Via Email

November 21, 2016

President Janet Napolitano, University of California
Members of the University of California Regents

cc: Provost for Diversity and Engagement Yvette Gullatt, Counsel Julia Friedlander, UC Davis Acting Chancellor Ralph Hexter, UC Berkeley Chancellor Nicholas Dirks, UC Santa Cruz Chancellor George Blumenthal, UC Santa Barbara Chancellor Henry Yang, UCLA Chancellor Gene Block, UC Riverside Chancellor Kim Wilcox, UC Irvine Chancellor Howard Gilman, UC Merced Chancellor Dorothy Leland, UC San Diego Chancellor Pradeep Khosla, UC San Francisco Chancellor Sam Hawgood

Dear President Napolitano and members of the Board of the UC Regents: 

As students, community, and civil rights organizations, we write to raise new concerns about the Regents Statement of Principles Against Intolerance (“Intolerance Statement”) adopted in March 2016. The Intolerance Statement has already resulted in suppression of speech and academic freedom across the University of California (UC), and threatens more.

As our communities absorb the shock of Donald Trump’s election and the ascendency of xenophobic, anti-Arab and anti-Muslim hate to the highest echelon of power, we write to make clear that we represent some of the UC's most vulnerable populations. These are the communities in the crosshairs of Trump’s plans to persecute Muslims and criminalize political speech.[1] The Intolerance Statement is an inadequate tool to confront racism, Islamophobia, and antisemitism in the current political climate. Moreover, the Intolerance Statement is actively harmful for students who are Arab, Muslim, and/or activists for Palestinian rights.

We previously wrote to you to oppose the Intolerance Statement (and its earlier iterations) because language that condemns anti-Zionist expression raises serious free speech concerns.[2] As our organization and others[3] warned, if campus authorities try to apply the Intolerance Statement to restrict or punish criticism of Israeli policy, they will invite a lawsuit under the First Amendment.

Unfortunately, our calls were not heeded, and harms to the learning environment, not to mention violations of university policy and the U.S. and California Constitutions, have already materialized. The Intolerance Statement and the resulting suppression of speech critical of Israeli policy diminish the educational environment for all, but particularly Arab students, Muslim students, and other supporters of Palestinian rights.

We also write to alert you, again, to a sustained anti-Muslim and anti-Palestinian campaign targeting students and faculty across the UC who have engaged in speech supportive of Palestinian rights. The David Horowitz Freedom Center has repeatedly postered campuses across the UC, defaming individual faculty members, students, and student groups by name as “terrorists” and “Jew-haters” for their support for Palestinian rights. The posters deploy anti-Muslim and anti-Arab stereotypes. Notably, the Regents and the Office of the President have been so far silent in response. As the Regents fail to even condemn true harassment against UC students and faculty, their professed concern about upholding values of tolerance and inclusion for all vulnerable groups on campus – including Arab, Muslim, and anti-Zionist Jewish students – rings hollow.

Our concerns are detailed below, followed by several measures we ask that you take immediately to demonstrate your commitment to protecting the educational environment from speech suppression.

I. The Regents Statement of Principles Against Intolerance is plagued with problems.

A diverse set of critics, including several of the signatories below, pointed out serious problems with the Intolerance Statement prior to, and at the time of, its adoption. To summarize, these critiques include:

• The Intolerance Statement conflates criticism of Israeli policy with antisemitism.[4] The draft first presented stated, “antisemitism, anti-Zionism and other forms of discrimination have no place at the university.” The Regents amended this phrase to read, “anti-Semitic forms of anti-Zionism.” In doing so, they apparently rejected a blanket conflation of antisemitism with anti-Zionism. However the university made few, if any, statements clarifying the difference. “Anti-semitic forms of anti-Zionism” is never defined, and is redundant with “anti-Semitism.” The vague, redundant language leaves the false conflation in place, as evidenced by recent events discussed below.

