University of California Regents Approves Stellar "Principles Against Intolerance"

Today, the University of California Regents approved a document articulating its "Principles Against Intolerance." The proposal has had a winding road. It arose initially in response to reports of rising anti-Semitic sentiments at UC campuses. An early draft was widely panned for not mentioning anti-Semitism at all; critics have since complaining that the current draft focuses too much on anti-Semitism at the expense of other forms of discrimination.

Following public comment, the Regents adopted one amendment: In an introductory paragraph which had read "Anti-Semitism, anti-Zionism and other forms of discrimination have no place at the University of California," the Regents voted to instead say that "Anti-Semitism, anti-Semitic forms of anti-Zionism and other forms of discrimination have no place at the University of California." This language was suggested by the University of California Faculty Senate and approved by the Board unanimously. The full statement (minus the aforementioned amendment, which appears to be the only change) can be found here.

The document is clearly a product of its genealogy. The introductory segment focuses specifically on anti-Semitism -- this is where the controversial reference to "anti-Zionism" was; as the report makes clear, it was this controversy which was the original impetus to establish the working group in the first place. Following that introduction, the report branches out to encompass other forms of discrimination. A paragraph on concerns regarding anti-Semitism is followed by another paragraph devoted to Islamophobia, and then a subsequent paragraph considering issues of racism (with respect to the Black Lives Matter movement and immigration policy) and homophobia (on marriage equality). By the time one gets to the actual principles themselves, anti-Semitism is reduced to a single mention (in section c: "The Regents call on University leaders actively to challenge anti-Semitism and other forms of discrimination when and wherever they emerge within the University community. ").

The principles themselves strike me as very solid. The most important element of its approach is centered around two essential distinctions. The first is between challenging speech versus censoring speech; the second is between speech and conduct.

On the first, the policy contains compelling arguments regarding the damage that biased or prejudiced views -- even when "merely" in the form of expression -- can take. But its remedy of choice is for that speech to be challenged, not banned (as Justice Brandeis might have put it: "More speech, not enforced silence."). The policy contains a strong affirmation of First Amendment values, and earlier in the document in contains a paragraph which should dispel any worries about the principles being used to effectuate censorial ends:

Punishing expressions of prejudice and intolerance will not prevent such expressions or change the minds of speakers. In confronting statements reflecting bias, prejudice or intolerance arise from ignorance of the histories and perspectives of others, the University is uniquely situated to respond with more speech – to educate members of our community about the different histories and perspectives from which we approach important issues. As a public university, First Amendment principles and academic freedom principles must be paramount in guiding the University’s response to instances of bias, prejudice and intolerance and its efforts to create and maintain an equal campus learning environment for all.

The back half of the principles, by contrast, focuses on the distinct case of discriminatory conduct -- for example, discrimination, vandalism, or obstruction of the speaking rights of others. And here the Univerrsity, quite rightly, preserves its ability to respond juridically. The principles are unyielding in stating that discrimination in selection for leadership position, vandalism or destruction of property, threats, or harassment all fall in the realm of conduct which can be prohibited. Likewise "Actions that physically or otherwise interfere with the ability of an individual or group to assemble, speak, and share or hear the opinions of others " This, too, seems precisely on target.

In sum, I feel like I can endorse these principles without reservation. And it seems hard for me to imagine any reasonable person or organization harboring objections -- particularly given the amendment to the "anti-Zionism" language which specifically restricts it to the "anti-Semitic forms". But of course, not everybody is reasonable, and the usual suspects, Jewish Voice for Peace for example, are pitching a tantrum that the Regents even acknowledged that anti-Zionism can ever be anti-Semitic. As per usual, their primary source of outrage seems to be that the Regents would consider the anti-Semitism issue at all (it contends that this somehow obscures forms of discrimination it deems more "urgent", like racism and Islamophobia. As noted above, this is spurious: the principles actually devote specific attention to both of these issues in their own right). If there's one thing you can count on in life, it's that if anyone, anywhere, dares call anything anti-Semitic, the JVP will be there to scream about how it is outrageous it is that anyone would even consider such a thing anti-Semitic (doing so, of course, diminishes the grandeur of that elusive but no doubt majestic beast, "the real anti-Semitism").

Then, though, we get this little doozy of a charge:

For those who can't see, the highlighted portion reads: "The Regents congratulated themselves on a process that heard from 'both sides,' despite the fact that the experts they consulted were four white men, three of whom are avowed Zionists." Ignore whether being an "avowed" (as opposed to?) Zionist is disqualifying of anything. The four advisers in question are UCLA Law Professor and Critical Race Theory scholar Jerry Kang, UCLA Law Professor and First Amendment expert Eugene Volokh, Brandeis Center chief Kenneth Marcus, and Simon Wiesenthal Center Dean Marvin Hier. Somehow in its outrage the JVP managed to "forget" that Professor Kang is not, in fact white. But -- putting aside the ongoing stickiness over whether Ashkenazi Jews are properly regarding as white -- there is something quite revealing over the JVP's new apparent position that even opposing anti-Semitism converts one into a white man. (Ironically, it was Prof. Volokh, one of the "avowed Zionists", who initially raised the alarm about the "anti-Zionism has no place on our campus" language. That's because  some people are not simply fair-weather friends to the First Amendment).

In any event, given the strong speech-protective elements of the principles, the concerns over "chilling" speech are spurious, except to the extent that the JVP considers (as we know it does) the counterspeech act of accusing someone of anti-Semitism to be a form of censorship (which it is not). The real issue here is no doubt JVP's generally favorable attitude to acts of disruption aimed at preventing other groups from speaking. Zachary Braiterman puts it well:

No doubt, even the revised statement will outrage anti-Zionist activists on campus. They will argue that the statement of principles chills their own free speech and right to protest. But the statement is very clear that even all speech, including prejudiced speech, is to be protected. Mostly, one suspects that activist groups like SJP and JVP and their on-campus advocates will object because of the strong statement against actions on campus that violate by shutting down the free speech of others.

 So again, my congratulations to Regents for passing an excellent set of principles which both are firm in their condemnation of intolerance, while being equally emphatic in their protection of free speech. These principles are written to encompass not just anti-Semitism but all forms of discrimination, and they are well tailored to that endeavor. This was a difficult process, but the resulting policy is an excellent model not just for California residents but all of academia. Kudos.