Constitution-feat
Former Regent Warns of UC’s ‘Disregard for Constitutional Rights’

By September 17, 2014

Today is Constitution Day, and there is no better way to celebrate than by making sure you and your friends (and your enemies!) know your constitutional rights. Earlier this month, Velma Montoya, a former member of the University of California (UC) Board of Regents and former chairwoman of the California Advisory Committee to the U.S. Commission on Civil Rights, responded to recent censorship at California universities by urging the state’s students to learn about the Constitution so they can stand up for their rights.

Everyone should heed Montoya’s message. As Torch readers know, colleges across the country maintain policies that threaten freedom of speech on campus, or even ignore their own policies in infringing on student rights.

Writing for the American Thinker, Montoya discussed several issues that should worry advocates for free expression. For example, after a professor at the University of California, Santa Barbara (UCSB) stole an on-campus protester’s sign and physically assaulted the 16-year-old protester as she tried to retrieve it, UCSB Vice Chancellor for Student Affairs Michael Young’s public statement on the incident was more a condemnation of the protester than a real recognition of her First Amendment rights and the harm in the professor’s actions.

But free speech on UC’s campuses isn’t at risk just because of individual professors who might act in this way. Across the UC system, policy definitions of “sexual harassment” fail to track the controlling standard set forth by the Supreme Court in Davis v. Monroe County Board of Education (1999) and therefore prohibit constitutionally protected expression. In 2009, FIRE wrote a detailed memo on UC institutions’ policies (PDF), prompting Mark Yudof, then president of the UC system, to instruct UC institutions to comply with the requirements of the First Amendment. In her article, Montoya writes:

It appears not all campuses got the memo.  Of UC’s nine undergraduate campuses, none of their harassment and speech policies are free of a serious threat to free speech, two (UC Santa Cruz and UC Merced) have “at least one policy that both clearly and substantially restricts freedom of speech,” and seven have “some policies that could ban or excessively regulate protected speech,” according to [FIRE].

FIRE’s Spotlight database has more information on those policies.

Montoya also expresses concern over UC’s new sexual assault policy:

UC’s policy is similar to the “affirmative consent” bill recently passed by the California Legislature, and is being implemented subsequent to the Obama administration ordering colleges to determine responsibility using the “more likely than not” standard of proof — lower than the “beyond a reasonable doubt” standard used for a criminal conviction — and discouraging colleges from allowing cross-examination by accused students.

Hans Bader, a lawyer who has handled rape and sexual harassment cases, reports that the University of California policy “clearly defines some sex and sexual activity as sexual assault on campus, even if it would be perfectly legal off campus.” And Brett Sokolow, head of the National Center for Higher Education Risk Management, suggests that U.S. colleges are responding to pressure from the Obama Administration by usually finding innocent students guilty in sexual assault cases involving alcohol.

Whether in cases involving free speech, due process, or other individual rights on campus, students can help ensure they are equipped to defend themselves by studying the Constitution and being aware of their rights. As Montoya writes:

[A] constitutional law class could make the difference between determining who is the roommate bully, whether due process has been provided an accused rapist, when it’s time to go to the police, and when it’s time to call a lawyer.

Students can also find the basics in FIRE’s Guides to Student Rights on Campus, available for free on our website. Consider it our Constitution Day present to you. Then again, here at FIRE, every day is Constitution Day!

Schools: University of California, Santa Barbara University of California Cases: California: Affirmative Consent Bill Threatens Student Due Process