University of California Students Had Better Wise Up and Learn Their Constitutional Rights

Recent events on University of California campuses reveal a growing need for education about students’ constitutionally-guaranteed rights.

Disgregard for Constitutional Rights On UC Campuses

In one instance, University of California, Santa Barbara students allowed feminist studies associate professor Mireille Miller-Young (whose 2013 salary was $77,100) to steal and destroy an anti-abortion poster that constituted speech protected by the First Amendment and displayed in the Campus’ designated “free speech zone,” and to assault the young woman holding the poster.

Furthermore, Miller-Young, whose academic specialties are pornography and sex work -- topics inevitably involving free speech -- told police the “hate speech” nature of the poster “triggered” her to destroy it, and that she was unaware of “an acceptable and legal response” to the poster.  Worse, subsequent to the incident, UCSB Vice Chancellor for Student Affairs Michael Young (whose 2013 salary was $211,000) ignored students’ free speech rights in a letter to UCSB students demeaning the poster displayers as “evangelical types,” “self-proclaimed prophets, and provocateurs,” and “proselytizers hawking intolerance in the name of religious belief.”

The Vice Chancellor’s letter refers to the incident as inciting feelings of student “harassment,” despite the Supreme Court’s 1999 definition of student-on-student harassment requiring “harassment so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.

A one-time poster presentation in the Campus’ designated “free speech zone” does not remotely meet this requirement for discriminatory student harassment.

Further evidence is offered by former UC System President Mark Yudof’s retrospective view on meetings with students from a number of UC campuses after they attempted to prevent the Israeli ambassador to the U.S. from speaking at UC Irvine and an “uncivilized attempt to shout down an Israeli soldier giving a talk” at UC Davis.”  Yudof laments their ignorance of students’ basic rights. 

“They believed …that constitutional rights were for marginalized groups, not for the ‘privileged.’  These students took it upon themselves to define privilege, and they made it clear that Jews were among the privileged.  Not poor, not marginalized, not the object of empathy.  No need to protect the free speech of Jews.  Every reason to silence them…”

If only to protect themselves from biased or overly aggressive accusations, students would be wise to learn their Constitutional rights.  College involves pitfalls that often can be avoided.  When I was a new UC Regent, I intervened to secure a disciplinary hearing for a sophomore student about to be expelled by a then-Vice Chancellor for Student Affairs for alleged plagiarism -- based on circumstantial evidence.  The campus Chancellor let it be known that he did not appreciate the dismissal being questioned by a mere Regent.  The student’s father was a lawyer and her grandfather an administrative law judge:  the family knew the student had a right to a hearing.  The disciplinary hearing panel found the student not guilty, and she graduated with straight A’s.

UC’s Flawed Record Regarding Student Harassment

The University of California’s record on student-on-student harassment -- including speech -- is flawed.  Prior to 2009, UC did not adhere to the Supreme Court’s 1999 standard that required “harassment so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit” in order for a student to be punished for discriminatory student harassment.   This likely enabled UC administrators to rush to judgment when deciding which students to accuse.  Students may have been terminated for lesser, more frivolous allegations -- such as one-time, “offending” the feelings of another student.

In October 2009, Constitutional lawyer and then-UC System President Mark Yudof acknowledged that UC was vulnerable to lawsuits for excessive punishment of students for alleged discriminatory harassment based on then-UC harassment policies that did “not track current case law regarding the standards for discriminatory harassment.”  Yudof sent a memo to all UC chancellors to meet the stricter 1999 Supreme Court standard when charging students with discriminatory harassment.

It appears not all campuses got the memo.  Of UC’s nine undergraduate campuses, none of their harassment and speech policies are free of a serious threat to free speech, two (UC Santa Cruz and UC Merced) have “at least one policy that both clearly and substantially restricts freedom of speech,” and seven have “some policies that could ban or excessively regulate protected speech,” according to the Foundation for Individual Rights in Education (FIRE).

Moreover, most if not all UC undergraduate campuses no longer require college-level courses about the U.S. Constitution, allowing the U.S. Government or History requirement to be satisfied by high school coursework or by courses narrow in scope.

