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October 12, 2000

Law professor explains case seen as potential threat to academic freedom

Faculty were advised of a potential legal threat to the traditional concept of academic freedom at last week's Faculty Assembly.

Pitt law professor John Parry reported to the Oct. 3 assembly on possible implications of a 4th Circuit Court of Appeals February 1999 case, Urofsky v. Gilmore.

The 4th Circuit decision denied an attempt by six academicians in Virginia to overturn a state statute restricting state employees' use of state-owned or -leased computer equipment to download sexually explicit matter.

The only exception the court allowed is if the explicit material was part of a bona fide, institution-approved research project, where prior written approval was granted by officials of the institution.

According to Parry, that decision potentially means that a state legislature could attach conditions on faculty research done by state employees. Furthermore, Parry said, universities with an ideological bent could restrict research by denying approvals, based on this decision.

Parry noted there is some question, given Pitt's state-related status, about whether University faculty would be considered state employees when applying this type of statute. Parry said his colleagues in the law school advised him that Pitt's faculty would not be vulnerable, but that their opinions were not definitive.

Among the broader ramifications of the decision, Parry said, is that academic freedom for the individual is non-existent as a matter of law. "Academic freedom exists only as a matter of practice," Parry said. "You could get access to sexually explicit material if your dean or department head approved it; but that just means to me that the censor is closer. If this decision is [applied], it could mean that the University could control your research to fit its mission and vision. Academic freedom is the University's right, not yours," he told assembly members.

"I wouldn't worry about it necessarily," Parry said. "I would be concerned, but not alarmed. There is no equivalent PA statute that I'm aware of. But it is a signal to those who might want to fight for restrictions. I also think it's just a bad [legal] decision."

Parry pointed out that the court's decision said downloading such explicit material at home on a personal computer does not violate the statute, because a private citizen is protected by the First Amendment, whereas a state employee, acting in that capacity, is not.

In the suit, law professor Melvin Urofsky alleged that he had declined to assign an on-line research project on indecency law because he feared he would be unable to verify his students' work without violating the state statute. Five other plaintiffs joined him in the suit, including a researcher investigating erotic poetry and three plaintiffs who argued they were hesitant to continue their Internet research of various aspects of human sexuality.

Parry told Faculty Assembly: "My only advice is that all of us be proactive: Make a good case for the value of your work and why it's a good thing, why it's real research."

Parry declined to handicap the Supreme Court in the event a challenge to the Virginia statute is heard there.

University Senate President Nathan Hershey pointed out that the courts traditionally have supported the freedom of universities to make the rules that govern certain actions within their purview. A student may be expelled, for example, for violating university policy, without fearing the courts would step in. "This is a different situation, of course," Hershey said. "But it's the same principle in that the university is exercising academic freedom."

A Faculty Assembly member then suggested that this issue be a topic for a future plenary session, to which Hershey agreed.

In other Faculty Assembly developments:

* The Senate's fall plenary session is scheduled for Oct. 18, 3-5 p.m., William Pitt Union Assembly Room. The title of the session is "Are Scholars Under Siege? The Scholarly Communication Crisis." Provost James V. Maher, University Library System director Rush G. Miller and history professor Evelyn S. Rawski will be presenters.

* Senate Vice President Carol Redmond, who sits on a committee studying Pitt's research integrity policy, reported that she had gathered more than 20 major suggestions on amending the policy. Her committee is taking these under advisement, she said, before they finalize recommendations. Faculty Assembly agreed to form a working group to review the suggestions.

* George Klinzing, vice provost for Research, presented for discussion revisions in the Central Appeals Pool and Appeals Panel guidelines, the mechanism for faculty to challenge departmental promotion and tenure decisions.

Klinzing said some schools have their own provost-approved policy for electing tenured faulty in the school to serve on appeals panels.

Under the modified guidelines, schools without their own policy are subject to the Central Appeals Pool, which will be composed of all full-time tenured faculty of the schools that do not have an approved school-level policy. Faculty who serve on appeals or grievance panels will be excluded from serving on the Central Appeals Pool for three years.

Faculty Assembly approved the revisions, which then were affirmed by vote at the Senate Council meeting Oct. 10. The modifications will be sent to the chancellor for final approval.

* Hershey reported that Senate bylaws had been amended by vote to allow a Graduate and Professional Student Association member to serve on Senate Council.

* Hershey also reported that he was continuing to schedule faculty and Board of Trustees members for his "take a board member to class" program.

–Peter Hart

Filed under: Feature,Volume 33 Issue 4

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