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California Legislature seeks creation of “Discrimination-Free Zones” at all state universities

April 12, 2010

I have been rough on my home state in recent posts.  Whether chiding the University of California Regents over a proposed speech code or pointing out the contradictory approaches to student speech, the lack of respect for student speech in California has caused me to cringe.  But just when I thought I was being too hard on the State I love, the California Legislature moves one step closer to creating “Discrimination-Free Zones” on all public school campuses, including universities.  And now I don’t feel so guilty. 

According to the text of ACR 82, which passed another hurdle in the legislature last week, California wants all public institutions of learning to implement “discrimination-free” zones by enacting new policies, offering new counseling services and providing new conflict management groups to “provide a safe haven from intolerance or discrimination.”  Here are the relevant portions of the resolution: 

Resolved, by the Assembly of the State of California, the Senate thereof, concurring, That the Legislature of the State of California hereby encourages all public education institutions, working with students, teachers, faculty, and other members of the public education community, to designate each campus as a “Discrimination-Free Zone” to provide a safe haven from intolerance or discrimination; and be it further

Resolved, That all public education institutions, prekindergarten through university campuses, are encouraged to develop and enact policies that support tolerance and acceptance of others regardless of their race or ethnicity, religion, disability, gender, gender identity, sexual orientation, nationality, or any other characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code; and be it further

Resolved, That all public education institutions are encouraged to enact procedures, such as counseling services and conflict management, that meaningfully address acts of discrimination that occur on campus; and be it further

Resolved, That all public education institutions are encouraged to notify parents and the campus community should be notified of existing policies and procedures that encourage tolerance of others; and be it further

Resolved, That all public education institutions are encouraged to use existing resources to identify themselves as “Discrimination-Free Zones” through placards, signs, notices of available services, and other appropriate identifications to create a campus climate that welcomes diversity and supports the tolerance of others

Who is behind this, you ask?  The California Faculty Association, the University of California, Equality California, the PTA and the California State Student Association, among others

While this is only a resolution and not a binding bill, the intent of the California Legislature could not be more clear:  free speech must yield to “tolerance and acceptance of others.”  Unfortunately for California college students, the encouragement of “policies that support tolerance and acceptance of others” will inevitably result in more campus speech codes and censorship, similar to what happened at Spokane Falls Community College last year. 

It turns out I was wrong the other day when I said that California has free speech schizophrenia.  It does not.  A few colleges and universities strive to protect students’ rights.  But these are the outliers.  The Legislature has made it clear that California public policy is to dismantle the marketplace of ideas.   We will try to make sure that does not happen.


California’s Free Speech Schizophrenia

April 7, 2010

Spring is in the air in California.  While the Sierra Nevada gets a late spring snowstorm, the California golden poppies have opened along I-5.  Spring is a time of transition from one season to the next, and also a time when high school seniors eagerly await that wonderful transition from high school drama to college coolness.  At this time of year particularly, seniors await acceptance letters from their favorite college or university.  But once the letters arrive, how is a high school senior going to choose his or her school?  If the decision has anything to do with free speech policies on campus, it may be wrought with confusion, especially for students considering California schools. 

California’s public colleges and universities, it seems, have no institutional respect for freedom of speech on campus.   A series of contradictory policy decisions have made the Golden State’s higher education system a mess when it comes to freedom of speech. 

Take last week, for example.  On Friday, FIRE’s Samantha Harris wrote about the great news at San Francisco State University.  SFSU repealed its illegal speech zone policy and now allows literature distribution in the outdoor areas of campus so long as pedestrian traffic is not impeded.  Even better, SFSU removed the official free speech zones so that students can now engage in speech in most outdoor areas.  But down the street, the University of California Hastings College of the Law continues to enforce its “nondiscrimination” policy against the Christian Legal Society, banning it from campus. 

On Tuesday, I wrote that the University of California system is considering a new speech code that will give administrators great ability to censor disfavored student speech.  This comes on the heels of the UC system amending its harassment policy to protect student speech.  But at the same time, the Los Angeles Community College District, the largest community college district in the United States, fights to keep an even more speech-restrictive harassment policy. 

To top it off, we have good information that several California State University system campuses still maintain an unconstitutional speech code that was struck down and amended two years ago. 

For a state that supposedly accords broad protection to student speech and that has one of the best public higher education systems in the country, California’s public colleges and universities remain behind the curve on free speech issues.  The Golden State can do better.

