Pop Quiz on Faculty and the Law with Kent Kauffman

In the last year, we’ve seen many stories of college and university faculty being accused by students of teaching something that the student didn’t think the instructor should be teaching. These incidents have a lot of instructors worried about teaching controversial topics—and just about any topic can be controversial these days. Previously on the podcast, we've explored pedagogical responses to the current political climate. Today, we look at our legal options.

Our guest is Kent Kauffman, author of the 2024 book Navigating Choppy Waters: Key Legal Issues College Faculty Need to Know. Kent knows the caselaw on academic freedom, and he has a lot of insight to offer faculty who are who are making hard decisions about what to leave on or take off their syllabi. In our conversation, he argues that academic freedom is under attack and he provides practical suggestions for preventing and responding to these attacks.

However, we start the conversation in a little lighter mode. I invited Kent to give me a pop quiz of sorts by describing a few scenarios faculty might encounter and challenging me to identify the legal issues involved. You’ll have the chance to test yourself as you listen—and to find out how I did on Kent’s quiz. 

Episode Resources

Navigating Choppy Waters: Key Legal Issues College Faculty Need to Know (Bloomsbury, 2024)

Teaching in Higher Ed Episode 557 featuring Kent Kauffman 

Transcript

Derek Bruff 0:05

Welcome to Intentional Teaching, a podcast aimed at educators to help them develop foundational teaching skills and explore new ideas in teaching. I'm your host, Derek Bruff. I hope this podcast helps you be more intentional in how you teach and in how you develop as a teacher over time. In the last year, we've seen many stories of college and university faculty being accused by students of teaching something that the student didn't think the instructor should be teaching. We've seen faculty called out very publicly, removed from teaching duties, and even fired. These incidents have a lot of instructors worried about teaching controversial topics. And it seems like just about any topic can be controversial these days. I've wanted to know what legal recourse faculty have in situations like these, and how to advise faculty who are wondering if they should take certain topics off their syllabi. That's why I'm glad to have on the podcast today Kent Kaufman, author of the 2024 book Navigating Choppy Waters: Key Legal Issues College Faculty Need to Know. Kent knows the case law on academic freedom, and he has a lot of insight to offer faculty who are making hard decisions about what to leave on or take off their syllabi. Kent is a faculty member himself, currently serving as an associate professor of business law and ethics in the Dormer School of Business at Purdue, Fort Wayne. In our conversation, he argues that academic freedom is under attack, and he provides practical suggestions for preventing and responding to these attacks. However, we start the conversation in a little lighter mode. I invited Kent to give me a pop quiz of sorts by describing a few scenarios faculty might encounter and challenging me to identify the legal issues involved. You'll have a chance to test yourself as you listen and to find out how I did on Kent's quiz. Kent, thank you so much for being on the Intentional Teaching Podcast. I'm very excited to have you on today and talk about legal issues that faculty and other instructors might face. Thanks for being here today.

Kent Kauffman 2:08

Well, thank you for the invitation. I am really happy to be on your podcast and talk with you about these, what I would say are important issues for faculty to think about.

Derek Bruff 2:16

Yeah, before we get into that, um, I'll ask you my usual opening question. Can you tell us about a time when you realized you wanted to be an educator?

Kent Kauffman 2:26

Yes, I would say it was my third year of law school, and I was working as a student assistant to one of the deans in my law school. He was a wonderful gentleman. He taught alternative dispute resolution and he was an associate dean. I was privileged to work in his office. And then just talking with him, we talked about future career uh options that I could consider. And legal education or education in general and higher education came up, and it was sort of a seed that he planted in me, and that was very encouraging. Out of law school, I was hired for a job that, like an annulment, I never got to start. So it ended before I got to start it. And so it was with the federal government, and it was frozen during a hiring freeze in the federal government. So I was doing everything a person could do to stay afloat financially. One time in my life, my financial goal was just to be broke someday. That was it. I just wanted to get to broke. And so I, earlier than I thought I would, started trying to find part-time teaching jobs. And I was teaching in different colleges. I write about in the introduction of my book, I write about my first semester at one college, which was very calamitous. And thankfully, at another college where I was teaching, I had a very wonderful mentor, and she encouraged my initial efforts and helped me to continue to think about trying to find more part-time work. And I taught any class I could find. And then about a year later, I was hired as a legal department chair in a community college, two-year college environment, and then eventually came to Purdue University Fort Wayne in the business school.

