SB 1287: Public postsecondary education: Equity in Higher Education Act: prohibition on violence, harassment, intimidation, and discrimination.
- Session Year: 2023-2024
- House: Senate
- Latest Version Date: 2024-09-28
Current Status:
Passed
(2024-09-28: Chaptered by Secretary of State. Chapter 892, Statutes of 2024.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Enacted
The Donahoe Higher Education Act sets forth, among other things, the missions and functions of Californias public and independent segments of higher education and their respective institutions of higher education. A provision of the act applies to the University of California only to the extent that the Regents of the University of California, by appropriate resolution, act to make the provision applicable.
A portion of the Donahoe Higher Education Act, known as the Equity in Higher Education Act, provides, among other things, that all students have the right to participate fully in the educational process, free from discrimination and harassment, and that Californias postsecondary educational institutions have an affirmative obligation to combat racism, sexism, and other forms of bias, and a responsibility to provide equal educational opportunity.
This bill would state that the Trustees of the California State University and the Regents of the University of California have the primary responsibility to prevent and address conduct that either creates a hostile environment for students on campus or results in differential treatment of students on campus, as specified. The bill would require the trustees to, among other things, adopt rules and procedures, as specified, to prohibit violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus, to prohibit conduct that limits or denies a persons ability to participate in or benefit from the free exchange of ideas or the educational mission of the California State University, and to establish, and require each campus to publish on campus internet websites, reasonable content-neutral time, place, and manner restrictions and, if applicable, any advance permitting requirements for protests on campus. The bill would require the trustees to develop mandatory training programs to educate students on what constitutes violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus, the procedures for investigating violations of the student code of conduct, when and where protests and gatherings may be held, as specified, and on how to exchange views in an atmosphere of mutual respect and civility. The bill would require the trustees to submit a report, on or before January 2, 2025, and annually thereafter, to the Legislature on the implementation and administration of the bill. The bill would request the University of California to comply with these provisions. The bill would make its provisions severable.
The Donahoe Higher Education Act sets forth, among other things, the missions and functions of Californias public and independent segments of higher education and their respective institutions of higher education. A provision of the act applies to the University of California only to the extent that the Regents of the University of California, by appropriate resolution, act to make the provision applicable.
A portion of the Donahoe Higher Education Act, known as the Equity in Higher Education Act, provides, among other things, that all students have the right to participate fully in the educational process, free from discrimination and harassment, and that Californias postsecondary educational institutions have an affirmative obligation to combat racism, sexism, and other forms of bias, and a responsibility to provide equal educational opportunity.
This bill would state that the Trustees of the California State University and the Regents of the University of California have the primary responsibility to prevent and address conduct that either creates a hostile environment for students on campus or results in differential treatment of students on campus, as specified. The bill would require the trustees to, among other things, adopt rules and procedures, as specified, to prohibit violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus, to prohibit conduct that limits or denies a persons ability to participate in or benefit from the free exchange of ideas or the educational mission of the California State University, and to establish, and require each campus to publish on campus internet websites, reasonable content-neutral time, place, and manner restrictions and, if applicable, any advance permitting requirements for protests on campus. The bill would require the trustees to develop mandatory training programs to educate students on what constitutes violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus, the procedures for investigating violations of the student code of conduct, when and where protests and gatherings may be held, as specified, and on how to exchange views in an atmosphere of mutual respect and civility. The bill would require the trustees to submit a report, on or before January 2, 2025, and annually thereafter, to the Legislature on the implementation and administration of the bill. The bill would request the University of California to comply with these provisions. The bill would make its provisions severable.
The Donahoe Higher Education Act sets forth, among other things, the missions and functions of Californias public and independent segments of higher education and their respective institutions of higher education. A provision of the act applies to the University of California only to the extent that the Regents of the University of California, by appropriate resolution, act to make the provision applicable.
A portion of the Donahoe Higher Education Act, known as the Equity in Higher Education Act, provides, among other things, that all students have the right to participate fully in the educational process, free from discrimination and harassment, and that Californias postsecondary educational institutions have an affirmative obligation to combat racism, sexism, and other forms of bias, and a responsibility to provide equal educational opportunity.
