Chemerinsky and Gillman are the co-authors of Free Speech on Campusand have long defended freedom of expression and academic freedom. (For another recent item from both of them, see here [“Free speech doesn’t mean hecklers get to shut down campus debate”].) I don’t always agree with them on such matters, and on other matters I tend to disagree with them even more; but their thoughts on the subject are always interesting and based on deep academic expertise. Here’s an excerpt from their Yahoo! News item yesterday:
We applaud the Ministry of Education’s efforts to require campuses to deal with anti-Semitism and Islamophobia following a recent increase in incidents following the Hamas terrorist attack in Israel on October 7. [Secretary of Education Miguel Cardona and Assistant Secretary of Education Catherine Lhamon] have issued statements saying that schools that fail to adequately deal with these incidents may be considered in violation of Title VI of the Civil Rights Act of 1964, which states that recipients of federal funds may not discriminate on the basis of race or ethnicity.
We have no quarrel with the proposition that campuses have a duty to act when statements constitute discriminatory harassment within the meaning of federal law. The official standard issued by the Department of Education is that campuses must respond when the speech is “subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the educational program or activity of the recipient.”
The problem is that universities have been informed in briefings by the Department of Education that protected speech, including speech that does not meet the definition of harassment, can create a hostile environment that universities are obliged to address.
This puts universities in a very difficult position, as the whole purpose of university education is to protect the expression of all ideas and to prepare students to encounter – and, if necessary, refute – these ideas….
Universities have been advised that statements by protesters such as “From the river to the sea, Palestine will be free” – which are clearly constitutionally protected – are likely to create a hostile environment for Jewish students that undermines their equal opportunities for education, necessitating investigation. and mitigation efforts. But this is speech protected by the First Amendment, and we know that some Muslim, Arab, and Palestinian students also feel threatened by protesters shouting, “We stand with Israel.” Do they also require investigations and mitigation efforts?
One can easily imagine countless other examples of students complaining of a hostile environment as a result of exposure to protected speech. What should universities do when conservative Christians complain that abortion or trans rights advocates create a hostile environment for them? Or, conversely, when LGBTQ+ individuals and allies say conservative Christian activists are creating the same situation for them? …
The Department of Education must make clear that a discriminatory educational environment cannot be created on college campuses merely by exposure to objectionable ideas and speech protected by the First Amendment.
And from their SF Chronicle piece from yesterday:
It is tempting to say that any advocacy of genocide should be outlawed and beyond the scope of the First Amendment. However, that is not and never has been the law. It would not be easy to allow the government such censorship power. Some claim that what Israel is doing in Gaza is genocide. Could a university then ban speeches in support of Israel? Those who oppose abortion have often described it as a form of genocide. Would a college that is so inclined ban all pro-choice speeches?
The courts have been consistent that hate speech is constitutionally protected. In the early 1990s, more than 360 colleges and universities adopted hate speech codes. Everyone, without exception, who came before the court was declared unconstitutional as a violation of the First Amendment.
And they argue that the appropriate solution is a response to the speech, not a restriction of the speech (although, in light of their AP piece, I believe such a response would be a matter of each university’s discretion should be, and not of a mandate, due to the interpretation of Title VI by the Department of Education):
[But] There is much that university officials can and should do other than punishing speech when hate speech occurs. In fact, federal law requires that colleges not be “intentionally indifferent” when harassment occurs. University officials have many tools at their disposal, including using their voices to condemn hate speech, offering educational programs and training on anti-Semitism and other forms of bigotry, and providing support to students. When people advocate genocide, it should be responded to as an abhorrent violation of campus values, even if the First Amendment does not permit the censorship or punishment of the individual speaker.