University of California System must be free to discuss coronavirus, COVID-19

March 27, 2020

The University of California System released a “guidance document” this week in response to the worldwide spread of the novel coronavirus. The document — written by the system’s Council of Chief Diversity Officers and intended “to assist campus decision makers, faculty, administrators, students and staff on providing supportive positive and inclusive campus climates during the COVID-19 crisis” — appears to instruct students and faculty about how they may talk about the coronavirus and the disease it causes, COVID-19. It states:

Do not use terms such as “Chinese Virus” or other terms which cast either intentional or unintentional projections of hatred toward Asian communities, and do not allow the use of these terms by others. Refer to the virus as either “COVID-19” or “coronavirus” in both oral and written communications. 

The document also warns:

Do not resort or revert to unkind discussions about people, individuals or groups who may not be in your immediate social circle. 

The document is framed as “guidance,” suggesting the directives are merely aspirational; however, the language that follows (“Do not…”) suggests these particular provisions are mandatory. 

Are students and faculty likely to be able to appreciate the difference? Will disregard of this “guidance” result in students or faculty members being punished? Would a faculty member be passed over for tenure if they used the wrong terminology, given that schools in the University of California System now require professors applying for tenure to submit an “Equity, Diversity, and Inclusion” statement as part of their tenure applications? What happens to the analysis of those statements if a professor fails to abide by the language suggested (or mandated) by this “guidance”?

The UC System is a public university system bound by the First Amendment. As a government actor, it may not prohibit protected speech, no matter its intention in doing so. Statements like these directives impermissibly chill protected expression, as students and faculty may self-censor for fear of crossing a line they cannot see.

UC may certainly take a “more speech” approach to addressing inclusivity on its campus during this unprecedented moment in history. It may educate students on the effects of discourse surrounding the novel coronavirus, as other government actors have. The Centers for Disease Control and Prevention and the World Health Organization, for example, both provide guidance on the best practices for disease-naming, as well as information about why COVID-19 was so named. Both organizations explain why they have concluded that avoiding associating a disease with its nation of origin is an important part of ensuring broader public health. UC and other public universities that now confront similar questions may do the same. They may not, however, appear to ban speech outright. To that end, the University of California System should revise this document to clarify that students and faculty will not be punished for protected expression.

In a crisis, like the worldwide pandemic we all currently face, civil liberties — including expressive rights — are often jettisoned or compromised. But especially in these times, government actors must stand by their long-held constitutional obligations and protect the expressive rights of their community, even when doing so is unpopular or controversial.