UC System Considering New Speech Code

April 5, 2010

The University of California System is considering a new speech code in the wake of a few unfortunate speech incidents on its campuses.  AP reports that UC System President Mark Yudof is considering a new system-wide bias incidents or “hate speech” policy to remedy recent incidents involving swastika graffiti and a noose found hanging on a library book shelf.  In the former incident, UC Davis found several swastikas painted on university property and one on a student’s dorm room door.  In the latter incident, UCSD students used Facebook and other online media to promote an off-campus party that played off of negative racial stereotypes.  This caused the university to freeze the funding of 33 student media outlets.  Some California legislators called for punishment of the students.  The incident was followed by a student hanging a noose in the library, which later turned out to be a hoax.  The UC Davis incidents are obviously illegal (defacing government property) and may be considered true threats of violence, which are not protected forms of speech.  FIRE has done a good job detailing the proper reactions to the UCSD incidents. 

The UC’s actions are surprising, as Yudof and the UC General Counsel have done well recently by amending the system’s sexual harassment policy to comply with the First Amendment.  But it seems that Yudof may be receiving bad advice this time around.  The proposed speech code, which has surfaced from the UC Students Association, will prohibit “hanging a noose, burning a cross, or placing a symbol, such as a swastika, without authorization, on university property or at official university functions.”  The restrictions seem benign at first glance.  No one should be allowed to encourage criminal activity on campus or incite violence, and for this reason much of the restriction might pass constitutional review.  But the restriction on “placing a symbol,” runs afoul of the First Amendment.  Vague?  Overbroad?  Prior restraint?  You bet!  This gives an administrator unbridled discretion to determine which “symbols” are allowed on university property and which are not, with no criteria to guide their decisions.  This can result in an administrator finding that certain “symbols” are too “offensive” to be allowed (for example, a display of crosses during a Cemetery of the Innocents event).  This has the potential to stifle protected speech. 

President Yudof and the UC Regents would be wise to take heed of what happened to their university colleagues in College Republicans at San Francisco State University v. Reed, where a federal district court in San Francisco struck down a California State University system’s civility code as unconstitutional.  The court issued the decision after San Francisco State University investigated a College Republicans anti-terrorism rally that involved stepping on hand-made flags of Hezbollah and Hamas.  As the court reminded the CSU:

controversial expression . . . is the First Amendment’s highest duty to protect.  By political definition, popular views need no protection.  It is unpopular notions that are in the greatest peril—and it was primarily to protect their expression that the First Amendment was adopted. The Framers of our Constitution believed that a democracy could remain healthy over time only if its citizens felt free both to invent new ideas and to vent thoughts and feelings that were thoroughly out of fashion.  Fashion, it was understood, is an agent of repression—and repression is an agent democracy’s death.

If the UC wants to prohibit defacing university property, it can find better ways to do so.  If it wants to protect student safety, it may do so by prohibiting speech that incites violence.  But if it wants to promote racial tolerance and a marketplace of ideas, it will do better by allowing speech to occur, not banning it based on a few isolated incidents (one of which was a hoax).  I hope the UC takes the high road by taking another look at this proposed policy and bringing it into compliance with the First Amendment.

Preserving the Message of the Gospel

March 26, 2010

Does a desire to preserve the expressive message of a Christian student group conflict with Christ’s call for us to “make disciples of all nations”?  That is the basic question posed by a comment to Greg’s “First CLS, Then the Klan?” post:

As a Christian law student I wonder how we are suppose to reach other people if we keep them out of our groups? Did Jesus speak only to Jews? I don’t know how I am suppose to live like Jesus if I am to seperate [sic] myself from anything that doesn’t believe. Just like Jesus spoke to the Samaritan women and the “sinners” we need to create a space for people of different beliefs to feel comfortable and learn about Jesus without feeling ostracized. Why would we want a club where only chritians [sic] can meet? We should remember that Jesus came for the sick not the healthy.

I agree with the premise of this comment, which is that Jesus came to seek and save the lost.  (Luke 19:10.)  Jesus’ message is one of hope and grace, of showing people that they need to stop running from God and start running toward Him.  Christ’s message was not just for Jews, but also for Gentiles.  But Jesus’ purpose—or message of salvation—does not conflict with His commandment to take this message to “all nations.”

