Political speech at Illinois

This week was a victory for free speech at Illinois.  President B. Joe White retracted a wrongheaded ethics policy that restricted political speech.  White eventually did the right thing, but he displayed a startling lack of common sense and waiting almost three weeks to revoke the policy was a failure of leadership.

Any of you reading from the University of Illinois community are probably familiar with this story.  For those of you who aren’t, I’ll begin with a brief overview.

In the September 18th issue of Ethics Matters, an online newsletter put out by the University of Illinois Ethics Office, the University offered its interpretation of the State Officials and Employees Ethics Act, which essentially prohibits state employees from engaging in political activity either on state time or when using state resources. The newsletter set forth certain “prohibited political activities” including: (1) parking a car with a partisan bumper sticker in a University parking lot; (2) wearing a political t-shirt or button on University property, even when you are not on state time; and (3) attending a political rally on university property (like the Quad), even when not on state time.

There were several problems with this email.  First, it set forth broader policy prohibitions than the state law it was purportedly based upon.  Second, it includes activities that are constitutionally protected political speech in their list of prohibited activities.  Third, it prohibited political activity on university property, which is far too broad, considering the many semi-public forums on campus like the Quad, and it is extremely problematic for any student employees who reside in the Campus Residence Halls. (For more on this argument, see this column from the Daily Illini by Chelsea Fiddyment)

Backlash Begins

Shortly after Ethics Matters was distributed, graduate students, faculty members, and community leaders started to object to the policy.  Many complained to the Ethics office and to President White’s office.  The Ethics Office hinted that they had no intention of enforcing the policy, and White’s office stayed largely silent.

Then the media circus began.  One of the first articles was a damaging, mocking piece at Inside Higher Ed titled “Beware the Button Police.”  The next day, on September 25th, the Daily Illini wrote its first story on the controversy.  Many other stories followed.  Coverage spread to multiple blogs, to the State Journal Register, the News-Gazette, and Chicago papers.

One of the most impressive efforts by the Daily Illini was a scathing staff editorial titled “Ethics memo another free speech slight.”  Here are some choice excerpts:

According to a memo sent out last week to university employees, activities such as wearing political buttons or attending rallies could constitute a violation of an ethics policy that was originally intended to prevent university resources from being used for political purposes.  The memo, strictly interpreted, could be taken as a directive for university employees – including student employees – to not be politically active at any time, even off the clock.  Yes, even off the clock….  The only thing worse than cracking down on unpopular speech is cracking down on all speech. Ideology or party aside, does this university want to be known as the one where professors, even in the political science department, cannot attend political events? Or be known as the one with a bumper sticker patrol?  Not only could this policy harm the free flow of information inside the classroom, it deprives students of the necessary skill of learning to deal with opinions that may be different from their own.

As momentum built, a cadre of spirited graduate students decided to hold a political rally with the dual purpose of engaging in civil disobedience to protest the Ethics memo.  Although the rally was anemic, it spurred a new round of press coverage.

Opposition from advocacy organizations

As the controversy gained more and more attention, various advocacy groups stated their opposition to the policy, which churned up even more bad publicity for the University.

• American Association of University Professors (click here for AAUP statement on protecting the rights of faculty and here on the rights of grad students and staff)
• American Civil Liberties Union (click here for DI coverage)
• FIRE (click here for FIRE’s statement)
• Illinois Association of Scholars (click here for ISA’s letter to President White)
• National Communication Association (click here for DI coverage)

DI Column: “Pres. White should retract ethics policy”

On October 3, a former Vice Chancellor for Student Affairs and a former Student Senate President coauthored a guest column making the case for White to retract his statement.  Excerpts from that column are below:

We do not object to the University’s reminding faculty, student employees, and staff not to use their offices, computers, or compensated time for political work, to promote compliance with the State Officials and Employees Ethics Act. We strongly object, however, to the new policy’s breadth, for it goes well beyond the scope of the Act. And we worry about its actual and perceived impact on political speech.

Although the September edition of Ethics Matters suggests the Ethics Office will not be vigorously enforcing its policy, it remains on the books. While the policy was purportedly designed to comply with state law, it is much broader than the state law, so broad that it also prohibits constitutionally protected political speech.

As the American Association of University Professors (AAUP) explained just a few days ago, “It is also notable that courts are typically not sympathetic to the argument that unconstitutional rules or laws can remain on the books just because a given official pledges not to enforce them.” Many faculty and staff members are painfully aware of the Administration’s proclivity for selective enforcement of its policies. As long as the iteration of policy remains on the books, the threat of enforcement remains. And the threat of enforcement by its very nature suppresses constitutionally protected political speech, creating a chilling effect by coercing members of the University community into self-censorship.