Derek Bruff 4:07

All right. All right. So not a direct path, but a fairly direct path. I am curious, if you don't mind me asking, what if in the parallel universe where that job didn't disappear, what would you have been doing with your life?

Kent Kauffman 4:22

Well, I was hired. I always like things that are alternative. If everyone's going one way, I'd like to go the other way. And so the job I was hired for out of law school was a management position with the IRS. It wasn't a legal position. I always went to law school with the idea that this was the education that I wanted after college. I am a big fan of a legal education, not legal school debt, but I knew this was the education that I wanted. I wasn't certain what I was going to do with it. And so the job that I initially was hired for out of law school was a management position in the IRS in a field office in West Virginia. And if I'm allowed to say this, thankfully, right, sometimes uh uh unavoidable rejections lead to good, good opportunities in other ways you didn't anticipate at the time.

Derek Bruff 5:10

Sure. Sounds like you're on a path that you enjoy.

Kent Kauffman 5:13

Very much so.

Derek Bruff 5:13

Yeah. So that's good. Um now we're going to talk about a variety of legal issues. And um, you know, my disclaimer on this type of thing is always I'm not a lawyer. Like, like, don't don't believe anything I say, but you are a lawyer. So is there any disclaimer you need to offer the audience before we dig into some of these hard topics?

Kent Kauffman 5:31

Other than I might make things up about which I know nothing about, uh, other than that disclaimer, I would say this. Sometimes there can be the belief that if a lawyer is talking, that they're giving legal advice, if what they're talking about fits your situation. And generally speaking, teaching the law is not even considered the practice of law. So it's possible to be a disbarred attorney and to still be employed teaching the law. That's not a problematic career endeavor. It may be hard to get into, but it's not one that is uh not possible. So generally speaking, teaching the law is not giving legal advice, but sometimes good conversations lead to specific situations or I or contacts that others may say, I think I'm in that. And so I guess the disclaimer I should provide is that please do not think that this is constituting legal advice in our discussion. When I make presentations, you know, the first PowerPoint presentation slide will always say, you know, what goes on today is not constituting the the giving of legal advice. Please see an attorney if you believe you need one. And so that's I think the disclaimer to make here.

Derek Bruff 6:40

Yeah. Well, and that that that's a nice segue to this next thing that we want to do because I feel like uh one value of a conversation like we're having today is to help listeners realize, oh, I might actually need to talk to a lawyer about the situation that I'm in. Um that's often the best advice that you can give is like, oh, you know, I particularly I found we don't always have a good sense of when it would be helpful to talk to a lawyer, like before something gets worse, right? Sometimes we're sometimes we're very clear when we need to call a lawyer, but other times it's nice to know in advance I need to be thinking about this as a legal context, um, and I might need some some professional assistance. Um I mentioned to you in our our our email before we met that um I spent some time as an assistant provost when I was at Vanderbelt University, and I felt like one of my superpowers was when something came up, I was able to say, you know what? I think our legal counsel is gonna have something to say about that. Um I had this like like radar. Um, and so um I think you've got some questions for me to kind of put my radar to the test. Um, as someone who, again, has has been around the legal side of universities, but but doesn't have particular expertise there.

Kent Kauffman 7:55

Um, so do you have some questions for me, Kent? I do. We can take this as far as you want. I've got a number of questions. I'm delighted to be able to have to have the opportunity to say to someone in a provost's office, you're wrong. I just can't wait that I might be able to say that. Uh, so we'll see what happens. The first one may be a bit too easy, but if you've ever seen The Princess Bride, you know about the battle of wits with the wine. So who knows? This may not be as easy as it seems to be. Okay. So here's the first one. Parent emails faculty member and says that their freshman student isn't keeping them up to date on their academic performance, which was part of the deal when the parent agreed to pay all the college costs. Parents want, parent wants to know how their child is doing grade-wise before financing their child's spring break trip. Go.

Derek Bruff 8:46

Ah, okay. So this happens. If a faculty member mentioned this to me, I would say you need to be a little bit careful here. Um I think the relevant legal or the, I guess it's a federal regulation, the FERPA, the Family Educational Rights and Privacy Act, has something to say about uh student privacy. Um and while I may believe that this parent has a vested interest in this particular student, I don't know that they actually have legal rights to know about that student's educational records.

