uc berkeley gates 2 feat
Take Two: University of California System to Consider New ‘Principles Against Intolerance’

By March 17, 2016

Last fall, the University of California (UC) Board of Regents considered adopting a “Statement of Principles Against Intolerance” that would have required UC students and faculty members to “respect the dignity of each person within the UC community.” Writing in this space last September, I pointed out that the Principles’ broad guarantees—promising, among other things, that students and faculty possess “the right to study, teach, conduct research, and work free from acts and expressions of intolerance”—presented an obvious conflict with UC’s legal obligations under the First Amendment, which protects a great deal of speech that someone might subjectively perceive to be an “expression of intolerance.”

While some demanded their adoption, I wasn’t alone in criticizing the Principles’ incompatibility with free speech. First Amendment experts like Professor Eugene Volokh of the University of California, Los Angeles School of Law and UC Irvine School of Law Dean Erwin Chemerinsky, as well as free speech advocates like attorney and journalist Glenn Greenwald, also criticized the Regents’ efforts, pointing out the chilling effect the Principles’ adoption would create.

Cognizant of these concerns—but also fielding criticism from activists who argued that the Principles didn’t do enough to recognize and combat anti-Semitism on campus—the Regents rejected the Principles last September, choosing instead to commission a working group to author a new draft. As Inside Higher Ed reported yesterday, the newly revised Principles Against Intolerance have now been publicly released and recommended for adoption.

So how do the new Principles look, from a First Amendment perspective? They’re a decidedly mixed bag.

First, the improvements. The authors of the new Principles plainly tried to answer concerns about the right of students and faculty to engage in core political speech. For example, in the working group’s observations accompanying the new Principles, the drafters recognize both that censorship is ineffective and that per the First Amendment, the answer to “bad” speech must be more speech:

Punishing expressions of prejudice and intolerance will not prevent such expressions or change the minds of speakers. In confronting statements reflecting bias, prejudice or intolerance arise from ignorance of the histories and perspectives of others, the University is uniquely situated to respond with more speech – to educate members of our community about the different histories and perspectives from which we approach important issues. As a public university, First Amendment principles and academic freedom principles must be paramount in guiding the University’s response to instances of bias, prejudice and intolerance and its efforts to create and maintain an equal campus learning environment for all.

Perhaps reflecting the input of Professor Volokh, who was consulted by the working group, the new Principles themselves include a similar acknowledgement of the primacy of the First Amendment:

d. Freedom of expression and freedom of inquiry are paramount in a public research university and form the bedrock on which our mission of discovery is founded. The University will vigorously defend the principles of the First Amendment and academic freedom against any efforts to subvert or abridge them.

Of course, a statement like this shouldn’t really be cause for celebration; after all, it only serves to explicitly recognize UC’s binding legal obligation as a public institution to honor and protect freedom of expression on its campuses. But given that the prior formulation of the Principles appeared to be a de facto end-run around the First Amendment—just like the previous UC efforts to answer allegations of campus anti-Semitism that FIRE has criticized in previous years—this commitment is nevertheless welcome.

The Principles’ unequivocal stance against the “heckler’s veto” is also useful and appropriate. The new draft states:

h. Actions that physically or otherwise interfere with the ability of an individual or group to assemble, speak, and share or hear the opinions of others (within time place and manner restrictions adopted by the University) impair the mission and intellectual life of the University and will not be tolerated.

Again, it should go without saying that on a public university campus, students should be able to voice and hear ideas without interference from those who might disagree with them. But too often, the appearance of controversial, dissenting, or minority viewpoints on campus prompts efforts to physically disrupt a speaker’s ability to reach his or her audience. Such attempts are incompatible with the First Amendment, and the Principles are correct to flatly condemn and prohibit them.

Now on to four main causes for concern.

First, despite their recognition of the First Amendment, the new Principles are less than clear with regard to how university administrators may react to “intolerant” or “biased” speech. As I told Inside Higher Ed, it’s hard to ascertain what’s aspirational and what will be given enforcement power. For example, the new Principles state that “the University is best served when its leaders challenge speech and action reflecting bias, stereotypes, and/or intolerance.” If by “challenge” the Principles mean “answer speech with more speech,” this language is unobjectionable. But if by “challenge” the Principles mean punishment, First Amendment rights are at risk. The lack of clarity is potentially problematic; some administrators may interpret “challenge” as authorizing censorship, or may be called upon to adopt such an interpretation by different constituencies on campus.