This bill would state that the governing boards of community college districts, the Trustees of the California State University, University and the Regents of the University of California have the primary responsibility to prevent and address conduct that either creates a hostile environment for students on campus or results in differential treatment of students on campus, as specified. The bill would require the Trustees of the California State University and the governing board of each community college district to, among other things, adopt rules and procedures, as specified, to prohibit violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus, to prohibit conduct that limits or denies a persons ability to participate in, or benefit from, the free exchange of ideas or the educational mission of the segment, California State University, and to establish, and require each campus to publish on campus internet websites, reasonable content-neutral time, place, and manner restrictions and, if applicable, any advance permitting requirements for protests on campus. The bill would require the trustees and the governing board of each community college district to develop mandatory training programs to educate students on what constitutes violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus, the procedures for investigating violations of the student code of conduct, when and where protests and gatherings may be held, as specified, and on how to exchange views in an atmosphere of mutual respect and civility. The bill would require the trustees and the governing board of each community college district to submit a report, on or before January 2, 2025, and annually thereafter, to the Legislature on the implementation and administration of the bill. The bill would request the University of California to comply with these provisions. The bill would make its provisions severable. To the extent that the bill would impose new duties on community college districts, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.The Donahoe Higher Education Act sets forth, among other things, the missions and functions of Californias public and independent segments of higher education and their respective institutions of higher education. A provision of the act applies to the University of California only to the extent that the Regents of the University of California, by appropriate resolution, act to make the provision applicable.
A portion of the Donahoe Higher Education Act, known as the Equity in Higher Education Act, provides, among other things, that all students have the right to participate fully in the educational process, free from discrimination and harassment, and that Californias postsecondary educational institutions have an affirmative obligation to combat racism, sexism, and other forms of bias, and a responsibility to provide equal educational opportunity.
This bill would state that the governing boards of community college districts, the Trustees of the California State University, and the Regents of the University of California have the primary responsibility to prevent and address conduct that either creates a hostile environment for students on campus or results in differential treatment of students on campus, as specified. The bill would require the Trustees of the California State University and the governing board of each community college district to, among other things, adopt rules and procedures, as specified, to prohibit violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus, to prohibit conduct that limits or denies a persons ability to participate in, or benefit from, the free exchange of ideas or the educational mission of the segment, and to establish, and require each campus to publish on campus internet websites, reasonable content-neutral time, place, and manner restrictions and, if applicable, any advance permitting requirements for protests on campus. The bill would require the trustees and the governing board of each community college district to develop mandatory training programs to educate students on what constitutes violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus, the procedures for investigating violations of the student code of conduct, when and where protests and gatherings may be held, as specified, and on how to exchange views in an atmosphere of mutual respect and civility. The bill would require the trustees and the governing board of each community college district to submit a report, on or before January 2, 2025, and annually thereafter, to the Legislature on the implementation and administration of the bill. The bill would request the University of California to comply with these provisions. The bill would make its provisions severable. To the extent that the bill would impose new duties on community college districts, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
The Donahoe Higher Education Act sets forth, among other things, the missions and functions of Californias public and independent segments of higher education and their respective institutions of higher education. A provision of the act applies to the University of California only to the extent that the Regents of the University of California, by appropriate resolution, act to make the provision applicable.
A portion of the Donahoe Higher Education Act, known as the Equity in Higher Education Act, provides, among other things, that all students have the right to participate fully in the educational process, free from discrimination and harassment, and that Californias postsecondary educational institutions have an affirmative obligation to combat racism, sexism, and other forms of bias, and a responsibility to provide equal educational opportunity.
This bill would state that it is the policy of the public segments of postsecondary education to prevent and eliminate violence, harassment, intimidation, and discrimination that undermine certain objectives. the governing boards of community college districts, the Trustees of the California State University, and the Regents of the University of California have the primary responsibility to prevent and address conduct that either creates a hostile environment for students on campus or results in differential treatment of students on campus, as specified. The bill would require the Trustees of the California State University and the Board of Governors of the California Community Colleges governing board of each community college district to, among other things, (1) adopt policies within campus-based student codes of conduct that prohibit engaging in violence, harassment, intimidation, and discrimination, as specified, interfering with rights established pursuant to the United States Constitution or the California Constitution or otherwise interfering with the free exchange of ideas or the educational mission of the segment, or calling for genocide, (2) maintain and enforce reasonable time, place, and manner restrictions, (3) clearly set forth the portions of a campus that are public fora, limited public fora, or nonpublic fora, and the meaning of each designation, and (4) adopt rules and procedures, as specified, to prohibit violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus, to prohibit conduct that limits or denies a persons ability to participate in, or benefit from, the free exchange of ideas or the educational mission of the segment, and to establish, and require each campus to publish on campus internet websites, reasonable time, place, and manner restrictions and, if applicable, any advance permitting requirements for protests on campus. The bill would require the trustees and the governing board of each community college district to develop mandatory training programs to educate students on what constitutes violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus, the procedures for investigating violations of the student code of conduct, when and where protests and gatherings may be held, as specified, and on how to exchange views in an atmosphere of mutual respect and civility. The bill would require the trustees and the board of governors governing board of each community college district to submit a report, on or before January 2, 2025, and annually thereafter, to the Legislature on the implementation and administration of the bill. The bill would request the University of California to comply with these provisions. The bill would make its provisions severable. To the extent that the bill would impose new duties on community college districts, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
The Donahoe Higher Education Act sets forth, among other things, the missions and functions of Californias public and independent segments of higher education and their respective institutions of higher education. A provision of the act applies to the University of California only to the extent that the Regents of the University of California, by appropriate resolution, act to make the provision applicable.
