Campus Free Speech

Can You Talk about the Mask Policy in the Classroom?

The University of Iowa minimizes academic freedom so the unvaccinated can feel more comfortable

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The University of Iowa has declared itself to be a largely mask-free campus for the Fall of 2021. The state legislature banned mask mandates by cities, counties and public schools. State universities were not covered by the legislation. Nonetheless, the board of regents for the state university system adopted a policy that masks can be required only in very limited circumstances on state university campuses. In the face of faculty protests, the University of Iowa provost has followed that up with more detail about the policy and how it is to be implemented. Included in that detail is some very interesting language about what faculty are allowed to say about the mask mandate.

Although the regents said that masks are "strongly encouraged" but not "required," the guideline from the provost indicates that professors may not "ask" or "require" their students to wear masks. They may not ask students about their vaccination status so that "everyone feels respected." They may not ask other employees of the University of Iowa about their vaccination status. All that's rather dubious, but even more intriguing is the directive regarding speech in the classroom.

Q: May I make statements in the classroom regarding mask usage or vaccinations?

A: You may only make statements regarding mask usage or vaccinations in the context of course material discussions of health-related issues.  Outside that context, if you are asked, you may share your personal choice regarding the decision to wear a mask or be vaccinated without making a statement regarding the value of the choice or any value judgments about decisions not to be vaccinated. Remember that there is a power differential between you and your students, and they may perceive you asking them to wear a mask or if they have been vaccinated as a requirement that they do so.

Some have suggested that this directive runs afoul of the board of regents policy on free speech. I doubt it, but it certainly runs afoul of the spirit of that policy. The specifics of the policy relate to student speech and speech by campus speakers and does not focus on speech by members of the faculty or classroom speech. But notably it does include some "guiding principles."

Guiding Principles

  1. The primary function of the Regent universities is the discovery, improvement, transmission, and dissemination of knowledge by means of research, teaching, discussion, and debate. To fulfill this function, the universities must strive to ensure the fullest degree of intellectual freedom and free expression allowed under the First Amendment to the Constitution of the United States.
  2. It is not the proper role of the Regent universities to shield individuals from speech protected by the First Amendment to the Constitution of the United States, which may include ideas and opinions the individual finds unwelcome, disagreeable, or even offensive.
  3. It is the proper role of the Regent universities to encourage diversity of thoughts, ideas, and opinions and to encourage, within the bounds of the First Amendment to the Constitution of the United States, the peaceful, respectful, and safe exercise of First Amendment rights.
  4. Students, faculty, and staff have the freedom to discuss any problem that presents itself, assemble, and engage in spontaneous expressive activity on campus, within the bounds of established principles of the First Amendment to the Constitution of the United States, and subject to reasonable time, place, and manner restrictions that are consistent with established First Amendment principles.

The guiding principles emphasize the importance of fostering a culture of robust debate on campus, diversity of views, and the ability to express unpopular ideas. The provost's emphasis on avoiding any speech that might make the unvaccinated uncomfortable is certainly in some tension with those principles.

More important, I would think, is the university's policies on academic freedom which would govern instructor speech in the classroom. The University of Iowa has committed itself to the AAUP principles of academic freedom, which include the freedom of professors to "discuss subjects—including controversial issues that are relevant to the subject— in their classrooms." Moreover, the "Operations Manual" for the University of Iowa includes an elaborate statement of academic freedom principles that "encourages faculty members to express new ideas and divergent viewpoints and to make inquiries unbounded by present norms" and that it "is essential that faculty members in their teaching and research feel free to express new ideas and divergent viewpoints."

But freedom comes with responsibility, and academic freedom in the classroom likewise has limits. The AAUP has recognized that professors should "avoid persistently intruding material which has no relation to their subject." The University of Iowa specifies the professors "must not intentionally interject into classes material or personal views that have no pedagogical relationship to the subject matter of the course."

None of that limits what faculty might say outside the classroom either on campus ("intramural" speech) or off campus ("extramural" speech). Outside the classroom, faculty are recognized to have extensive freedom to communicate their personal view to others. The provost's stern admonishment to faculty not to ask anyone about their vaccination status is at odds with freedom of intramural speech. Your colleague has the right not to tell you, but you have the right to ask. And, of course, faculty are free to make use of campus spaces to advocate for their preferred mask policies (and the provost does not suggest otherwise).