• The Regents also ignored ample evidence that Palestinian human rights activism on all UC campuses is principled social justice work, grounded in opposition to all forms of racism.[5] While isolated antisemitic incidents have occurred, there is no evidence connecting the vast majority of incidents to Palestine activism, and Palestine activists have been among the first to condemn them.[6] The Intolerance Statement accepts, without any investigation, the premise promoted by Israel advocacy organizations that promotion of Palestinian rights has caused a rising problem of antisemitism on UC campuses. The Intolerance Statement ignores data from the statewide quantitative campus climate survey showing that Jewish community members on every campus consistently reported high levels of comfort.[7] The Regents Working Group on Intolerance opted to rely solely on anecdotes presented by Zionist interest groups, to the exclusion of all other available evidence.

• The Regents claimed to address “all forms of intolerance,” but they demonstrated a singular interest in the feelings of some Jewish students about criticism of Israel, to the exclusion of other pressing issues like institutionalized sexual harassment and anti-Black racism.[8]

The Intolerance Statement is so vague that it provides no measurable standard as to what type of speech and scholarship constitutes “intolerance” or “anti-Semitic forms of anti-Zionism.” Students and scholars cannot discern what type of speech “has no place at the university.” What are “anti-Semitic forms of anti-Zionism”? According to Israel advocacy groups, the statement’s primary proponents, this would include:

• A speaking event where former Israeli soldiers talk about their experiences in the Israeli military brutalizing Palestinians.[9]
• A student protest outside a film about Israeli soldiers, where protesters identifying as Black, Jewish, Muslim, Arab, Asian, Native American and Latinx chant slogans objecting to state violence at home and abroad.[10]
• A student-led course, taught by a Palestinian-American student, examining Palestine through the lens of settler-colonialism.[11]

But each of these forms of speech are protected by the First Amendment, university free speech, and academic freedom policies, and thus their “place at the university” is also protected by law.

Moreover, each of these examples of student and faculty speech – and many more, including academic courses, lectures, films, and protests – focus on political critique of Israeli state policy and have nothing to do with anti-Jewish hatred. They clearly do have a place at the university because many students and scholars seek to engage in critical discussion of Israeli policy towards Palestinians.

To restrict the story-telling of dissenting Israeli soldiers on campus, to punish the expression of students angry about militarized police in communities of color, or to censor course content that examines the colonial process in Israel-Palestine all constitute actions that would not only violate the First Amendment, but would make a mockery of the UC, home to the free speech movement, where vigorous engagement on our world’s most pressing problems is essential to the learning environment.

What type of speech then, has “no place” at the university? On what basis will the Regents exclude such speech? Who will decide? Will the UC rely on the same Israel advocacy groups that lobbied for the statement, and continue to demand that the UC censor and punish virtually any criticism of the Israeli state that falls within their vague, overbroad, and inaccurate definition of antisemitism? How should administrators apply the Intolerance Statement?

Many critics have pointed out that this lack of clarity is unacceptable, especially on a public university campus where the First Amendment applies, and where administrators have a responsibility to nurture unfettered inquiry.[12] As the ACLU emphasized in its concerns about the Regents statement, “In the area of free speech, clarity and specificity are essential to preserve the free flow of ideas.”[13]

III. UC Berkeley recently violated academic freedom, citing the Regents Statement of Principles Against Intolerance as a justification.

The vague Intolerance Statement has already resulted in at least one major incident where the university violated student and faculty rights. In September 2016, UC Berkeley made international headlines after it suspended and then reinstated a student-led “DeCal” course, Ethnic Studies 198, titled “Palestine: a settler colonial inquiry.” The suspension followed heavy pressure from Israel advocacy organizations and the Israeli government. All indications are that the university suspended the course because of controversy created by complainants who disfavored the perceived political viewpoints the course was exploring. Although the university argued that the suspension was justified by procedural errors in approving the course, this explanation proved to be unfounded.[14]

After an outcry from students, faculty, and academic freedom advocates, UC Berkeley reinstated the course one week after suspending it. In a letter announcing the reinstatement, Executive Dean of the College of Letters and Science Carla Hesse cited a potential “violation” of the Regents Statement of Principles Against Intolerance as a justification for the course suspension, echoing the complaints of Israel advocacy groups.[15]

