Defining Intolerance

U of California, which has seen divisive debates on the Israeli-Palestinian conflict on its campuses, abandoned draft policy last year amid First Amendment concerns. The university is trying again.

March 16, 2016
Anti-Israel protest at the University of California at Irvine

The University of California System is trying again to adopt a policy that addresses intolerance on campus. After a draft policy was rejected last year amid First Amendment concerns, the new draft appears to be attracting more support.

Last year, a series of incidents led many to fear anti-Semitism on UC campuses was on the rise. A Jewish fraternity at UC Davis was defaced with swastikas, for example. And a couple months after that, a student was almost denied a position in the student government over the suggestion by the panel interviewing her that her Jewish faith might interfere with her duties.

And many UC campuses have seen protests -- some sympathetic to the Palestinian cause and others to the Israeli cause -- featuring shouting, banners and symbols that some see as signs of bias and others maintain are free expression. Many such protests led to complaints on campus and to the Board of Regents about the climate on campus for various groups with views on the Middle East.

In response, the Board of Regents drafted a Statement of Principles Against Intolerance, which would affirm that “the university will respond promptly and effectively to reports of intolerant behavior” because “everyone in the university community has the right to study, teach, conduct research and work free from acts and expressions of intolerance.”

Alarm bells went off from a couple different directions. Jewish groups said it didn’t go far enough in addressing and preventing anti-Semitism on campus, and free speech advocates raised concerns that the policy might stifle expression. The board retracted the principles before they went to a vote, and instead set up a working group, which released a revised proposal Tuesday.

In the new Principles Against Intolerance, 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.”

But the principles also state that disliking someone's view doesn't constitute a violation of the policy. “The university will vigorously defend the principles of the First Amendment and academic freedom against any efforts to subvert or abridge them,” the document says.

“I think that it is certainly more thoughtful in its recognition of the primacy of the First Amendment [than the previous version],” said Will Creeley, vice president of legal public advocacy for the Foundation for Individual Rights in Education. “The proof will be in the proverbial pudding.”

Much of the language appears to be aspirational, Creeley said. The call on university leaders to challenge discrimination, for example, could be interpreted as encouraging faculty and students to fight intolerance with more speech. It “would seem to indicate responding to intolerance with speech, even condemnation, but not punishing students or faculty for speech that is protected by the First Amendment. Which, of course, includes much intolerant speech,” he said. So, if that’s the case, that would be perfectly fine, but “whether that’s how the policy is applied, we have yet to see. If it is indeed implemented.”

But Creeley also noted several instances of “slightly curious language” behind his “wait and see approach.”

One section, for example, says, “Regardless of whether one has a legal right to speak in a manner that reflects bias, stereotypes, prejudice and intolerance, each member of the university community is expected to consider his or her responsibilities as well as his or her rights.” It goes on to suggest, he said, that “civility in debate” is one of those responsibilities.

If that, once again, is purely aspirational, then there’s no problem, but “if the University of California is authorizing administrators to punish a student group for not thinking about this, then that’s a problem,” Creeley said.

“It is hard to ascertain what’s aspirational and what will be given enforcement power,” Creeley said, so he’ll be keeping an eye on it.

While affirming the relevance of the First Amendment, the policy also includes language directly related to some of the incidents that led to its inception. It states, for example, in reference to the UCLA student government controversy, that “candidates for university leadership positions are entitled to consideration based on their stated views and actions, and in a manner consistent with the university’s nondiscrimination policy. Efforts to discredit such candidates based on bias or stereotyping should not go unchallenged.”

Another provision appears to relate to an incident several years ago that involved the coordinated heckling of Israel's ambassador to the United States at the time, Michael Oren, during a speech at the University of California at Irvine. The passage reads: “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 (within time, place and manner restrictions adopted by the university) impair the mission and intellectual life of the university and will not be tolerated.”

Some Jewish groups that rejected the original statement of principles indicated that they were open to the new draft.

“The original one was much too vague, definitely had no teeth to it whatsoever, and it didn’t seem to recognize the concerns that led to them writing the statement at all,” said Max Samarov, director of research and campus strategy for Stand With Us, a pro-Israel advocacy group. “This time around, they’ve acknowledged, certainly in the contextual documents, a lot of the specific issues that students are facing in the Jewish community and other [communities].”

Preceding the principles themselves, the document up for discussion at the meeting next week also includes a “contextual statement” that, among other things, lists many of the incidents that led to drafting a new policy in the first place.

Of particular note to Samarov is a sentence near the beginning, which reads, “Anti‐Semitism, anti‐Zionism and other forms of discrimination have no place at the University of California.” That’s not quite the adoption by the university of the U.S. Department of State’s definition of anti-Semitism, which many Jewish groups originally pushed for, but it clearly equates anti-Zionism and anti-Semitism, which was essentially their goal.

Samarov said his support for the revised principles is contingent on the university adopting and endorsing the entire document, including the line about anti-Zionism. “If they decide to adopt the entire thing, then I think it’s sufficient, but if they choose to ignore the background, the context, then I think we’re going to have a problem,” he said.

Jewish Voice for Peace, a Jewish organization that supports the boycott, divestment and sanctions movement against Israel, was far less pleased with the proposed policy.

“The preamble to the principles explicitly defines anti-Zionism as a form of discrimination and anti-Semitism, which is both inaccurate and harmful to free speech,” the group said in a statement sent to Inside Higher Ed. “Anti-Zionism critiques the action and history of a nation-state, not the Jewish people. In fact, there has been debate and dissent within the Jewish community over the political ideology of Zionism for as long as it has existed.”

Further, the statement reads, “Given the current political climate of elevated rhetoric and violence against black, Muslim, Latino and Arab students, it is remarkable that the main form of discrimination highlighted in the report and principles is anti-Semitism …. We are deeply concerned that this report will be used by those whose interest is in silencing political criticism of Israel and policing student activism and academic freedom at the University of California.”


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