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On the Children of Garcetti

So I’m back from the AAUP national meeting, and I’ve decided that I’m a bad person for not blogging about Garcetti v. Ceballos or Hong v. Grant (.pdf) until now.  (Marc Bousquet was all over it more than a year ago.) The Hong case is just one example of what I call the Children of Garcetti, and if you teach at a public university in the United States (or if you know someone who does), you should know about Garcetti.

Here’s the Oyez summary of the case.  Since Garcetti involves the fate of a deputy district attorney in Los Angeles who was whistleblowing with regard to what appeared to be a fraudulent affidavit, most people didn’t realize that it might have implications for academic freedom.  Ah, but not the AAUP’s legal staff!  They were on the case, so to speak, from the start (here’s a .pdf of the brief).  Which is yet another reason you all (if you’re college professors) should have joined the AAUP by now, because (a) the AAUP sees these things coming when most of the rest of us don’t and (b) helps to fight ‘em in court.  Indeed, the AAUP/ Thomas Jefferson Center for the Protection of Free Expression brief seems to have caught the attention of David Souter, who, bless his retiring heart, wrote in dissent:

This ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor, and I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write “pursuant to official duties.”

In response, Justice Kennedy’s majority opinion, citing Bugs Bunny, replied, “ehhhhhh ... could be!” Though the actual language was this:

There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.

In other words, we’re leaving that door open, thanks—if any lower courts want to walk through it, just make sure they wipe their feet on the 1940 Statement of Principles of Academic Freedom.  And don’t be fooled by Kennedy’s reference to “scholarship and teaching,” either. Anything you do or say as part of your job as a public-university employee—including ordinary university committee work that touches on matters of institutional policy and procedures—can now be grounds for disciplinary action, up to and including dismissal.

Or so held the Hong court.  And as a result, the members of the Faculty Senate at the University of California-Davis recently received this letter:

Academic Senate colleagues,

The UC Davis Academic Senate Committee on Academic Freedom and Responsibility has been carefully reviewing recent court cases in which professors have sought relief from real or perceived disciplinary actions against them by the university administrations at their institutions. These cases include Hong v UC Regents, Renken v Gregory et al. (representing University of Wisconsin at Milwaukee), and Gorum v University of Delaware. Each case has unique circumstances, but the uniformity of the judicial rulings across these cases provides a clear and important message that we feel is necessary to make you aware of.

According to recent court rulings, your speech and behavior in job-related duties as a public employee rather than a private citizen have no First Amendment protection. This means that disciplinary action may be taken against you (including dismissal) for statements you make in the course of your employment. Any activity performed on the job falls within this purview. According to the recent court rulings, speech and actions in shared governance activities are certainly not protected. Historically, courts perceived that some First Amendment protection may exist for speech and actions related to your academic scholarship, but that subset of activities has never been directly evaluated by the Supreme Court. It may be that future cases will reverse the present trend and give support to faculty. Nevertheless, we recommend that you expect that your speech and behavior outside of your field of scholarship is absolutely not protected by the First Amendment.

Further, university policies on academic freedom (APM 010 and 015) only protect speech and behavior in your area of demonstrated academic scholarship. Do not expect that university policies give you a right to speak and act freely in your job duties on campus outside of your scholarship. For example, the Renken case illustrates that your speech and actions related to the management of your research grants are not protected, even though the activities covered by those grants are part of your academic scholarship. Our employment culture at UC Davis has been supportive of transparency and freedom, but it may not be a right.

In light of the present deep economic recession and dramatic cuts under discussion at UC Davis, faculty participating in shared governance are in a position in which they may voice strong views and concerns that could lead to lawful but punitive reaction by the administration, including denial of merits and even dismissal. Given the legal and policy realities at hand, we highly recommend that you use caution, restraint, and judgment in your speech and actions in all job-related duties.

