U.S. Commission on Civil Rights member, on university speech codes

I testified last week at a U.S. Commission on Civil Rights briefing on sexual harassment law in education, and I found these comments from Commissioner Michael Yaki — a former senior adviser to Rep. Nancy Pelosi, and a former member of the San Francisco Board of Supervisors — to be particularly interesting. The briefing discussed both the handling of sexual assault claims and campus speech codes, with some of the discussion of the latter going beyond just sex and covering material that’s offensive based on race and other characteristics. Here’s an excerpt from the tentative transcript, which matches my recollection of the comments; Commissioner Yaki is questioning Greg Lukianoff of the Foundation for Individual Rights in Education:

I guess I’m having some, a topic that I’ve been following for a number of years and it stems in part from the time that Mr. Marcus was our staff director, has to do with hate speech, hate crimes against groups of individuals on campus.

And it seems to me that there are ways that you can create a very apprehensive coordinate [possible transcription error -EV] of sexual harassment on a campus, but you [Greg Lukianoff -EV] probably would not find any prohibition by a university on that type of conduct to pass muster. Would that be correct? …

What about a slave auction at a fraternity engagement or a day where another group decides that they’re going to celebrate Latino culture by making everyone dress as janitors and mop floors or a situation involving women, have them as a ritual parade around in skimpy clothing and turn in some show or something.

I mean where do you think you can, that the university can’t deal with ensuring the route it has environment that is not oppressive or hostile because obviously a campus, especially certain types of campuses where there’s a lot of, where, that are geographically compact, that have a lot of working and living situations in a close area to create a campus atmosphere.

I mean doesn’t the campus only ensure itself being much more, being somewhat more closed than just sort of random person on the street where there’s shouting at someone?

Doesn’t that gravitate toward having greater ability to proscribe certain types of conduct that have the ability to escalate beyond what anyone would consider to be reasonable or acceptable?

It thus appears to me that Commissioner Yaki is coming out in support of speech codes that ban speech and symbolic expression that is perceived as conveying a racist or sexist message — despite past court decisions striking down such restrictions, including specifically in the context of racially and sexually offensive fraternity activities (see Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (4th Cir. 1993)). But that is a familiar argument; it was a follow-up question of Commissioner Yaki’s that particularly struck me:

COMMISSIONER YAKI: Well, let me ask you this. What did you think, and this may sound like it’s from left field, but there’s a reason for it.

What did you think of the Supreme Court’s decision to declare unconstitutional the death penalty for minors?

MALE PARTICIPANT: That was a footnote in the notice of the hearing. Did you see that? [I'm pretty sure this was a joke. -EV]

GREG LUKIANOFF: Okay. I agree with it, but that’s my personal political view.

COMMISSIONER YAKI: But it has nothing to do with policies [likely a mistranscription of "politics" -EV]. It has to do with science, and it has to do with the fact that more and more the vast majority, in fact I think overall in bodies of science is that young people, not just K through 12 but also between the ages of 16 to 20, 21 is where the brain is still in a stage of development.

It is not, and those studies by the way were utilized by the Supreme Court to rationalize why killing a minor was unconstitutional because in large part notwithstanding the fact that they did commit a crime and the court made it very clear, they weren’t going to excuse them from committing a crime.

Certain factors in how the juvenile or adolescent or young adult brain processes information is vastly different from the way that we adults do.

So when we sit back and talk about what is right or wrong in terms of First Amendment jurisprudence from a reasonable person’s standpoint, we are really not looking into the same referential viewpoint of these people, of an adolescent or young adult, including those in universities.

And I’m just wondering is, at some point why we don’t understand that because that has an impact, because that explains why all of us, many of us as adults often sit back and say God, I wonder why that young person took his or her life.

He or she had so much to look forward to when their brain processes information in a much different way than we do.

And because of that, and because of the unique nature of a university campus setting, I think that there are very good and compelling reasons why broader policies and prohibitions on conduct in activities and in some instances speech are acceptable on a college campus level that might not be acceptable say in an adult work environment or in an adult situation.

And I am just trying to figure out from you how you square your reliance on this kind of personal and jurisprudent line in the atmosphere of colleges and universities as you have a population of young people, who for lack of a better word, don’t process in the same way that we do when we’re in our late 20s and 30s.

This strikes me as quite misguided: While no doubt young adults are different from older adults — whether in their brain functioning as such, or in their experience, emotional maturity, and the like — that hardly justifies restricting their right to speak, or restricting speech that can be heard by them, especially when they are old enough to vote.

But in any event, I thought I’d pass this along, as expressing the views of a political figure who holds a significant position in the federal civil rights establishment.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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