The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
University Administrators Behaving Badly
A bit lost in the controversy over antisemitic speech on campus is the failure of university administrators to enforce existing rules that are content-neutral.
I have already written about my own university's failure to enforce Virginia's law banning masked demonstrations. That failure continues, despite a letter from the state attorney general reminding universities of their obligation to enforce the law, and despite an incident in which a student waving a pro-Israel Israel flag was attacked by masked demonstrators. My understanding is that other universities in Virginia are also refusing to enforce the law. I have an email from one university police department official explaining that the law was intended to be enforced only if another crime has been committed. This is nonsense. The law is meant to prevent intimidation by hateful mobs, and to help police identify suspects if laws are broken. I understand that one would not want to suddenly enforce the law and arrest masked students on felony charges, but I don't see any problem with enforcing the law after providing due warnings.
Meanwhile, at Cornell anti-Israel groups have been disrupting indoor spaces with extremely loud chanting of "from the river to the sea" and so forth. When students and their parents complained to the school, the response they received from the dean's office is that the university would not intervene unless the protests were "too" disruptive. When pressed, 20-30 minutes of disruption was deemed not "too" disruptive. But it gets worse. According to the Cornell Sun, a university official admitted that the administration has been cooperating with the disruptions, including the students' "occupying" a campus building as he made the statement!
During the meeting, Lombardi also stressed the administration's cooperation and commitment to free expression and student protests. He emphasized that the administration has cooperated with students and demonstrators with respect to the events planned for the week by CML.
"You've had a lot of activities [and] demonstrations, and the staff that's been here has been very committed to helping you be able to do that and express yourself during your demonstrations throughout the week," Lombardi said. "So we remain very committed to that, including today."
UC Berkeley has an "all-comers" policy, ie, student organizations must be open to everyone with no discrimination. Nevertheless, as revealed in a recent lawsuit filed against the university, twenty-three student organizations have adopted policies that discriminate against "Zionists" in various ways. Dean Erwin Chemerinsky has determined that putting aside any civil rights considerations, these policies violate the university's all-comers policy. Starting next semester, he has told students, work for any of these organizations will not be eligible for course credit. However, the organizations apparently remain free to use the Berkeley Law School name, office space, funding, and faculty advisors. Dean Chemerinsky seems to think this is required by the First Amendment. For my part, I don't see how student organizations have a First Amendment right to violate content-neutral university policy, nor why that any such right would apply differently to course credit as opposed to other privileges.
A lawsuit filed against New York University provides several examples of university officials declining to enforce the university's own regulations against anti-Israel protestors and activists.
Anti-Israel students at MIT blocked entrance to a university building while classes were being held, obviously contrary to university rules. The university declined to suspend them because of "serious concerns about collateral consequences for the students, such as visa issues."
These are just a few of the examples I have come across since October 7 of universities declining to enforce their own content-neutral rules. Such actions leave the universities vulnerable to civil rights complaints, given that failure to enforce these rules (a) can contribute to a hostile environment for Jewish students, as their pleas for the university to enforce the rules are ignored; (b) may permit discrimination against Jewish students (as at Berkeley) contrary to school rules; and (c) may constitute discrimination by demonstrating selective indifference to the concerns of Jewish students, if the rules get enforced in other contexts.
But legalities aside, many people are calling for universities to crack down on "hate speech." Instead, critics should demand that universities enforce existing content-neutral rules--and that they certainly should not, as at Cornell, be actively collaborating with student groups in breaking those rules.