Committee on Academic Freedom and Responsibility

How do I know this?  Because UC-Davis historian Eric Rauchway passed it along to me this weekend, and I forwarded it to the AAUP (with his permission), and now Eric has blogged about it as well.  (I did not know there was an Ari Fleischer University!  Ah, well, We Are All Ari Fleischer University Now.) Here’s Eric:

In Hong v. Grant, Judge Cormac Carney ruled that it didn’t really matter why Hong had been denied his merit, because even if he had been denied on account of his statements, rather than on account of a modest research record, it would have been acceptable under Garcetti v. Ceballos.

Mr. Hong is under professional obligation to actively participate in the interworkings and administration of his department, including the approval of course content and manner of instruction.

If I follow the logic correctly, Hong is obliged to participate in the administration of his department. But the definition of “actively participate in the interworkings and administration of his department” appears here to be, “say only those things which won’t lose you a merit increase.”

Now so far, the implication of the case seems to be, don’t say anything bad about how the administration runs the university. None of this seems to touch utterances in the classroom or research. But it doesn’t exclude them, either. As Carney notes, “In the University of California system, a faculty member’s official duties are not limited to classroom instruction and professional research.” Which is to say, official duties include serving on committees and suchlike in addition to classroom instruction and professional research. The clear implication of this sentence is that classroom instruction and professional research would be covered under Garcetti, unless they were specifically exempted by such precedents as Souter cited.

What is to be done?  Well, I’ve already suggested, and will suggest again, that it’s a good time to join the AAUP and help fund our attempts to get this stuff overturned and reversed and rendered moot.  But in the meantime, if you’re working at a public university, you should probably set about revising your faculty handbook as well, just in case.  As it happened, earlier this year the Penn State Faculty Senate asked me to consult with them about threats to academic freedom, and asked whether I had any advice for them as they reviewed Penn State’s academic freedom guidelines.  “Oh boy, do I,” I replied, “and this time, my advice has nothing to do with He Who Shall Not Be Designated By His First Initial and a Drastic Truncation of His Surname.” I showed up and proposed a specific revision to our handbook, along the lines of the language proposed by the University of Minnesota Faculty Senate.  At Minnesota, they’ve struck the phrase “as a public citizen” from the following, because the logic of Garcetti (and all its children) is that you still have First Amendment rights when you speak as a citizen; you just don’t have them as a public employee.  The italicized passage is the new language:

Academic freedom is the freedom to discuss all relevant matters in the classroom; to explore all avenues of scholarship, research, and creative expression; and to speak or write as a public citizen without institutional discipline or restraint on matters of public concern as well as on matters related to professional duties and the functioning of the University. Academic responsibility implies the faithful performance of academic duties and obligations, the recognition of the demands of the scholarly enterprise, and the candor to make it clear that the individual is not speaking for the institution in matters of public interest.

Hat tip to my friend Cary Nelson, AAUP President, who called this to my attention in his forthcoming book, No Campus is an Island: Saving Academic Freedom.  (Due next spring from NYU Press.  Keep an eye out for it!)

It’s so funny, except of course that it’s not funny at all: you spend so much time and energy defending academic freedom from the culture warriors of the right, and then something else, completely unrelated, comes along and does far more systemic damage.  Interestingly, Ye Olde Culture Warriors of the Right haven’t had much to say about the Children of Garcetti either.  But since this development could certainly affect conservative professors (if there are any left in the United States after the Great Purge) at public universities who comment on their schools’ policies and procedures, maybe it would be a good time for everyone to recognize that it makes sense to protect faculty from institutional retaliation when they speak on matters “pertinent to official duties.”

x-posted.

Posted by on 06/16 at 08:56 AM
  1. McConnell!

    But since this development could certainly affect conservative professors (if there are any left in the United States after the Great Purge) at public universities who comment on their schools’ policies and procedures, maybe it would be a good time for everyone to recognize that it makes sense to protect faculty from institutional retaliation when they speak on matters “pertinent to official duties.”

    It would, wouldn’t it?  I’m not holding my breath.  In fact, I sincerely hope that, e.g., George Mason U. professors don’t pick up on the Children of Garcetti, because they’ll just start using same as a club to try and get blogging liberal academics denied tenure.  If the past mumble years have taught us anything, “But this could hurt you too” works all-too-rarely.

