Purdue global nondisclosure agreement runs roughshod over faculty rights

documentThe American Association of University Professors (AAUP) has released a copy of a four-page non-disclosure agreement that appears to be a condition of employment for Purdue Global employees, including instructional faculty, that states that any work product, including all course materials “or other intellectual property that arises in any part in the course of … employment at Purdue Global, is commissioned and owned by Purdue Global as a work-for-hire and may not be used, duplicated or distributed outside of Purdue Global.”

Greg Scholtz, director of the AAUP’s Department of Academic Freedom, Tenure, and Governance calls Purdue Global’s NDA “breathtakingly inappropriate in higher education,” adding, “I’ve never seen anything like it.”

“Asserting ownership over the faculty’s teaching-related materials undermines standard academic practice, violating faculty rights to their own intellectual property as well as their academic freedom,” Scholtz says. “This type of agreement would be unprecedented for a public, non-profit university.”

David Nalbone, professor of psychology at Purdue University Northwest and vice-president of the Indiana conference of the American Association of University Professors notes that, “in just one semester Purdue Global has abandoned transparency, shared governance, and academic freedom, which are foundational tenets of American higher education.”

Nalbone is concerned that “Purdue Global does not consult its own faculty about curriculum and academic standards; tenure and tenure-track appointments are nonexistent; and board of trustees meetings are closed to the public.”

In addition to Purdue Global administering what amounts to an intellectual property land grab, Scholtz notes that the agreement also contains a sweeping gag clause that prohibits faculty members from disclosing “to anyone who is not specifically authorized to receive it,” even other Purdue Global employees, virtually any information received during the course of their employment. The NDA’s long list of “trade secret information” includes course materials, methods of instruction, research reports, employees, finances, costs, expenses, and policies and practices.

Under principles of shared governance widely accepted in higher education, several of these topics are areas of primary responsibility for the faculty, and all of them are subjects that the faculty should be able to discuss widely when participating in academic decision making. As a result, the faculty’s right to do so is protected under principles of academic freedom.

Bill V. Mullen, professor of American studies at Purdue echoes these concerns. “Nondisclosure agreements are simply attempts to intimidate faculty from exercising their academic freedom, workplace autonomy, and freedom of speech,” Mullen says. “They are also attempting to shift all legal rights away from the employee to the employer.”

According to Henry Reichman, chair of the AAUP’s Committee on Academic Freedom and Tenure, the NDA will have a deeply chilling effect on all Purdue Global faculty.

“With respect to both research products and teaching materials, academic freedom requires that faculty be free to produce work reflecting their own views and theories—not those of the institution’s management.  If all work belonged to the institution, as this policy would have it, then its content would also have to be controlled or at least accepted by its administration,” says Reichman. “Academic freedom,” Reichman continues, “also means that faculty have the liberty to speak out about academic policies, curriculum, and budgetary matters.”

The 1940 Statement of Principles on Academic Freedom and Tenure, which has been endorsed by more than 250 scholarly and educational groups, states that “teachers are entitled to full freedom in research and in the publication of the results” and that “teachers are entitled to freedom in the classroom in discussing their subject.” As the AAUP’s 1999 Statement on Copyright notes, “it has been the prevailing academic practice to treat the faculty member as the copyright owner of works that are created independently and at the faculty member’s own initiative for traditional academic purposes.”

Last February leaders, faculty, and students from across Indiana and the Midwest, led by the Indiana state conference of the AAUP, created a coalition campaign—#KeepPurduePublic—urging the Higher Learning Commission (HLC), Purdue’s regional accrediting body, to vote no on accrediting the Kaplan-run Purdue Global. Despite the widespread opposition, HLC accredited Purdue Global.

Intellectual property attorney, Stephen E. Gillen, a member of the TAA Council, says he echoes the sentiments of Scholtz “that this is ‘breathtakingly inappropriate’ for a public university…and Purdue Global holds itself out as a public, non-profit university. Requiring university faculty to hold their research and course materials in confidence is irreconcilable with their obligations to the public that supports their institution and to their students. It is anathema to principles of academic freedom that are at the core of the AAUP mission and have been part of its statement of principles since 1940.”

“Hank Reichman, also of AAUP, explains it as most likely carried over from how the old for-profit Kaplan U. conducted business (Purdue Global is the new, public face of Kaplan University, a for-profit online college acquired by Purdue last year). But if this sounds like it is an unintended consequence of the acquisition of a private school by a public one, it is anything but — as a part of the acquisition, Purdue entered a long term transition services agreement whereby Kaplan, Inc., the for-profit affiliate of Kaplan U., will continue to provide administrative service, including human resources services for what Purdue is now holding out as a public, non-profit university.”

Indeed, the 4-page document at issue, said Gillen, though printed on Purdue University Global letterhead, is titled “Confidentiality and Restriction Agreement.” “It is among the more onerous agreements of its type that I have seen in any context, let alone in higher education, in 38 years of practice,” he said. “Most require that confidential information be so marked; this does not. Most include a list of exclusions from what would otherwise be considered confidential; this does not. If agreements of this sort include a non-compete provision (and most often they do not), that restriction is geographically limited; the non-solicitation provisions of the Purdue Global agreement are not so limited. There is a jury trial waiver, a provision allowing Purdue Global to recover its attorney fees if it must sue to enforce the agreement, a provision intended to circumvent a legal rule of construction that would otherwise work against Purdue Global, and an acknowledgement that the professor has read and understood the entire agreement and had the opportunity to consult counsel. There is even an acknowledgement that this document does not constitute a contract of employment. And of course it doesn’t, any right thinking person can clearly see that it is more akin to a contract of indenture.”

“What’s next? Requiring students to sign an agreement that precludes them for disclosing what they learned in class?”

Gillen shares this advice for professors asked to sign such an agreement: “They can attempt to negotiate it, but they will most likely be negotiating with Kaplan, Inc., rather than the university administration. They can refuse to sign, and likely not get, or lose, the appointment. The most productive course of action, though not likely to produce a quick result, is to register a complaint with AAUP which will investigate and may add Purdue Global to the 56 higher ed administrations already on its public censure list.