October 23, 2015
UC Regents’ Working Group to Develop New UC Principles Regarding Intolerance:
Regent Eddie Island (chair)
Regent Norm Pattiz
Regent John A. Pérez
Regent Bruce Varner
Student Regent Avi Oved
Chancellor Linda Katehi
Academic Council Chair Dan Hare
Vice Provost for Diversity and Engagement Yvette Gullatt.
Dear Colleagues,
Thank you for your service on this working group, which the Board of Regents has tasked with developing new UC principles regarding intolerance. This effort arises from complaints about allegedly anti-Semitic behavior on our campuses and from requests that the University endorse as part of its policies against discrimination a specific definition of the term anti-Semitism. While we appreciate the desire some have for the University to discover a bright line redefinition of freedom of speech that allows unfettered expression yet enforces some standard of tolerance and civility, both current law and past experience suggest that doing so is at best elusive. While we appreciate the pressure for a specific response to this controversy, this controversy is not new or unique in either its general or specific characteristics. The success of the University in teaching, research, and public service depends on maintaining an environment that fosters and protects free inquiry and the competition of ideas.
The important point is that existing University policy and state and federal law, developed over many years for the purpose of dealing with exactly the sorts of challenges raised by recent events, provide an effective framework for resolving these issues. For these reasons, as detailed below, we urge you to affirm that there is no need to modify current policies.
The fundamental law at work in this issue is the First Amendment to the United States Constitution, and the extensive case law and judicial precedent derived from it. This long history of deliberation has defined free speech that all people enjoy, and the limits on said speech, working to create the line that defines speech that incites imminent lawless action (see Brandenburg v. Ohio, 1969), that defines appropriate restrictions on fighting words — words directed at a particular person that would tend to provoke an immediate violent response (see, for example, Cohen v. California, 1971), and what are appropriate restrictions on time, place, and manner (see, for example, Ward v. Rock Against Racism, 1989).
In keeping with the limits on free speech defined in federal law, unacceptable discriminatory acts, including acts by students, faculty, and staff, are already illegal under California state law. In particular, existing law already deals with the limitations on First Amendment protections for speech and with illegal activities and the circumstances in which they may become hate crimes. Students, staff, and faculty are all prohibited from acts of discrimination and hate crimes which are covered, for example, in California penal code sections 422.55 and 422.6. Section 422.55 defines hate crime:
“(a) “Hate crime” means a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim: (1) Disability. (2) Gender. (3) Nationality. (4) Race or ethnicity. (5) Religion. (6) Sexual orientation. (7) Association with a person or group with one or more of these actual or perceived characteristics. (b) “Hate crime” includes, but is not limited to, a violation of Section 422.6.
Section 422.6 then says:
“422.6 (a) No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55.
“(b) No person, whether or not acting under color of law, shall knowingly deface, damage, or destroy the real or personal property of any other person for the purpose of intimidating or interfering with the free exercise or enjoyment of any right or privilege secured to the other person by the Constitution or laws of this state or by the Constitution or laws of the United States, in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55.”
The Academic Personnel Manual reminds us that the First Amendment applies to UC faculty, as it does, in fact, apply to everyone at UC. From APM-010: “Members of the faculty are entitled as University employees to the full protections of the Constitution of the United States and of the Constitution of the State of California. These protections are in addition to whatever rights, privileges, and responsibilities attach to the academic freedom of university faculty.”
APM-015 then continues to describe professional rights of faculty, which include:
“1. free inquiry, and exchange of ideas; 2. the right to present controversial material relevant to a course of instruction; 3. enjoyment of constitutionally protected freedom of expression; 4. freedom to address any matter of institutional policy or action when acting as a member of the faculty whether or not as a member of an agency of institutional governance…”
But these professional rights must be tempered by professional obligations to students. Hence, the APM prohibits:
“… 1. (b) significant intrusion of material unrelated to the course; … 2. Discrimination, including harassment, against a student on political grounds, or for reasons of race, color, religion, sex, sexual orientation, gender, gender expression, gender identity, ethnic origin, national origin, ancestry, marital status, pregnancy, physical or mental disability, medical condition (cancer-related or genetic characteristics), genetic information (including family medical history), or service in the uniformed services as defined by the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), as well as state military and naval service, or, within the limits imposed by law or University regulations, because of age or citizenship or for other arbitrary or personal reasons… 4. Use of the position or powers of a faculty member to coerce the judgment or conscience of a student or to cause harm to a student for arbitrary or personal reasons. 5. Participating in or deliberately abetting disruption, interference, or intimidation in the classroom.”
Faculty also have obligations to the university. Therefore, the APM prohibits:
“1. Intentional disruption of functions or activities sponsored or authorized by the University. 2. Incitement of others to disobey University rules when such incitement constitutes a clear and present danger that violence or abuse against persons or property will occur or that the University’s central functions will be significantly impaired… 4. Forcible detention, threats of physical harm to, or harassment of another member of the University community, that interferes with that person’s performance of University activities. 5. Discrimination, including harassment, against University employees on political grounds, or for reasons of race, color, religion, sex, sexual orientation, gender, gender expression, gender identity, ethnic origin, national origin, ancestry, marital status, pregnancy, physical or mental disability, medical condition (cancer-related or genetic characteristics), genetic information (including family medical history), or service in the uniformed services as defined by the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), as well as state military and naval service, or, within the limits imposed by law or University regulations, because of age or citizenship or for other arbitrary or personal reasons. 6. Violation of the University policy, including the pertinent guidelines, applying to nondiscrimination against employees on the basis of disability.”
And faculty have obligations to colleagues, so the APM prohibits:
“2. Discrimination, including harassment, against faculty on political grounds, or for reasons of race, color, religion, sex, sexual orientation, gender, gender expression, gender identity, ethnic origin, national origin, ancestry, marital status, pregnancy, physical or mental disability, medical condition (cancer-related or genetic characteristics), genetic information (including family medical history), or service in the uniformed services as defined by the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), as well as state military and naval service, or, within the limits imposed by law or University regulations, because of age or citizenship or for other arbitrary or personal reasons. 3. Violation of the University policy, including the pertinent guidelines, applying to nondiscrimination against faculty on the basis of disability.”
As noted above, these time-tested policies and laws are more than adequate to provide a strong framework in which to ensure that all students and other members of the University community have recourse when the object of intolerant behavior.
If there is a problem to be addressed it would be to ensure that current laws and policies are properly implemented, including timely, sensitive and effective enforcement of these laws and policies done in a way that promotes rather than impedes the free expression of ideas.
If we can be of further assistance in this matter, please contact our Executive Director, Eric Hays, at info@cucfa.org or 888-826-3623.
Thank you for your consideration.
Best wishes,
Stanton Glantz
President
On behalf of the Board of the Council of UC Faculty Associations