A portion of the Donahoe Higher Education Act, known as the Equity in Higher Education Act, provides, among other things, that all students have the right to participate fully in the educational process, free from discrimination and harassment, and that Californias postsecondary educational institutions have an affirmative obligation to combat racism, sexism, and other forms of bias, and a responsibility to provide equal educational opportunity.
This bill would state that it is the policy of the public segments of postsecondary education to prevent and eliminate violence, harassment, intimidation, and discrimination that undermine certain objectives. The bill would require the Trustees of the California State University and the Board of Governors of the California Community Colleges to, among other things, (1) adopt policies within campus-based student codes of conduct that prohibit engaging in violence, harassment, intimidation, and discrimination, as specified, interfering with rights established pursuant to the United States Constitution or the California Constitution or otherwise interfering with the free exchange of ideas or the educational mission of the segment, or calling for genocide, (2) maintain and enforce reasonable time, place, and manner restrictions, (3) clearly set forth the portions of a campus that are public fora, limited public fora, or nonpublic fora, and the meaning of each designation, and (4) develop mandatory training programs to educate students on when and where protests and gatherings may be held, as specified, and on how to exchange views in an atmosphere of mutual respect and civility. The bill would require the trustees and the board of governors to submit a report, on or before January 2, 2025, and annually thereafter, to the Legislature on the implementation and administration of the bill. The bill would request the University of California to comply with these provisions. The bill would make its provisions severable. To the extent that the bill would impose new duties on community college districts, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
The Donahoe Higher Education Act sets forth, among other things, the missions and functions of Californias public and independent segments of higher education and their respective institutions of higher education. A provision of the act applies to the University of California only to the extent that the Regents of the University of California, by appropriate resolution, act to make the provision applicable.
A portion of the Donahoe Higher Education Act, known as the Equity in Higher Education Act, provides, among other things, that all students have the right to participate fully in the educational process, free from discrimination and harassment, and that Californias postsecondary educational institutions have an affirmative obligation to combat racism, sexism, and other forms of bias, and a responsibility to provide equal educational opportunity.
This bill would state that it is the policy of the public segments of postsecondary education to prevent and eliminate violence, harassment, intimidation, and discrimination that undermine certain objectives. The bill would require the Trustees of the California State University and the Board of Governors of the California Community Colleges to, among other things, (1) adopt policies within campus-based student codes of conduct that prohibit engaging in violence, harassment, intimidation, and discrimination that are intended to, and are reasonably understood by the victims or hearers to, interfere discrimination, as specified, interfering with rights established pursuant to the United States Constitution or the California Constitution or otherwise interfere interfering with the free exchange of ideas, ideas or the educational mission of the segment, or call calling for or support genocide, (2) maintain and enforce reasonable time, place, and manner restrictions for public protests and demonstrations on campuses, as provided, and (3) restrictions, (3) clearly set forth the portions of a campus that are public fora, limited public fora, or nonpublic fora, and the meaning of each designation, and (4) develop mandatory training programs to educate students on when and where protests and gatherings may be held, as specified, and on how to exchange views in an atmosphere of mutual respect and civility. The bill would require the trustees and the board of governors to submit a report, on or before January 2, 2025, and annually thereafter, to the Legislature on the implementation and administration of the bill. The bill would request the University of California to comply with these provisions. The bill would make its provisions severable. To the extent that the bill would impose new duties on community college districts, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
The Donahoe Higher Education Act sets forth, among other things, the missions and functions of Californias public and independent segments of higher education and their respective institutions of higher education. A provision of the act applies to the University of California only to the extent that the Regents of the University of California, by appropriate resolution, act to make the provision applicable.
