The Volokh Conspiracy - U.S. Civil Rights Commission Seems To Call for Campus Speech Codes:

The Commission's April 3 "Findings and Recommendations ... Regarding Anti-Semitism" state:

The United States Commission on Civil Rights issues the following findings and recommendations regarding incidents of anti-Semitic harassment at college campuses throughout the Nation: ...

[Finding] 1. Many college campuses throughout the United States continue to experience incidents of anti-Semitism.... While incidents of threatened bodily injury, physical intimidation or property damage are now rare, they have been alleged on some campuses. On other campuses, students have alleged patterns of threatening or intimidating behavior, derogatory remarks, vandalism, and use of Swastikas and other symbols of hatred or bigotry. When severe, persistent or pervasive, this behavior may constitute a hostile environment for students in violation of Title VI of the Civil Rights Act of 1964.

[Finding] 2. On many campuses, anti-Israeli or anti-Zionist propaganda has been disseminated that includes traditional anti-Semitic elements, including age-old anti-Jewish stereotypes and defamation. This has included, for example, anti-Israel literature that perpetuates the medieval anti-Semitic blood libel of Jews slaughtering children for ritual purpose, as well as anti-Zionist propaganda that exploits ancient stereotypes of Jews as greedy, aggressive, overly powerful, or conspiratorial. Such propaganda should be distinguished from legitimate discourse regarding foreign policy. Anti-Semitic bigotry is no less morally deplorable when camouflaged as anti-Israelism or anti-Zionism.

[Finding] 3. Substantial evidence suggests that many university departments of Middle East studies provide one-sided, highly polemical academic presentations and some may repress legitimate debate concerning Israel. This would include, for example, any program in which a student is told that she may not speak in a discussion of Middle East politics on the ground that she has ethnic Jewish physical characteristics....

[Recommendation] 1. [The U.S. Department of Education Office for Civil Rights] should protect college students from anti-Semitic and other discriminatory harassment by vigorously enforcing Title VI against recipients that deny equal educational opportunities to all students. University leadership should affirm their commitment to equal educational opportunity, including ensuring that students are not subjected to a hostile environment on the basis of race, national origin or religion.

[Recommendation] 2. University leadership should ensure that students are protected from actions that could engender a hostile environment in violation of federal law. In addition, university leadership should set a moral example by denouncing anti-Semitic and other hate speech, while safeguarding all rights protected under the First Amendment and under basic principles of academic freedom.

[Recommendation] 3. University leadership should ensure that all academic departments, including departments of Middle East studies, maintain academic standards, respect intellectual diversity, and ensure that the rights of all students are fully protected. Federal grant-making institutions should exercise appropriate oversight to ensure that federal funds are not used in a manner that supports discriminatory conduct.

[Recommendation] 4. [The Office for Civil Rights] should conduct a public education campaign to inform college students of the rights and protections afforded to them under federal civil rights laws, including the right of Jewish students to be free from anti-Semitic harassment....

As is common with talk of "harassment," the exact scope of the suggested speech restrictions is left maddeningly vague. Clearly the Commission thinks that universities have a legal duty under Title VI to restrict "severe, persistent or pervasive" "anti-Semiti[c]" speech, including "derogatory remarks ... and use of Swastikas and other symbols of hatred or bigotry" — which is to say to restrict speech that expresses certain viewpoints in a way that creates a supposedly "hostile environment."

Presumably this would also include "anti-Israeli or anti-Zionist propaganda" "that includes traditional anti-Semitic elements," such as "anti-Zionist propaganda that exploits ancient stereotypes of Jews as greedy, aggressive, overly powerful, or conspiratorial" — at least so long as it's not "legitimate discourse regarding foreign policy." The Commission doesn't expressly say that such speech must be prohibited, as it does in finding 1. But finding 2 is apparently one of the Commission's findings "regarding incidents of anti-Semitic harassment at college campuses throughout the Nation," so the Commission presumably thinks that such "anti-Semitic bigotry" may indeed harassment and thus prohibited by Title VI (assuming that it's "severe, persistent or pervasive," whatever exactly that means).

