog are now under pseudonyms. I do still draft essays about my teaching ecology on Facebook and in my blog, and I share those drafts with scholars I much admire with the hope they will critically engage my ideas. But now, I do not include my place of employment on Facebook, nor do I permit people in the region or people who are friends with people who live where I teach to be Facebook “friends.”. Ultimately, what I have learned and what I hope this essay conveys is that community college and university administrative zealots actually do have the authoritarian power to chill our First Amendment rights and quell academic freedom.
Works Cited
Burke, Kenneth. The Philosophy of Literary Form: Studies in Symbolic Action 3rd ed.,
University of California Press, Berkeley, 1973.
“College Campus Press Act (110 ILCS 13/).” Illinois General Assembly Compiled Statutes
Higher Education, http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2943&Chapter ID=18.
Crowley, Sharon. Toward a Civil Discourse, University of Pittsburgh Press, 2006.
“Datwyler Rubber and Plastics, Inc., 350 NLRB 669 (2007).” National Labor Relations Board.
NLRB, https://www.nlrb.gov/case/11-CA-021185.
“Dual Credit Quality Act (110 ILCS 27/).” Illinois General Assembly Compiled Statutes Higher
Education, http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3117&ChapterID=18.
Eco, Umberto. “Ur-Fascism.” The New York Review of Books, 22 June 1995, <http://
www.nybooks.com/articles/1995/06/22/ur-fascism/>.
“Employee Rights.” National Labor Relations Board. NLRB, https://www.nlrb.gov/rights-we-
protect/employee-rights.
Fish, Stanley. Versions of Academic Freedom. University of Chicago Press, 2014.
Freund, Paul A. Constitutional Law Cases and Other Problems. Little, Brown and Company,
1977.
“Frequently Asked Questions—Press” First Amendment Center. Vanderbilt University. http://
www.firstamendmentcenter.org/faq/frequently-asked-questions-press.
Fundamental Values for Academic Integrity. Duke University, 1999, http://www.
academicintegrity.org/icai/assets/FVProject.pdf.
Hughes, Kyonzte “Parody and Satire” First Amendment Center, 13 Sept. 2002, http://
www.firstamendmentcenter.org/parody-satire.
Inoue, Asao B., and Mya Poe eds. Race and Writing Assessment. Peter Lang, New York, 2012.
Kafka, Franz. The Trial. Translator Edwin Muir, Schocken Books, New York, 1984.
Lent, ReLeah and David Moshman. “Untangling Intricacies of Academic Freedom: An Interview
between ReLeah Lent (an editor with whom I had worked) and David Moshman.” The Council Chronicle, March 2015.
Lent, ReLeah and Gloria Pipkin eds. Silent No More: Voices of Courage in American Schools.
Heinemann, New Hampshire, 2003.
Levinson, Rachel. “Academic Freedom and First Amendment Rights.” AAUP. https://
www.aaup.org/our-work/protecting-academic-freedom/academic-freedom-and-first-amendment-2007.
National Labor Relations Board. NLRB, https://www.nlrb.gov/.
“NLRB and Social Media.” National Labor Relations Board. NLRB, https://www.nlrb.gov/
rights-we-protect/employee-rights.
Noguchi, Rei R. Grammar and the Teaching of Writing: Limits and Possibilities. National
Council of Teachers of English, 1991.
Poe, Mya, Norbert Elliot, John Aloysius Cogan Jr., and Tito G. Nurudeen Jr. “The Legal and the
Local: Using Disparate Impact Analysis to Understand the Consequences of Writing Assessment.” College Composition and Communication, Vol. 65 No. 4, 2014.
Sullivan, Patrick. “The Two-Year College Teacher-Scholar-Activist.” Teaching English in the
Two-Year College, Volume 42, No. 4, May 2015, pp. 327-50.
Thomas Paul L. ed. Becoming and Being a Teacher: Confronting Traditional Norms to Create
New Democratic Realities. Critical Studies in Democracy and Political Literacy, Peter Lang Publishing Volume 2, New York, 2013.
“What to Do when Worker Refuses to Sign Disciplinary Memo.” Business Management Daily.
17 June 2016. http://www.businessmanagementdaily.com/36010/what-to-do-when-
worker-refuses-to-sign-disciplinary-memo#_.
White, Edward M., Norbert Elliot, and Irvin Peckham. Very Like a Whale: The Assessment of
Writing Programs. Utah State University Press, 2015.
[i] Take, for example, Duke University’s The Center for Academic Integrity, a consortium of 200 colleges and universities in affiliation with the Kenan Ethics Program and described by then president Nannerl O. Keohane as an asset to the efforts of Duke students, faculty, and administrators in promoting academic integrity. The Center for Academic Integrity (CAI) defined academic integrity “as a commitment, even in the face of adversity, to five fundamental values: honesty, trust, fairness, respect, and responsibility” and promoted the idea that, from such values, flowed the principles of behavior that would enable “academic communities to translate ideals into action.” <http://www.academicintegrity.org/icai/assets/FVProject.pdf>
[i] (110 ILCS 13/15)
Sec. 15. Grammar and journalism standards. Collegiate student editors of campus media are responsible for determining the news, opinions, feature content, and advertising content of campus media. This Section does not prevent a collegiate media adviser from teaching professional standards of grammar and journalism to collegiate student journalists. A collegiate media adviser must not be terminated, transferred, removed, otherwise disciplined, or retaliated against for refusing to suppress protected free expression rights of collegiate student journalists and of collegiate student editors.
(Source: P.A. 95-580, eff. 6-1-08.)