A portion of the Donahoe Higher Education Act, known as the Equity in Higher Education Act, provides, among other things, that all students have the right to participate fully in the educational process, free from discrimination and harassment, and that Californias postsecondary educational institutions have an affirmative obligation to combat racism, sexism, and other forms of bias, and a responsibility to provide equal educational opportunity.
This bill would state that it is the policy of the public segments of postsecondary education to eliminate harassment, intimidation, and discrimination that undermine certain objectives. The bill would require the Trustees of the California State University and the Board of Governors of the California Community Colleges to, among other things, (1) adopt policies within campus-based student codes of conduct that prohibit violence, harassment, intimidation, and discrimination that are intended to, and are reasonably understood by the victims or hearers to, interfere with rights established pursuant to the United States Constitution or the California Constitution or otherwise interfere with the free exchange of ideas, or call for or support genocide, (2) maintain and enforce reasonable time, place, and manner restrictions for public protests and demonstrations on campuses, as provided, and (3) develop mandatory training programs to educate students on how to exchange views in an atmosphere of mutual respect and civility. The bill would require the trustees and the board of governors to submit a report, on or before January 2, 2025, and annually thereafter, to the Legislature on the implementation and administration of the bill. The bill would request the University of California to comply with these provisions. The bill would make its provisions severable. To the extent that the bill would impose new duties on community college districts, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Existing law prescribes the required courses of study for grades 1 to 12, inclusive.This bill would make a nonsubstantive change to that provision.Existing law prescribes the required courses of study for grades 1 to 12, inclusive.
This bill would make a nonsubstantive change to that provision.
(a)As used in this section, the following definitions apply:
(1)Institution means a campus of the California State University or the University of California.
(2)Segment means the California State University or the University of California.
(b)The Legislature finds and declares all of the following:
(1)Free speech, academic freedom, and the free exchange of views among students and faculty are all critical to the educational missions of the segments.
(2)It is also critical to the educational missions of the segments that speech and the exchange of ideas take place in a constructive environment of mutual respect for diversity of backgrounds, ideas, and viewpoints in order to do all of the following:
(A)Maximize the exchange of views.
(B)Achieve the goals of excellence in research, teaching, and learning.
(C)Achieve the goal of developing lifelong citizenship skills.
(3)The educational missions and goals of the segments are severely disrupted by actions that constitute violence, harassment, intimidation, and discrimination in violation of federal or state law, segment rules, or institutions codes of conduct.
(4)The values of free speech, the free exchange of ideas, and the opportunities to all who wish to express their views on campus at an institution are important values and provide critical contributions to the educational missions of the segments.
(5)A constructive environment of mutual respect is just as important to furthering free speech as it is to furthering the educational missions of the segments.
(6)The values of free speech, the free exchange of ideas, and the opportunities to all who wish to express their views on campus at an institution are impaired by actions that constitute violence, harassment, intimidation, and discrimination in violation of federal or state law, segment rules, or institution codes of conduct.
(7)Violence, harassment, intimidation, and discrimination based on a persons identity, ideas, or viewpoints violate the rights of the victims and impair both the educational missions of the segments and the values of free speech.
(8)Violence, harassment, intimidation, and discrimination may violate federal and state antidiscrimination laws applicable to the segments, including Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 2000d et seq.) and Section 66270 of the Education Code, and frustrate the efforts of the segments to comply with these laws and ensure that the victims have the opportunity to participate fully and equally in their chosen institution experience.
(9)Violence, harassment, intimidation, and discrimination in the sheltered environment of a residential institution impair the educational missions of the segment, undermine the value of antidiscrimination embodied in federal and state civil rights laws, and diminish, in the aggregate, the exercise of free speech by intimidating members of the institutions community who become reluctant to express their views.
(10)In numerous instances, participants in institution activities have done both of the following:
(A)Engaged in violence, harassment, intimidation, and discrimination.
(B)Interfered, through force, threat of force, or intimidation, with rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, or otherwise interfered with the free exchange of ideas or the educational mission of the segment.
(11)The activities described in paragraph (10) have impaired the educational missions of the segments, undermined federal and state antidiscrimination laws, interfered with the exercise of rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, and interfered with the free exchange of ideas by the members of institution communities.
SEC. 2.Section 66270.7 is added to the Education Code, to read:66270.7.(a)As used in this section,Hostile environment means unwelcomed conduct based on a persons actual or perceived race, color, ethnicity, national origin, religion, or disability status, that based on the totality of circumstances, is subjectively and objectively offensive, and is so severe or pervasive that it limits or denies a persons ability to participate in or benefit from an institutions education program or activity.
