Editorial: UC’s new ‘Principles Against Intolerance’ fail free-speech test

On Thursday, the UC Board of Regents will discuss a “Statement of Principles Against Intolerance” that condemns bigotry on campus while affirming the importance of free speech. Its overarching theme is that “intolerance has no place at the University of California.”

There is much to agree with in the statement, which was prepared by the staff of UC President Janet Napolitano with input from others, including some regents. But it also includes some loose language that could undermine the university’s commitment to a free exchange of ideas and its obligation to respect the 1st Amendment.

Thursday’s discussion is the latest chapter in a long-standing controversy about whether the university is doing enough to protect students from bigotry. Particular concerns have been raised about whether campus protests against Israeli policies have contributed to a hostile environment for Jewish students. Earlier this year, UC was urged to endorse a State Department document that defined anti-Semitism to include denying Israel’s right to exist or subjecting the Jewish state to a double standard.

Critics — including this page — warned that endorsement by the university of that document could chill constitutionally protected speech. UC wisely backed away from the definition, but Napolitano promised to ask the regents to consider a broader statement opposing intolerance “including, but not limited to, anti-Semitism.”

The result is this new statement of principles, which UC officials emphasize is a starting point for discussion, not a code of conduct or a replacement for current disciplinary policies. It won’t be voted on by the regents, but it is nevertheless a significant enunciation of university policy and, if the regents view it positively, it could lead in the future to new policies that would be binding. That makes it vital that the statement define intolerance in a way that doesn’t undermine free speech. It fails that test.

“Intolerance” is defined to include “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.” We agree that the 1st Amendment doesn’t protect students who hurl racist or other insults at their classmates or engage in acts of bullying or intimidation.

Nor is there any excuse for invidious discrimination against individual students. It was outrageous that a candidate for a position on UCLA’s Judicial Board was asked whether, given her membership in a Jewish sorority, she felt she could be unbiased.

But the proposed definition of unacceptable intolerance also encompasses the expression of opinions outside the context of insults or discriminatory conduct. For example, it seemingly would cover a letter to the editor of a student newspaper criticizing racial preferences in admissions policies on the grounds that minority students admitted under such programs had lower grades or test scores. (The statement cites as an example of intolerance “depicting or articulating a view of ethnic or racial groups as less ambitious, less hardworking or talented, or more threatening, than other groups.”)

Because it is so broad, the statement also could define as “intolerant” any discussion in an email or in the student paper of whether disabled people are incapable of certain activities, or whether gay people make worse parents than straight people.

To be fair, the statement says that its condemnation of intolerance doesn’t extend to “the educational, political, artistic or literary expression of students in classrooms and public forums that is protected by academic freedom or free speech principles.” But Eugene Volokh, a 1st Amendment expert at UCLA Law School, notes that a student newspaper isn’t technically a public forum, nor are the websites of student organizations or university email servers.

It’s certainly possible to interpret the statement of principles as targeting emails in which students express opinions “reflecting stereotypes or prejudice.” And what if a student emailed a friend objecting to the decision to remove the Confederate battle flag from the grounds of the state capitol in South Carolina and attached an image of the flag? Would that run afoul of the statement’s condemnation of the “inflammatory or derogatory use of culturally recognized symbols of hate, prejudice, or discrimination”?

Such scenarios may seem far-fetched, but at many universities — including UC — a well-meaning effort to combat racism and discrimination has sometimes resulted in bizarre examples of censoriousness. In June, this page criticized a post on the website of Napolitano’s office that listed the following statements as offensive “microaggressions”: “America is a melting pot”; “I believe the most qualified person should get the job”; “Gender plays no part in who we hire”; and “America is the land of opportunity.”

A related phenomenon is the conviction that college students must be shielded not only from insults and harassment but also from ideas they find objectionable. President Obama had this to say on the subject this week: “I don’t agree that you, when you become students at colleges, have to be coddled and protected from different points of view.”

Before the regents adopt any policies inspired by the Statement of Principles Against Intolerance, they should reject its overly broad language and draw a clearer distinction between acts of intolerance and the expression of opinions that might potentially offend some students. No student should have to put up with the former, but the latter is a feature not just of a free society but of an intellectually vibrant university campus.

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