I have been rough on my home state in recent posts. Whether chiding the University of California Regents over a proposed speech code or pointing out the contradictory approaches to student speech, the lack of respect for student speech in California has caused me to cringe. But just when I thought I was being too hard on the State I love, the California Legislature moves one step closer to creating “Discrimination-Free Zones” on all public school campuses, including universities. And now I don’t feel so guilty.

According to the text of ACR 82, which passed another hurdle in the legislature last week, California wants all public institutions of learning to implement “discrimination-free” zones by enacting new policies, offering new counseling services and providing new conflict management groups to “provide a safe haven from intolerance or discrimination.” Here are the relevant portions of the resolution:

Resolved, by the Assembly of the State of California, the Senate thereof, concurring, That the Legislature of the State of California hereby encourages all public education institutions, working with students, teachers, faculty, and other members of the public education community, to designate each campus as a “Discrimination-Free Zone” to provide a safe haven from intolerance or discrimination; and be it further

Resolved, That all public education institutions, prekindergarten through university campuses, are encouraged to develop and enact policies that support tolerance and acceptance of others regardless of their race or ethnicity, religion, disability, gender, gender identity, sexual orientation, nationality, or any other characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code; and be it further

Resolved, That all public education institutions are encouraged to enact procedures, such as counseling services and conflict management, that meaningfully address acts of discrimination that occur on campus; and be it further

Resolved, That all public education institutions are encouraged to notify parents and the campus community should be notified of existing policies and procedures that encourage tolerance of others; and be it further

Resolved, That all public education institutions are encouraged to use existing resources to identify themselves as “Discrimination-Free Zones” through placards, signs, notices of available services, and other appropriate identifications to create a campus climate that welcomes diversity and supports the tolerance of others

Who is behind this, you ask? The California Faculty Association, the University of California, Equality California, the PTA and the California State Student Association, among others.

While this is only a resolution and not a binding bill, the intent of the California Legislature could not be more clear: free speech must yield to “tolerance and acceptance of others.” Unfortunately for California college students, the encouragement of “policies that support tolerance and acceptance of others” will inevitably result in more campus speech codes and censorship, similar to what happened at Spokane Falls Community College last year.

It turns out I was wrong the other day when I said that California has free speech schizophrenia. It does not. A few colleges and universities strive to protect students’ rights. But these are the outliers. The Legislature has made it clear that California public policy is to dismantle the marketplace of ideas. We will try to make sure that does not happen.

Spring is in the air in California. While the Sierra Nevada gets a late spring snowstorm, the California golden poppies have opened along I-5. Spring is a time of transition from one season to the next, and also a time when high school seniors eagerly await that wonderful transition from high school drama to college coolness. At this time of year particularly, seniors await acceptance letters from their favorite college or university. But once the letters arrive, how is a high school senior going to choose his or her school? If the decision has anything to do with free speech policies on campus, it may be wrought with confusion, especially for students considering California schools.

California’s public colleges and universities, it seems, have no institutional respect for freedom of speech on campus. A series of contradictory policy decisions have made the Golden State’s higher education system a mess when it comes to freedom of speech.

Take last week, for example. On Friday, FIRE’s Samantha Harris wrote about the great news at San Francisco State University. SFSU repealed its illegal speech zone policy and now allows literature distribution in the outdoor areas of campus so long as pedestrian traffic is not impeded. Even better, SFSU removed the official free speech zones so that students can now engage in speech in most outdoor areas. But down the street, the University of California Hastings College of the Law continues to enforce its “nondiscrimination” policy against the Christian Legal Society, banning it from campus.

On Tuesday, I wrote that the University of California system is considering a new speech code that will give administrators great ability to censor disfavored student speech. This comes on the heels of the UC system amending its harassment policy to protect student speech. But at the same time, the Los Angeles Community College District, the largest community college district in the United States, fights to keep an even more speech-restrictive harassment policy.

To top it off, we have good information that several California State University system campuses still maintain an unconstitutional speech code that was struck down and amended two years ago.