    Posted by  on  06/16  at  10:22 AM
  2. If the past mumble years have taught us anything, “But this could hurt you too” works all-too-rarely.

    What are you talking about, mds?  The “but this could hurt you too” argument got us national health care in 1993 and a Constitutional amendment banning indefinite detention and “enhanced interrogation” in 2001.  And as for untenured liberal bloggers, who in their right mind would go after someone like Publius?

    Posted by  on  06/16  at  10:26 AM
  3. IANAUP but I just want to tell you good luck. We’re all counting on you. </Dr. Rumack>

    And maybe because IANAUP, I’m having a little trouble understanding how to apply the following to the qupoted text which still contains “a public citizen” as well as the new language. Is Minnesota’s exactly what you wrote simply minus “a public citizen”? Did the sentence originally stop after “restraint”? Or is the new language Penn State’s addition.

    At Minnesota, they’ve struck the phrase “as a public citizen” from the following, because the logic of Garcetti (and all its children) is that you still have First Amendment rights when you speak as a citizen; you just don’t have them as a public employee.  The italicized passage is the new language:

    And please do watch what you say in your response. </Ari Fleischer>

    Posted by  on  06/16  at  10:46 AM
  4. Why should academics, and *only* academics, have the right to complain about their employers?  (Do you want to restrict this to public universities or not?) As Americans, we are proud to have the constitutional right to complain about our government.  But shouldn’t we all also have the right to complain about our employers?  What could be more American than that?

    Step back from your limited academic perspective and support the right of *all* workers to criticize their bosses without fear of retaliation (in a not-speaking-for-the-organization capacity).

    Posted by  on  06/16  at  11:18 AM
  5. Step back from your limited academic perspective and support the right of *all* workers to criticize their bosses without fear of retaliation

    Well, I am in fact calling for Garcetti to be overturned.  Sorry if that wasn’t clear.  But even still, academics are supposed to have a certain degree of intellectual autonomy from the state.  That’s what tenure is supposed to secure.  What’s especially galling about Hong v. Grant is that it not only attacks that aspect of tenure; it also attacks our capacity to participate in the shared governance of the university.  Insofar as other public institutions don’t operate by means of shared governance, there is a substantive difference between the official duties of professors and the official duties of other public employees.  (Though it should be remembered that Ceballos had an affirmative duty to the state to report wrongdoing.)

    Posted by  on  06/16  at  01:01 PM
  6. I’m having a little trouble understanding how to apply the following to the qupoted text which still contains “a public citizen” as well as the new language.

    That’s because I botched the strike function.  Sorry about that!  The original sentence ended after “restraint,” and it’s from Minnesota’s faculty handbook.

    Posted by  on  06/16  at  01:12 PM
  7. Actually, public employees have more First Amendment protection than private employees.  A private employer can fire you for anything you say.  So if you’re an exemplary car salesman but you maintain an neo-Nazi website, the dealer can fire your sorry ass, even if you’ve always been unfailingly polite to the customers.  Or if you work for the public relations office of the local power company and you’re active in an alternative energy coalition, the company can put you on midnight guard duty at the plant, and you’ve got no right to get your flack job back.

    But a public employer isn’t as free as a private employer is.  Like any employer, it can discipline or fire employees for speech that it doesn’t like that are “pursuant to their official duties,” but not for statements outside of those duties.  That gives public employees more protection from the First Amendment than private employees, not less.

    University professors are a special breed of employee.  Unlike the rest of us, their job requires them to have a higher level of protection for what they say, and that protection is found in the concept of academic freedom.  This sets up a struggle The employers - the universities, both public and private - try to restrict professors’ protected speech rights to the classroom and the professional journal, while the professors try to maintain and increase the scope of the protection to include the street, the blog, the legislative hearing, and the committee room.  People like Michael are vigilant warriors in this fight.

    Whether the First Amendment as anything to do with the special rights of professors is an interesting question.  It’s not obvious that it does - how academic freedom applies shouldn’t turn on whether the employer is a public or private university. And although “the press” is mentioned by name in the First Amendment, “the academy” is not.  On the other hand academic freedom certainly is a traditional free speech right.