Following a statement of legal principles, the column discussed the practical, common sense reasons for retracting the policy:

When faced with backlash from faculty and graduate students, and asked about the policy by the News-Gazette, White said the official policy will not be enforced, at least most of the time. He sees no point in modifying or revoking the statement, and his office will “let common sense prevail.”

We have a few common sense questions: why promulgate a policy you do not intend to enforce? With whom did you consult before approving it? Why upset your faculty and graduate students, and impair the University’s reputation in the eyes of peer institutions? Why needlessly invite the ridicule of advocacy organizations over a policy you do not intend to enforce? Is it really worth it? Wouldn’t it make more sense to repeal the policy?

Serving as President of the University of Illinois is a sacred public trust carrying with it a responsibility to be a good steward of the institution. University stewardship necessarily involves avoiding needless damage to the University’s reputation. One need only look at the Inside Higher Ed article titled “Beware the Button Police” to get a sense of the ridicule resulting from the hastily crafted policy. A growing list of national organizations, blogs and newspapers across the state and country are covering the story, and objecting to the University’s intrusion on academic freedom and free expression. President B. Joseph White surely realizes that in the midst of a multi-million dollar branding campaign, this is not the kind of publicity the University needs.

Next the column makes its “ask”:

We write today because we are increasingly frustrated by White’s refusal to remedy this abuse of civil liberties and embarrassment to the University. We suggest he follow his own advice and “let common sense prevail.” Send a revised email to all faculty, staff and students narrowing the scope of the University policy so it directly squares with state law.

Finally, the column appealed to White’s values:

In White’s inaugural speech he said, “For a University is at its best in an arena in which the best and most carefully researched and argued ideas prevail. That is why we protect freedoms of thought, inquiry and expression so vigorously in our university community.” White has a duty to make sure his policy lives up to his own principles.

White retracts policy

Finally, almost three weeks after the Ethics Matters newsletter was distributed, President B. Joe White sent an email to clarify/restate/revise/retract his policy.  (Click here for Daily Illini coverage) Many in the campus community noted the timing, his announcement came the day of the deadline set forth by the ACLU.

A second Daily Illini Editorial

Following President White’s retraction, the Daily Illini issued a second, even more powerful editorial: “Memo retraction welcome and overdue.”

Rightly citing the lack of specificity in the law as it pertains to students and the larger higher education community in addition to an unexplored path through the judiciary, there was every reason in the world to come down on the side of free speech.  But given that this entire mess was most likely a case of overzealous interpretation, one has to wonder what the ethics office was thinking in the first place, especially considering this institution’s less than stellar record with the First Amendment….  Not recognizing how this ethics debacle fits into other campus controversies about state funding, a capitalism academy, Chief Illiniwek’s retirement and stereotype parties among other things is surprising and disappointing.  In the future, we hope that the university will not wait until it faces legal action to come to its senses about something so fundamental to the effectiveness of the higher education system.

Aftermath

Following President White’s clarification/retraction, many questions remain.  As the Daily Illini reported, faculty members want to know what restrictions on their speech the University might thrust upon them, and wonder just how the University is going to define what activity is “on the job.”

Our University, in its recent history, has taken a sloppy approach to numerous free speech issues, almost always erring on the side of restricting expression.  Recent examples include spending hundreds of thousands of dollars fighting a hopelessly lost legal battle in Aiken v. Crue, I’ve heard from DI editors that  both Chancellor Richard Herman and former Chancellor Nancy Cantor called Daily Illini editors into their office and threatened to either pull University ad buys or start a rival paper when they have objected to editorial content, the University tried to censor a pro-chief group’s demonstration in last year’s Homecoming Parade, and the Registered Student Organization Office still has an extremely vague speech code for student organization names and event titles.

It is encouraging that President White eventually did the right thing.  It’s really too bad he waited so long to take such an obviously necessary remedial action.  White has a University Counsels Office and an entire College of Law faculty he could ask for advice, and any lawyer worth a damn would have counseled him that the message in the Ethics Matters email needed to be revised or retracted.

His waiting had consequences.  He upset the faculty, many graduate students and other staff.  He caused significant reputational harm to himself and to the University by waiting, even as more and more newspapers and national advocacy organizations voiced their objections to the policy.  By waiting until the day of the ACLU deadline his action appears motivated by fear of litigation and further bad publicity, rather than a genuine desire to do the right thing.  At a minimum, waiting almost three weeks to retract the policy was a failure of leadership, and it revealed a startling lack of common sense.