For a state that supposedly accords broad protection to student speech and that has one of the best public higher education systems in the country, California’s public colleges and universities remain behind the curve on free speech issues. The Golden State can do better.

The University of California System is considering a new speech code in the wake of a few unfortunate speech incidents on its campuses. AP reports that UC System President Mark Yudof is considering a new system-wide bias incidents or “hate speech” policy to remedy recent incidents involving swastika graffiti and a noose found hanging on a library book shelf. In the former incident, UC Davis found several swastikas painted on university property and one on a student’s dorm room door. In the latter incident, UCSD students used Facebook and other online media to promote an off-campus party that played off of negative racial stereotypes. This caused the university to freeze the funding of 33 student media outlets. Some California legislators called for punishment of the students. The incident was followed by a student hanging a noose in the library, which later turned out to be a hoax. The UC Davis incidents are obviously illegal (defacing government property) and may be considered true threats of violence, which are not protected forms of speech. FIRE has done a good job detailing the proper reactions to the UCSD incidents.

The UC’s actions are surprising, as Yudof and the UC General Counsel have done well recently by amending the system’s sexual harassment policy to comply with the First Amendment. But it seems that Yudof may be receiving bad advice this time around. The proposed speech code, which has surfaced from the UC Students Association, will prohibit “hanging a noose, burning a cross, or placing a symbol, such as a swastika, without authorization, on university property or at official university functions.” The restrictions seem benign at first glance. No one should be allowed to encourage criminal activity on campus or incite violence, and for this reason much of the restriction might pass constitutional review. But the restriction on “placing a symbol,” runs afoul of the First Amendment. Vague? Overbroad? Prior restraint? You bet! This gives an administrator unbridled discretion to determine which “symbols” are allowed on university property and which are not, with no criteria to guide their decisions. This can result in an administrator finding that certain “symbols” are too “offensive” to be allowed (for example, a display of crosses during a Cemetery of the Innocents event). This has the potential to stifle protected speech.

President Yudof and the UC Regents would be wise to take heed of what happened to their university colleagues in College Republicans at San Francisco State University v. Reed, where a federal district court in San Francisco struck down a California State University system’s civility code as unconstitutional. The court issued the decision after San Francisco State University investigated a College Republicans anti-terrorism rally that involved stepping on hand-made flags of Hezbollah and Hamas. As the court reminded the CSU:

controversial expression . . . is the First Amendment’s highest duty to protect. By political definition, popular views need no protection. It is unpopular notions that are in the greatest peril—and it was primarily to protect their expression that the First Amendment was adopted. The Framers of our Constitution believed that a democracy could remain healthy over time only if its citizens felt free both to invent new ideas and to vent thoughts and feelings that were thoroughly out of fashion. Fashion, it was understood, is an agent of repression—and repression is an agent democracy’s death.

If the UC wants to prohibit defacing university property, it can find better ways to do so. If it wants to protect student safety, it may do so by prohibiting speech that incites violence. But if it wants to promote racial tolerance and a marketplace of ideas, it will do better by allowing speech to occur, not banning it based on a few isolated incidents (one of which was a hoax). I hope the UC takes the high road by taking another look at this proposed policy and bringing it into compliance with the First Amendment.

JTA, which describes itself as “The Global News Service of the Jewish People,” has posted an article discussing the divergent choices various Jewish groups have made regarding Christian Legal Society v. Martinez.  As the article explains, some groups have filed “friend of the Court” briefs supporting CLS’s constitutional freedom to draw its officers and voting members from among those who share its religious commitments — both doctrinal and moral.  Others plan to file in support of the government or sit the case out.

The article features several remarkable statements by Deborah Lauter, the National Director of Civil Rights for the Anti-Defamation League.  First, she implicitly characterizes CLS as a group that is “opposed” to non-Christians and those who engage in extramarital sexual conduct.  It is profoundly unfair and misleading to characterize CLS’s statement of faith requirement as “opposition” to those who have different religious commitments.  The statement of faith expresses CLS’s core religious beliefs, positively articulating what brings its members together.  The idea that the founders and leaders of CLS started with some “opposition” to non-Christians and then wrote the statement of faith to express that alleged “opposition” is absurd.