Second, this uncertainty may be exacerbated by the Principles’ final paragraph, which states:

j. The Regents call on University leaders to apply these Principles Against Intolerance and all other University policies directed to discrimination and intolerance to the full extent permissible under law. University leaders should assure that they have processes in place to respond promptly, and at the highest levels of the University, when appropriate, when intolerant and/or discriminatory acts occur. Such response should include consideration of support for members of the community directly affected by such acts.

In classifying the Principles as a “policy directed to discrimination and intolerance,” this section strongly suggests that rather than serving as an aspirational statement of values, without means of enforcement, the Principles are instead a vehicle for officially responding to “intolerance” and “bias.” Again, if that institutional response is more speech, fine. But in calling for the application of the Principles and other policies “to the full extent permissible under law,” the Principles seem to imply that a disciplinary response may be appropriate or even required when addressing “intolerance” and “bias.” Again, much speech that some (or even many) might deem “intolerant” or “biased” is protected by the First Amendment, and the “full extent” to which such speech may be punished by public university administrators is exactly to no extent at all.

By suggesting otherwise, this section may well confuse administrators, faculty, students, and the general public alike about UC’s ability to punish community members for protected speech. It would have been far preferable for the Principles’ drafters to have supplied a plain definition specifying when discriminatory speech becomes actionable harassment under the federal anti-discrimination statutes by which UC is legally bound—like Title IV, which prohibits discrimination on the basis of religion, or Title VI, which prohibits discrimination on the basis of national origin, shared ancestry or ethnic characteristics, or citizenship or residency in a country with a dominant religion or religious identity. Dean Chemerinsky called for plain definitions along these lines last September. He was right then, and he’s right now.

Third, the new Principles again blur the lines between aspirational statement and enforceable policy in this provision:

f. Regardless of whether one has a legal right to speak in a manner that reflects bias, stereotypes, prejudice and intolerance, each member of the University community is expected to consider his or her responsibilities as well as his or her rights. Intellectual and creative expression that is intended to shock has a place in our community. Nevertheless, mutual respect and civility within debate and dialogue advance the mission of the University, advance each of us as learners and teachers, and advance a democratic society.

Under this clause, members of the UC community are apparently “expected” to temper their exercise of their First Amendment rights with a consideration of their “responsibilities”—by which the Principles appear to mean an adherence to “mutual respect and civility.” While respect and civility may be admirable goals for discourse, they cannot be enforced under pain of punishment.

And what happens if administrators determine that a student, student group, or faculty member has failed to sufficiently “consider” their “responsibilities” when speaking their minds? Are they then subject to punishment? What if, say, a student group stages an anti-terrorism rally on campus that strikes another student as insufficiently respectful and civil? The Board of Regents should recall College Republicans of San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007), which involved that exact set of facts. In Reed, a federal magistrate judge enjoined San Francisco State University and the entire California State University system from enforcing a civility policy that the College Republicans had allegedly violated by stepping on reproductions of the Hamas and Hezbollah flags. The complaining student argued that the College Republicans had “debased and violated the following principles in [sic] which this university proclaims to be its standards.” Because it’s all too easy to imagine a similar complaint arising under this provision of the new Principles Against Intolerance, it’s worth quoting the Reed opinion at length:

There also is an emotional dimension to the effectiveness of communication. Speakers, especially speakers on significant or controversial issues, often want their audience to understand how passionately they feel about their subject or message. For many speakers on religious or political subjects, for example, having their audience perceive and understand their passion, their intensity of feeling, can be the single most important aspect of an expressive act. And for many people, what matters most about a particular instance of communication is whether it inspires emotions in the audience, i.e., whether it has the emotional power to move the audience to action or to a different level of interest in or commitment to an idea or cause. For such people, the effectiveness of communication is measured by its emotional impact, by the intensity of the resonance it creates.

How is all this relevant to our review of the University’s civility requirement? Civility connotes calmness, control, and deference or responsiveness to the circumstances, ideas, and feelings of others. […] Given these common understandings, a regulation that mandates civility easily could be understood as permitting only those forms of interaction that produce as little friction as possible, forms that are thoroughly lubricated by restraint, moderation, respect, social convention, and reason. The First Amendment difficulty with this kind of mandate should be obvious: the requirement “to be civil to one another” and the directive to eschew behaviors that are not consistent with “good citizenship” reasonably can be understood as prohibiting the kind of communication that it is necessary to use to convey the full emotional power with which a speaker embraces her ideas or the intensity and richness of the feelings that attach her to her cause. Similarly, mandating civility could deprive speakers of the tools they most need to connect emotionally with their audience, to move their audience to share their passion.