Kent Kauffman 9:19

Excellent. That's great. You've passed the battle of wits, you're not gonna pass over from drinking the poison wine. So that's that's outstanding. I'm gonna say two things about this, maybe more than two. FERPA is uh a statute that is almost as long as the Constitution, and that's one statute. And it has regulations that follow it as well. So it is in my legal mind inscrutable to understand. And I think when you go to FERPA required courses at work, it almost leaves you more confused. So we'll just start with the basic, right? And you are correct. A parent loses all rights to their students' education records when the child enters college, no matter how old they are. So if they are, forgive me, young Sheldon, right? Those parents have no right to know what constitutes an education record of their child, even if they're paying for their child's education. Now, if the child or the student has uh electronically signed the right waiver forms that grants parents rights to that information, then that changes the calculus here. But in the setting as we have, the faculty member has no knowledge of that. So, first of all, parents have no FERPA rights once their child goes to college. Secondly, the parent emailed, and one thing that is safe course behavior for a faculty member is to not email anybody about a student where you could get close to education records on a non-university email. So that for instance, you if it was a student contacting you about their grades, they have the right to know about their grades. But if they're using their Gmail account, the better way to handle that is to say, could you email me on the university account and then I'll respond to you? Because it could be a FERPA violation. Um, and one thing to bear in mind, despite what I'm gonna tease you, provosts tell faculty is there is no way that you can be liable for a FERPA violation. There's lawsuits on it, and the Supreme Court has ruled no personal liability for FERPA violations. It's not possible. So that isn't to say please go violate as at will, but it's it's not something to be scared about. So that's that's my thought. You are correct for number one.

unknown 11:35

Okay.

Derek Bruff 11:36

I will add, I think part of the reason you don't want to respond to that email is is I you don't actually know this is that child's parent. Exactly.

Kent Kauffman 11:43

That's exactly right. That's exactly right. It's particularly if the parent says, uh, if you send me some money, I'll make sure you get some Bitcoin worth a million dollars. So all you need is the processing fee to be paid for. Here's the second one for you. All right, so you're one for one. At a department meeting where syllabi are being discussed, the department chair suggests everyone add statements to their syllabi about limiting class interruptions with cell phones, et cetera. And a professor in the meeting says that they have put in their syllabus this semester a statement that says, quote, no one can say God bless you after someone sneezes.

Derek Bruff 12:21

Okay, that took a turn.

Kent Kauffman 12:23

Um didn't see that coming, did you?

Derek Bruff 12:26

Yeah, I did not. Um I feel like uh there is probably a First Amendment free speech thing here where uh a student has a right to say, God bless you, if the situation, if they want to, actually. As long as they're not doing so in a way that disrupts the learning process, how do they do it?

Kent Kauffman 12:48

That's too good. I I have nothing else to say. I have the then we're gonna keep going till I fail you on something. That's an excellent answer because the issue here is that particularly, although it's unstated, if this is a public university, this looks like viewpoint discrimination. And students in public universities have free speech rights. And so even though it's highly unlikely that this professor is trying to be anti-God if you're gonna call post-sneeze benedictions religious in any way, because nobody gets to heaven and says, like, thank goodness I sneezed in the right spot, or else who knows where I would have been, right? So the fact that you're saying don't say God bless you, it sort of smacks like it's anti-religious free speech stuff. And this comes from a real case in Texas where a professor did have a statement in his syllabus that you couldn't say God bless you. And once it hit the news, then the university administration said, uh, we're removing that. So you are two for two. Okay. Number three, at the same department meeting, the chair tells everyone to make sure not to deviate from their syllabi once it's distributed, because it's a contract between you and your students, and suggests that everyone have students sign a document acknowledging that the syllabus is binding.

Derek Bruff 14:05

Oh gosh. Okay. Well, that's a bad idea.

Kent Kauffman 14:08

Yes.

Derek Bruff 14:09

Um, but why? Um, I think because a syllabus is not a legal contract. We we may call it a contract, but like I have signed legal documents. Um, I don't think having the student sign something turns it into a legal contract. Am I right?

