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Nebraska Needs to Fix its Academic Freedom Problem.

Nebraska has a terrible record when it comes to academic freedom and freedom of speech, and it’s time we take it seriously. Here is some historical background followed by a practical recommendation.

Bob Kerrey.

The past two years have been particularly egregious for academic freedom in Nebraska. This week the Nebraska Republican Party insisted that Creighton University, a private institution, withdraw its invitation to former U.S. Senator and Nebraska Governor Bob Kerrey to speak at commencement because the decorated veteran voted to support abortion rights. Kerrey, worried that the controversy would overshadow the event, withdrew.

This sounds just like the caricature of “campus leftists” painted by the right on Fox News and Breitbart: shutting down the speech of a political opponent–even when he wasn’t even invited to speak about his controversial position.

Unfortunately, this is just the latest in the governing party’s attempt to root out dissent from the state. Like many regimes before them, they are starting with the colleges, where people are paid to think, teach, and learn, and sometimes that means thinking, teaching, and learning about ideas that conflict with party interests.

Some Historical Cases of Academic Freedom Violations in Nebraska

Harry Kirke Wolfe

Nebraska has had academic freedom and free speech crises for almost as long as it’s had a state university. In the 1890s, the University made beloved psychologist Harry Kirke Wolfe resign in part because he was teaching evolution. He was rehired later, and eventually was one of several faculty members to be targeted and investigated for sedition during World War I. These investigations were instigated by the warmongering Nebraska State Council of National Defense, and resulted in mixed findings for an array of charges against the faculty, who were suspected of showing inadequate enthusiasm for the war. In Wolfe’s case, even though he was found not guilty of the charges, the cloud lingering over him caused him, according to his family, to suffer a fatal heart attack several weeks later.

William Sealock

In the 1930s, the President of the University of Omaha, William Sealock, discovered that the Board of Regents had employed a network of student spies to report on teaching and speech that contradicted their partisan opinions. In particular they wanted to know about anyone advocating for public power to be extended to rural Nebraska, because the head of the Board of Regents was also the chair of the Board of Directors for Nebraska Power Company, the primary opponent to public power. When Sealock, a public power advocate, confronted the Board about the spy network, they fired him, and Sealock killed himself.

Louis Crompton

In 1970, UNL’s English Department hosted the second gay studies course ever taught in the country. Lou Crompton was the professor, and he designed the course in collaboration with experts from different fields, including clinical psychologist James Cole. The Chancellor and the Nebraska State Patrol objected. Nebraska State Senator Terry Carpenter led an investigation into the course, including a public hearing at which he asked Crompton questions about his personal life. Carpenter then authored a bill (that did not pass) that would have banned teaching about “aberrant sexual behavior in any form” at Nebraska universities, except for medical schools.

In 2008, the University administration cowed to mob anger and demands by several Republican and one Democratic politician, and rescinded a speaking invitation to William Ayers that had been extended by the College of Education and Human Sciences. Ayers had been involved in the violent anti-war group Weather Underground 40 years earlier, and after charges against him were dropped had become a professor of education at the University of Illinois at Chicago.

Recent History

Courtney Lawton (photo by Matt Pearson)

In 2017, again bowing to mob anger and demands from Republican politicians, the University removed graduate student Courtney Lawton from her teaching duties and announced that she would never again work at the University. While protesting in a “free speech zone” on campus, Lawton had flipped off a student who was recruiting for Turning Point USA. TPUSA is a billionaire-funded organization that advocates against trans rights, DACA, and affirmative action, and hosts a “watch list” that directs harassment at left-leaning professors. The libertarian Foundation for Individual Rights in Education (FIRE) and the American Association of University Professors (AAUP) both investigated this incident and concluded the University violated Lawton’s rights.

I was also at that protest, and subsequently I’ve had several Nebraska Republican politicians advocate for my firing. These politicians also demanded the Department of English change its curriculum and mission statement, and complained because individual graduate students had hung signs in their offices criticizing capitalism and welcoming immigrants to the department. In the aftermath, one state senator introduced a bill that would make my leadership of a gun control organization, as a state employee, a misdemeanor punishable by up to a year in jail. The bill would have also criminalized faculty wearing political buttons on campus or reading political email on a personal phone while connected to campus wi-fi.

An email written by a former vice chancellor.

Around the same time period, the University re-hired a coach who is vehemently anti-gay, affirmed the free speech rights of an actual Nazi student who had participated in the Charlottesville rally, chose anti-gay Chik-fil-A as the new food vendor in the student union, and had a regent tell the media that black football players should be kicked off the team for taking a knee during the national anthem. After an administrator said she was worried it was not “‘safe’ to be conservative on our campus,” the U paid Gallup to conduct a poll.