In sum, there is a substantial risk that the civility requirement will inhibit or deter use of the forms and means of communication that, to many speakers in circumstances of the greatest First Amendment sensitivity, will be the most valued and the most effective.

[…]

Because the University so assertively communicates that its “policies” include undefined and apparently elastic mandates to “be good citizens,” to “engage in responsible behaviors that reflect well upon their university,” and to “be civil to one another,” we conclude that there is a considerable risk that the University’s trumpeted intention to discipline organizations whose members offend any of these “policies” will chill to a substantial extent the exercise of expressive rights that students enjoy under our Constitution.

To the extent that the new Principles Against Intolerance indicate that “mutual respect and civility” are required when exercising expressive rights, they present a problem for free speech on campus.

Fourth, and finally, the new Principles conflate anti-Zionism—which the document defines, via Merriam-Webster’s dictionary, as opposition to “the support of modern Israel”—with anti-Semitism. The “Contextual Statement” that precedes the new Principles posits that “opposition to Zionism often is expressed in ways that are not simply statements of disagreement over politics and policy, but also assertions of prejudice and intolerance toward Jewish people and culture.” Accordingly, the Principles declare that “Anti-Semitism, anti-Zionism and other forms of discrimination have no place at the University of California.” Some anti-Zionist expression is unquestionably anti-Semitic. But to declare that any and all “anti-Zionism,” defined as opposition to Israel writ large, has “no place” at a public university suggests that certain political discussions are off-limits and may be subject to punishment.

To be certain, it is now relatively common for public universities to declare that some expressive activity has “no place” on their campuses. For example, Ohio State University declares itself “No Place for Hate.” If statements like this are aspirational, serving only to express the university’s own viewpoint, then they might remain relatively uncontroversial. (In the abstract, “hate” is generally unpopular.) But when these official opinions are interpreted as vehicles—or promises—to punish unpopular, dissenting, or even “hateful” opinions, they pose a threat to protected expression. And when a university takes a political stance on a disputed topic, such as whether anti-Zionism is necessarily anti-Semitic, the inherent problems that arise when a college takes an official political position, despite its obligation to serve as a “marketplace of ideas” where dissent is welcome, come into stark relief. As Professor Volokh wrote yesterday:

Certainly international recognition doesn’t conclusively resolve either moral or pragmatic questions about whether an ethnic group is entitled to a state of their own.

The United Nations of 1947, or the great majority of the governments of today, may have been right or they may have been wrong. We can’t decide even for ourselves whether they’re right or wrong without hearing a lively debate about the subject. And certainly the University of California Board of Regents ought not prejudge this debate.

I entirely agree that, to give an example given by the regents, “vandalism targeting property associated with Jewish people or Judaism” should be condemned and punished. I think that UCLA student government should not be allowed to discriminate against Jewish candidates for student government positions. And I agree, as I said, that some anti-Zionist speech and speakers are indeed hostile to Jews as an ethnic group, rather than just opposing a particular government or nation-state.

But the regents should not be telling professors and students that “there is no place” at the University of California for a political viewpoint on the existence of Israel as a nation-state — a statement that is likely to and intended to deter debate on that subject. Indeed, universities are the very places where such matters should indeed be discussed.

In an editorial published yesterday, the Los Angeles Times struck the same note of concern. The editorial board wrote:

But in one crucial respect the report goes dangerously astray: It conflates anti-Semitism with anti-Zionism and says both are forms of discrimination that “have no place at the University of California.” It’s difficult to read that as anything other than a warning to those students or faculty members who have fundamental disagreements with the state of Israel. It apparently rules out of bounds an assertion by, say, a Palestinian professor that Israel’s creation was unfair and unjustifiable, or by a Jewish student that Israel should be replaced by a nonsectarian state. Both are ideas that this page opposes but they are fully entitled to protection at a public university under the 1st Amendment.

The equation of anti-Zionism with anti-Semitism might also make it easier to stigmatize protests against Israeli policies — particularly the treatment of Palestinians — even if they don’t actually oppose the idea of a Jewish state. Pro-Palestinian activists on campus are right to fear that such a statement would target their advocacy even when it doesn’t involve anti-Semitic language or harassing behavior.

After wondering whether the Principles are necessary at all, given the extensive anti-discrimination policies already maintained by UC campuses, the Times’ editorial suggests that the Board of Regents could “go back to the drawing board” when they next meet on March 23. It could also abandon the effort altogether, and opt instead to publish and enforce clear, constitutional definitions of discriminatory harassment.

That is likely the best course of action—because while the new Principles Against Intolerance include some improvements, serious problems remain.