The University of California threatens freedom of expression

September 13, 2015 • 10:15 am

Over at his Washington Post site “The Volikh conspiracy”, UCLA law professor and First Amendment specialist Eugene Volokh reproduced and analyzed a new document up for consideration next Thursday by the Regents of the University of California. If adopted, this will become official policy, and it’s worrisome. (The official document is here, and I’ve put it below (my emphases):

Office of the President

TO MEMBERS OF THE COMMITTEE ON EDUCATION POLICY:

DISCUSSION ITEM

For Meeting of September 17, 2015

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA’S STATEMENT OF PRINCIPLES AGAINST INTOLERANCE

BACKGROUND

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.

Addendum

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.

There are several problems with this, and I’ll try not to highlight the same ones as Volokh.

  • “Intolerance” is characterized as “unwelcome conduct motivated by discrimination against, or hatred toward, other individuals or groups.” But of course one person’s “unwelcome conduct” is another person’s free speech. For example, criticism of Israel could be taken by Jewish students as “hatred” based on anti-Semitism. Jesus and Mo cartoons can (and have) been seen by Muslims as a blatant form of “hate speech” based on religion. “Hate speech, prejudice, and discrimination” are in the mind of the beholder, which raises the question: Who is to judge? Who at the University of California can set themselves up as arbiters of permitted discourse? Of course prejudice and discrimination are odious, but should statements expressing them be prohibited and punished? Certainly not under the First Amendment, which allows such speech so long as it doesn’t call for imminent violence. Here students are deprived of their First Amendment rights. My own view is that such speech should be allowed, and that the best disinfectant for bigotry and hatred is free discussion, not stifling of any discussion.
  • The distinction drawn between “attacks on individuals and groups” versus “free speech” is invidious and arbitrary, for the former is permitted under the free-speech interpretation of the Constitution. Again, the campuses (UC Berkeley was of course the focus of the “Free Speech Movement”) are denying students their Constitutional rights to criticize anything. (Personal harassment, or persistent attacks that create a hostile work or study environment, are, of course, not only reprehensible but legally prohibited.)
  • This bit is deeply confusing: “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.” Yet the same document says that “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.” It also says this: “University leaders will take all appropriate steps to implement the principles.” What are these statements but a threat to punish individuals who violate the principles of the document? At the very least, these sentences will have a chilling effect on the statements of both students and faculty.
  •  Volokh deals with the bit of the document in italics below, noting that “public forum” is a legal term that means “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”. Such forums apparently do not include venues that should nevertheless be vehicles for free speech, like student newspapers, websites, email conversations, or public conversations.

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.

  • Vandalism and most graffiti are illegal, and can clearly be punished according to the “non exhaustive” list of sanctioned behaviors. The other three items mentioned, which in most cases are offensive, also seem to fall under the rubric of free speech. These include discussions of group differences, fitness for leadership based on ethnicity or race, and discussions about the disabled. Remember that disabled students at Princeton called for philosopher Peter Singer’s firing because they perceived his views on euthanasia of severely disabled infants as “hate speech” directed against them.

Again, I truly abhor most of the behaviors singled out as examples of genuine intolerance. But I think that that sort of intolerance can be—and has been—interpreted excessively broadly by campuses since the growth of “offense” culture. So one problem is the one I mentioned above: “Who decides when the principles have been violated?” The other is my view that universities, as in the U.S. as a whole, can and should emphasize that they want to promote a culture of “tolerance,” but if free speech violates that tolerance, the way to deal with it is not to punish the speakers, but combat them with counter-speech.

40 thoughts on “The University of California threatens freedom of expression

  1. They are trying to fix something that isn’t broken. Or more precisely, they are attempting to prevent hurt feelings and in so doing forget that hurt feelings are worth discussing.

    1. Oh, but there is something broken — don’t you see? All these people are saying things that haven’t been previously approved by those in power. And what’s the point of being in power if you can’t control what everybody says?

      The speech that most needs to be protected is the speech you most wish wouldn’t be said.