The lack of conflict is evident in who Christ selected to spread His message.  He did not select unrepentant sinners or even those who thought of themselves as the most righteous under the Law.  Rather, Christ selected apostles who believed in Him and his message of salvation.  Those who were unwilling to repent were not the leaders of the early Church.  What happened when some early members of the Church argued that in order to be a true Christian, you had to continue to uphold the old Law?  Paul opposed them and said that they were not preaching the “truth of the gospel.”  (Galatians 2:14.)  Paul and the other apostles maintained the message of Christ by ensuring that false brothers did not infiltrate their ranks.  This occurs throughout the New Testament.  One of the consistent warnings for the early Church from Paul and the other apostles was not to be misled by false teachers.  (See, e.g., Acts 20:28-31; 2 Corinthians 11:1-15; 1 Timothy 1; Titus 1:10-16; 2 Peter 2; 2 John; and Jude.)

In the same way today, many churches do not allow unbelieving people to serve as pastors, leaders or even members.  How could a Christian church remain faithful to Christ’s message if it were led by a non-Christian or one who claimed to be a Christian but adhered to false doctrine?  It would not; its Christian message would evaporate.  In fact, to carry out Christ’s message that we take the gospel to “all nations” our churches must remain faithful to Christ’s message of salvation.  For example, if a non-Christian were allowed to lead a church and preached that salvation comes through obedience to the law, then the church would not be preaching the “truth of the gospel,” which is salvation by faith alone.

This is true especially for a church or parachurch organizations and ministries, but is also true for other kinds of groups.  For example, should an avid hunter be allowed to lead an animal rights group?  And if the hunter was allowed, what would happen to the group’s message?  It is for this reason that our nation recognizes the importance of enabling groups of citizens to come together to express a particular message and the ability of those groups to ensure the integrity of their message by choosing members and leaders who believe in it.  We absolutely need to create a space for people to feel welcome in our churches and in our Christian groups, but that does not conflict with the desire of these groups to preserve their message.  The Christian Legal Society case is not about excluding non-Christians from participating in the group, it is about preserving the message of the group.  Indeed, the facts show that CLS welcomes all students to participate.  Thus, the constitutional right of freely associating with like-minded people who believe in the group’s message is not in conflict with Jesus’ message of taking the hope of the gospel to all nations.  Indeed, it assures our ability to do so.

Please leave a comment below or join the conversation on Facebook.

Georgia Tech: four years later

March 16, 2010

Four years ago today, Ruth Malhotra and Orit Sklar took a stand for liberty at their public university, or in this case, their Institute.  While students at Georgia Institute of Technology, Malhotra and Sklar were subject to discrimination because of their religious and conservative views.  Their experiences were not isolated, but designed by an administration hostile to free speech.  Georgia Tech policy prohibited “acts of intolerance,” limited student free speech to the small amphitheater on campus, preferred some religious denominations to others in campus training programs, and prohibited religious students from gaining equal access to student fees (even though the student fees were mandatory).  When these policies and their experiences became intolerable, they sued. 

The lawsuit eventually ended, but not until the speech code was removed, the student speech zone eliminated, and the religious discrimination stopped.  Along the way, did the campus community rally to their support in favor of free speech?  No.  Instead, people sent death threats, students started a group to intimidate Malhotra, and the administration created a council called “Finding Common Ground” to dialogue about diversity and criticize the efforts of these two women. 

Four years later, Malhotra and Sklar will speak tonight about their experiences and the success of their lawsuit at Georgia Tech.  Much was accomplished by these women, but there is still work to be done.  Despite Supreme Court case law to the contrary, Georgia Tech still believes it can exclude religious activities from student fee funding.  Who will be the next person to stand for liberty at Tech?

Our interview with the Ruth Institute President, Dr. Jennifer Roback Morse

March 12, 2010

A few weeks ago, Heather Hacker and I sat down with Dr. Jennifer Roback Morse, President of the Ruth Institute, to talk about campus censorship.  The podcast is now online and can be found here.

Historical Amnesia at Rutgers

March 7, 2010

On Tuesday, Dave Imbriaco, a Rutgers student majoring in history, published an op-ed in the Rutgers student newspaper challenging the notion that Christian students are being discriminated against at public university across the country.  I’m glad he wrote the piece because it allows us to look back on a snapshot of Rutgers’ history and clarify the well-established law that so many students, faculty and administrators are mistaken about. 

In 2002, Rutgers banned the InterVarsity Multi-Ethnic Christian Fellowship from campus because it required leaders to “adhere to biblical standards and belief in all areas of their lives.”  Imagine that, the group actually had the gall to try to preserve its biblical mission by requiring Christian leaders.  InterVarsity eventually had to sue in federal district court to regain its status on campus, which forced Rutgers’ hand and resulted in a settlement restoring InterVarsity to campus.  Was this incident isolated?  No.  In fact, this April the Supreme Court will hear argument in Christian Legal Society v. Martinez, a case similar to InterVarsity’s that grew out of a similar ban at the University of California Hastings College of the Law.

