The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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."
- 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.
- 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.
- 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.
- 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.