The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Huffington Post (Alexandra Svokos) reports that conservative firebrand David Horowitz spoke at the University of North Carolina, and said (among other things) that "the Muslim Students Association and Students for Justice in Palestine are associated with terrorist organizations" and "intend to 'kill the Jews, to push them into the sea.'" Muslim students spoke out against those statements, and "began an online campaign called #NotSafeUNC to show how they have felt discriminated against on and around campus." The Huffington Post article also notes that UNC is near where three Muslim family members were recently killed.
What I found noteworthy, though, was the statement from Ibrahim Hooper, the spokesman for the Council on American-Islamic Relations:
[Anti-Muslim speakers] create a hostile learning environment for Muslim and Arab-American students, and that's what they're designed to do. … They're designed to demonize Muslim and Arab students.
(Note that the quote in the Huffington Post article had "[Controversial speakers]," in brackets, but since the brackets mark alterations in a quotation, I checked with Hooper; he said that he said something like "anti-Muslim speakers" or "Islamophobic speakers," so I have altered the alteration accordingly.)
"Hostile learning environment," of course, isn't just a general term of condemnation—it's not just calling something "offensive" or "insulting" or even "hate speech." Rather, a "hostile learning environment" (also known as a "hostile educational environment") is a legal term of art, referring to something that violates Title VI of the Civil Rights Act or other bans on discrimination in education. Many campus speech and conduct codes, including UNC's, ban speech or conduct that creates a "hostile environment." The federal government has stated that speech that creates a hostile environment based on national origin is barred by Title VI. Indeed, CAIR has in the past called for the federal government to investigate allegations of a hostile learning environment.
So the statement is suggesting that, in CAIR's view, "anti-Muslim speakers" may already violate campus speech codes, and that universities may be under a legal obligation (under Title VI) to exclude such speakers.
Now I think that a public university's exclusion of anti-Muslim speakers—or, more broadly, speakers that are harshly critical of Islam generally or certain strands in particular—would violate the First Amendment, and Title VI cannot constitutionally be interpreted to require universities (public or private) to exclude such speakers. There is no "hostile learning environment" exception to the First Amendment, and I think cases striking down campus speech codes support that position.
But I thought that it was worth noting that CAIR's view is different: CAIR seems to think that the force of law—and of campus speech codes—should indeed be used to exclude anti-Muslim speakers from university campuses. That's good to keep in mind, especially when one considers arguments in favor of speech codes that ban speech that creates a "hostile educational environment." Political speeches by speakers who are sharply critical of Islam may well be something that people will try to ban under such speech codes.
UPDATE: Ibrahim Hooper responds,
We are strong supporters of First Amendment rights, and we believe free speech is a two way street. While anyone is free to be an anti-Muslim bigot, on campus or off, CAIR is free to challenge their bigotry by speaking out against the promotion of hatred and intolerance.
I appreciate the update, but the original statement struck me as pretty clear: CAIR is deliberately labeling certain anti-Muslim speech using a legal term—"[speeches that] create[s] a hostile learning environment"—that, according to the federal government and according to many campus speech codes, refers to speech that can and must be restricted by educational institutions. Indeed, CAIR has in the past used the label "hostile learning environment" in precisely this way, as describing an effect of speech that makes it prohibitable by federal discrimination law. If universities and the federal government accept that speeches such as Horowitz's create a "hostile learning environment," then under their own rules they would end up restricting the speech.
The plan thus appears to be to publicly mark harshly anti-Muslim speech as not just bad—which is what non-legal terms such as "anti-Muslim," "Islamophobic," "hate speech," and so on would do—but as legally restrictable. Later statements about strong support for First Amendment rights do not, I think, undo that.