Foreign Student Surge Will Exacerbate The Problem

Constitutional liberties on campus likely will become more urgent as the University of California aggressively increases its numbers of students from foreign countries who pay hefty $23,000 tuition surcharges, as do out-of-state students.  Between 2009 and 2013, the UC system enrolled nearly 5,000 freshmen from other states and countries, a 273 per increase, and about 700 more California freshmen, a 2 percent increase.  About 57 percent of the added slots went to international students from countries including China, India, and South Korea (with 30 percent to students from other states, and 12 percent to Californians).  Foreign students from China, India, and South Korea are not usually schooled in U.S. constitutional principles or even traditional U.S. educational practices.  

University administrators sometimes favor the extra income and ignore student misbehaviors.   A very bright Chinese-American friend of mine, a UCLA graduate with a master’s in mathematics and an admirable, mulish work ethic, recently found himself one of the few U.S. students on scholarship among a group of mainly Chinese students in a Ph.D. economics program at a New York public university.  Subsequent to reporting to the Dean that many Chinese students in his class had cheated on the fall exams, he found himself ostracized by the students and some professors.   Despite his top grades, the Chinese-American student could not endure the social ostracism, and dropped out of the program.

UC’s Revamped Sexual Assault Policy Likely Will Introduce Problems

More Constitutional issues await students accused of violating the University of California’s revamped sexual assault policy.   UC’s policy is similar to the “affirmative consent” bill recently passed by the California Legislature, and is being implemented subsequent to the Obama administration ordering colleges to determine responsibility using the “more likely than not” standard of proof -- lower than the “beyond a reasonable doubt” standard used for a criminal conviction -- and discouraging colleges from allowing cross-examination by accused students.

Hans Bader, a lawyer who has handled rape and sexual harassment cases, reports that the University of California policy “clearly defines some sex and sexual activity as sexual assault on campus, even if it would be perfectly legal off campus.” And Brett Sokolow, head of the National Center for Higher Education Risk Management, suggests that U.S. colleges are responding to pressure from the Obama Administration by usually finding innocent students guilty in sexual assault cases involving alcohol.

With UC campus disciplinary committees of professors, administrators and students substituting for the criminal justice system to investigate, judge, and punish in sexual assault cases, UC students would be wise to learn their Constitutional rights.  All members of campus disciplinary panels bring their own prejudices to the process, and in the case of administrators, a bias toward keeping their high-salaried jobs by satisfying their campus political bases.

Suggested Educational Opportunities 

Constitution Day on September 17, commemorating the 1787 signing of the United States Constitution, provides an opportune vehicle for UC students, faculty and staff to learn their Constitutional rights and obligations as citizens in a free society.  Public Law 108-477 requires each educational institution receiving Federal funds to commemorate this Day with an annual educational program informing students of their Constitutional rights.  In 2010, UC Berkeley invited students to attend a seminar on “The Free Speech Movement and the Constitution.”  With only UC Berkeley and UC Merced holding classes on Constitution Day, other campuses could incorporate programs about the Constitution in their annual orientation programs.

Students would be wise to take a class in Con Law -- one of the two-syllable classes (Econ, Latin, Great Books, Plato, Austen, Milton, Dante, Netzsche) where a student can understand every word in the course title. 

Besides providing a leg up for teaching high school, a constitutional law class could make the difference between determining who is the roommate bully, whether due process has been provided an accused rapist, when it’s time to go to the police, and when it’s time to call a lawyer.

Campus educational programs about constitutional rights also teach respect for the rights of others and inform more than students.  For one telling example, responding to student demonstrations during the election of President Obama, the Texas A&M University President hosted free speech workshops to educate students and faculty about their free speech rights.  FIRE’s Guide to Free Speech on Campus was distributed.  And an expert on First Amendment rights at colleges discussed how “most people believe everyone deserves Constitutional freedoms until they see or hear something they don’t like.”

Afterward, a lecturer in A&M’s English Literature Language Institute reported, “I learned a lot about tolerance:  the idea that even if you disagree with someone, you should accept their right to say it.”

What a concept!

Velma Montoya, Ph.D. (Economics, UCLA) is a former University of California Regent, and past Chairperson of the California Advisory Committee to the United States Commission on Civil Rights.