Second, Ms. Lauter suggests that if CLS prevails, public universities will be rendered utterly unable to address actual invidious discrimination.  I continue to find it amusing that opponents of CLS’s position, finding themselves unable to mount a persuasive case against CLS itself, must resort to parades of hypothetical horribles.  Her remark reflects a conflation of real discrimination (invidiously taking irrelevant characteristics into account) and the means by which a bona fide religious group legitimately maintains its religious character over time.

Third, Ms. Lauter said that it is “antithetical to democracy” to allow religious groups that consider religion in their hiring decisions to participate in federally funded social service programs.  “Democracy” produced the 1996 welfare reform law, which acknowledged the right of such religious groups to participate in the provision of services to needy people with public money.  Large numbers of both Democrats and Republicans voted for this legislation, and a Democratic president (Bill Clinton) signed it.  Can one plausibly call their handiwork “antithetical to democracy”?  It appears as though “antithetical to democracy” means “stuff ADL doesn’t like.”

Hastings states that no group can deny voting membership and leadership to any student on any basis (not just on the basis of characteristics listed in Hastings’ Policy on Nondiscrimination, like race and religion).  Under such a policy, a student chapter of ADL would not be able to withhold voting membership or an officer position from an avowed anti-Semite.  Does ADL really believe that Hastings would not violate ADL’s constitutional rights by revoking its registered status under such circumstances?  Perhaps ADL is confident that Hastings would selectively enforce such a policy by, say, withholding registered student organization status from CLS while conferring such status on it.  That might not be an unreasonable assumption:  in 2004, Hastings conferred RSO status upon La Raza (“the race”) even though its bylaws expressly limited membership and leadership to those “of Raza background.”

If it weren’t bad enough that some colleges and universities think they need to tell students how to think and what to believe, one public university has actually tried to force students deemed overweight—by the university—to exercise.

Beginning with entering students in 2006, Lincoln University, a public university in Pennsylvania, instituted a requirement that any student with a Body Mass Index (BMI) of 30 or more would be required to take a physical fitness course called “Fitness for Life” in order to graduate.  The students’ BMI was not self-determined—rather, it was determined through a mandatory exam by college officials.  If a student had a BMI of 30 or higher, they were required to take the fitness course in order to graduate.

Student Tiana Lawson protested the requirement in The Lincolnian:

I didn’t come to Lincoln to be told that my weight is not in an acceptable range. I came here to get an education which, as a three time honor student, is something I have been doing quite well, despite the fact that I have a slightly high Body Mass Index.

Ms. Lawson’s editorial brought national attention to this policy, and it was thankfully repealed last week after the university received several complaints. 

This is one of the more ridiculous university policies I’ve ever heard of—it is condescending, paternalistic, and intrusive, as Temple University Law Professor David Kairys points out.  There is nothing wrong with encouraging students to adopt a healthy lifestyle, but this policy crosses the line.  As Ms. Lawson pointed out, the students are there to receive an education, not to have their personal characteristics scrutinized by a “nanny” university.

Given their recent attempts to control the bodies and exercise schedules of their students, it is not surprising that the school also apparently attempts to control student speech.  Lincoln University has a “red light” rating  from FIRE with regard to its policies affecting speech.  One policy prohibits “actions, words, jokes, or comments based on an individual’s sex, race, color, national origin, age, religion, disability, or any other legally protected characteristic.” 

The irony of prohibiting students from simply making a “comment” about someone’s characteristics but essentially calling some of its students too “fat” to graduate was apparently lost on Lincoln.  Let’s hope Lincoln’s speech code soon goes the way of the fitness requirement, and Lincoln students are as free to exercise their First Amendment rights as they are to choose whether they want to exercise.