U.S. Commission on Civil Rights’ California Advisory Committee Issues Call to Protect Campus Speech

LOS ANGELES, October 31, 2012—In a new report, the California Advisory Committee to the United States Commission on Civil Rights recommends that all California public colleges immediately review their policies to ensure that student First Amendment rights are protected. The Committee's report, which features testimony from Greg Lukianoff, president of the Foundation for Individual Rights in Education (FIRE), also calls on the United States Department of Education to reaffirm the primacy of free speech on college campuses. FIRE welcomes the Committee's findings and commends its timely call for the protection of student speech rights. 

"The California Advisory Committee has determined that speech codes on campus present a serious civil rights issue," said Lukianoff. "By maintaining unconstitutional restrictions on student speech, California's colleges teach students the wrong lesson about life in our democracy—and that threatens everyone's civil rights."

The California Advisory Committee (the Committee) is convened by law to provide recommendations to the United States Commission on Civil Rights, a bipartisan agency formed by Congress in 1957 to study and report on civil rights issues. In August 2009, FIRE submitted a memorandum to the Committee detailing concerns about the state of free speech on California campuses. As the Committee's report notes, FIRE's research demonstrates that the majority of American colleges and universities continue to maintain policies that seriously infringe upon the free speech rights of students. Each of the 32 universities in the University of California (UC) and California State University (CSU) systems maintains at least one speech code that restricts student expression. Eighteen institutions (56 percent)—including nearly two-thirds of CSU schools—enforce policies that clearly and substantially violate the First Amendment. 

The Committee's report asks the Department of Education to reaffirm a 2003 "Dear Colleague" letter from its own Office for Civil Rights that makes clear that "no conflict" exists between federal anti-discrimination laws on campus and "the civil liberties guaranteed by the First Amendment." The report contains eight additional recommendations to "ensure the First Amendment rights of students," including a call for campus education on First Amendment rights; uniform, speech-protective policies; and transparent judicial procedures that provide charged students with core due process protections. 

Most significantly, after reviewing the legal precedent governing federal anti-discrimination statutes on campus, the Committee's report strongly recommends that California institutions comply with the Supreme Court of the United States' ruling in Davis v. Monroe County Board of Education (1999). In Davis, the Supreme Court defined peer-on-peer harassment in the educational context as targeted, unwelcome conduct that is "so severe, pervasive, and objectively offensive" that victims are "effectively denied equal access to an institution's resources and opportunities." The report urges California institutions to review their own harassment policies to ensure that they are "consistent with Davis, are not over-inclusive, and do not infringe on students' First Amendment rights." The report also notes that in October 2009, UC President Mark Yudof ordered a systemwide change to a harassment policy that mirrors the Davis standard. 

The report includes testimony from higher education and civil liberties experts, including Anne Neal, President of the American Council of Trustees and Alumni, and David Blair-Loy, Legal Director for the American Civil Liberties Union of San Diego & Imperial Counties. Both Neal and Blair-Loy echoed Lukianoff's emphasis on the importance of free speech rights at the state's colleges and universities. 

"With this new report, the California Advisory Committee joins FIRE and our nation's courts in sending a clear message to campuses: Violating student First Amendment rights is unacceptable," said Will Creeley, FIRE's Director of Legal and Public Advocacy. "FIRE asks both the federal Department of Education and colleges across California to act upon the Committee's important recommendations as soon as possible to protect student speech." 

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation's colleges and universities. FIRE's efforts to preserve liberty on campuses across America can be viewed at thefire.org.

CONTACT: 
Greg Lukianoff, President, FIRE: 215-717-3473; greg_lukianoff@thefire.org