May 2003 aaUPBEAT

Affirmative Action, the Patriot Act & Workload Advances

Administration Responds Positively to AAUP on Workload

As indicated in the April newsletter, the AAUP has continued to meet with the Administration in an effort to make sure that administered workload policies and their implementation are not tied to (a) the allocation of faculty lines to academic units and (b) the resolution of budgetary problems faced by the University.

On Friday, April 18, AAUP President Linda Bucher and David Colton had a profitable meeting with Maxine Colm, UD's Vice President for Administration. At the meeting particular aspects of the workload policy issue and a letter sent by the AAUP on April 18, 2003 to the Administration requesting workload clarification were discussed. Following this discussion an understanding between the union and the Administration was formalized in a letter sent by Vice President Colm on April 21 to the AAUP.

Vice President Colm wrote:

"In your recent letter, you asked 'for clarification on how they (the Administration) view the relationship between the administered workload policy, the budget, and new faculty hires.'

"A department chair's administration of individual faculty workloads must be in accordance with the Collective Bargaining Agreement, The Handbook for Faculty and the approved workload policies of the department. Moreover, the administration of the individual faculty workloads is not dependent on overall university budgetary considerations or the allocation of faculty lines to departments. As stated in the Handbook, administered workloads are not automatic, but must be in accordance with the actual contributions of the faculty member, the needs of the department and the individual's opportunities for continued professional development"

The AAUP Executive Council is of course pleased with the Administration's cooperation in clarifying the issues of concern to us. As a consequence of this clarification, we have instructed the Contract Maintenance Officer to resume the review process for unit workload agreements. We had previously instructed the Contract Maintenance Officer to withhold approval of such agreements until an understanding had been reached between the union and Administration.

Along with the Administration, the AAUP will review unit workload policies to make sure they are consistent with the Collective Bargaining Agreement. For example, since continuing non-tenure track faculty with non-administered workloads already have a 100% workload according to the Collective Bargaining Agreement, research or service cannot be added to their workload unless they are compensated either financially or with an administered workload. In every unit having such faculty members, the workload agreement should contain a statement detailing how these protections for continuing non-tenure track faculty will be implemented.

Affirmative Action

Two Michigan cases (Gratz v. Bollinger, et al. and Grutter v. Bollinger et al.) currently before the U.S. Supreme Court have provided the most recent examples of the controversy that still surrounds affirmative action. Both suits contend that (a) race is inappropriately used as a determining factor in the University of Michigan admissions process, (b) concern for diversity isn't justification in itself for employing race as an admissions criteria and (c) less rigorous academic standards are employed in the evaluation of minority applicants to the University than are used when assessing white applicants. The suits also argue that higher education administrators are personally liable for the adverse effect such a policy has on the civil rights of white applicants who are allegedly discriminated against by the University's admissions philosophy.

The two class action suits were originally filed in 1997. On April 1, 2003, the U.S. Supreme Court heard oral arguments in the cases. A decision is expected in June.

The Supreme Court's willingness to hear the cases was prompted by their tempestuous history and the degree to which they seem to crystalize a shift that is taking place in how to define the rationales for affirmative action. When in 2002 a U.S. Court of Appeals in Michigan overturned a previous Michigan finding in favor of the plaintiffs, the decision wasn't seen merely as a pro-affirmative action decision but also as a decision that took a crucial step toward redefining affirmative action. This was because the Appeals Court stressed in its decision that the quest for a diverse student body was in and of itself an acceptable rationale for affirmative action and that such a question did not have to be specifically tied to past acts of discrimination to be legitimate.

The national AAUP has filed an amicus brief with the Supreme Court in support of the University of Michigan.

Responding to the fact that race is in reality only one of multiple factors considered by the University of Michigan admissions office when considering applicants, AAUP associate counsel Ann Springer spoke in support of the University in April.

"Educators," Springer said, "are best able to exercise experienced judgment about the qualifications of each applicant and the optimal composition of the class selected to provide the best education to all. This includes evaluation of grades and test scores, but also leadership abilities, extracurricular activities, teacher recommendations, and all other individual characteristics central to assessing the whole person. External constraints on which factors can be considered and how they should be weighed deny educators the very core of their mission - the provision of the best possible educational experience to the students they serve."

Other unions, and not only education-related ones, also support the University of Michigan.

United Auto Workers (UAW) President Ron Gettelfinger recently told an interviewer, "Michigan's higher education system was built with the tax dollars of working families from every race, religion and ethnic background. We believe that sound affirmative action policies are the best way to make sure that the doors of the University of Michigan remain open to all students."

As the AAUP and other organizations develop further responses to the current affirmative action debate, we will keep you updated.

USA Patriot Act & Related Matters

From the moment of its passage, the USA Patriot Act of 2001 stirred controversy. Whereas the White House viewed the bill's signing as "an essential step in defeating terrorism while protecting the constitutional rights of all Americans," organizations like the national AAUP and the ACLU viewed the legislation's expansion of the government's surveillance powers more skeptically. "This broad new authority," an ACLU analysis states, "threatens to usher in a new age of investigation of Americans based on their political activities."

One Patriot Act-related concern of many people in higher education is the provision that allows enforcement officials to compel booksellers to provide records of books sold to specific customers and to force librarians to divulge check-out records. Prior to the Patriot Act's passage such information could only be secured by a government agency if it met the Fourth Amendment's "probable cause" standard. Now, the government not only doesn't have to meet this standard, but it can arrest a bookseller or librarian who refuses to provide the requested information.