    As Justice Kennedy said, the intersection of the two is not well-explored, and can’t really be adressed in the context of a case involving a prosecutor in a highly hierarchical office in which secrecy and tight control of information flow are essential the organization’s function. So, as he said, it is an open question for another day.  If I hear Michael correctly, he’s concerned that that day may be here.

    Posted by  on  06/16  at  01:28 PM
  8. Note to self: Publish something somewhere that comments on American public higher education. Doing so will permit me to complain legitimately about my job, since such complaint will thus fall within my field of demonstrated academic scholarship.

    Hey, I just did that! Wow, that was easy.

    What’s that? I did it anonymously? Shoot! OK, next time, I’m doing it for real!

    Posted by  on  06/16  at  01:51 PM
  9. Where’s Venus_Mongomery when you really need ver?

    A private employer can fire you for anything you say.

    Actually, this varies from state to state.  Massachusetts, for example, has found that there are some protections against such actions by an employer.  Also, in Novosel v. Nationwide Insurance Co., the 3rd Circuit found in favor of Novosel’s claim of wrongful dismissal for refusal to take part in an employer-mandated political drive.  Which was admittedly especially egregious, and probably explains why this decision hasn’t been invoked since (AFAIK).  And there remain various non “First Amendment” issues that could have bearing on whether such a termination could be legitimately challenged.  But yes, we unfortunately currently have a federal legal framework that renders the First Amendment moot for private speech by private employees.  Though if it’s anonymous speech, it regains some de facto protections.  So far.

    All that said, I do find it interesting that Garcetti so blithely threw previous case law about public employees’ First Amendment rights out the window, along with the whistleblower sprinkles on top.  [Double-checks SCOTUS vote breakdown] Interesting, but not particularly surprising.  Precedent, the public interest, or the Bill of Rights can’t be permitted to get in the way of protecting the powerful.

    Posted by  on  06/16  at  02:33 PM
  10. I support Bloix’s comments (and, yes, mds, Bloix’s comment would have been more accurate had it been written, “In general, a private . . .")

    I would add: 

    Public employees’ speech is best protected through contracts, administrative review, and political pressure.  Strengthening language in employee handbooks is probably the most effective way for public employees to protect their interests.

    The holding in Garcetti v. Ceballos reflects the conservative justices’ dislike of litigation in general.  They believe litigation is often a larger problem than the wrong it is intended to remedy.  (See Justice Roberts recent dissenting opinion in Caperton.) Another way of framing the debate:  should a university be subject to the cost of going to trial every time an ornery, middling professor doesn’t get a raise?

    Posted by mm  on  06/16  at  04:24 PM
  11. Though if it’s anonymous speech, it regains some de facto protections.  So far.

    How pathetic is that though? Hiding behind anonymity because you’re employed in the private sector. Lame.

    Posted by  on  06/16  at  05:03 PM
  12. In following up Bloix above, it is sad that non-academic employees of public universities have no protections from these sorts of “predations” other than the willingness (or complete lack thereof) of their unions to file grievances.  The difference is not just public/private but academic vs non-academic.  This needs to encourage graduate student teaching associations of similarly seeking changes in language in their handbooks as well.  Too bad the plumbers and groundskeepers won’t be so free; i am not even going to mention the athletic programs.

    Posted by  on  06/16  at  05:13 PM
  13. Oh my.  I hope my friends aren’t worse than my enemies.  The dissenters in Caperton, imho, subscribed to one of the most unconvincing opinions ever penned by human hand to reach a result that can only be justified by recourse to the rule that any dispute can be resolved by identifying the most powerful party and ruling for him.

    Garcetti was also a ruling in favor of power. But it was one in which the powerful had a reasonably persuasive legal argument on their side.

    The two cases - both written by Kennedy - give a pretty good picture of his approach:  rule for the powerful when you can but don’t make an ass of yourself.  (Except when abortion is involved - then his patriarchal instincts trump his reason.)

    Posted by  on  06/16  at  05:22 PM
  14. Some updated photos from Iran’s silent protest today: http://www.flickr.com/photos/fhashemi/

    The price (captcha) of freedom is very high at times.