Kent Kauffman 14:25

That is correct. You're three for three. Um, but so uh I'm gonna keep going till I fail you at something. That's a really good answer. If we have time to talk about syllabi and contract, there's a lot to be said, but but syllabi are not contracts. Just because they look like they might have the formality of a contract doesn't make them a contract. Uh so it's to me, fool's gold. It looks like something it actually isn't. And there are cases where students have sued professors for breach of contract over syllabi deviations. And every one of those lawsuits gets dismissed, which means it doesn't even go to a jury. So courts have repeatedly stated syllabi are not contracts. I wish, I wish faculty would know that more. So they're supported more when they, for a variety of reasons, deviate from the course plan or the grading schedule or need to make an on-the-fly decision that that just simply changes what their syllabi said. And there's even a case where a law school professor, of course, was sued by a law student, of course, in a contract class, of course, the law professor orally deviated from his written syllabus on the first day of class. And that went through the rounds of litigation, but eventually a court said, no, this is not a contract. Syllabi are not contracts. So you are correct about that as well. Okay, this may be tougher. Let's see. A student complains to the provost office because they were given no participation points, which could count towards 15% of their total grade, causing the student's grade to be low enough to require a retake of the course. When questioned about it, the instructor said that the student did participate, but did so in an unprofessional and counterproductive way. The student is threatening to sue the professor and the university.

Derek Bruff 16:12

Okay. Well, that is a situation I don't want to be in as a professor. Right. Um, certainly. But um, and here I'll admit I may have cheated a little bit because I I listened to you on Bonnie's Tehoviax podcast recently. Okay.

Kent Kauffman 16:28

Um that's the kind of cheating I'm all for.

Derek Bruff 16:32

I did a little prep for today. Um uh faculty have very wide latitude in terms of their teaching methods and their assessment methods. And it would be a very hard case, I think, for the student to prove that there was some type of malpractice going on.

Kent Kauffman 16:48

That is a really good answer. You're a four for four, and this is from a real case as well, that was litigated to the point that it did get to a trial. It was a trial not with the judge, pardon me, not with the jury, it was with the judge who was served as what we would call the fact finder. So the judge was the judge of the trial and the fat judge of the outcome of the trial. And throughout the trial, the judge said, please settle this case, please settle this case, because the instructor was a graduate student teaching a graduate therapy class. And the student sued the therapy graduate student, the PhD student, for over a million dollars, saying, I had to change my program because of the grade you gave me, because of the zero participation points. And now I'm gonna lose that much income because I can't be a therapist. And so it was really ugly. And the students, the the graduate student's father was a tenured finance professor at the university. So it was just really, really unpleasant. And ultimately, the judge said before issuing his decision, I would never, because he was a part-time instructor himself. He said, I would never give a participating student a zero for bad participation. But he ruled in favor of the instructor and the university, and that was upheld on appeal as well, because the court said this this goes to an essential part of university faculty protection, legally legal protection, which is what's called the arbitrary and capricious standard. And here it may seem like it was arbitrary or capricious, but it was not. This this graduate instructor had a theory, professional theory as to why she gave zero. You're unproductive, you're actually, in a way, being unprofessional in your participation that can't earn points in a therapy class. And so I'm giving you a zero. And even though the judge said, I wouldn't ever do this if I was the instructor, that kind of goes to the essence of this legal standard, which is courts don't ask, would I have done what you did. That's not how, that's not how they work this through. They simply say, is there a rationale behind the decision, even if it's controversial? And the instructor and the university passed as well. So I have I have one last chance. Okay, let's see. Okay. It's my last question. You could be five for five. You could be the Ted Williams of these, of this, of this quiz here. A provost is drafting a post-tenure review policy, and a key part of it requires tenured faculty to choose an excellence category from research, teaching, or service and demonstrate annually in their post-tenure review report that they met that excellence standard. Failure to meet excellence will result in the loss of a merit raise and could, in successive years, lead to a loss of tenure.

Derek Bruff 19:36

Well, I this is definitely outside of my bailiwick. Um that okay, so that policy sounds well-intentioned at the front, right? That we would have some type of post-tenure review, and the faculty member would have some agency and kind of how that review happens. Sounds like a reasonable strategy. Could they then not get merit salary? I think that's within a department chair's purview. Um, can they revoke tenure? Uh uh yes.

