The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Dean Erwin Chemerinsky (Berkeley Law) and Chancellor Howard Gillman (UC Irvine) on Free Speech on Campus
Chemerinsky and Gillman are the co-authors of Free Speech on Campus, and have long defended free speech and academic freedom. (For another recent item from the two of them, see here ["Free speech doesn't mean hecklers get to shut down campus debate"].) I don't always agree with them on such matters, and I tend to disagree with them even more on other matters; but their thoughts on the subject are always interesting, and based on deep academic expertise. Here's an excerpt from their Yahoo! News piece yesterday:
We applaud the efforts of the Department of Education to require that campuses deal with anti-Semitism and Islamophobia after a recent uptick in incidents following the Hamas terrorist attack in Israel on Oct. 7. In response, [Secretary of Education Miguel Cardona and Assistant Secretary of Education Catherine Lhamon] have issued statements saying schools that fail to adequately deal with these incidents can be deemed in violation of Title VI of the 1964 Civil Rights Act, which provides that recipients of federal funds cannot discriminate on the basis of race or ethnicity.
We have no quarrel with the proposition that campuses have a duty to act when there is speech that constitutes discriminatory harassment within the meaning of federal law. The official standard promulgated by the Education Department is that campuses must respond when the speech "is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person's ability to participate in or benefit from the recipient's educational program or activity."
The problem is that universities have been advised in briefings by the Department of Education that protected speech, including speech that would not meet the definition of harassment, can create a hostile environment that universities are obligated to address.
This puts universities in a very difficult position as the entire point of a university education is to protect the expression of all ideas and prepare students to encounter — and, if necessary, rebut — those ideas….
Universities have been advised that statements from protesters such as "From the river to the sea, Palestine will be free" — which are clearly constitutionally protected — likely create a hostile environment for Jewish students which undermines their equal opportunity to an education, thus requiring investigations and mitigation efforts. But this is speech protected by the First Amendment, and we know that some Muslim, Arab and Palestinian students similarly feel threatened by protesters who chant "We stand with Israel." Do they also require investigations and mitigation efforts?
It is easy to imagine endless other examples of students complaining about a hostile environment as a result of being exposed to protected speech. What should universities do when conservative Christians complain that pro-abortion or pro-trans rights advocates create a hostile environment for them? Or, conversely, when LGBTQ+ individuals and allies say conservative Christian activists create the same situation for them? …
The Department of Education should make it clear that, on college campuses, a discriminatory educational environment cannot be created merely through exposure to objectionable ideas and speech that is protected by the First Amendment.
And from their S.F. Chronicle piece yesterday:
It is tempting to say that any advocacy of genocide should be banned and outside the scope of the First Amendment. That, though, is not and never has been the law. Allowing the government such a power of censorship would not be easily cabined. Some argue that what Israel is doing in Gaza is genocide. Could a university then ban speech supporting Israel? Those who oppose abortion have often described it as a form of genocide. Could a college so inclined ban all pro-choice speech?
The courts have been consistent that hateful speech is constitutionally protected. In the early 1990s, over 360 colleges and universities adopted hate speech codes. Every one, without exception, that has come to court was declared unconstitutional as a violation of the First Amendment….
And they argue that the right solution is a response to the speech, not restriction of the speech (though, in light of their AP piece, I take it that they think such a response should be a matter of each university's judgment, rather than mandated by the Department of Education's interpretation of Title VI):
[But] there is much that university officials can and should do besides punishing speech when there is hateful speech. Indeed, federal law requires that colleges not be "deliberately indifferent" when there is harassment. University officials have many tools, including using their voices to condemn hateful speech, providing educational programs and training about antisemitism and other types of bigotry, and providing support for students. If people are advocating genocide, that must be responded to as an abhorrent violation of campus values, even when the First Amendment does not permit the censorship or punishment of the individual speaker.