Mr. Imbriaco’s op-ed asserts that he “cannot also help but notice the incredibly painful irony in the claim that Christian students are somehow being ‘oppressed’ in any way.”  I think InterVarsity would disagree.  Throwing a group off campus because of its faith-based leadership requirements sounds oppressive to me.  To be sure, the same thing didn’t happen to the College Republicans and College Democrats at Rutgers, nor did it happen to other religious groups. 

In response to the growing threat of indoctrination by campus administrators and faculty, Mr. Imbriaco claims that indoctrination is nothing more than “a free-flowing exchange of ideas where people that [sic] are better at describing one’s world take precedence over those that are not. Good ideas stay in the mix and are improved upon, and bad ideas are weeded out and discarded.”  I think Julea Ward and Emily Brooker would disagree, as would the students at the University of Delaware.  All of them were told to change their beliefs and ideas in order to conform to campus orthodoxy.  In Ms. Ward’s case, the university expelled her for not changing her beliefs on the issue of homosexual behavior.  Ward wasn’t allowed to have her ideas heard, let alone considered.  Mandating change in personal beliefs is not “a free-flowing exchange of ideas,” it is indoctrination, and it is unconstitutional.  As the Supreme Court said in West Virginia State Board of Education v. Barnette:  “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

With respect to censorship of Christians on campus, Mr. Imbriaco writes that this is merely “rejection of a system of describing the universe that no longer explains what it claims to explain. In other words, it’s not that we’re actively censoring Christian perspectives on campus. Rather, we’ve decided that these perspectives are outdated, irrelevant or just plain silly in this modern age.”  Wait, I thought Mr. Imbriaco wanted a “free-flowing exchange of ideas?”  Obviously not.  Mr. Imbriaco’s logic follows those of campus speech codes, which have been uniformly struck down by every court that has considered them.  Universities should encourage debate and discussion of ideas, not prohibit them from the start as Imbriaco contends.  Yet, according to a study by the Center for Survey Research and Analysis at the University of Connecticut, fifty-five percent of students said religious individuals should be careful “not to offend people while spreading their beliefs.”  Every great idea in history started out as being “silly” or unorthodox in some way.  But if universities functioned the way Mr. Imbriaco believes they should, those ideas would have never emerged because those in the majority would have been able to stifle them.  That is not a reflection of the historical “marketplace of ideas” that colleges and universities are supposed to be.  Ideas come and go in a free society, but it is not the government’s place to decide which are allowed and which are not.

Mr. Imbriaco then postulates that even if discrimination against Christians does occur, the “law states that institutions that receive government funding must not participate in any kind of religious indoctrination or create an environment that favors one religious group over another.”  That’s about as accurate as saying the sky is red.  Actually, Rutgers, like all public colleges and universities, must provide equal access to all students when it comes to freedom of expression, student fee funding, student group association, etc., and the Supreme Court has held that for many years.  Treating Christians the same as other students upholds the Constitution, it doesn’t violate it.  Moreover, Imbriaco’s argument is ignorant of the historical context of the Establishment Clause, which was to ensure that the government was neutral with respect to denominations, not empower the government to act with hostility toward religion, or any other beliefs it does not approve.  As the Court said in Lynch v. Donnelly, “[n]or does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.”  Similarly, in Larson v. Valente, the high Court said that the “clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”  Thus, in the case of InterVarsity, allowing it to exist on campus just like all other student groups was consistent with the Establishment Clause, and the First Amendment’s other guarantees. 

Given that the UConn study found that one in four college students cannot name any of the freedoms protected by the First Amendment, it is not surprising that Mr. Imbriaco’s assertions are inaccurate.  But the problem in his op-ed is that it fails to articulate any facts justifying his positions.  The ADF Center for Academic Freedom has plenty of facts showing that Christians are indeed treated like second class citizens on campus.  I hope Mr. Imbriaco visits our website and learns more about the history of discrimination against Christians on campus.