(b)The Trustees of the California State University and the Regents of the University of California have the primary responsibility to prevent and address conduct that either creates a hostile environment for students on campus, or results in differential treatment of students on campus based on a students actual or perceived race, color, ethnicity, national origin, religion, or disability status.
(c)The Trustees of the California State University shall do all of the following:
(1)Adopt rules and procedures in the student codes of conduct to provide all of the following elements:
(A)Prohibit violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus.
(B)Prohibit conduct that limits or denies a persons ability to participate in or benefit from the free exchange of ideas or the educational mission of the California State University.
(C)Establish reasonable content-neutral time, place, and manner restrictions, and, if applicable, any advance permitting requirements for protests on campus.
(2)Adopt rules and procedures to take reasonable steps to respond to each incident described in subparagraphs (A) and (B) of paragraph (1) that creates a hostile environment on campus.
(3)Require each campus to publish on the campuss internet website the time, place, and manner restrictions, and any advance permitting requirements for protests on campus.
(4)Develop mandatory training programs to educate students on all of the following:
(A)What constitutes violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus, and the procedures for investigating violations of the student code of conduct.
(B)When and where protests and gatherings may be held, including the difference between public fora, limited public fora, nonpublic fora, and private property, consistent with the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution.
(C)How to exchange views in an atmosphere of mutual respect and civility.
(5)Require, as a condition of enrollment at a California State University campus, each student attending the campus to acknowledge the campuss student code of conduct.
(d)The Trustees of the California State University and each California State University campus shall ensure that any policy adopted or enforced pursuant to this section, as applicable, is consistent with the First Amendment to the United States Constitution, Section 2 of Article I of the California Constitution, and Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 2000d et seq.).
(e)(1)On or before January 2, 2025, and annually thereafter, the Trustees of the California State University shall submit a report to the Legislature on the implementation and administration of this section. This report shall include information on student code of conduct violations relating to incidents described in subparagraphs (A) and (B) of paragraph (1) of subdivision (c).
(2)A report submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.
(f)The University of California is requested to comply with this section.
(g)This section is intended to be interpreted consistent with the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution.
(h)The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
(a)As used in this section, the following definitions apply:
(1)Institution means a campus of the California State University or the University of California.
(2)Segment means the California State University or the University of California.
(b)The Legislature finds and declares all of the following:
(1)Free speech, academic freedom, and the free exchange of views among students and faculty are all critical to the educational missions of the segments.
(2)It is also critical to the educational missions of the segments that speech and the exchange of ideas take place in a constructive environment of mutual respect for diversity of backgrounds, ideas, and viewpoints in order to do all of the following:
(A)Maximize the exchange of views.
(B)Achieve the goals of excellence in research, teaching, and learning.
(C)Achieve the goal of developing lifelong citizenship skills.
(3)The educational missions and goals of the segments are severely disrupted by actions that constitute violence, harassment, intimidation, and discrimination in violation of federal or state law, segment rules, or institutions codes of conduct.
(4)The values of free speech, the free exchange of ideas, and the opportunities to all who wish to express their views on campus at an institution are important values and provide critical contributions to the educational missions of the segments.
(5)A constructive environment of mutual respect is just as important to furthering free speech as it is to furthering the educational missions of the segments.
(6)The values of free speech, the free exchange of ideas, and the opportunities to all who wish to express their views on campus at an institution are impaired by actions that constitute violence, harassment, intimidation, and discrimination in violation of federal or state law, segment rules, or institution codes of conduct.
(7)Violence, harassment, intimidation, and discrimination based on a persons identity, ideas, or viewpoints violate the rights of the victims and impair both the educational missions of the segments and the values of free speech.
(8)Violence, harassment, intimidation, and discrimination may violate federal and state antidiscrimination laws applicable to the segments, including Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 2000d et seq.) and Section 66270 of the Education Code, and frustrate the efforts of the segments to comply with these laws and ensure that the victims have the opportunity to participate fully and equally in their chosen institution experience.
(9)Violence, harassment, intimidation, and discrimination in the sheltered environment of a residential institution impair the educational missions of the segment, undermine the value of antidiscrimination embodied in federal and state civil rights laws, and diminish, in the aggregate, the exercise of free speech by intimidating members of the institutions community who become reluctant to express their views.
(10)In numerous instances, participants in institution activities have done both of the following:
(A)Engaged in violence, harassment, intimidation, and discrimination.
