On July 8, 2025, the Executive Council of BIFI sent the following letter to the UC Regents concerning the Proposed Revisions to Academic Personnel Manual (APM) Section 016 (Faculty Conduct and the Administration of Discipline).
Dear Regents,
We are a group of Berkeley faculty representing diverse viewpoints and disciplines who share a common commitment to free inquiry and open debate. We write regarding the Faculty Discipline and Dismissal Policies and Procedures under consideration at the July 2025 meeting.
We appreciate your attention to long-standing concerns about faculty discipline, including procedural delays and inconsistency in the administration of sanctions. While we support efforts to improve the fairness and efficiency of these processes, we highlight five areas of concern raised by the June 23, 2025, update from Provost Newman regarding the Joint Senate-Administration Workgroup.
1. Avoid Premature or Overbroad Statements on Extramural Speech
Attachment B, Faculty Disciplinary Sanctions Guidelines re Expressive Activity, in discussing extramural speech, states that faculty members’ speech protections apply “only insofar as the employee’s expressive interests outweigh the University’s interests in fulfilling its public service mission,” without specifying the criteria for balancing faculty speech against “the University’s interests.” We caution against including this section in any final policy guidance, as we believe it risks chilling academic inquiry.
This material is not necessary to the task at hand, calibrating disciplinary sanctions for expressive misconduct. Notably, the provided examples of punishable faculty speech are all either exempt from First Amendment protection (incitement to violence, threats of physical harm, and harassment) or covered by a prohibition against faculty misrepresenting their personal views as institutional positions. Thus, we see no need for the University to assert a right to punish protected extramural speech made in a private capacity, and language to that effect risks being misread as new policy in an area governed by long-standing legal standards.
The treatment of extramural speech raises complex questions of constitutional law, academic freedom, institutional interest, and the different missions of campuses. We further note that much of the existing case law arises in contexts (e.g., public employment, K-12 education) that differ significantly from the university setting.
Recommendation: Remove or formally set aside this section for future consideration in a dedicated process led by experts in First Amendment law and academic freedom.
2. Clarifying the Role of Academic Freedom in Disciplinary Guidelines
Attachment A, Faculty Respondent Disciplinary Sanction Guidelines for Misconduct Related to Expressive Activity, presents a tiered framework for evaluating sanctions under APM-016. One listed mitigating factor is: “Engaging in activity tied to a reasonable teaching or research purpose / Engaging in activity inside the broadest interpretation of academic freedom.” The same formulation appears in Attachment C, relating to non-senate appointees.
We believe this formulation is insufficient: expressive activity that falls within academic freedom or is undertaken for a legitimate pedagogical or scholarly purpose should be excluded from the scope of discipline.
Recommendation: Move this clause from the “Mitigating Factors” column to a new category, “Conduct Not Subject to Discipline,” and define it accordingly. This will provide greater clarity and protection for constitutionally and professionally protected expression.
3. Require Public Accountability When Administrative Decisions Override Senate Recommendations
To promote transparency and shared governance, we recommend that the proposed reporting requirements for chancellors be expanded.
Recommendation: Require that each Chancellor’s annual report to the Regents include the number of cases in which the campus administration overruled recommendations of Academic Senate disciplinary committees.
The Chancellor should provide to the parties involved, and to the campus Privileges and Tenure committee, a detailed explanation of each such decision, including both the Senate committee’s rationale and the administration’s justification for departure. Citing APM-015 language is not sufficient; the explanation must engage with the specific findings and reasoning of the Senate body.
4. Investigate Campus Administration of Other Disciplinary Authorities
In addition to the Faculty Code of Conduct, campuses also administer SVSH, abusive conduct, and anti-discrimination discipline investigations that can involve expressive conduct. We believe there are substantive and procedural irregularities in the administration of latter systems including costly, meritless investigations that should not have proceeded beyond the initial assessment. There are reports of students using abusive conduct complaints in a retaliatory manner, for instance, to object to regular classroom discussion. Procedurally, these systems subject faculty to discipline through processes led by staff instead of faculty.
Recommendation: Require Academic Senate oversight for all investigations concerning faculty expressive conduct, especially to address initial assessment determinations. Give faculty respondents a right to appeal to the Academic Freedom Committee where appropriate.
5. Clarification Regarding Coordination With Police
Language on p.4 of the June 23 memo can be read to suggest that information will be shared with UC police “in all misconduct cases,” including cases where respondents are not accused of violating any law.
Recommendation: Clarify that information will not be shared with UC police in cases not concerning illegal conduct.
Finally, we echo the process concerns raised by Berkeley Senate Chair Amani Nuru-Jeter and Vice Chair Mark Stacey regarding the essential importance of shared governance in setting policy for faculty discipline, especially when those policies involve issues of academic freedom.
We thank you for your attention to these matters, and for your commitment to protecting both institutional integrity and the academic freedoms that are vital to the University of California’s mission.
Respectfully submitted,
Executive Council, Berkeley Initiative for Freedom of Inquiry