    Posted by  on  06/16  at  07:00 PM
  15. I agree that the best protection against firings based on speech is solidarity by other employees, best organized in the form of a union. This should be particularly easy for university professors, as it is not trivial replacing all of us by scabs. From that point of view, I do not agree with advising colleagues to be “cautious”. Certainly everyone should be made aware of the possible consequences of, say, telling the UC president to stuff it (there, I did that right now), but I would advise everyone to ignore those possible repercussions. I intend to, anyway.

    Captcha: “Staff” (honestly!), as in, since we are still more protected than staff, I’d say it’s our duty to speak up.

    Posted by  on  06/16  at  07:19 PM
  16. Certainly everyone should be made aware of the possible consequences of, say, telling the UC president to stuff it (there, I did that right now), but I would advise everyone to ignore those possible repercussions.

    Indeed.  And to address JPRS’s comment @ 8: 

    Note to self: Publish something somewhere that comments on American public higher education.  Doing so will permit me to complain legitimately about my job, since such complaint will thus fall within my field of demonstrated academic scholarship.

    Hey, I just did that! Wow, that was easy.

    Yep, and since this is a peer-reviewed blog, you’re good to go.

    Posted by Michael  on  06/16  at  09:58 PM
  17. Upon further superficial dilettantish review, I’m still not really seeing how Hong follows irresistibly from Garcetti, given that it seems an even clearer case of what Pickering seemed to be getting at.  Just because Kennedy’s typically lazy decision-making left the door open didn’t mean Judge Carney had to walk through it.  “Acceptable under” doesn’t mean the same thing as “compelled by.”

    Anyway, I suppose the best recourse is collective action to ensure additional protections for academics and non-academics, be it by (hopefully binding) Faculty Senate resolutions, or whatever.  Remember things like this, profs, the next time there’s a union drive or a picket line at your institution.  Something something separate hangings.

    As an aside, I find this passage from Souter’s Garcetti dissent somehow sweet:

    and I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities,

    [Double-checks SCOTUS vote breakdown] Well, David, maybe not the majority, but four out of five are perfectly happy with such imperilment.  Which remains my primary source of discomfort with Garcetti: most of the justices voting for it were not engaged in agonized weighing of the First Amendment or whistleblower concerns, only to eventually find them insufficient.  Can a SCOTUS decision be right for entirely wrong reasons?

    Posted by  on  06/17  at  10:17 AM
  18. Hmm, this has been a pretty quiet topic here.  Everyone in academia must be worried that blog comments are “pursuant to official duties.”

    Posted by  on  06/17  at  02:55 PM
  19. Weird, isn’t it?  I wanted to leave this up for a few days, because I think it’s really kinda important and I don’t want it to get lost in the mix.  But now I feel like my metal arms are hanging uselessly by my sides.  Maybe we could start an argument over the Balkans?  Everybody loves one of those!

    Or how about this:  Bradley Cooper gives me the creeps.  I’ve decided that (a) he basically is the guy he played in Wedding Crashers, and that (b) millions of young American men aspire to precisely that mode of masculinity.

    Posted by Michael  on  06/17  at  03:00 PM
  20. Hey, this is homework. I may not have anything to add to the discussion of legal decision-making, but now I have to look up the relevant statement in our faculty handbook, and draft an email to our faculty senators and AAUP reps (who are probably already on it), and get it all ready lickety split, because the next Senate meeting is in . . . September. And whatever gets rolling in September will, if it’s urgent, get acted on by . . . Summer 2010? I swear, they make movies faster than we draft policies.

    Oops, I shouldn’t have said that. I am completely happy with every aspect of my school’s governance. Never mind.

    Posted by  on  06/17  at  03:13 PM
  21. Or how about this:  Bradley Cooper gives me the creeps.

    Oh, indeed.  At first one thinks “What beautiful eyes,” then gradually it sinks in how frighteningly… empty they actually are.  Sure, his “Alias” character was treated shabbily, but despite the rumors buzzing that he’s a likely contender for Hal Jordan in the upcoming “Green Lantern,” Nathan Fillion is a much better choice.