(B)Interfered, through force, threat of force, or intimidation, with rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, or otherwise interfered with the free exchange of ideas or the educational mission of the segment.
(11)The activities described in paragraph (10) have impaired the educational missions of the segments, undermined federal and state antidiscrimination laws, interfered with the exercise of rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, and interfered with the free exchange of ideas by the members of institution communities.
SEC. 2.Section 66270.7 is added to the Education Code, to read:66270.7.(a)As used in this section,Hostile environment means unwelcomed conduct based on a persons actual or perceived race, color, ethnicity, national origin, religion, or disability status, that based on the totality of circumstances, is subjectively and objectively offensive, and is so severe or pervasive that it limits or denies a persons ability to participate in or benefit from an institutions education program or activity.
(b)The Trustees of the California State University and the Regents of the University of California have the primary responsibility to prevent and address conduct that either creates a hostile environment for students on campus, or results in differential treatment of students on campus based on a students actual or perceived race, color, ethnicity, national origin, religion, or disability status.
(c)The Trustees of the California State University shall do all of the following:
(1)Adopt rules and procedures in the student codes of conduct to provide all of the following elements:
(A)Prohibit violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus.
(B)Prohibit conduct that limits or denies a persons ability to participate in or benefit from the free exchange of ideas or the educational mission of the California State University.
(C)Establish reasonable content-neutral time, place, and manner restrictions, and, if applicable, any advance permitting requirements for protests on campus.
(2)Adopt rules and procedures to take reasonable steps to respond to each incident described in subparagraphs (A) and (B) of paragraph (1) that creates a hostile environment on campus.
(3)Require each campus to publish on the campuss internet website the time, place, and manner restrictions, and any advance permitting requirements for protests on campus.
(4)Develop mandatory training programs to educate students on all of the following:
(A)What constitutes violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus, and the procedures for investigating violations of the student code of conduct.
(B)When and where protests and gatherings may be held, including the difference between public fora, limited public fora, nonpublic fora, and private property, consistent with the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution.
(C)How to exchange views in an atmosphere of mutual respect and civility.
(5)Require, as a condition of enrollment at a California State University campus, each student attending the campus to acknowledge the campuss student code of conduct.
(d)The Trustees of the California State University and each California State University campus shall ensure that any policy adopted or enforced pursuant to this section, as applicable, is consistent with the First Amendment to the United States Constitution, Section 2 of Article I of the California Constitution, and Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 2000d et seq.).
(e)(1)On or before January 2, 2025, and annually thereafter, the Trustees of the California State University shall submit a report to the Legislature on the implementation and administration of this section. This report shall include information on student code of conduct violations relating to incidents described in subparagraphs (A) and (B) of paragraph (1) of subdivision (c).
(2)A report submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.
(f)The University of California is requested to comply with this section.
(g)This section is intended to be interpreted consistent with the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution.
(h)The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
(a)As used in this section, the following definitions apply:
(1)Institution means a campus of the California Community Colleges, the California State University, or University or the University of California.
(2)Segment means the University of California, the California State University, or the California Community Colleges. University or the University of California.
(b)The Legislature finds and declares all of the following:
(1)Free speech, academic freedom, and the free exchange of views among students and faculty are all critical to the educational missions of the segments.
(2)It is also critical to the educational missions of the segments that speech and the exchange of ideas take place in a constructive environment of mutual respect for diversity of backgrounds, ideas, and viewpoints in order to do all of the following:
(A)Maximize the exchange of views.
(B)Achieve the goals of excellence in research, teaching, and learning.
(C)Achieve the goal of developing lifelong citizenship skills.
(3)The educational missions and goals of the segments are severely disrupted by actions that constitute violence, harassment, intimidation, and discrimination in violation of federal or state law, segment rules, or institutions codes of conduct.
(4)The values of free speech, the free exchange of ideas, and the opportunities to all who wish to express their views on campus at an institution are important values and provide critical contributions to the educational missions of the segments.
(5)A constructive environment of mutual respect is just as important to furthering free speech as it is to furthering the educational missions of the segments.
(6)The values of free speech, the free exchange of ideas, and the opportunities to all who wish to express their views on campus at an institution are impaired by actions that constitute violence, harassment, intimidation, and discrimination in violation of federal or state law, segment rules, or institution codes of conduct.
(7)Violence, harassment, intimidation, and discrimination based on a persons identity, ideas, or viewpoints violate the rights of the victims and impair both the educational missions of the segments and the values of free speech.
