The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Here is a proposed policy that the Regents of the University of California's Committee on Education Policy will be discussing next Thursday:
Office of the President
TO MEMBERS OF THE COMMITTEE ON EDUCATION POLICY:
For Meeting of September 17, 2015
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA'S STATEMENT OF PRINCIPLES AGAINST INTOLERANCE
The Regents are strongly committed to a University community that upholds the core principles of respect, inclusion, academic freedom, and the free and open exchange of ideas. Accordingly, as discussed at the July Regents meeting, a statement reflecting these principles has been developed and is outlined below for discussion.
Regents of the University of California's Statement of Principles Against Intolerance
The University of California is committed to protecting its bedrock values of respect, inclusion, and academic freedom. Free expression and the open exchange of ideas—principles enshrined in our national and state Constitutions—are part of the University's fiber. So, too, is tolerance, and University of California students, faculty, and staff must respect the dignity of each person within the UC community.
Intolerance has no place at the University of California. We define intolerance as unwelcome conduct motivated by discrimination against, or hatred toward, other individuals or groups. It may take the form of acts of violence or intimidation, threats, harassment, hate speech, derogatory language reflecting stereotypes or prejudice, or inflammatory or derogatory use of culturally recognized symbols of hate, prejudice, or discrimination.
Everyone in the University community has the right to study, teach, conduct research, and work free from acts and expressions of intolerance. The University will respond promptly and effectively to reports of intolerant behavior and treat them as opportunities to reinforce the University's Principles Against Intolerance.
This statement of principles applies to attacks on individuals or groups and does not apply to the free exchange of ideas in keeping with the principles of academic freedom and free speech. This statement shall not be interpreted to prohibit conduct that is related to the course content, teaching methods, scholarship, or public commentary of an individual faculty member or the educational, political, artistic, or literary expression of students in classrooms and public forums that is protected by academic freedom or free speech principles. The statement is intended to reflect the principles of the Regents of the University of California and shall not be used as the basis to discipline students, faculty, or staff. Discipline is covered under existing policies including the following: Policies Applying to Campus Activities, Organizations and Students, 100.00: Policy on Student Conduct and Discipline, Personnel Policies for Staff Members pertaining to discipline and separation, or University Policy on Faculty Conduct and the Administration of Discipline (Academic Personnel Manual [APM]-016).
University leaders will take all appropriate steps to implement the principles.
The following non-exhaustive list contains examples of behaviors that do not reflect the University's values of inclusion and tolerance, as described in the Regents of the University of California's Statement of Principles Against Intolerance.
* Vandalism and graffiti reflecting culturally recognized symbols of hate or prejudice. These include depictions of swastikas, nooses, and other symbols intended to intimidate, threaten, mock and/or harass individuals or groups.
* Questioning a student's fitness for a leadership role or whether the student should be a member of the campus community on the basis of race, religion, ethnicity, national origin, citizenship, sex, or sexual orientation.
* Depicting or articulating a view of ethnic or racial groups as less ambitious, less hardworking or talented, or more threatening than other groups.
* Depicting or articulating a view of people with disabilities (both visible and invisible) as incapable.
So let's look closely at this:
1. The policy specifically condemns the expression of particular viewpoints as "intolerant," as having "no place at the University of California," and a violation of others' rights to be "free from … expressions of intolerance." For instance, articulating a view that people with various intellectual disabilities are incapable of various intellectual tasks, or people with various physical disabilities are incapable of various physical tasks, would be condemned by the authority of the University. ("University leaders will take all appropriate steps to implement the principles.")
Articulating a view that there are cultural (or even biological) differences between ethnic and racial groups in various fields—condemned by the authority of the University, without regard to the arguments for or against the particular assertion. It's just an up-front categorical rule; whatever you want to say along these lines, we don't want to hear it, we don't care what your arguments are, we'll condemn it, and faculty and students have a right not to hear it. Even "depicting" such a view, whatever that means, is "intolerant" and "has no place at the University."
Saying that illegal aliens (or noncitizens who are legally here) ought not be appointed to be, say, the student member of the Board of Regents—likewise condemned. And this isn't limited to situations where the speaker is a participant in a selection decision, which the participants are obligated to make in a nondiscriminatory way. It equally applies to, say, a student newspaper that condemns the appointment of noncitizens to leadership positions. (For a recent controversy along these lines in a local city, which could equally arise at a university, see this story about two illegal aliens named as volunteers to city commissions in an L.A.-area town.)
And these are just examples. The policy obviously extends to the other categories traditionally joined to race, ethnicity, and disability, such as sex, sexual orientation, or religion.
Defending traditional exclusion of same-sex couples from marriage, by arguing that same-sex couples aren't as good at raising children as opposite-sex couples? (I suspect that view is wrong, but we can only know it's wrong if people are able to freely debate it.) Discussing purported differences in temperament, cognition, and more between men and women? Sharply criticizing certain religious denominations, and suggesting that people who are genuinely committed to those religious denominations are misguided or morally reprehensible?
Presumably all that, no less than statements about the disabled, is likewise "intolerance" that "has no place at the University of California" and that violates students' and faculty members' rights to be "free from … expression or intolerance." You can't "depict or articulat[e]" such ideas here—we're a university!
2. The policy does say, "This statement of principles applies to attacks on individuals or groups and does not apply to the free exchange of ideas in keeping with the principles of academic freedom and free speech." But what does that mean?
"Attacks on individuals or groups," after all, often are free speech, especially recognizing that "attacks" is used here far beyond physical attacks (or threats of violence and speech that falls within the other narrow First Amendment exceptions). Certainly the third and fourth examples given in the "Addendum" are "free speech" under any existing legal definition of free speech, as is the second. Obviously the authors of the proposal have a much narrower view of "free speech" in mind. Likewise with "the free and open exchange of ideas." The authors of the proposal love free and open exchange of ideas, until some ideas they dislike about, say, disabilities are expressed.
3. The policy also says, "This statement shall not be interpreted to prohibit conduct that is related to the course content, teaching methods, scholarship, or public commentary of an individual faculty member or the educational, political, artistic, or literary expression of students in classrooms and public forums that is protected by academic freedom or free speech principles." But note the careful limitations in this language.
A student newspaper isn't a "public forum" in the legal sense of the term. ("Public forum" is a legal term for government-owned property that has been opened for speech by the public at large, or by some objectively defined group of speakers on some defined topics. A newspaper isn't open to every student to speak, and is instead subject to the editors' editorial control, which is why students can't sue to get access to writing in the pages of a newspaper under a "public forum" theory.)
A student group's Web site isn't a "public forum." An e-mail exchange among a group of acquaintances about, say, supposed biological differences between racial groups isn't in a "public forum" or "public commentary." A conversation over lunch in the cafeteria isn't public commentary or in a public forum. The "This statement shall not be interpreted …" proviso quite clearly doesn't safeguard this sort of speech.
4. Now I'm a tenured faculty member, and I'll keep on expressing my views despite this sort of policy. But what about undergraduates? Graduate students, who might be relying on the university for teaching assistant positions, progress in their departments, and more? Lecturers who don't have tenure? Tenure-track faculty members who don't yet have tenure?
When these students and faculty members are told that certain views about disabilities, about race or ethnicity, or (by obvious extension) about sexual orientation, sex, or religion have "no place at the University"—and violate others' rights to be "free from" such "expressions"—will they feel free to openly discuss these topics? Or will they realize that they had best follow the orthodoxy?