Inside the classroom with a captive audience and specific professional responsibilities, the scope of the freedom to speak out on controversial topics is more constrained. The provost's directive, however, probably restricts too much. It is not for the provost to determine whether a discussion of masking policies is relevant to the subject of the course nor to limit such discussions to a small subset of classes on "health-related issues." It is also not for the provost to instruct faculty that they may not make any "value judgments" about vaccinations in response to student questions in class. It is hard to argue that a conversation about masks and university policies regarding masks in the classroom does not have a "pedagogical relationship" to the class, just as professors might express "personal views" about issues ranging from class attendance to examination policies, particularly if such a conversation is initiated by a student. Even if it is true that the board of regents policy prohibits professors from requiring students to wear masks in their class, it cuts too far to bar professors from saying anything normative about masks or vaccines for fear that students might "perceive" that the professor is asking the to don a mask.

It is also worth noting the implications of the 6th circuit's recent Meriwether opinion on classroom speech. The University of Iowa is not within the 6th circuit, but the opinion should presumably be informative to the provost's thinking about what the "fullest degree of intellectual freedom and free expression allowed under the First Amendment" requires. Meriwether involved the question of whether a university could require a professor to use a student's preferred pronoun in class. That court emphasized when a professor speaks on "a matter of public concern" in the classroom, then that speech is constitutionally protected. That determination does not end the matter, since it is possible for the university's interest "in promoting the efficiency of the public services it performs through its employees" might override the professor's constitutional interest, but that possibility seems very unlikely in this context. The AAUP might say that professors should not intentionally interject controversial matters unrelated to the course into their classroom, but Meriwether says professors are protected by the First Amendment if they do so and those controversial matters are matters of public concern. A federal court might not be very sympathetic to the provost's directive on professorial classroom speech on masking.

NEXT: Poetry Wednesday!: "somewhere i have never travelled,gladly beyond" by e.e. cummings

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  1. What’s the problem? It starts with the idea of non-mask-wearers as a discriminated-against, protected class, and then applies standard civil rights principles common to all protected classes.

    The professor can talk about Christian theology in a classroom context, but can’t ask students if they believe in Jesus or said their morning prayers or are saving sex until marriage, or tell them that he thinks they should.

    What’s the difference?

    Accept that legislatures are entitled to identify protected classes thst you or I might think not in the best interest of society, and everything follows. Pretty straightforwardly. The rules here don’t seem to be any different from the rules above. In fact, there were Conspirators who complained bitterly when trainers in a faculty training program spoke their mind about Jews.

    If you can’t offend Jews, and the legislature deems preferring mask-wearing a similarly animosity-based prejudice, why should classroom instructors be allowed to offend non-mask-wearers? Exactly the same principles ought to apply as to any other class the legislature deems oppressed.

    Indeed, the University was doubtless cognizant thst courts have recently held that the legislature has a compelling interest in ensuring oppressed people are able to fully able to participate in the stream of commerce that simply overrides the first amendment. If the state can compell the speech of web site designers, it can certainly compel the speech of professors.

    It can, for example, require that professors who have undue animosity against non-mask wearers attend diversity training seninars where they can be required to encounter non-mask wearers and listen to them sharing about how oppressed and excluded society makes them feel. Or it can simply fire them for creating a hostile environment. Exactly like any other kind of oppressed class.

    1. ^This.
      Once we headed down the special rules for special people path, this is a logical conclusion.

      Speaking or precedents – Can I go maskless but say that I identify as someone wearing a mask?

      1. Babylon Bee sells T-Shirts with the text “I identify as vaccinated”.

        1. I hadn’t seen those before. I love it. I actually am vaccinated so am I cis-vaccinated?

          1. Oh, that is hilarious! 🙂

            1. Hilarious? Among half-educated racists and other conservatives, perhaps.

              Being known — especially in the eyes of younger, educated Americans — as the anti-social, superstitious, bigoted, virus-flouting hayseeds may be the final nail in the coffin of conservative relevance in modern, improving America.

              Iowa, meanwhile, is just another can’t-keep-up backwater, flattering ignorance and backwardness.

              1. Says the guy whose wants to eliminate women’s sports, introduce FGM to America, and re-segregate southern schools.

              2. Doing “I identify as” jokes is the absolute height of conservative comedy, and has been for going on nearly a decade. They’re projected to come up with a “new joke” by 2035, but that outlook seems uncertain.

                1. Teefah,
                  I guess you identify as clever.

                  1. It’s just winners and losers . . . and don’t get caught on the wrong side of that line.

                    1. Ok, Mr. Trump. I mean Mr. Kirkland.

                      It is all about winners and losers. Gotcha.

                    2. Trump . . . Kirkland . . . Springsteen . . . It apparently is all a blur to some people.

                    3. Ha!

                      I need to put on my contacts.

              3. Artie. Iowa is an American paradise, except for the weather. You should spend a week there. You will not want to leave.

    2. The problem is it makes identifying, isolating and attacking dissenters tougher and that is something totalitarian leftists cannot comprehend.

    3. So glad the feefees of disease spreaders are worthy of such protection.

      Less rudely, I’m also glad I have no reason to spend a minute or a dollar in Iowa.