(8)Violence, harassment, intimidation, and discrimination may violate federal and state antidiscrimination laws applicable to the segments, including Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 2000d et seq.) and Section 66270 of the Education Code, and frustrate the efforts of the segments to comply with these laws and ensure that the victims have the opportunity to participate fully and equally in their chosen institution experience.
(9)Violence, harassment, intimidation, and discrimination in the sheltered environment of a residential institution impair the educational missions of the segment, undermine the value of antidiscrimination embodied in federal and state civil rights laws, and diminish, in the aggregate, the exercise of free speech by intimidating members of the institutions community who become reluctant to express their views.
(10)In numerous instances, participants in institution activities have done both of the following:
(A)Engaged in violence, harassment, intimidation, and discrimination.
(B)Interfered, through force, threat of force, or intimidation, with rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, or otherwise interfered with the free exchange of ideas or the educational mission of the segment.
(11)The activities described in paragraph (10) have impaired the educational missions of the segments, undermined federal and state antidiscrimination laws, interfered with the exercise of rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, and interfered with the free exchange of ideas by the members of institution communities.
SEC. 2.Section 66270.7 is added to the Education Code, to read:66270.7.(a)As used in this section, the following definitions apply:
(1)Hostile environment means unwelcomed conduct based on a persons actual or perceived race, color, ethnicity, national origin, religion, or disability status, that based on the totality of circumstances, is subjectively and objectively offensive, and is so severe or pervasive that it limits or denies a persons ability to participate in or benefit from an institutions education program or activity.
(2)Institution means a campus of the California Community Colleges, the California State University, or the University of California.(3)Segment means the University of California, the California State University, or the California Community Colleges.(b)The governing board of a community college district, the Trustees of the California State University, University and the Regents of the University of California have the primary responsibility to prevent and address conduct that either creates a hostile environment for students on campus, or results in differential treatment of students on campus based on a students actual or perceived race, color, ethnicity, national origin, religion, or disability status.
(c)The governing board of each community college district and the Trustees of the California State University shall do all of the following:
(1)Adopt rules and procedures in the student codes of conduct to provide all of the following elements:
(A)Prohibit violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus.
(B)Prohibit conduct that limits or denies a persons ability to participate in or benefit from the free exchange of ideas or the educational mission of the segment. California State University.
(C)Establish reasonable content-neutral time, place, and manner restrictions, and, if applicable, any advance permitting requirements for protests on campus.
(2)Adopt rules and procedures to take reasonable steps to respond to each incident described in subparagraphs (A) and (B) of paragraph (1) that creates a hostile environment on campus.
(3)Require each campus to publish on the campuss internet website the time, place, and manner restrictions, and any advance permitting requirements for protests on campus.
(4)Develop mandatory training programs to educate students on all of the following:
(A)What constitutes violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus, and the procedures for investigating violations of the student code of conduct.
(B)When and where protests and gatherings may be held, including the difference between public fora, limited public fora, nonpublic fora, and private property, consistent with the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution.
(C)How to exchange views in an atmosphere of mutual respect and civility.
(5)Require, as a condition of enrollment at an institution, a California State University campus, each student attending the institution campus to acknowledge the institutions campuss student code of conduct.
(d)Each institution, the The Trustees of the California State University, and the governing board of each community college district University and each California State University campus shall ensure that any policy adopted or enforced pursuant to this section, as applicable, is consistent with the First Amendment to the United States Constitution, Section 2 of Article I of the California Constitution, and Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 2000d et seq.).
(e)(1)On or before January 2, 2025, and annually thereafter, the Trustees of the California State University and the governing board of each community college district shall submit a report to the Legislature on the implementation and administration of this section. This report shall include information on student code of conduct violations relating to incidents described in subparagraphs (A) and (B) of paragraph (1) of subdivision (c).
(2)A report submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.
(f)The University of California is requested to comply with this section.
(g)This section is intended to be interpreted consistent with the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution.
(h)The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 3.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.(a)As used in this section, the following definitions apply:
(1)Institution means a campus of the California Community Colleges, the California State University, or the University of California.
(2)Segment means the University of California, the California State University, or the California Community Colleges.
(b)The Legislature finds and declares all of the following:
(1)Free speech, academic freedom, and the free exchange of views among students and faculty are all critical to the educational missions of the segments.
(2)It is also critical to the educational missions of the segments that speech and the exchange of ideas take place in a constructive environment of mutual respect for diversity of backgrounds, ideas, and viewpoints in order to do all of the following:
(A)Maximize the exchange of views.