The suspension violated the free speech and academic freedom rights of students and faculty, and according to the Academic Senate, the suspension constituted a severe infringement on authority delegated to the faculty. The suspension caused significant disruptions to the student facilitator and the enrolled students, not to mention a widespread chilling effect on members of the university community interested in studying – or teaching ­– Palestinian history.[16]

As Palestine Legal explained in letters to UC Berkeley on September 16 and October 18, the Regents Intolerance Statement could not justify the suspension because it is not an enforceable policy and because it cannot supersede the university’s constitutional responsibility to protect free speech and academic freedom, which protects the course from interference.[17]

The resulting damage to the academic environment is severe. As Palestine Legal wrote to UC Berkeley,

Such blatant viewpoint discrimination damages the educational environment by casting a pall of orthodoxy over the campus. Students in the course, prospective student facilitators, faculty, and others in the campus community are left to wonder whether or not they are permitted to study Palestine from an anti-colonial perspective – or at all. Is critical inquiry into the process of expanding Israeli settlements in the West Bank permitted, or will that be scrutinized by administrators as potential indoctrination or antisemitism, in violation of university policy? Are students permitted to study alternatives to the “two state solution” in Palestine-Israel, or is that considered overly narrow range of viewpoints, and thus impermissible? It is intolerable for these to even be serious questions left to administrators who have no knowledge of the fields of inquiry.[18]

The fact that a high level administrator so seriously misunderstood and misapplied the Regents Intolerance Statement, resulting in severe infringements of academic freedom and an irreparable chilling effect, is a predictable outcome of such a vague document. Such an outcome underscores the ACLU’s warning: the Intolerance Statement – lacking clarity and specificity – indeed, cut off the free flow of ideas at UC Berkeley.

IV. UCLA violated the First Amendment in fall 2015 while the Statement of Principles was under consideration.

UC Berkeley is not the only campus where the Intolerance Statement is connected to the unconstitutional restriction of ideas supportive of Palestinian rights. During the 2015-16 academic year at UCLA, amidst ongoing debates about the Regents Intolerance Statement but prior to its adoption, the then-President of the UCLA Graduate Students Association issued an unconstitutional funding restriction to isolate students who support divesting from companies that profit from Israel’s human rights violations. The restriction required an umbrella student group called the Diversity Caucus to have “zero connection” with any supporters of divestment from Israel.[19]

After rights groups complained,[20] the university investigated and determined that indeed, the funding stipulation violated university policy requiring viewpoint neutrality in the distribution of student fees.[21] But the damage was done – supporters of divestment were blacklisted by a student official, even if temporarily, and left to wonder whether or not their human rights activism has a place at the UC, and if not, what punishments they would suffer if they expressed criticism of Israeli policies.[22]

It is no coincidence that a student government official committed a violation of university policy, believing that criticism of Israeli policy is “bad speech” that should be restricted and punished. This is the same message that members of the Regents and President Napolitano repeatedly communicated during the debate on the Intolerance Statement in comments mischaracterizing advocacy for Palestinian rights as antisemitic speech that should be censured.[23]

V. A recent report from UC Irvine repeats and reinforces the harms of the Intolerance Statement.

On October 21, 2016, UC Irvine published a report, “Higher Ground: The Alignment of UCI's Policies, Principles, and Programs with the UC Regents' Principles Against Intolerance.”[24] The report further conflates anti-Zionism and antisemitism, discards the UC’s commitment to free speech, and excludes the interests of Palestinians and other vulnerable communities.

The report repeatedly collapses expression that criticizes Israel with antisemitism, as if the two types of speech are the same. For example, the report expresses concern that “student organizations are reluctant or unwilling to partner on social justice projects with students or student organizations that support Israel.”[25] But the report then jumps from this observation to the recommendation that UCI “Work with social justice student groups to invite Jewish students to be part of activities that reflect shared values.” (Emphasis added.) This recommendation misrepresents the problem it purports to solve. Students for Justice in Palestine at UCI, and other social justice clubs on campus, already include many Jewish members; they choose not to collaborate with organizations that espouse Zionist political ideologies because they view them as inconsistent with their own values.