Kent Kauffman 20:13

I'm so glad I had that one in here. Four for five is still outstanding. There's nothing wrong with that, okay? Unless a B is below your standard. Because isn't there four for five a B? So what's with an 80%? Yeah. Let's just say you only got one wrong out of all of these. But I I it's first of all, you're not really wrong, because the the most part of your answer is correct, which is it post-tenure review uh is not on its face, unconstitutional or not allowed. It it is an allowed thing, even if states mandate that there be post-tenure review in public universities. So the provost may have a post-tenure review policy. Absolutely. So that is correct. Can it be tied to merit raises? That's correct as well. It may. The issue for me as I see it is that once a faculty member is tenured, the way to remove a tenured faculty member or or have their tenure revoked is one of three categories. One is financial, called reductions in force, where there has to be an extreme exigency that is shown. And that then goes back to the tenure policy and how it protects tenured faculty in a who's draws the short straw to be eliminated. The second one is what we would call serious misconduct, not misconduct. Tenure track people can be fired for misconduct, but tenured faculty members generally can't be fired except for serious misconduct. That would include something like plagiarism, for instance. Then here it's usually what's called incompetence. In this standard requires the faculty to demonstrate excellence, which is what you need to demonstrate to be tenured. But to require, in my legal view, to require a tenured faculty member who got tenure based on excellence to continue to show excellence goes against the legal common law or the case law doctrine that says you. Fire them for being incompetent, but you can't then fire them for being not excellent, which is something above competence when they've acquired a vested right in their employment by being tenured. That's how I think that would come out.

Derek Bruff 22:14

Okay. Okay. That makes sense. So um okay, four for five. I'll take that. I think it's outstanding.

Kent Kauffman 22:22

I I should have done better in my questioning. They were too easy.

Derek Bruff 22:26

Well, yes. Um it's there there are certain complicated situations one might have to might might encounter on on one's way to being assistant provost. So um some of those some of those felt familiar. But I want to turn the tables now and ask you some questions. Um and I think I'm gonna start with the hard one. So um uh one of the reasons I wanted you on the podcast is that uh I've had several episodes in the last year or so that are kind of circling around the um politicization of the classroom that has been heightened, I think, in the last 12 months or so. Um so I'm thinking of the stories we've seen of college instructors being accused by students of teaching something that the student didn't think the instructor should be teaching. And um, many of these stories come from states that have passed laws that, if I'm very succinct in describing them, limit academic freedom. Um and so uh I've I hear from faculty who are, because of the stories that have made it into the news, um, I hear from faculty who are worried about teaching the things that have traditionally been on their syllabus out of fear that some student will find it offensive or out of line, or there's some new state regulation that makes it challenging. And so um what would you say to a faculty member wondering if they should start taking some of those controversial topics off their syllabus?