      1. If you ever want to pick your own corn . . . nope, you can do that in a number of non-deplorable states. Iowa might be entirely expendable.

        1. You lefties just love to recycle.

      2. Masks dont stop the spread. They only make the neurotic feel better.

  2. “Remember that there is a power differential between you and your students, and they may perceive you asking them to wear a mask or if they have been vaccinated as a requirement that they do so.”

    The issue will arise when grades are assigned and a non-mask-wearing student is aggrieved with a grade — with the argument being that the grade was arbitrary and punitive.

    It will be interesting to see what the Provost does because with a friendly (i.e. anti-mask) state legislature, I have no doubt that it will go at least that high.

    A wise professor isn’t going to say anything…

    1. This issue will not arise. Just like none of your ‘it will be interesting’ things ever come to pass.

      You somehow also don’t know anything about education.

      1. I feel like you could have ended that last sentence with virtually any word.

        1. I found it extra remarkable because I thought that was Dr. Ed’s field.

      2. S_0,
        That is because he claims to have a PhD in Education

  3. That is, I think 303 Creative LLC v. Elenis makes results like this inevitable. College is, after all, not merely a commercial activity but big business. Unlike the completely voluntary parade at issue in Hurley, professors get paid to speak, ans large sums. Universities have never been thought exempt from civil rights laws. So if non-discrimination principles override the First Amendment in the “narrow” setting of commercial contexts, they do so here.

  4. Judge Jeffrey Sutton’s views on classroom free speech (basically, that there is no such thing, or shouldn’t be) might be worth exploring here.

  5. I have been misimmunized from birth. Wile I am fully vaccinated I identify as unvaccinated (I didn’t get to choose, my parents forced this on me). There really should be no vaccine shaming going on at schools.

    The correct pronoun for me is IgA

  6. Aw poor babies. They think it is cute and fun to refuse any public health measure to prevent the spread of covid and then demand that we don’t offend them for their stupidity. Nope. They deserve to be humiliated, mocked, made fun of, shunned and kept out of public areas. They are scum and must live with the consequences of their decisions.

    1. But the fringe-inhabiting malcontents can always come to the Volokh Conspiracy to huddle together for warmth, talk tough, simulate hardship and relevance, and have their bigotry and ignorance flattered by some right-wing professors (who, correspondingly, are the misfits of strong and mainstream academia).

    2. I wonder if they teach Darwinism in Iowa. You know, the theory that stupid people will eventually be wiped out by a pandemic that they ignored while smugly exercising their right to be stupid.

      1. They do teach it and genetics also.
        People in Iowa need to understand how to grow corn hybrids

      2. You seem to have survived all the pandemics to date. Maybe that theory is wrong.

        1. Nope, the theory is right. My parents were not stupid, and they arranged for me to receive all the childhood vaccinations. I’m not stupid, and I have received all the adult vaccinations. I’ve stayed healthy.

    3. Molly,
      The stupid will always be with us.

    4. See? Animosity!

      Help! Help! I’m being repressed!

    5. Aw, poor baby! The State of Iowa won’t let you push your deranged mask fetish.

      Here, I’ve got a mask with a pacifier built in, just for you Molly

  7. In Virginia, in-classroom speech which dissents from the Governor’s position is forbidden. So, the direct answer to your question is “No, absolutely you may not.”

    But there are more specific questions. First, should a state employee Leslie, a Virginia teacher, be allow to speak, during the term of her employment, in opposition to Fiddler Nero Northam’s policy? Should Leslie’s students be allow to speak? Should Leslie even be allowed (during her tenure as a state employee) be allowed to encourage her students to take sides on the issue?

    My answer — as not being one to stand on the side while eugenicists cremate or fiddlers burn — might differ from those of most Democrats: the curious (and patriotic) side of me wants to hear all opinions, while duly recognizing those who think such guaranteed freedom of expression is obsolete.

  8. For all the people getting their panties in a wad about this policy, I offer you the subject of abortion.

    Should I teacher be able to start a rant in class abotu how abortion is immoral baby killing? Should the teacher be able to question female students about whether they’ve ever had an abortion? How about male students if they’ve every paid for one, or had a baby they made aborted?

    No, that shouldn’t be allowed? Math teachers should be able to gratuitously bring up the subject of abortion, and criticize anyone who had one / supports abortion?

    After all, teachers require students. Every time you have an abortion, you take away a future student.

    No, they shouldn’t be able to do that?

    Then STFU about other people’s personal health choices.

    If your vaccination isn’t good enough to protect you from other people with Covid, then it’s not good enough to force other people to take.

    And if it is good enough to protect you from Covid, then you don’t need to care about anyone else’s vaccination status.

    So STFU about other people’s personal health choices, you obnoxious little fascists.

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