Now when a university or a professor restricts a student from speaking because "she has ethnic Jewish physical characteristics," that is indeed discriminatory exclusion of a student from an activity, and not just offensive speech on the university's or professor's part. But finding 3, which discusses this, also includes more broadly "one-sided, highly polemical academic presentations," and possibly "repress[ion of] legitimate debate concerning Israel" that operates through protected speech (e.g., ridicule). It sounds like the Commission is willing to call these "anti-Semitic harassment," too, which would presumably require universities to suppress them, again if they're "severe, persistent or pervasive."

(Note that private universities are generally free to suppress one-sided, highly polemical academic presentations, and public university might be as well, if those presentations are in the classroom. But I don't think the federal government is free to require private and state universities to do this, even using conditions attached to broad funding programs, such as Title VI.)

It's true that the proposal mentions, in recommendation 2, that universities should nonetheless "safeguard[] all rights protected under the First Amendment and under basic principles of academic freedom." But this doesn't put me much at ease, given many people's claims that the First Amendment and academic freedom don't protect speech that creates a "hostile environment." Certainly the Commission takes the same view that some speech — not just "threatening or intimidating behavior" but also "derogatory remarks" and "use of Swastikas and other symbols of hatred or bigotry" — is legally actionable and thus presumably constitutionally unprotected.

The Commission believes that students have a legal "right" "to be free from anti-Semitic harassment." It seems willing to suggest that such harassment would include certain "anti-Israeli," "anti-Zionist," and "anti-Semitic" "propaganda," plus perhaps also "one-sided, highly polemical academic presentations" along those lines. It sounds then like the Commission doesn't take a particularly expansive view of the First Amendment in this field.

In any event, this strikes me as quite troubling. Anti-Semitism should definitely be denounced, and anti-Semitic violence and threats should be punished. But universities shouldn't have speech codes — including ones framed in terms of banning speech that is "severe, persistent or pervasive" enough to create a "hostile environment" — to suppress expressions of anti-Semitic ideas, just like they shouldn't have speech codes to supress the expression of anti-American, anti-black, anti-white, anti-women, anti-men, anti-Catholic, anti-atheist, or anti-gay ideas.

(I should note, by the way, that though the report I cite was issued on April 3, it had been covered very little, which is why I originally missed it; I wish I'd covered it when it came out, but it seems worth criticizing even a couple of months after its release.)

