University of California Promises to Defy Newspaper Advisor Protection Law
June 23, 2008
In a nauseating development, Inside Higher Ed reports the University of California has sent a letter to California State Senator Leland Yee saying that if his bill to protect campus newspaper advisors from administrative retribution (SB 1370) passes, the Regents of the University of California "would be unlikely to adopt the provisions of SB 1370, if enacted." FIRE's Will Creeley first discussed the bill in a blog entry a few days ago. Here's the language at issue from the bill:
An employee shall not be dismissed, suspended, disciplined, reassigned, transferred, or otherwise retaliated against for acting to protect a pupil engaged in conduct authorized under this section [48907 of the California Education Code], or refusing to infringe upon conduct that is protected by this section, the First Amendment to the United States Constitution, or Section 2 of Article I of the California Constitution.
Section 48907 protects student freedom of speech, freedom of the press, and prohibits prior restraint with a few exceptions—all in all, a fairly robust guarantee of freedom of expression.
Unfortunately, it looks like the University of California (UC) wants no part of that.
In its letter to Senator Yee, the UC discusses the importance of having the right to do exactly what the bill is supposed to prevent it from doing. Here's the example the UC gives as to why the right to punish college newspaper advisors for protecting free speech is so important:
For example, suppose during delivery of a course in mathematics, a student uses class time to promote opinions unrelated to mathematics or the course materials, and that the instructor of record not only allows this behavior to persist, but also reinforces the student's beliefs in class. In this case, other class students have a right to complain that the course is not being taught according to the curriculum approved by the University, and subsequently the University retains the right to take appropriate measures to ensure that our standards and policies are upheld.
This argument is a red herring. Nobody I know of, and certainly not FIRE, has ever argued that the First Amendment or other constitutional or statutory freedom of speech protections mean that students are free to constantly bring up non-class-related topics in class. (However, free speech in class obviously does need some "breathing room"—for instance, does anyone really want to argue that students or professors in an 11 o'clock A.M. math class held on September 11, 2001, should be punished for discussing issues other than math during class time?) It's equally apparent that a professor does not have a free speech right to make his or her physics class into a political science or sociology class, and again, I am unaware of anyone who claims that the opposite is true. It would be very revealing to know how many times the UC has chosen to discipline instructors for such an offense—my guess is that it's pretty rare.
The UC also calls into question the need for the law, saying: "The UC feels strongly about academic and speech freedoms, evidenced, in part, by our inability to identify a single example of the University of California acting to discipline employees for supporting the free speech of University students." Unfortunately, that may be true only because university employees in general don't exactly have an unbroken record of "supporting the free speech of university students." Some UC employees certainly had no qualms about censoring an "affirmative action bake sale" protest at UC Irvine back in 2003, for example.
One strange quirk of California law that I am admittedly not familiar with is that, according to IHE, the University of California is "constitutionally exempted from certain laws passed after a certain date." There is apparently some dispute over whether this is one of those laws. Even if it is, though, the real question for the public is whether the UC system should try to disregard this particular law. Does the UC system really believe that the risk that this law would "expose the University to frivolous and unwarranted litigation" is more important than guaranteeing the free speech of its students? Maybe it does, but it also seems aware that virtually nobody else would agree. The bill passed 67-6 in the California Senate and 66-5 in the California Assembly, and the UC only revealed its opposition to the bill quietly and at the last minute, apparently hoping to convince Governor Arnold Schwarzenegger not to sign the bill. These are not the actions of an organization that is confident that its views would prevail in a real debate.
As we said before, FIRE has a policy of not supporting or opposing legislation. However, the support for this bill makes it clear that California's elected representatives—on both sides of the aisle—think that the possibility of backdoor press censorship through the punishment of newspaper advisors is an important enough issue to be addressed legally. In addition, the nature of the UC's opposition to this effort reveals a lot about the attitude college administrators have towards giving its adult students the same freedom of the press on campus as they would enjoy working for the local newspaper. Just what is UC afraid of, exactly?
Simply put, it looks as though UC doesn't trust its students and professors to always toe the party line when it comes to issues about which the university has an institutional opinion, and wants to keep its options for censorship open. That's a disgrace at an institution that claims to believe in freedom of speech and academic freedom.