      I would even go so far as to counter the UC proposal with one that requires all incoming freshman to gather for a mass assembly where they are all made to recite, in unison, the most disturbing examples from Hitler, the Klan, Fred Phelps, and the rest. Make the first freshman English assignment be to write a real barn-burner of a speech for whoever most persecuted members of each student’s racial / minority / whatever group. That sort of thing.

      b&

  2. “Depicting or articulating a view of people with disabilities (both visible and invisible) as incapable.” Invisible disabilities?

    How’s that work exactly? “How dare you offer me bread? I can’t eat gluten!”

    1. How can this even be serious for a system that has five medical schools?

      There will be someone that has their fee fees hurt because some doctor or professor says Type 2 Diabetes in children is bad and have some huge investigation where that doctor or professor has to apologize for their hate speech.

    2. I’m struggling to see what the difference could possibly be between “disability” and “incapacity”. Surely blind people are incapable of seeing, paraplegics are incapable for walking, and so forth.

      It would be a bad sense to suggest that someone who is disabled, in the sense of being incapable of something, is thereby inacpable of everything – but is this really a serious problem? (Does anyone actually suggest this?)

      1. Political correctness is, more often than not, about pretending that the world is a nicer place than it actually is. It’s quite Orwellian to try to define disability as non-lack-of-ability. But that way of thinking gets you to ISIS not being about religion.

    1. Thanks for that! I love the suggestion of what the real title should be, “Quotes from People Who Hate Sam Harris”.

    2. Great article. Loved this quote from it: “CJ Werleman has been relentlessly critical of (and abusive towards) Ayaan Hirsi Ali. Ayaan is clearly a frustrating inconvenience to his narrative. A black, female refugee who has experienced the worst Islam has to offer and spends her days critiquing the devastating effects of Islam where human rights are concerned. Unfortunately for Werleman, she’s smarter than him and won’t shut up.”

          1. I so hope it cuts loose while I still have my faculties about me! Almost certainly won’t, of course, but…damn, that would be awesome, in the true sense of the word!

            b&

  3. The Regents have obviously discovered that they can read minds and are able to discern motives,able to ascertain the sometimes subtle nuances of protest and prejudice and set it all down in this interesting document.
    One wonders if their accountants have totted up the costs of the inevitable Court challenges to this missive…perhaps they haven’t told them yet.

    1. Yes, I too was struck by the fact that the determination of whether the speech at issue was problematic is based on the motivation behind it.

    2. That is a feature not a bug. You do realize how many new heads in administration will need to be hired to implement these new policies right?

      And one of the biggest features of modern academic administration seems to be the lost cause. By which I mean writing or implementing policy that is clearly going to get smacked down by the courts.

  4. 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.

    One of these things is not like the others.

    Or, at least, many times it’s not. “Religion” is an odd category in that, while it can of course be equated with an ethnic or national group, technically speaking it’s a series of beliefs based on fact claims. It’s not a core identity which requires tolerant acceptance in a liberal society which values diversity. It involves conclusions which may or may not be true, which may or may not be relevant to an issue, and which may or may not therefore be open to debate. It’s often that former option.

    In other words, religion is more like politics, economics, ethics, science, and history than it’s like race, ethnicity, national origin, sex, or sexual orientation. And it seems to me that a liberal community is not only allowed but obligated to sometimes question someone’s fitness for a leadership role, etc. on the basis of those kinds of things. There can be a right and wrong — not just a “difference” which must be granted a free pass.

    1. Exactly. Criticism of someone’s religious beliefs should be seen no differently than criticism of someone’s political beliefs. Unfortunately the multicultural left tends to treat religious identity as akin to racial or sexual identity, so that criticism of religion is taken to be as offensive as racism, sexism, or any other irrational prejudice. (And of course the religious right piggybacks on this form of political correctness when it’s convenient for them, e.g. in defense of Kim Davis.)

      Nobody would ever say that criticizing someone’s politics is offensive “because those are their deeply-held beliefs.” And yet apologists on both the left and the right demand exactly that sort of sensitivity for religion.

      1. “Nobody would ever say that criticizing someone’s politics is offensive “because those are their deeply-held beliefs.” And yet apologists on both the left and the right demand exactly that sort of sensitivity for religion.”