    Oh, jeez, I can’t believe I took the bait.  My performance review is imminent, and my supervisor aspires to precisely that mode of masculinity.

    Posted by  on  06/17  at  03:24 PM
  22. Oops, I shouldn’t have said that. I am completely happy with every aspect of my school’s governance. Never mind.

    But you keep thinking bad thoughts!  I say we wish rm into the cornfield.

    And you can’t believe you took the bait, mds?  I can’t believe I threadjacked my own blog.

    Posted by Michael  on  06/17  at  04:46 PM
  23. Just like how McCain threadjacked his own campaign with his choice of Sarah Palin. (Not that it didn’t need threadjacking.)

    Posted by  on  06/17  at  06:35 PM
  24. Hmm, this has been a pretty quiet topic here.  Everyone in academia must be worried that blog comments are “pursuant to official duties.”

    Good gawd, the captcha is “soviet” and that can only mean that we have met the enemy and he is us.  I do think part of the difficulty with this topic involves the three-pronged fork of arcana surrounding labor law: Federal and State law/regulation, institution contract and labor language, NLRB case rulings.  Prior to my retirement, i served as my education association president, and quickly discovered why so few people want those jobs.  One of the first things you receive as a labor negotiator is a copy of the NLRB manual and examples of contracts (and faculty handbooks) from all over.  When you arrive in the “high” chair you are constantly fed updates and piles of legislative changes, court rulings, etc.  Most of your academic peers don’t really see all of this, nor do they want to.  You find yourself spending more time with the heads of the other various unions involved in the system: they speak the “language.”

    One of my concerns with Garcetti and Hong is that these become part of labor law arcana, and as such, they guide the rulings and decisions of various levels of the bureacracy of the NLRB and its affiliated state agencies.  Only a very few cases make the light of the courts, yet hundreds of decisions are rendered each month, most of which will now turn on these SCOTUS cases.  Further, any tool given to management (a legal opinion is a very powerful tool) that can be used to beat down labor (and professors are labor), and associations of labor, will be used to force giveaways in negotiations (and other harmful restrictions).  “You want clear language protecting speech, well give us some leeway with health benefit caps (for families for example) or trade down some retirement payouts?”

    It won’t be the untenured professor who suffers first, but the associations’ negotiators in trying to protect the interests of the professors.  These rulings make it more difficult in the trenches for everyone but management.

    Posted by  on  06/17  at  07:06 PM
  25. Bloix, I agree that the dissents in Caperton are unconvincing.

    Posted by mm  on  06/17  at  07:22 PM
  26. Spyder, you’re supposed to add “(apologies to Walt Kelly)” in your first sentence; actually, you should add “(apologies to Walt Kelly with apologies to Admiral Perry).” We must be conscientious.

    professors are labor

    I wish all of my professor colleagues understood that.

    mm, you will shortly receive a letter from my attorney for copyright infringment. Your handle is too close to mine, and thus potentially represents a threat of brand dilution.

    (I don’t know the emoticon for tongue-in-cheek, but just to be clear, one goes here.)

    Posted by  on  06/18  at  08:48 AM
  27. I don’t know the emoticon for tongue-in-cheek

    :-^

    Posted by  on  06/18  at  09:46 AM
  28. I wanted to leave this up for a few days, because I think it’s really kinda important and I don’t want it to get lost in the mix.

    Isn’t there some way to “bump” it to stay top-of-page as other posts get added?  Because otherwise this would seem to be a License to Slack, and I for one demand new content in return for my generous subscription fee.

    Though it’s too bad we couldn’t get Marshall McLuhan Robert Halford to comment here as well as at CT, to provide a footnote to Faust* if nothing else.

    *I have no idea what I mean by that.

    Posted by  on  06/18  at  12:14 PM
  29. Professors are labor?

    OK, I will grant you that with regard to teaching. Teaching is productive work and thus professors are labor.