Cloaking Faith in the Academy

February 11, 2010

Skeptics of the ADF Center for Academic Freedom and our efforts to preserve the “marketplace of ideas” often claim that we use exceptions to paint a bleak picture of religious liberty in higher education.  Despite the many students, faculty, staff and organizations that we’ve assisted across the country and our clients’ stories, many people still question whether there is a constitutional crisis on campus.  That’s why I want to point out George Leef’s post over at Phi Beta Cons today, highlighting the story of a master’s student who hid her political (and presumably, religious) beliefs to complete her degree.  Leef quotes the former student’s story: 

You see, I received a master’s degree in historical theology from a liberal institution by hiding my conservatism. (I’m not even a conservative by the contemporary definition; I just know I am not a liberal.) When I wrote my master’s thesis on Augustine’s distinction between auctoritas and potestas in the City of God, certain passages caused my professors to realize they had been harboring a pariah in their midst. My application to a respectable doctoral program was turned down on the grounds that my application materials were “not universally excellent.” It turns out that several of my professors damned me with faint praise in their letters of recommendation, and my application was doomed.

The idea that conservatives do not love history, philosophy, and literature is ridiculous. I spend all my spare time poring over the minutiae of early Christian literature, and I have managed to be published several times. But I know that I am not welcome in academia. I know that I could try again at one of the new “conservative” Catholic institutions that have recently cropped up, but I am too old to drop everything now to pursue a doctorate. So I study, write, and publish when I can, but it’s not the same as being in a setting where the open discussion of ideas is welcomed and even cherished. How I miss a world that does not exist!

This student’s story is all too familiar.  While in law school one of my professors was a Christian, but refused to make that fact known among her peers.  You see, she was untenured and feared that by revealing her true colors she would torpedo her chances of promotion.  As a result of these fears she could not advise the Christian Legal Society chapter on campus and refrained from writing too much on religious legal issues, even though she had a deep interest in the religion clause of the First Amendment.

Why do these and other Christians remain silent in the academy?  One answer is fear.  Many students, faculty and staff (not all) are fearful of even raising their Christian views on campus.  And why would they want to when professors and administrators are telling them that these views are “offensive” and “hateful propaganda“?  The environment they strive to succeed in is consumed by people who hold the most unfavorable feelings toward Evangelical Christians.  To be an outspoken Christian student, faculty or staff member is to guarantee academic or career stagnation and mediocrity.  Until the marketplace of ideas begins to reopen its to competing ideas through people who are willing to protect their right to speak, the climate described by Leef’s reader will be the unfortunate reality of the campus culture.

FIRE files amicus brief in support of Jonathan Lopez

January 14, 2010

Yesterday, the Foundation for Individual Rights in Education filed an amicus brief in support of Jonathan Lopez at the U.S. Court of Appeals for the Ninth Circuit.  Last July, a federal district court in Los Angeles granted Mr. Lopez’s request for a preliminary injunction against Los Angeles Community College District’s speech code.  LACCD appealed after it unsuccessfully asked the district court to reconsdier the preliminary injunction.

Question: What do students learn in the classroom?

January 13, 2010

Answer:  How to regurgitate all of your professor’s anti-American opinions. 

Over at Minding the Campus, Candace de Russy has an interesting piece quoting verbatim from a recent test given to students in a sociology class at a public college.  The person who took the test received 100%, though perhaps he or she doesn’t know it, because the test was found on the ground.  It’s worth a click to look at the questions and answers the college is teaching these sociology students.  Here’s one to whet your appetite:

Question: How does the United States “steal” the resources of other (third world) [sic] countries?
Answer: We steal through exploitation. Our multinationals are aware that indigenous people in developing nations have been coaxed off their plots and forced into slums. Because it is lucrative, our multinationals offer them extremely low wage labor (sic) that cannot be turned down.

Now, ADF doesn’t take a position on political issues, but reading through the test, one is left with a better understanding of what students are learning in today’s public universities:  merely how to parrot back to their professors what the professors want to hear.  It’s no wonder the Julea Wards and Jonathan Lopezes of the world encounter hostility, even retaliation for expressing a different, Christian, point of view in class.  They are the unorthodox in a lockstep environment that was once known as the “marketplace of ideas.” 

Where will these students lead America in 20, 30 years?  As Dr. de Russy puts it:

This exam was part of the curriculum in a for-credit class at an accredited degree-granting institution. Introductory sociology courses like this one are frequently required, even for non-majors. A student who matriculates in this field of study will have nothing in the way of useful skills, but will be convinced that his country is rotten to the core, and that whites and males are evil.

China encourages its brightest students to study mathematics and engineering. India has become known as a hotbed of tech-savvy computer programmers. Meanwhile, the U.S. spends billions to teach postmodern, left-wing misinformation as objective “fact.”

It seems rather foolish to remain optimistic about the future of this nation when millions of its most “educated” are systematically being taught to loathe it.