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:
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.
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.