Kent Kauffman 24:00

It's as urgent a question as one can be asked. Um, it's it's not just relevant, but it's timely in a foreboding way that it's timely. Because in my view, academic freedom is is under attack. It's not just under threat. I think it's under attack by uh state legislatures that write, in my view, anti-academic freedom legislation that again only apply to public university faculty members because that legislation doesn't, I mean, one could one could make that apply to private colleges, it's possible, but that's not the object of the animus that legislatures have. It's towards public university faculty. So there's legislation in the state level. There uh is an attack on it by public interest groups and by parts of the media that uh, in my opinion, tend to gin up a very skewed view of what goes on in college and graduate classes and universities generally as well. There is an encouragement of getting students to secretly record their classes so they can then use them to file complaints against faculty or post parts of those classes online and in, I'm putting this in air quotes, expose the faculty for views that shouldn't be held. So, with that as a background, let me just say this. From a broad to a more specific sense, there's no such thing in American law as educational malpractice. Courts do not countenance that. That's been around since about the 1970s. So uh if I committed legal malpractice as an attorney, one could sue me for a legal malpractice. But educational malpractice, courts don't like that because one of the reasons is it's unworkable compared to traditional malpractice claims. Because a student would have to, like in a legal malpractice case, a student would have to show that not just that they were the object of negligent instruction, but that that caused them a financial loss that they wouldn't have had had there not been this bad instruction. So there's a causation problem, there's a policy problem. Courts do not want to be super graders, and they so courts do not like educational malpractice claims. Secondly, we've already mentioned the arbitrary and capricious standard in that example of a quiz question I gave you. So faculty are protected there. The question isn't, are they doing something controversial? You know, the question is, are they doing something within their disciplinary knowledge and professional discretion that they have? Now, do faculty sometimes mistreat students? It does occur, and they occur in the same way. I would say this that sometimes planes crash. We know about them because they occur, but they don't occur a lot. They rarely occur, which is why we know about them. But there are cases, and they're in my book, where faculty have mistreated students and students have won lawsuits overcoming the arbitrary and capricious standard. Then there is specifically, more granularly, the germaneness test or standard that says not has the instructor said something that is controversial or not welcomed by students, but is it germane to their discipline or to their topic or subject at hand? And so faculty have won lawsuits where they've been dismissed or disciplined under the germanneness standard, where they engage in teaching techniques or talk about teaching subject matters that are relevant but are still not unwelcome. So as it concerns academic freedom, I think we get it from three sources or up to three. First, there's a tradition of it that comes from the Middle Ages and post-Middle Ages European colleges or universities that granted academic freedom, and that was tied to being free from the dominant religion of your country. So you didn't have to say something that was only in line with that theology. Nazi Germany kind of killed that for temporarily. Then we have an American tradition that I think is credited correctly to the AAUP, that was the American Association of University Professors founded in 1915. That you will find in a lot of tenure and academic freedom statements that universities have issued to their faculty, that language is either highly summarized or almost verbatim copied from AAUP statements. Thirdly, there's the constitutional protection that one gets if you're a public university faculty member. So there's First Amendment academic freedom protections that cover all faculty. So when I was a part-time first semester faculty member at both a private and a public college, I still had academic freedom. It's for all people. Private university faculty members get academic freedom exclusively through contract, where there's binding policy that tells faculty, both in their research and in their teaching, that they are granted the freedom to, it's often to think and perhaps criticize existing institutions and teach in a way that is limited by this. Generally, the limitation in those policies would be don't introduce irrelevant subject matter into your content. And the question is what makes something irrelevant and how much of it is is discussed that it qualifies past this burden. But but beyond that, faculty should have academic freedom that comes from these sources. But the question that you asked is should faculty consider pulling content out in light of what's going on? And I think that is a worthy question to consider. And so for me, I would take the germaneness test or standard one further step, which is not just is this relevant or is this germane to my topic, but is this necessary, right? In light of what I'm at risk for, right? And this may be an perhaps too strong of a phrase, but if you know the term, is this a hill you're willing to die on, right? And that's the thing. I've done that in some of my content in the last, I would say, year to year and a half, where I'll look at something I have talked about in the past or referenced or brought up as media, and I'll just say, I think I can cut this, not because it wasn't necessary, because it's no longer worth providing. I've provided other content as well that covers that. So I do think it's, it may sound like you're giving in by saying, I'm cutting this out for that sake. But if you think about the, and I'm I'm tenured, but if you think about the nature of who works in colleges today, more overwhelmingly they're not tenured faculty member. And more often than not, they're part-timers. So the question is, what time and and cost can a part-time or non-tenured faculty member put in when they're facing the fact that they want to teach the next semester? And again, that may sound like, well, you're giving in to whatever may qualify as bullying, but it's also a tactical decision to say this may not be worth it. There are some things I have kept that could perhaps get me in trouble someday in a euphemistic sense that someone might not like it. But bear in mind, the Bill of Rights protects that which is unpopular. That's why it's there. You don't need the Bill of Rights to protect the popular stuff because it has them the will of a majority. It's the unpopular stuff that's protected by the Bill of Rights and the First Amendment.

Derek Bruff 31:20

So let me see if I'm following. So there may be some examples or topics or readings of my syllabus where I feel like you're making a distinction between is it germane? Maybe I look at all of it and say, yes, it's all germane. If I were to be fired for including this in my course, I would have a reasonable academic freedom case to say that firing was unjust. But that's gonna have some impact on my life, even if I win that case eventually. And so I might look at that syllabus and say, okay, here are a couple of things that are germane, but I could take them out and still do what I need to do in this course, that minimizes my risk of getting embroiled in something long, painful, and complicated. Um is that kind of what you're saying? Is to try to make that distinguishing move?

Kent Kauffman 32:13

Yeah, that's exactly right. It's sort of like packing for a trip that you're putting, you're getting a suitcase that's gonna be, you know, put a board above you, and you're thinking, I really like this outfit, but I don't need it for this trip, right? Can I get by without it? There's nothing wrong with it, but I only have so much to pack in this bag. And if you're thinking about controversies, asking yourself, without this controversy, have I done my job and what I need to do in instruction or critical thinking application? If you have, then it may be safe to say, at least for now, pull it out. Now, some people teach subjects that may be endemically controversial in today's world. And and I'm not saying that business law is one of those. It's it's not. But there are other courses in the humanities and gender studies and women's studies, which on their face come with controversy in the minds of some people. And then the question is, how would you teach a course that is just uh in intrinsically perhaps controversial in a way? I would still run through all that and do the germaneness test. And then one thing I would suggest is that maybe in departments that where there's cohesiveness, that departments maybe agree ahead of time that we are all on board, that this is a subject or a topic or a reading or an assignment that is worthy of this of this course. So that particularly a part-time or a tenure track is not like hanging out in the wind in case they're accused of something. So I think maybe tenured faculty or departments with cohesiveness where they know we're likely to face possible academic freedom um charges or intrusions, think ahead and say, okay, let's just think for a minute over some coffee. What might come up in this class? Can we agree that not that we're telling you how to teach, but we're in unison that this is valuable and therefore passes our germaneness test?