    But professors are granted tenure on the basis not of teaching but of research. And not on the actual research itself, but on the contribution that a history of such research makes to the reputation of the professor. If the school has very important professors, students will want to come, just as if the school has awesome dorms and excellent gyms and a good meal plan and a successful basketball team. Highly esteemed professors are an attractive investment for a school to make in order to attract more students and better ones.

    In other words, professors are also capital investment.

    Posted by  on  06/18  at  01:13 PM
  30. professors are labor

    I wish all of my professor colleagues understood that.

    Frankly, almost everybody is labor, including a substantial chunk of “management.” Unfortunately this perspective is unpopular among, well every body really

    Posted by  on  06/18  at  03:43 PM
  31. Well obviously there isn’t (outside the SPGB, anyway, to make the “obscure sectarian reference of the day") a simple labor-capital dichotomy. Clearly, professors aren’t “labor” in the same way as, say, auto workers are; our research production is, imo, a form of commodity production (see: “humanities must justify their worth"), but again the commodity isn’t really of the same kind as steel or movies or other easily traded goods.

    Posted by  on  06/18  at  06:05 PM
  32. Talking about the SC, there’s handing down a barrage of awful decisions today… this is what an “up-or-down vote” (for Republican nominees only, of course) gets you.

    Captcha: “numbers” smile

    Posted by  on  06/18  at  06:52 PM
  33. Professors are intelligentsia, not labor.

    Posted by  on  06/18  at  08:22 PM
  34. Unfortunately this perspective is unpopular among, well every body really
    Except of course when the contracts need to be negotiated and terms/benefits considered.  Management is not collectively bargained (individual contracts negotiated individually yada yada), whereas various associations and unions represent professors, educators, some researchers, et al.  My use of the phrase “professors are labor” refers to the process by which the contracts, policies, rules, pay grades/salary schedules, and employment jurisdiction are managed.  If this wasn’t of particular concern then the Children of Garcetti would not require the ongoing interests of the AAUP, other educator associations, etc., to insure new language is crafted. 

    I would also like to see some consideration given to christian’s point about the product of professors, especially in terms of intellectual property.  Sadly, more and more university systems are insisting that the research and outcome of said research, conducted at “their” university, belongs to the university and not to the professor.  Intellectual property is now a commodity of the labor and part of the capital of the system, no longer in the domain of control by the producer of said products. (and this doesn’t even begin to take into consideration the contracts issued by corporate funders of specific research).  As i said, the arcana of labor relations is much like a volcano: a little bit of it provides wonderful nutrients for future growth; most of it is toxic and hazardous to life. 

    24.26.1 (with apology to Walt Kelly)
    24.26.2 (with apology to Walt Kelly and Admiral Perry) --- Matthew, Robert (multiple spellings), or scion???

    Posted by  on  06/18  at  09:29 PM
  35. Just a quick view of how vast the intersection is between management and labor/ administration and faculty can be found in HEERA: Higher Education Employer-Employee Relations Ace.  The CFA: California Faculty Association represents professors (and others) in the California State University System. Their contract language looks something like this:
    http://www.calfac.org/contract.html.

    Posted by  on  06/18  at  09:49 PM
  36. Well obviously there isn’t (outside the SPGB, anyway, to make the “obscure sectarian reference of the day") a simple labor-capital dichotomy.

    Accepting a simple labor-capital dichotomy is like being asked to believe six impossibilist things before breakfast.

    Intellectual property is now a commodity of the labor and part of the capital of the system, no longer in the domain of control by the producer of said products.

    Everybody run, it’s mds anecdote time!

    A professor formerly of the department with which I’m affiliated was heavily into computational methods.  He developed a program that evolved into one of the standards in the field.  So much of a standard, that a commercial entity approached the university, which sold/leased the rights to the program.  Whereupon the professor was enjoined from continuing development on the program, or anything based on its code, even though it was part of his ongoing research.  He left the university to get out from under onerous reporting requirements (and in high dudgeon about the whole business), while his lab members also went elsewhere and recreated many of the methods from scratch to get around the restrictions.  So, what spyder and Marx said.  Perhaps more faculty will wake up one day and realize that ivory won’t automatically protect them.