In a second example, the report calls for “develop[ing] and adopt[ing] an Inclusive Excellence Index” to assess the integration of Jewish students on campuses, which would “[address] anti-Semitism and anti-Israel sentiment” – collapsing the two terms. The prevalence of criticism of Israel on campus by itself says nothing about the acceptance of Jewish students on campus.

The ongoing conflation of criticism of Israel and antisemitism is counterproductive and only reproduces bias towards all groups. The more that the university indiscriminately equates “Israel” or “Zionism” with “Jewish students,” the more students will misinterpret criticism of Israel as anti-Jewish bias. If senior UCI personnel cannot make these important distinctions in a heavily edited report, how can one expect the differences to be maintained by others in the university community?

Similar to the Regents Intolerance Statement, UCI’s Higher Ground report makes a rhetorical nod to the university’s commitment to free speech, and then swiftly undermines free speech values. The report notes, “constitutionally protected events in which the policies of the state of Israel are vigorously criticized can be deeply offensive” to “Jewish students who closely identify with Israel as a Jewish state.” Rather than respect or reiterate the reason such events are constitutionally protected – because the Supreme Court has emphasized that our nation’s universities are the quintessential marketplace of ideas – the report concludes that “UCI should focus more attention on ensuring that Jewish students feel … safe during events where Israel is criticized.”

Many following the national debate on the diminishing free speech environment (for example, see, "The Coddling of the American Mind"[26]) would scorn such a statement that calls on administrators to prioritize protecting the emotional safety of one group of students who are uncomfortable hearing criticism of a nation state on a public university campus.[27] This directly contradicts the university’s repeated high-minded statements embracing a robust commitment to a rigorous exchange of ideas.[28]

Most egregiously, Higher Ground entirely excludes the concerns of other vulnerable communities. It claims the Regents Intolerance Statement is “grounded in the centrality of diversity to our university community,” but it spends nine pages addressing only the concerns of a particular subset of Jewish students at UCI – namely, those that strongly identify with a Zionist political ideology. This excludes non-Zionist Jewish students and every other vulnerable group. The report poses a “central question” for UCI: “is our campus commitment to inclusive excellence capacious enough to do more to improve the climate for all students, including Jewish students?” This premise separates out Jewish students from others, and does not even bother to name some of the other vulnerable groups such as LGTBQIA, Black, Latinx, Asian, or Native students.

For a campus concerned about intolerance and diversity, it is alarming to see the total absence of concern about prejudice and harassment experienced by Arab and Muslim students, who have routinely been targeted with harassment and violence and singled out by authorities for investigation and punishment.[29]

Finally, Higher Ground sets out recommendations for putting the Intolerance Statement into action, which again seem to invite university administrators to violate the First Amendment. For example, the plan to "incorporate [the Regents Intolerance Statement] into campus events application process for space requests for on-campus events" suggests the university may predicate approval for events on the requirement that students endorse the Intolerance Statement. If the university were to implement such a requirement, it would amount to unconstitutional viewpoint discrimination and/or compelled speech. The views expressed in the Intolerance Statement are the Regents’ views, and the university cannot coerce students to adopt them.

VI. The President’s Office and the Regents have not addressed numerous instances of anti-Arab and anti-Muslim harassment.

Throughout the year-long process of adopting the Intolerance Statement, and since its adoption in March 2016, there have been ongoing incidents of harassment targeting UC’s Arab and Muslim students and students active for Palestinian rights. The President’s Office and the Regents have been silent, despite your professed concern about intolerance targeting all groups.

