Sunday, June 14, 2015

Presentation at the AAUP 2015 Annual Conference: "Developing Social Media Policies for Universities: Best Practices and Pitfalls."

The American Association of University Professors (AAUP), founded in 1915, has as its purpose "to advance academic freedom and shared governance, to define fundamental professional values and standards for higher education, and to ensure higher education's contribution to the common good." (AAUP, About).  Each year it holds a conference on the state of higher education.

The 2015 Annual Conference, held in Washington, D.C., June 10-14, had as its theme, "100 Years of DefendingAcademic Freedom" to mark the AAUP's centennial. For Conference Information: Complete Program (.pdf); 2015 Annual Conference at a Glance (.pdf).

For the Conference I was grateful to have participated in discussion of the emerging issues of social media policies in U.S. universities.  My presentation, "Developing Social Media Policies for Universities: Best Practices and Pitfalls," highlighted the social media policies of US universities. The object was to catalog, make accessible, and provide a basis for comparison and discussion of policies. The ultimate objective will be to develop a model set of social media policy guidelines that balances the legitimate duty of universities with the human dignity and academic freedom rights of individuals.

The PowerPoint may be accessed here.

A summary of the presentation follows.

"Developing Social Media Policies for Universities: Best Practices and Pitfalls"
Summary of PowerPoint Presentation
Larry Catá Backer
June 11, 2015

I have been following the development and roll out of the social media policy in universities in the United States.  The most important recent example of university approaches to social media policy might have originated in the efforts of the Kansas Regents.  (e.g., Larry Catá Backer,  Surveillance and Control: The Kansas Regents Social Media Policy; Administrative Discretion, Employee Obligation, Citizen Duty, Human Dignity and the Possibility of Systemic Corruption).  The Kansas Regents had seen in the unfortunate malediction of a professor an opportunity for more broadly controlling the academics of Kansas--certainly far beyond the scope of the offense of the professor's tweeted curse. In doing so, Kansas appears to be moving towards embracing an educational culture of servility and docility at odds with the robust democracy in which, by the sacrifices of those who would not be docile or servile, it operates. Under a new set of Kansas Board of Regents rules, faculty and other employees may be suspended, dismissed or terminated from employment for “improper use of social media.”  Docility and servility to one's master, whether that master acquires power by force (no longer formally possible in this Republic) or through wages, appears to be the core value that the Regents of the Kansas Board of Regents wish to instill in the children who are to be schooled in the institutions over which they now assert a control that a century ago might have been characterized as a species of Victorian-Edwardian house service more fit for the disciplining of the staff of 19th century English manor houses than for the robust global society that the United States must learn to navigate in or perish in this century.  And so a professor's curse has now come back to haunt that portion of the Kansas academy subject to the administrative ukases of the Kansas Board of Regents.

The move toward the regulation of social media policy, and the management of speech by faculty (and others) at the university is an important element of a larger project that affects the shape of academic freedom—that project considers the extent to which universities, as a species of employer in the United States, are seeking to control the work and non-work speech of the people hires for service (See, e.g., Larry Catá Backer,  On Administrative Overreaching: Threats, Social Media, and Academic Freedom, April 23, 2014;  Export Controls and the Control of Speech On University Campuses and By Faculty Abroad--On the Complicity of Universities and Government to Monitor and Restrict Access to Speech and Speakers, March 24, 2014; "The Tweeting Professor": A Parable About the Price of Speech Made in the Service of Others, July 3, 2013). And that, in turn touches on a broader project that I have undertaken--to explore the human rights obligations of universities under international law and norms (e.g., Larry Catá Backer,  More Penn State Wellness Programs in the News and From the Bottom Up, Aug. 12, 2013).

It is clear that the issue of faculty access to social media is emerging as an important issue, and likely the subject of efforts to regulate faculty access to these media, later if not sooner. Yet the important issues that this instinct to regulate may, as in the case of the original efforts by the Kansas Board of Regents discussed above, lead to the wrong kind of regulatory approach--one grounded in a short sighted effort to suppress and control, rather than one to provide a reasonable set of guidelines that recognizes the important interests of individuals (who also happen to work for a university) and the university itself. The better sort of regulatory approach is one that starts from the foundational principle of academic freedom and the general American principle of enhancing the human dignity of individuals, but one that is also sensitive to the important institutional role of the university on the life of society of the need to preserve its place and legitimacy within the social fabric of this Republic.