Personally, I have been the target of four open records requests (ORRs) in the last year and a half, each using the Nebraska public records law to probe my email and other documents for political topics. One came from the then-chair of the Nebraska Republican Party, one from a former Republican Party chair, one from lawyers for the head lobbyist of the National Rifle Association, and one, most recently, from the President of the Nebraska Family Alliance, who says he represents a member of Turning Point USA. This latest request is targeted at all the University employees who contribute to this blog in their roles as private citizens. One target of the search is a part-time hourly office worker only recently hired at UNL. The ORR seems to have been prompted by Ari Kohen posting a photo of a group of Turning Point USA students making the same hand gesture as the New Zealand mosque killer, and asking why.

These requests are both laughable and something we need to take seriously.

I am a supporter of open records laws (or FOIA as the federal one is known) as they were intended–these were important advances meant to increase government transparency. However, that is not how they are being used. Discussions of privacy and watchfulness distinguish between surveillance–watching from above–and sousveillance–watching from below. Open records laws are supposed to be tools of sousveillance, allowing the little guy to keep an eye on the officials making and administering public policy.

But these laws have become warped. Our entire Congressional delegation–Fischer, Sasse, Fortenberry, Smith, and Bacon–are exempt from FOIA requests at the federal level. At the state level, the legislature exempted all state senators. And our governor could not be less transparent. His nonexistent to paltry responses to open records requests indicate that he is doing state business in such a way to not produce public records, including apparently not keeping a calendar of his meetings that the public can inspect. He also refuses to divulge the source of the death penalty drugs that he bought with state money after self-funding the reinstatement of the death penalty. In his most recent execution, his staff lowered the blinds for 14 minutes as a prisoner was killed with three drugs, including Fentanyl, so that the people specifically there to witness the execution could not witness the execution.

So: All state senators, the Congressional delegation, and, for all intents and purposes, anything the governor wants to hide are protected from public scrutiny. Additionally, the many Good Old Boys who rotate out of Party positions and pull the strings for the single party governing the state? They are exempt, too, because they are technically not a state entity. Yet if faculty engage in their free speech rights, these same people will use open records requests to probe their work computers and communications, looking for anything that can be deployed against them, and attempting to intimidate them.

Our open records law includes some exemptions that are quite sensible. One protects library records that identify patrons. We don’t want people spying on what others are reading and thinking. That would have a chilling effect on the exploration of controversial or sensitive information. We recognize that everyone deserves privacy in that regard, lest we stray into thought policing. Do you want to read Ayn Rand or Rush Limbaugh or The Anarchist’s Cookbook? That is nobody else’s business, and for all we know you might be reading them for oppo research anyway. Yet powerful political operatives in Nebraska believe that faculty–whose very jobs are built on inquiry, exploration, reading, and thinking–should have their online reading histories open to politically motivated scrutiny.

Let’s Fix This

Nebraska needs to do a lot of work to ensure protection of academic freedom and free speech.

For starters, we need to shore up our state open records laws to ensure these requests can be used to keep government accountable and are not used by the shadow government to harass dissenters.

A better open records law would:

  • Apply to government officials. No one in office with an influence on policy should be subject to less transparency than an hourly office worker. Our state senators should not be exempt from open records laws. If state senators receive certain kinds of constituent communications that are sensitive, they should negotiate a tailored exemption for those communications.
  • Clarify what activities of the governor and other officials must be recorded for public perusal. The governor’s calendar of meetings and communications with lobbyists, etc., should not be hidden on private servers.
  • Better clarify which digital records are not subject to open records requests. The law has fallen behind technology. Emails sent as a matter of one’s work–say, to offshore drug marketers to procure lethal injection drugs–should be open to public inspection. An employee’s web history or connections to the wireless network with their privately owned devices should not, with some possible exceptions. Open records laws were not intended to see if a state employee googled “bumpy rash” over a lunch break. Indeed, some state agencies do not consider these open records, but without clarity in the law, we are leaving these questions to expensive court cases instead of defining legislatively how we want these laws to be used.

American universities have long been the envy of the world. Our universities have spurred technological innovation, medical advances, and social reform, and have served as harbors for intellectual inquiry. All of this is under siege today on a number of fronts that will take a long time to remedy. But one thing we can do now, in our state, is bolster our commitment to academic freedom.

I am proud to be an associate professor of English at the University of Nebraska-Lincoln, but, as always on this blog, these views are my own and don’t represent my employer’s.