Derek Bruff 34:08

Gotcha. Because then it's not up to the individual instructor in that court case to try to argue for germaneness. There's a department document or list or something that could that they can kind of appeal, uh can can appeal to.

Kent Kauffman 34:21

Right. I mean, if you think about the storm that may be coming, it you decide which chairs am I going to bring in off my porch, right? So that's what faculty should do as well. If you, rather than being totally reactive to an accusation, it may be better to be proactive and think about at least what you can plan for. We agree that this is a valued topic, or we agree that this is not sometimes in intellectual diversity complaints, students have the right to complain that the instructor didn't discuss something that should have been discussed. And that's on its own just a novel concept to think about. If you just break it down and ask yourself, what did what did he just say? So maybe faculty should agree as well. Perhaps we're not going to bring this type of material in in this discussion because it doesn't have any disciplinary, scientific, intellectual reference point that is valid or accepted in our discipline.

Derek Bruff 35:21

Now, you just um I forget the term you use, but if you have a kind of a well-functioning department. Cohesive. Cohesive, right? Where they can agree on things like this. What if, what are your options if your department, your school, your university employer doesn't seem to have your back during one of these flashpoints?

Kent Kauffman 35:42

I would start with the maybe the easiest question, but it may be an unfair question, is are you tenured? If you're tenured, then understand that the first purpose of tenure, universally agreed, is academic freedom. It doesn't mean that untenured people don't have it. It means that tenured faculty are the in the best position to defend it. The next question would be: are you in the AAUP? Like, is there a chapter on your campus that you could join or perhaps start to get a little bit of help with those issues you're facing, including just a sounding board? Next, I would say, do you have any insurance that could qualify as professional liability insurance? And that's something to think about as well. And there are ways to look for professional liability insurance, or if you have a home, you might want to ask your insurer, is does an umbrella policy, which is dirt cheap, I'm sure you as a parent have an umbrella policy. I have an umbrella policy. Okay. So if you have an umbrella policy, check to see does it cover me in my work situation? So the reason why you want to have insurance is not because you're going to be liable, it's because you don't want to pay the legal costs. And the the insurance will come, it should come with the cost covered for any defense you need to make of your own self at work. Next, I would say this save your emails at work that you think may be needed down the road. And when I say save, I actually mean print because if you look at your university's intellectual property policy, they probably say they own all university email, anyways. And so I would suggest printing all emails, not just archiving them, but printing them. Because if you lose your job, you will lose your email faster than before you get to your car in the parking lot. So I would suggest printing emails. I would also suggest when you have uh either conversations or meetings that are planned that could be contentious, I would always suggest having a third party that you choose to be there as a note taker or as a witness so that you're not later saying that's not what was said in the meeting. Have somebody else there. If you can record it, then, and again, if you think about conversations, it's possible. In Indiana, for instance, if I'm in a conversation, I can record it without that other person's permission. So if you're comfortable recording conversations, there's nothing wrong with protecting yourself that way. But at least outwardly having a third party there in a meeting, I think is a good way to memorialize what actually has been said. And then lastly, I would say contact HR, not because they're on your side, because, and I'm not trying to be anti-human resources at all, but HR exists in part to uh protect the institution from liability, not to protect the individuals from liability. But by going to HR, at least you're getting on the record what you may later need to say, which is I went to HR about this. Even if you think it might not be fruitful, you are creating a paper trail of what has been happening to you along the way in case you need that.

Derek Bruff 38:46

Yeah. Well, um uh our time is drawing short, but I I wanna I want to at least ask this question. Um you mentioned different state regulations. Uh for faculty who aren't happy with their state's current intrusions in the college teaching. Do you have recommendations for those faculty for what they might do, for advocacy work they might follow?