	[Eugene Volokh, June 19, 2006 at 5:17pm] Trackbacks U.S. Civil Rights Commission Seems To Call for Campus Speech Codes: The Commission's April 3 "Findings and Recommendations ... Regarding Anti-Semitism" state: The United States Commission on Civil Rights issues the following findings and recommendations regarding incidents of anti-Semitic harassment at college campuses throughout the Nation: ... [Finding] 1. Many college campuses throughout the United States continue to experience incidents of anti-Semitism.... While incidents of threatened bodily injury, physical intimidation or property damage are now rare, they have been alleged on some campuses. On other campuses, students have alleged patterns of threatening or intimidating behavior, derogatory remarks, vandalism, and use of Swastikas and other symbols of hatred or bigotry. When severe, persistent or pervasive, this behavior may constitute a hostile environment for students in violation of Title VI of the Civil Rights Act of 1964. [Finding] 2. On many campuses, anti-Israeli or anti-Zionist propaganda has been disseminated that includes traditional anti-Semitic elements, including age-old anti-Jewish stereotypes and defamation. This has included, for example, anti-Israel literature that perpetuates the medieval anti-Semitic blood libel of Jews slaughtering children for ritual purpose, as well as anti-Zionist propaganda that exploits ancient stereotypes of Jews as greedy, aggressive, overly powerful, or conspiratorial. Such propaganda should be distinguished from legitimate discourse regarding foreign policy. Anti-Semitic bigotry is no less morally deplorable when camouflaged as anti-Israelism or anti-Zionism. [Finding] 3. Substantial evidence suggests that many university departments of Middle East studies provide one-sided, highly polemical academic presentations and some may repress legitimate debate concerning Israel. This would include, for example, any program in which a student is told that she may not speak in a discussion of Middle East politics on the ground that she has ethnic Jewish physical characteristics.... [Recommendation] 1. [The U.S. Department of Education Office for Civil Rights] should protect college students from anti-Semitic and other discriminatory harassment by vigorously enforcing Title VI against recipients that deny equal educational opportunities to all students. University leadership should affirm their commitment to equal educational opportunity, including ensuring that students are not subjected to a hostile environment on the basis of race, national origin or religion. [Recommendation] 2. University leadership should ensure that students are protected from actions that could engender a hostile environment in violation of federal law. In addition, university leadership should set a moral example by denouncing anti-Semitic and other hate speech, while safeguarding all rights protected under the First Amendment and under basic principles of academic freedom. [Recommendation] 3. University leadership should ensure that all academic departments, including departments of Middle East studies, maintain academic standards, respect intellectual diversity, and ensure that the rights of all students are fully protected. Federal grant-making institutions should exercise appropriate oversight to ensure that federal funds are not used in a manner that supports discriminatory conduct. [Recommendation] 4. [The Office for Civil Rights] should conduct a public education campaign to inform college students of the rights and protections afforded to them under federal civil rights laws, including the right of Jewish students to be free from anti-Semitic harassment.... As is common with talk of "harassment," the exact scope of the suggested speech restrictions is left maddeningly vague. Clearly the Commission thinks that universities have a legal duty under Title VI to restrict "severe, persistent or pervasive" "anti-Semiti[c]" speech, including "derogatory remarks ... and use of Swastikas and other symbols of hatred or bigotry" — which is to say to restrict speech that expresses certain viewpoints in a way that creates a supposedly "hostile environment." Presumably this would also include "anti-Israeli or anti-Zionist propaganda" "that includes traditional anti-Semitic elements," such as "anti-Zionist propaganda that exploits ancient stereotypes of Jews as greedy, aggressive, overly powerful, or conspiratorial" — at least so long as it's not "legitimate discourse regarding foreign policy." The Commission doesn't expressly say that such speech must be prohibited, as it does in finding 1. But finding 2 is apparently one of the Commission's findings "regarding incidents of anti-Semitic harassment at college campuses throughout the Nation," so the Commission presumably thinks that such "anti-Semitic bigotry" may indeed harassment and thus prohibited by Title VI (assuming that it's "severe, persistent or pervasive," whatever exactly that means). Now when a university or a professor restricts a student from speaking because "she has ethnic Jewish physical characteristics," that is indeed discriminatory exclusion of a student from an activity, and not just offensive speech on the university's or professor's part. But finding 3, which discusses this, also includes more broadly "one-sided, highly polemical academic presentations," and possibly "repress[ion of] legitimate debate concerning Israel" that operates through protected speech (e.g., ridicule). It sounds like the Commission is willing to call these "anti-Semitic harassment," too, which would presumably require universities to suppress them, again if they're "severe, persistent or pervasive." (Note that private universities are generally free to suppress one-sided, highly polemical academic presentations, and public university might be as well, if those presentations are in the classroom. But I don't think the federal government is free to require private and state universities to do this, even using conditions attached to broad funding programs, such as Title VI.) It's true that the proposal mentions, in recommendation 2, that universities should nonetheless "safeguard[] all rights protected under the First Amendment and under basic principles of academic freedom." But this doesn't put me much at ease, given many people's claims that the First Amendment and academic freedom don't protect speech that creates a "hostile environment." Certainly the Commission takes the same view that some speech — not just "threatening or intimidating behavior" but also "derogatory remarks" and "use of Swastikas and other symbols of hatred or bigotry" — is legally actionable and thus presumably constitutionally unprotected. The Commission believes that students have a legal "right" "to be free from anti-Semitic harassment." It seems willing to suggest that such harassment would include certain "anti-Israeli," "anti-Zionist," and "anti-Semitic" "propaganda," plus perhaps also "one-sided, highly polemical academic presentations" along those lines. It sounds then like the Commission doesn't take a particularly expansive view of the First Amendment in this field. In any event, this strikes me as quite troubling. Anti-Semitism should definitely be denounced, and anti-Semitic violence and threats should be punished. But universities shouldn't have speech codes — including ones framed in terms of banning speech that is "severe, persistent or pervasive" enough to create a "hostile environment" — to suppress expressions of anti-Semitic ideas, just like they shouldn't have speech codes to supress the expression of anti-American, anti-black, anti-white, anti-women, anti-men, anti-Catholic, anti-atheist, or anti-gay ideas. (I should note, by the way, that though the report I cite was issued on April 3, it had been covered very little, which is why I originally missed it; I wish I'd covered it when it came out, but it seems worth criticizing even a couple of months after its release.)