It is also clear that the sorts of regulatory conversations that might lead to reasonable approaches to the management of speech on social media, might best be undertaken jointly by faculty and administration. But the experience in other systems also suggests that such a conversation is best undertaken with faculty rather than as an administration developed product that faculty might be permitted to comment, but with the development of which faculty are not permitted to engage.

The unfortunate history of the Kansas social media policy, and the lamentable choices that the Kansas Regents appear to have clung to (despite the better choices offered them by their own stakeholders) suggests that the issue of social media policy provides an important indication of the scope and extent to which employers, as a general matter, are now asserting control rights over the lives of individuals.  This trend is important to understand for its legal, social, civil and political implications. Generalized, it suggests the extent to which the institutionalization of power beyond the state, and complicit with it at times, is freeing institutions (like business, religion, and universities) from the constraints of state control (though not of management by the state as a new form of soft though effective governance)while increasingly abstracting individuals and reducing then to a bundle of  intangible rights and obligations (flesh made abstract) that are contingent on the needs and interests of institutional actors (abstractions made flesh). This all the more so, for example, as recent trends in labor policy suggest that the increasing loosening of constraints on employer power may have some effects that touch on fundamental economic, social, civil and political rights (e.g., Rob Wiley, Belarus Is Planning To Bring Back Serfdom, Business Insider, May 29, 2014).

The implications are substantial.  They may suggest the re-drawing of power relationships between institutions (like corporations) and political organisms (like the governments of states).  They may also suggest the ways in which law is being transformed from a system of commands (laws that proscribe or command behaviors) to one of management (rules that assess performance or subject one to discipline for failures to conform or comply with objectives based or relational targets that are assessed in a variety of ways).  That shift from command to management also appears to widen significantly the scope of discretion that might be exercised by "overseers", those individuals or institutional devices tasked to monitor and assess conformance with standards. That shift, in turns, may materially affect the way one comes to understand in new and potentially odd ways, the meaning and application of concepts like "rule of law" "abuse of discretion" and the like. It furthers suggests the character of the privatization of power over the control of the behavior of natural persons, from the state to the employer, and thus the nature of of the bargain that can be struck when a natural person hires herself out for "service"--the implications of the control that an individual cedes upon the acceptance of payment for "service" and the extent of the "service" to be rendered one's master are also nicely evidenced by the scope of the power of the employer to control the extent of personal and other communication by one in the service of the university institution.  Finally, and most broadly, these polices suggest another consequence of the transformation of individuals into commodified abstractions and of institutions into abstractions made flesh-- corporate speech is increasingly liberated while that of individuals is increasingly regulated (and especially through the employment relationship with corporations) (cf. Backer, Larry Catá, The Corporation as Semiosis, 'Citizens United,' the Signification of the Corporate Enterprise and the Development of Law (February, 28 2012). CPE Working Paper No. 2012-2). That control matrix will likely have material consequences for the way in which we understand the extent and locus of the individual right to speech under the U.S. Constitution and international human rights law and norms (e.g., Backer, Larry Catá, An Institutional Role for Civil Society within the U.N. Guiding Principles?: Comments on César Rodríguez-Garavito and Tatiana Andia 'Business and Human Rights: Beyond the End of the Beginning' (March 11, 2014). Implementing the UN’s Guiding Principles on Business and Human Rights: A South-Initiated North-South Dialogue Brown University, February 20-22, 2014).

This presentaiton will highlight the social media policies of United States universities.  The object is simple: (1) to catalog; (2) make policies more accessible, and (3) provide a  basis for comparison and discussion.  Thus, for example, despite its many lamentable policy choices, the Kansas Regents were good on transparency (in the form of information accessibility) but less successful on engagement (engagement transparency).  It is not clear that all universities even commence with this basic embrace of transparency in the construction and dissemination of their social media policies.  We will see. The principal initial objective is data harvesting, comparison and increasingly analysis of the broader implications of these policies layered on atop the other to produce a dense mille-feuille of policy with substantial broader implications.  The ultimate objective is to develop a model set of guidelines for implementing a reasonable and respectful set of social media policies for universities that balance the legitimate duty of universities to protect their brand and manage the use of their property, with the human dignity and academic freedom rights of individuals to express themselves within and outside of their working lives. 

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