        Part of the problem is that many recognize that religious beliefs are largely a result of indoctrination, and thus are considered something the believers have little to no control over, like race, disabilities, or sexual preference. In order to be consistent they would have to concede that political preferences, or bigotries are also largely a matter of indoctrination, and this equally worthy of sensitivity, and being treated as protected classes.

  5. This policy seems to have the very undesirable quality of ruling itself out as a topic for further discussion.

    How can anyone discuss this, without committing one or more the forbidden micro-aggressions?

    A sure sign of infringing freedom of speech is formulating a policy that bars its own discussion.

  6. “We define intolerance as unwelcome conduct motivated by….”

    This is the standard tactic — assume you know someone’s motives and judge them accordingly. And then label them and shame them publicly. And then say it’s in the name of tolerance.

  7. It seems that any time an organization begins a statement touting its commitment to free speech, you have to get ready for their definition of the limits they want to impose. At statement such as this cannot be interpreted as anything but an attempt to regulate speech, and, given it’s actual lack of specificity, to be chilling.

  8. … bedrock values of respect, inclusion, and academic freedom. Free expression and the open exchange of ideas — principles enshrined in our national and state Constitutions …

    I’m all in favor of respect and inclusion(and against intolerance) but unlike the other values cited, they are not guaranteed, or even mentioned, in the Constitution (not the federal one anyway). Some of these things, as they used to say on Sesame Street, are not like the others.

    I hate it — hate it, hate it, hate it! — when being forced to take the side of the intolerant, the disrespectful, and the dis-inclusive, hate it the way the Jewish lawyers must’ve hated defending the Nazis in Skokie (…ok, that’s a bit of unearned hyperbole, since the hate here isn’t being directed at me and mine, and we weren’t subjected to a recent attempted genocide, but I still hate it, goddamn it.)

    The only meaningful measure of one’s commitment to free expression, however, is one’s willingness to stand up for the right of people with whom one disagrees vehemently to be heard. Everything else is lip service — everybody’s all in for the freedom of speech they agree with. It’s only when you’re willing to stand up for the right to be heard of the sonofabitch standing on the other side of the picket line, the one whose ideas you abhor and whose neck you’d like to wring, the one spraying epithets and nonsense back in your face, that any of it counts. Otherwise, a commitment to free speech don’t mean zilch.

    Which is something the U.C. regents have never seemed to get.

  9. I’m offended.

    “* 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.”

    They didn’t mention “age”.

  10. The problem is that the University of California long ago gave up on free speech when they put in their campus climate codes. You cannot do any of the activities listed above against Jewish students against blacks, Latinos, Muslims, women or gays or the University takes very fast very strong action. This merely extends the “protections” given to other groups to yet another. I think the whole policy is bad, but if the University in its total lack of principle is going to have these policies then they should extend to all groups where there is a problem.

  11. “My own view is that such speech should be allowed, and that the best disinfectant for bigotry and hatred is free discussion, not stifling of any discussion.”

    Amen, brother! (and sisters)

    I must add my late grandmother’s summation of the situation: “Consider the source.”

    The “regents” of one of the country’s finest universities is displaying the ultimate ignorance in effectively saying “We are intolerant of intolerance.”

  12. Where are the founders of the 1960’s free speech movement, at Berkeley, in this discussion? How do they feel about what is happening on the campus of their alma mater?

  13. I gave the 2nd in a series of workshops on logic and related matters to a local CFI group yesterday. It occurs to me because of my experience giving some problems to work on in recognizing arguments that one area where these sorts of “codes” present themselves as a problem is with *indirect* speech. Can I *quote* any of the forbidden categories to analyze it as a (bad?) argument? I know some students have supposedly gotten hung up reading strange examples, but certain aspects of logic are content neutral. Some folks think that one should thereby use outrageous examples to practice ignoring it and focusing on form. (For example, my own first logic instructor used a fair number of examples involving Canadian wildlife and the UK royal family, often together.)

  14. I keep seeing retweets about a supposed Chrome plug-in that changes the text “political correctness” to the text “being nice to people” or some-such. It’s so hilariously brain-dead. As if it’s that simple! I’m sure Communist re-education camps had similar rhetorical tropes.

    I am a programmer and feel like writing a Chrome plug-in called “Orwell” that changes “Ignorance” to “Strength” etc.

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