UC Irvine Report Suggests Unconstitutional Implementation of ‘Principles Against Intolerance’

Last March, FIRE reported on the University of California (UC) Board of Regents’ “Principles Against Intolerance,” aimed at addressing anti-Semitism and other biases on campus. The Principles were revised multiple times in response to public criticism, but as we noted when the UC Regents adopted the Principles, even the amended version fails to make clear what speech a student may be punished for and leaves ample room for administrative abuse. A report released last month by UC Irvine’s Office of Inclusive Excellence titled “Higher Ground: The Alignment of UCI’s Policies, Principles, and Practices with the UC Regents’ Principles Against Intolerance” gives free speech advocates new reasons to be concerned about the Principles.

Previously, we noted the UC Regents’ helpful acknowledgment of several ideas that are central to maintaining a healthy “marketplace of ideas” on campus. First, for example: The best solution to speech with which one disagrees is more speech; conversations are far more persuasive than censorship. Second, disrupting another speaker is not a constitutionally protected method of objecting to his message.

There were, however, several passages contained in the Principles that were vague. For example, the Principles failed to make clear whether administrators may take punitive action against students for certain types of expression or when, exactly, speech crosses the line between political commentary and unacceptable bias. While UC General Counsel Charles F. Robinson called the Principles “aspirational, rather than prohibitory,” the plain language of the UC Regents’ statement is hard to decipher. And at public institutions like those in the University of California System, all policies that implicate freedom of speech must be clear in order to ensure that protected speech isn’t chilled and administrators can’t apply policies to punish disfavored expression.

UCI’s “Higher Ground” report is a similarly mixed bag. It cites “the importance of free speech” but reiterates that bias “has no place at UCI.” The vast majority of biased expression, however one defines it, does not fall into the few and narrowly-defined categories of unprotected speech. The report contains ambiguous requirements, such as the mandate that “[a]ll registered student organizations must acknowledge” the Principles. And “Higher Ground,” like the Regents’ statement, doesn’t explain what constitutes “anti-Semitic forms of anti-Zionism,” as opposed to “legitimate anti-Zionism.”

Disappointingly, the report’s recommended “Actions to Advance the Regents [sic] Principles Against Intolerance” contain at least one new and worrying suggestion: that the Principles be “incorporate[d] into campus events application process for space requests for on-campus events.” Such incorporation would not comport with Robinson’s characterization of the Principles as merely “aspirational.” If students’ adherence to the Principles were considered as part of their space requests, it could only be to afford preferential treatment to certain viewpoints and to hinder the use of school resources by students with disfavored viewpoints. This result is plainly inconsistent with UC institutions’ obligations under the First Amendment.

Just as other free speech advocates spoke out against the Regents’ statement back in March, FIRE is not alone in our concerns about “Higher Ground.” A coalition of civil rights organizations, led by Palestine Legal, wrote to the UC Board of Regents and UC President Janet Napolitano last week to object to both the Principles Against Intolerance and UCI’s report, articulating concerns similar to FIRE’s and more. The letter calls on UC to make clear that “[t]he Regents Statement of Principles Against Intolerance is not enforceable policy, but instead an aspirational statement of the Regents’ views. Regardless, it cannot be used to justify university actions that infringe on First Amendment rights and academic freedom.”

FIRE hopes UC further revises its statement so that it cannot be used to shut down, punish, or coerce the expression of certain viewpoints—as UCI appears poised to do.