Bad advice

Topics/tags: Rants, academia

One of the more interesting [1] things to happen in academia during the past year was Purdue University’s acquisition of Kaplan University. Purdue is a public, state, brick-and-mortar university. Kaplan was a private, online university. It seems like an odd match. But Purdue insists that it supports their mission. In any case, the acquisition led to the creation of Purdue University Global.

Today, the Higher Ed newspapers are abuzz with the newly released Purdue University Global Confidentiality and Restriction Agreement. For example, you can read about it in Chronicle and Inside Higher Ed. The American Association of University Professors has also released a statement, which may have been what prompted the news articles.

The agreement has a variety of characteristics that many people [2] find problematic. It appears that PUG [3] claims ownership of all the educational materials faculty create [4]. The agreement appears to place some fairly severe restrictions on what one can say about PUG or the work they do at PUG [5]. Here’s how they describe their confidential information.

When we say Purdue Global Confidential Information, we mean any non-public information about Purdue Global you may receive, including, without limitation, Purdue Global’s trade secret information, course materials, methods of instruction, research reports, marketing programs, vendors, customers, products, services, employees, finances, costs, expenses, financial or competitive condition, policies, and practices, computer software programs and programming tools and their respective design, architecture, modules, interfaces, databases and database structures, non-literal elements, capabilities and functionality, source code and object code, research and development efforts, marketing and distribution efforts, licensing, cross-licensing, marketing and distribution practices, computer software programs and other information licensed or otherwise, and any other non-public information that does or may have economic value. [6]

While it seems reasonable to limit the disclosure of some of these things, academia traditionally allows faculty to discuss their course materials and methods of instruction. It also allows them to criticize publicly issues of structure, administration, and even partners. For example, if Grinnell were to contract with a software vendor I knew to be unethical or a security risk, I would have the right to complain about it in a public forum [7].

Beyond the issues of intellectual property and limits to speech, there’s also a non-compete clause, more typical of a business than an institution of higher education. While the non-compete clause doesn’t prevent someone from taking a job at another institution of higher education, it does restrict their ability to suggest that others also join that other institution. That restriction applies to both employees (most of whom I would call teachers) and to customers (most of whom I would call students). It’s likely that some non-trivial percentage of PUG teachers will be adjuncts, and adjuncts commonly share opportunities with each other. Also, since online students are less likely to affiliate with a particular institution, it seems natural for a teacher to say By the way, I’ll be teaching an online course on Coursera next semester. Check it out Neither action appears to be allowed under this clause.

While I find all of these issues of real concern, I did not intend them to be the focus of this piece [8]. Rather, I want to comment on some quotations that appear in the Chronicle piece.

It’s never been a problem, said [former president of the Kaplan Faculty Senate, Robert] Winters of the policy, citing his own experiences. He said he’d discussed his teaching methods with outsiders and I’ve never had anybody at the university tell me that I shouldn’t. […] Winters said he also didn’t share the concern over the noncompete clause. Even for faculty members who leave and go teach elsewhere a week later, he said, I’ve never heard of it being enforced.

That’s bad advice [9], particularly from the president of the faculty senate. Just because an institution [10] has not enforced the policies in the past, there’s no guarantee that they won’t enforce them in the future. A contract is a contract. I would not expect They didn’t enforce this clause last year to carry much weight in a court of law. We’re certainly seeing a lot of instances this year of people who are prosecuted for acts that were common practice [11]. But I am not a lawyer.

So I consider the advice bad. What makes it especially bad is that Winters can’t even add traditional IANAL [12] disclaimer because he is [a] lawyer by training who teaches in the Purdue Global public-safety program. What lawyer gives such advice?

Once again, I’m glad I’m at Grinnell.

Postscript: My concerns about legal-ese are not new. I remember when the school district first rolled out its laptop program and I refused to sign the agreement because it claimed ownership of all IP created on the laptop. While I don’t think that the school district intended to claim the kids’ IP, and they told me that It’s just boilerplate, I wanted it clear that my children owned anything they created. I did eventually get that text removed, but I still read the policy carefully each year [14].

Postscript: I almost forgot to mention the following. When I received my first contract from Grinnell, and it indicated that the Faculty Handbook was implicitly part of the contract, I requested a copy of the Handbook and skimmed through it before I signed. All that I recall is that I was impressed by the detail with which the Handbook attends to shared appointments.

[1] And controversial

[2] Including me.

[3] My abbreviation for Purdue University Global. I don’t think they use it.

[4] The Inside Higher Ed piece focuses on that characteristic in its title, Who Owns Faculty Work At Purdue Global?.

[5] The Chronicle of Higher Education piece focuses on that characteristic in its title, Gag Clause at Purdue Global Raises Alarms About Faculty Rights.

[6] Purdue University Global. n.d. Confidentiality and Restriction Agreement. Found online at https://www.aaup.org/sites/default/files/PG%20Confidentiality%20and%20Restriction%20Agreement%20-%20Non-CA%20%2804-2018%29%20v2.pdf.

[7] Note that I would not normally start with a complaint in a public forum. I would start by contacting CIO Robinson, Dean Latham, or Registrar Maher. Only after that had failed would I raise public concerns.

[8] More accurately, they were not supposed to have been the focus of this piece.

[9] Okay, it’s not direct advice. But he’s suggesting that people should not worry about the requirements of the contract. And that’s effectively advice.

[10] Or, more precisely, a previous institution.

[11] E.g., failure to disclose that you have acted as an agent of another country.

[12] I am not a lawyer.

[14] When we got paper copies of the agreements to sign, I would cross off anything that seemed inappropriate and insert other text. Since the school district always issued laptops to my kids, I assumed they accepted the amendments.

Version 1.0 of 2018-08-23.