The following is a non-exhaustive list of anti-Arab and anti-Muslim harassment and criminal acts that have occurred on UC campuses since last March:

At UC Riverside during spring break week in March 2016, vandals broke into the Ethnic Studies offices of several women of color PhD students and professors. A number of graduate student mailboxes were tampered with and rummaged through. Materials related to Palestine, including an image of the Palestinian flag, were torn down from the wall. “Women of color have been specifically targeted by these parties, and the available information makes it abundantly clear that these acts of violence are significantly motivated by anti-Muslim and Islamophobic sentiment and/or ideology,” wrote Ethnic Studies department chair Dylan Rodriguez.[30] The victims reported experiencing trauma and fear that disrupted their ability to study and teach. The victims also reported to the administration their concern about the lack of proactive measures to ensure safety for targeted communities of color. The campus community called on the administration to protect campus safety for south and west Asian and north African students.[31]

In April 2016 at UC Irvine, a vandal chalked the ground with anti-Muslim graffiti surrounding a Students for Justice in Palestine (SJP) display that protested Israeli government policies. The vandal drew a picture of an airplane aimed at the flagpole (suggesting a 9-11 type attack) and wrote “MSU [Muslim Student Union], SJP, BSU [Black Student Union] should be run over by a car.” Other statements included: “Islam = apartheid,” “Hamas = Isis = Islam,” “Hitler loved Islam,” “Mohamed committed Genocide,” and “Trump 2016.” The chalking occurred in the middle of the night while SJP students were inside the library. Forced to turn their attention away from their midterms due the following day, SJP members stayed out until 5 am erasing the chalk messages.

In April 2016, the David Horowitz Freedom Center plastered UCLA, UC Santa Barbara, UC Santa Cruz, and UC Berkeley with posters targeting individual students and faculty, who “allied themselves with Palestinian terrorists” and “perpetrate…Jew hatred on this campus.”[32] David Horowitz, who claimed responsibility for the posters, is named by the Southern Poverty Law Center as a driver of anti-Muslim, anti-Black, and anti-immigrant hate.[33] To track the names of targeted students and faculty on campus, the David Horowitz Freedom Center used Canary Mission, an anonymous blacklisting website that posts the names, universities, employers, and social media accounts of students and faculty who support Palestinian rights.[34]

Again, in October 2016, David Horowitz plastered campuses at UCLA, UC Irvine, and UC Berkeley, targeting individual students and faculty by name as promoters of terrorism and “Jew Hatred” because of their support for Palestinian rights. This poster campaign featured large-form caricatures of faculty members’ faces along with the accusations.[35] At the end of October 2016 at UC Irvine, separate posters appeared on campus with the words “Islam Kills” in large red font, styled as if painted in blood.[36]

The Horowitz posters are anti-Muslim and anti-Arab, even where they target others (such as white, Jewish, Asian, and African-American campus members), because they reinforce the stereotype that Muslims, Arabs, Palestinians, and their supporters are inherently violent or antisemitic.

In response to the posters, students have reported severe disruptions to their educational experience. For example, a first-generation college student and African-American senior who was targeted at UCLA reported losing sleep, missing class, and missing reading that affected his ability to perform on a mid-term examination. A Palestinian-American graduate student at UCLA reported anxiety and distraction, and concern about walking around on campus that diminished his teaching and research. A Jewish graduate student at UC Berkeley reported having to walk by the poster plastered outside his lab and workplace repeatedly for two days before the university removed the poster, and wondering which of his colleagues believed him to be a terrorist because of the posters.

Campus-level administrators condemned some of the Horowitz posters. But the President’s Office and the Regents expressed no sympathy for the targets, no condemnation or rebuke of the false accusations, and little concern about the violent, xenophobic, and anti-Muslim sentiment sweeping the nation.

Students report real fears for their physical safety, given the dangerous national climate for Muslim students and those perceived to be associated with Muslims, such as supporters of Palestine. A recent report found that during the course of 2015, there were approximately 174 reported incidents of anti-Muslim violence and vandalism, and that Muslim murder victims were most likely to be aged 18 to 24.[37]

Finally, as we write this letter, in the week following Trump’s election, numerous instances of anti-Muslim harassment and assaults were reported across California campuses, including at the UC.[38] Students testified about their concerns of anti-Muslim targeting at the UC Regents Meeting on November 16, 2016.[39] Meanwhile, the Southern Poverty Law Center reported more than 400 incidents of hate occurring nationwide in the one week since Trump’s election, noting a high rate of incidents in California, at universities, and targeting Muslims.[40]

*          *          *

VII. Conclusion.