Free Speech and Title VI at California Colleges and Universities

My latest Verdict column discusses some of the most recent events in the ongoing conflict on college campuses in the wake of the October 7 Hamas terrorist attack and the ensuing extremely deadly Israeli military campaign in Gaza. The column focuses mostly on last week's news concerning and at Columbia University. As I note, one day after testifying before Congress in a way that seemed calculated to avoid the fates of former University of Pennsylvania President Elizabeth Magill and former Harvard President Claudine Gay, Columbia President Minouche Shafik invited the police to arrest student-protesters who had erected a pro-Palestinian encampment on campus.

My column uses the Columbia events as a springboard for explaining what I regard as the central legal clash there and elsewhere. On one hand, Title VI (which applies to nearly all U.S. colleges and universities because of the broad definition of federal funding) obligates colleges and universities to ensure that students are not subject to a "hostile environment" on the basis of protected characteristics, which includes protecting students against antisemitism. On the other hand, even private universities that are not directly bound by the First Amendment rightly value free speech as central to their educational and research mission.

Unfortunately, there are too many easy cases in which expressly antisemitic threats, epithets, and worse have been directed at Jewish students on college campuses around the country. Subjecting the perpetrators to discipline for those raises no substantial free speech issue. However, some students, alumni, and public officials consider rhetoric that speakers may mean only as pointed criticism of Israel and its actions to be antisemitic. My column acknowledges the gap between speaker's meaning and audience meaning. I propose a solution that recognizes that in some but not all respects a college campus is like a public park, where a commitment to free speech should mean that people will often encounter views they regard as not merely wrong but odious.

I'll let the column speak for itself. For now--and because I was recently at a conference in California on free speech--I want to ask whether the analysis differs at all for colleges and universities in that state. Why would it? Because California's Leonard Law provides as follows:

No private postsecondary educational institution shall make or enforce a rule subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or [the parallel provision of the state constitution].

That's a truly remarkable and, in my view, unjustifiable law. Note that it applies to private as well as public universities in California. Moreover, at least on its face, it does not merely treat private colleges and universities in the same way that the federal and state constitutions already require for public ones. It does not, in other words, merely treat Stanford like Berkeley or USC like UCLA. Rather, the law subjects all colleges and universities in the state to limits on their ability to impose discipline on students based on speech that would be protected off-campus.

Why does that go beyond the First Amendment itself? Because colleges and universities--even if public and thus bound by the First Amendment of its own force--are voluntary communities that may impose various rules governing decorum, respect, and the like. Suppose a college allows students to post signs on their dorm room doors but bans certain highly offensive materials--such as racial epithets, images of Confederate flags, lynchings, etc. If the City of Los Angeles imposed such a rule on yard signs, that would clearly violate the First Amendment. Hence, under the Leonard Law, the college rule is illegal if used as the basis to impose disciplinary sanctions on students who do not comply.

That seems very misguided. But not just misguided. Also wrong about the law.

Suppose that a racist student at a public university decorates his dorm room door--directly across the hallway from an African American student--with a Confederate flag and racist slogans. Not only is the racist student not protected by the First Amendment in so doing. The college is obligated by Title VI to take remedial measures to protect the student across the hall and others. And if that's true in general, then it's true in California too. In other words, at least in some circumstances, Title VI preempts the Leonard Law.

There aren't very many reported cases involving the Leonard Law. Therefore, the question whether it is partially preempted by Title VI has not been adjudicated. However, if my analysis is correct, that could change. Stay tuned.

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While I'm on the subject of California, I'll add a few words about the incident twelve days ago at the home of Berkeley Law Dean Erwin Chemerinsky and Professor Catherine Fisk when Malak Afaneh, a Berkeley Law student, sought to use the occasion of a celebratory dinner for graduating 3Ls to make an unscheduled speech (using her own microphone and amp) decrying the situation in Gaza. It has been reported that some students have also been demanding that UC Berkeley divest from Israel, which makes the law school dean an odd target because at Berkeley, as at most major universities, law school deans raise money but the central university decides how to invest endowment and other funds.

I'm not going to comment on the posters that were circulated prior to the confrontation nor say anything about the end of the incident, when Professor Fisk attempted to grab the microphone from Ms. Afaneh after the latter refused to stop talking or leave. I want to focus instead on what strikes me as some misdirected discussion about the location.

Perhaps understandably, during the confrontation and afterwards, Dean Chemerinsky emphasized that the event occurred at his home, while those criticizing him and/or defending Ms. Afaneh have said that it was nonetheless a Berkeley Law event to which the free speech rules that apply on campus are relevant. On that point, it seems clear to me that the critics are correct. What matters is the sponsoring entity and nature of the event, not the locale.

However, even so, Ms. Afaneh didn't have a free speech right to interrupt a scheduled event. Suppose that the dinner had occurred at the law school and, as at the actual event, there were no scheduled speeches. Would that give anyone who wanted to make a speech the right to do so, much less to use amplified sound and to persist after being asked by the event's organizers to stop? Can students bring microphones and amplifiers to class and simply begin speaking and refuse to stop? Of course not.

So why did Ms. Afaneh think otherwise? Apparently, she was so advised by an attorney affiliated with the National Lawyers Guild (NLG). When I first learned of the incident, I assumed that she must have misunderstood what the attorney said, but a statement afterwards posted on the national NLG website indicates to me that Ms. Afaneh understood the counsel; the advice was unsound.

In its account of the incident, the NLG notes that “First Amendment rights may extend beyond traditional public forums into spaces that are limited or non-public forums.” That’s true but not very relevant, because the First Amendment rights that exist in a non-public forum (which is what an invitation-only dinner without speeches is) protect against viewpoint discrimination. Yet there is no reason to think (and certainly no evidence put forward by Ms. Afaneh or the NLG) that Berkeley, Dean Chemerinsky, or Professor Fisk sought to silence Ms. Afaneh because of her viewpoint or the content of her speech. Again, there were no speeches on any topic at the event. The NLG lawyer who advised Ms. Afaneh and whoever writes the statements for the NLG's national website are badly mistaken about First Amendment doctrine.

Finally, the Leonard Law has no bearing on the question whether Dean Chemerinsky and Professor Fisk were entitled to stop Ms. Afaneh from speaking. By its terms, the Leonard Law kicks in, where it applies, only with respect to disciplinary sanctions. Not knowing nearly enough about the rules at Berkeley or their history of enforcement, I don't have an opinion about whether Berkeley should pursue such sanctions, but even if it does, I do not think the Leonard Law would protect her because, absent a showing of viewpoint discrimination, interrupting a dinner to give an unwanted amplified speech is not protected outside the university context.