B 2296 – Support and request amendment

On August 27, Joe Kiskis sent the following letter:

The Honorable Gene Mullin
State Capitol…

Re: AB 2296 – Support and request amendment

Dear Assemblymember Mullin,

While the Council of UC Faculty Associations strongly supports First Amendment rights, we deplore the use of violence against university researchers as an expression of protest. Measures such as AB 2296, which clarify the illegal status of acts that are part of an incitement or conspiracy to engage in violent protest against specific individuals, are a positive step. Thus we support the intent of the bill.

However, we have concerns about language in the bill related to the definition and applicability of the term academic freedom. This language is not essential to the central purpose of AB 2296, but it could have consequences unrelated to that purpose. AB 2296 states a definition of academic freedom that is substantially different from that of University policy. Further AB 2296 implies that a broad class of university researchers, including students, has academic freedom. Again, this is inconsistent with University policy. This was a point of contention in recent years when the argument was made that an alleged student academic freedom gives student perspectives on controversial topics the same status and protections within the University as the teaching and scholarship of the faculty that are protected by the principle of academic freedom. Thus a discrepancy between University policy and assertions in AB 2296 about academic freedom could have unintended legal consequences unrelated to the main topic of AB 2296.

The present version of AB 2296 states: “(b) For the purposes of this section, the following definitions apply:…(2) ‘Academic freedom’ means the lawful performance, dissemination, or publication of academic research or instruction.”

University policy is stated in Section 10 of the Academic Personnel Manual http://www.ucop.edu/acadadv/acadpers/apm/apm-010.pdf. This policy is rather longer. The second paragraph contains the main point.

“Academic freedom requires that teaching and scholarship be assessed by reference to the professional standards that sustain the University’s pursuit and achievement of knowledge. The substance and nature of these standards properly lie within the expertise and authority of the faculty as a body. The competence of the faculty to apply these standards of assessment is recognized in the Standing Orders of The Regents, which establish a system of shared governance between the Administration and the Academic Senate. Academic freedom requires that the Academic Senate be given primary responsibility for applying academic standards, subject to appropriate review by the Administration, and that the Academic Senate exercise its responsibility in full compliance with applicable standards of professional care.”

Thus the question of whether teaching or scholarship is protected by the principle of academic freedom reduces to whether or not it meets the “professional standards that sustain the University’s pursuit and achievement of knowledge.” It is not a question of whether it is “lawful” as AB 2296 states. Scholarly activity could be legal but not protected by the principle of academic freedom or illegal but protected by academic freedom. Further, this University policy states that the right to determine whether particular teaching or scholarship is protected by the principle of academic freedom is vested in the faculty as a body, not in individuals—not individual faculty members and certainly not other university researchers.

However, in Section 2 of AB 2296, the phrase “academic researcher’s constitutional right to academic freedom” implies that all academic researchers have academic freedom. Later, in Section 4 of AB 2296, academic researcher is defined: “‘Academic researcher’ means any person lawfully engaged in academic research who is a student, trainee, employee, or affiliated physician …” Together these assert that essentially anyone engaged in lawful research at a university has academic freedom. This is inconsistent with the University policy quoted above. For example, the question of what freedoms are possessed by students has recently been investigated by the Academic Senate, and the Assembly of the Senate has adopted a policy statement on Student Freedom of Scholarly Inquiry: http://www.universityofcalifornia.edu/ senate/assembly/feb2008/assembly.scholarly.inquiry.prncpls.03.08.pdf. The Preamble states: “The most salient guiding principle that emerged from our deliberations is that academic freedom is conferred in the University of California by virtue of faculty membership. As such, student freedom of scholarly inquiry is ultimately derived from, and protected by, faculty academic freedom.” Thus students have a freedom of scholarly inquiry, but they do not have academic freedom.

In our view, the nuanced issues surrounding the principle of academic freedom are irrelevant to the purpose of AB 2296. With relatively minor changes in wording, explicit mention of the term-of-art “academic freedom” could be avoided. Alternatively, the phrase “(b) For the purposes of this section, the following definitions apply” could be rewritten to make it completely clear that the definitions in AB 2296 do not in any way subvert or take precedence over University policy on academic freedom. In our opinion, the former approach is preferable.

Joe Kiskis
Vice President for External Relations, Council of UC Faculty Associations, and Professor of Physics, UC Davis

cc: Assemblymember Wolk
Senator Simitian
Members of the Assembly Public Safety Committee
Professor Michael Brown, Chair, Universitywide Academic Senate
Professor Mary Croughan, Vice Chair, Universitywide Academic Senate

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