Some of the bill's other controversial provisions are:

• Allowing federal agents in select anti-terrorism cases to ignore attorney-client privilege by eavesdropping on lawyer-client meetings.
• The relaxation of a whole range of government surveillance restrictions that were passed in the wake of the Cointelpro program which in the 1970s became an embarrassment to the government when it was revealed that the program was used to illegally gather data on and disrupt the civil rights and anti-Vietnam war movements.
• The shrinkage of student privacy rights.

This last concern, the curtailment of privacy rights, has been linked by some commentators to a growing national fear of political nonconformity and a consequent trend toward public support of the government's use of aggressive tactics to monitor suspected terrorists and other "suspicious" persons.

Example: A student at Durham Technical College in North Carolina was accosted by the FBI after the bureau received information from an informant that the student possessed anti-American literature. Embarrassingly for the government, the anti-American material in question turned out to be a poster in opposition to the Bush presidency. Although in the end no charges were brought against the student, the climate of distrust that spawned the incident remains worrisome.

A more dramatic case of government presence on campuses was the recent FBI arrest of Sami Omar al-Hussayen, a Saudi Arabian student, for visa fraud at the University of Idaho in Moscow, Idaho. According to Elizabeth Brandt, a professor at the institution's College of Law, 120 armed agents dressed in riot gear were transported into Moscow on two C-17 military aircraft. The raid occurred at 4:30 a.m. and also entailed the interrogation of approximately twenty other foreign students, none of whom were detained after questioning.

What makes al-Hussayen's arrest more than an example of FBI overkill is that since his February detention other government charges have been added to the original one of visa fraud. It is now alleged that he funneled money to terrorists through a Muslim charity and that he made false statements to the Immigration and Naturalization Service (INS).

Although al-Hussayen has declared his innocence and the government persists in insisting on his guilt, one thing is beyond dispute: the flamboyant nature of the FBI raid that resulted in the Saudi student's arrest has added to the debate surrounding the USA Patriot Act's creation of increased latitude for government agencies that (a) seek to gather information on students and faculty members or (b) want to pressure faculty and administrators into becoming government information-suppliers.

Among the Patriot Act's most widely discussed provisions is its mandate that the US Attorney General be given previously unallowed discretion to gather information on foreign students enrolled in American institutions of higher education. The high-tech key to such expanded data collection is the INS's Student and Exchange Visitor Information System (SEVIS), a software program for storing information, gathered from colleges and universities, pertaining to foreign students from designated countries

In part, the Patriot Act empowers SEVIS-based information collection by exempting the INS operation from the Family Education Rights and Privacy Act of 1974 (FERPA), which restricts institutions of higher education from providing student information without student consent. Under the Patriot Act, schools are now required to provide such information, without notifying the targeted student, just as long as the requesting agency possesses a proper subpoena. Colleges or universities that fail to comply can lose the right to accept foreign students into academic programs. Previously the burden of proof required of a government agency before it could secure court approval for a subpoena was more stringent; now an agency merely must inform the court that the request is part of an active anti-terrorism investigation.

The Patriot Act allotted $37 million for SEVIS's further expansion.

For some people, the Patriot Act, although problematic in that it curtails rights, is a necessary tradeoff given the increased role of terrorism in world events. One person who thinks this way is Meredith Csenscits, a human resources management major at the University of Idaho. Although she understands the apparent unfairness of the way new anti-terrorism legislation effects her campus's Muslim community, she nonetheless believes there's a need to tighten laws to enforce safety. Consequently, speaking not only for herself but also for others whom she believes think similarly, she says about students from abroad, "We feel sympathy for them. But if we're honest with ourselves, we're a little more nervous about them" since Sept. 11 and the build-up of tensions with Iraq.

Not everyone of course agrees with such an attitude. Members of the Campaign to Stop SEVIS worry that the Patriot Act and SEVIS could be preludes to greater freedom curtailments down the road. "If the government is allowed to force colleges to police international students," one of the group's documents reads, "a system that polices all of us will not be far behind!"

Alarmist? It could be. But the national AAUP itself has devoted significant time to analyzing current campus surveillance trends in an effort to forestall any momentum toward further limitations on freedom of expression and privacy rights.

Mark Smith, the AAUP director of government relations, maintains that the FBI often interprets the Patriot Act as giving the bureau more leeway in collecting data on students than the act's language allows. Smith's recommendation to faculty who are asked for student information by a government agency is that they not provide such information automatically, but first consult with their institution's legal counsel to find out (a) what the institution's policies are regarding such requests and (b) what exactly is and isn't allowed under the act. Such a process not only protects students as much as possible but also protects faculty members from future suits being filed against them for illegally providing student information without the proper approval.

Another concern that some faculty members have with the Patriot Act is the haphazard way in which some of its sections seem to have been written.

According to Stanford's Associate Dean of Research, Ann Arvin, both the Patriot Act and the Bioterrorism Preparedness and Response Act (June 2002) are flawed documents that place faculty doing research under undue pressure to conform to a vaguely defined code of conduct. Arvin points out that whereas the new laws criminalize the possession of select biological agents "except for medical or clinical purposes or for bona fide research," the laws then fail to define what is meant by "bona fide research." Arvin's point is that this lack of a definition places the researcher at the mercy of government bureaucrats deciding what is and what isn't acceptable research. Even under the best of circumstances, not to mention in the midst of a war on terrorism, such unclear language is bound to cause problems.

When signing the Patriot Act into law in 2001, President Bush stated, "The bill before me takes into account the new realities and dangers posed by modern terrorists. It will help law enforcement to identify, to dismantle, to disrupt, and to punish terrorists before they strike."

This may or may not be true. The problem is that it hasn't been determined yet what the cost of such an accomplishment, if achieved, might be in terms not only of free speech and privacy rights in general, but of academic freedoms in particular. As Benjamin Franklin stated, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."