Kent Kauffman 39:14

I mean, I think that this is going to sound self-serving. And so I'm not trying to plug my book, but one thing to do is to do your best to find what the status of the law is in your state. And again, that doesn't mean you have to hire an attorney for that. But but people that work in colleges are smart people and they can find, they can do their own legal research and to say, at least generally online, to say, what does what does my state say about protecting faculty rights? Or can I find if there's any recent controversies where faculty have won the right to continue doing what they're doing, even though they've been criticized or disciplined for it. So one thing is to try to be not your own lawyer, because again, you can represent yourself in court, but but um as the phrase says, anyone who represents themselves in court has a full for a client, right? So I'm not saying be your own lawyer, but I'm saying think about it from a lawyer perspective. Next, I would say humanize yourself to your community. And that may be writing a non-vitriolic, but but sharply worded opinion piece in your local newspaper, or uh, or seek if you can get a letter to an editor that just lets people know what the other side is. I, you know, faculty don't have a lobbying group, right? There, and many states don't even allow faculty to collectively bargain. Indiana is one of those states. So if you can't collectively bargain and there's no special interest group for you as a faculty member necessarily outside the AAUP, then the question is, can I humanize myself to my community? And I think sometimes letters to an editor or opinion pieces are ways to do that. And then thirdly, one might want to engage in advocacy, you know, whether it's going to the statehouse and just presenting another side to, because faculty, they're not bad people and they don't have an agenda to ruin the lives of their students. They they they generally want to do their job to the best of their ability, end of story, right? Period, end of story. But sometimes the type of work that faculty do is unpopular. And that may be temporary, but it's it's still doesn't feel temporary when it's going on. And and we can go through history to find all kinds of academic work that was disfavored or pillaried or just made illegal in some way, or made the academic person an outcast. So I think perhaps just advocacy, and in some way, some people might want to run for office uh as something to consider as well.

Derek Bruff 41:49

Okay. Yeah. Well, and as you referred to earlier, you know, there are other parties in our country that are telling lots of stories through a variety of media and mechanisms. Um and I think sometimes the stories uh of the the actual faculty experience don't get the same kind of attention. Um, and so if we can do our part to help tell those stories, I think that can be helpful.

Kent Kauffman 42:13

Right. I agree as well. Yeah.

Derek Bruff 42:16

Well, I know there's lots more we could talk about, Kent. Um, but uh we've covered a lot of ground and I think addressed a very pressing concern for a lot of faculty members. So I'm gonna thank you for coming on and sharing some of your expertise. And I will encourage listeners to go check out your book, um, which covers a lot of topics we weren't able to get to today, including generative AI, which is something I'm I'm very curious about. But um uh thank you, Kent, for coming on and and for giving us some pointers to some things we should be paying attention to.

Kent Kauffman 42:46

Well, thank you for having me. It's really been a pleasure to talk with you. And again, congratulations on your awesome score on the pop quiz to start our podcast today.

Derek Bruff 42:56

I'm gonna take that. Um, wait, wait, don't tell me. You just need to get two out of three and you still get a prize.

Kent Kauffman 43:00

So you know what? I don't have Bill Curtis's voice, but I wish that I did because I would give you a, I would, I would send you off like he can do. That's great, Kent. Thank you so much.

Derek Bruff 43:10

Thank you very much. That was Kent Kaufman, Associate Professor of Business Law and Ethics in the Dormer School of Business at Purdue, Fort Wayne, and author of the 2024 book Navigating Choppy Waters: Key Legal Issues College Faculty Need to Know. Thanks to Kent for coming on the podcast to test my assistant provost superpower, and to provide some guidance for faculty making hard choices about teaching controversial topics in the current political climate. As I mentioned at the end of the interview, there are a lot of legal issues we didn't get to that are covered in Kent's book. See the show notes for links to his book and his appearance on the Teaching and Higher Ed podcast, where he addresses a few of those other issues. Intentional teaching is sponsored by UPSIA, the Online and Professional Education Association. In the show notes, You'll find a link to the UPSIA website where you can find out about their research, networking opportunities, and professional development offerings. This episode of Intentional Teaching was produced and edited by me, Derek Bruff. See the show notes for links to my website and socials, and to the Intentional Teaching newsletter, which goes out most weeks on Thursday or Friday. If you found this or any episode of Intentional Teaching useful, would you consider sharing it with a colleague? That would mean a lot. As always, thanks for listening.