    Posted by  on  06/18  at  10:32 PM
  37. JPRS, I acknowledge your point that a record of scholarship is something the university invests in, rather than something we produce for pay (don’t I know it), but I don’t see how that makes the professor not labor. It increases the market value of one’s teaching labor, methinks.

    Also, the relative importance of scholarship to teaching gets smaller and smaller as you move down the Great Chain of Being from R1s to community colleges. I am one or two steps up from the bottom of the Chain, and lemme tellya, teaching is really what’s going on. Research and scholarship are there to demonstrate that you haven’t lost touch with your subject.

    Posted by  on  06/19  at  09:26 AM
  38. JPRS, about professors as labor: what rm said.  At the overwhelming majority of American colleges and universities, professorial research is neither expected nor rewarded.  With this caveat:  it used to be that research was expected/ rewarded only at the research universities.  As more institutions compete to move up that Great Chain of the U. S. News rankings, we’re finding more institutions expecting and (kind of) rewarding research without really providing faculty with the time or resources to do it.  That, btw, was one of the more important findings of the MLA Task Force on the Evaluation of Scholarship for Tenure and Promotion, on which I served from 2004-06.

    Also, another (obvious) caveat:  the SCOTUS, in NLRB v. Yeshiva (1980), determined (perversely) that professors are management.  That needs to be fixed one of these days.

    Posted by Michael  on  06/19  at  09:38 AM
  39. Also, another (obvious) caveat:  the SCOTUS, in NLRB v. Yeshiva (1980), determined (perversely) that professors are management.  That needs to be fixed one of these days.

    This underscores a divide that comes up repeatedly with academic labor issues.  In the physical sciences, many professors are management in a certain sense, in that they employ a body of people to conduct research, people whom they choose to hire and fire (or the equivalent for graduate students).  This supervisory role might make it harder for them to remember that there isn’t a simple labor-capital dichotomy (I think we can leave the splitters of the SPGB out of it), despite the fact that they must steadily produce output to qualify for job security, promotion, etc.  Perhaps they are thinking of themselves of contractors, or some such, who are subcontracting duties to their labs.  Regardless, they aren’t automatically sympathetic to concerns that they consider exclusive to non-scientific fields, even though this is a false view.

    The even more direct way this impinges on the “labor” question is with graduate student unionization.  There have been recent attempts by graduate teaching assistants to unionize at my institution.  Most of the impetus has come from disciplines where TA’ing is the primary means of grad student support.  Yet up here in the World of Bioscience, the unionization drive was met with open contempt and hostility, to the point of anti-union flyers pointing out “We’re students” appearing in the halls.  Why the derision?  Because all the students in this department are covered by stipends, be they departmental or paid from their advisor’s grant.  Any TA duties that occur are comparatively light, and might even be optional.  So what’s not to like?  Heaven help them if it ever becomes like the physics department I attended, or if the life sciences gravy train dries up.  I say “Heaven” because there won’t be anything else to provide help, thanks to them.

    Captcha: husband, as in “Husband, why did you not know that I’m left-handed?”

    Posted by  on  06/19  at  01:04 PM
  40. "It increases the market value of one’s teaching labor, methinks.”

    Hey, that was my point!

    Market (exchange) value, maybe, but not necessarily use value. As I’ve been trying to get through the heads of high school seniors who ask my advice and then discard it: Just because School A has the awesomest professors doesn’t mean you’ll be able to be taught by them. And just because School B’s prof’s don’t look like very awesome scholars doesn’t mean you won’t learn much more from them than you would from the TAs and lecturers at School A who are actually teaching the courses…

    My whole approach being, of course, an attempt to better inform the consumers who are being manipulated (clueless 17-year-olds) into participating in a determination of the future of academia.

    Posted by  on  06/19  at  02:38 PM
  41. Always look on the bright side of life:  The helpful thing about Garcetti is that it strips my university’s full-time faculty of the free speech rights long denied this and every other adjunct.  Welcome to the club, dear full-timer colleagues.

    Posted by Walter Dufresne  on  11/11  at  11:01 AM

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