(B)Achieve the goals of excellence in research, teaching, and learning.
(C)Achieve the goal of developing lifelong citizenship skills.
(3)The educational missions and goals of the segments are severely disrupted by actions that constitute violence, harassment, intimidation, and discrimination in violation of federal or state law, segment rules, or institutions codes of conduct.
(4)The values of free speech, the free exchange of ideas, and the opportunities to all who wish to express their views on campus at an institution are important values and provide critical contributions to the educational missions of the segments.
(5)A constructive environment of mutual respect is just as important to furthering free speech as it is to furthering the educational missions of the segments.
(6)The values of free speech, the free exchange of ideas, and the opportunities to all who wish to express their views on campus at an institution are impaired by actions that constitute violence, harassment, intimidation, and discrimination in violation of federal or state law, segment rules, or institution codes of conduct.
(7)Violence, harassment, intimidation, and discrimination based on a persons identity, ideas, or viewpoints violate the rights of the victims and impair both the educational missions of the segments and the values of free speech.
(8)Violence, harassment, intimidation, and discrimination may violate federal and state antidiscrimination laws applicable to the segments, including Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 2000d et seq.) and Section 66270 of the Education Code, and frustrate the efforts of the segments to comply with these laws and ensure that the victims have the opportunity to participate fully and equally in their chosen institution experience.
(9)Violence, harassment, intimidation, and discrimination in the sheltered environment of a residential institution impair the educational missions of the segment, undermine the value of antidiscrimination embodied in federal and state civil rights laws, and diminish, in the aggregate, the exercise of free speech by intimidating members of the institutions community who become reluctant to express their views.
(10)In numerous instances, participants in institution activities have done both of the following:
(A)Engaged in violence, harassment, intimidation, and discrimination.
(B)Interfered, through force, threat of force, or intimidation, with rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, or otherwise interfered with the free exchange of ideas or the educational mission of the segment.
(11)The activities described in paragraph (10) have impaired the educational missions of the segments, undermined federal and state antidiscrimination laws, interfered with the exercise of rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, and interfered with the free exchange of ideas by the members of institution communities.
SEC. 2.Section 66270.7 is added to the Education Code, to read:66270.7.(a)As used in this section, the following definitions apply:
(1)Hostile environment means unwelcomed conduct based on a persons actual or perceived race, color, ethnicity, national origin, religion, or disability status, that based on the totality of circumstances, is subjectively and objectively offensive, and is so severe or pervasive that it limits or denies a persons ability to participate in or benefit from an institutions education program or activity.
(2)Institution means a campus of the California Community Colleges, the California State University, or the University of California.
(3)Segment means the University of California, the California State University, or the California Community Colleges.
(b)The governing board of a community college district, the Trustees of the California State University, and the Regents of the University of California have the primary responsibility to prevent and address conduct that either creates a hostile environment for students on campus, or results in differential treatment of students on campus based on a students actual or perceived race, color, ethnicity, national origin, religion, or disability status.
(c)The governing board of each community college district and the Trustees of the California State University shall do all of the following:
(1)Adopt rules and procedures in the student codes of conduct to provide all of the following elements:
(A)Prohibit violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus.
(B)Prohibit conduct that limits or denies a persons ability to participate in or benefit from the free exchange of ideas or the educational mission of the segment.
(C)Establish reasonable content-neutral time, place, and manner restrictions, and, if applicable, any advance permitting requirements for protests on campus.
(2)Adopt rules and procedures to take reasonable steps to respond to each incident described in subparagraphs (A) and (B) of paragraph (1) that creates a hostile environment on campus.
(3)Require each campus to publish on the campuss internet website the time, place, and manner restrictions, and any advance permitting requirements for protests on campus.
(4)Develop mandatory training programs to educate students on all of the following:
(A)What constitutes violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus, and the procedures for investigating violations of the student code of conduct.
(B)When and where protests and gatherings may be held, including the difference between public fora, limited public fora, nonpublic fora, and private property, consistent with the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution.
(C)How to exchange views in an atmosphere of mutual respect and civility.
(5)Require, as a condition of enrollment at an institution, each student attending the institution, institution to acknowledge their obligation to comply with the institutions student code of conduct.
(d)Each institution, the Trustees of the California State University, and the governing board of each community college district shall ensure that any policy adopted or enforced pursuant to this section, as applicable, is consistent with the First Amendment to the United States Constitution, Section 2 of Article I of the California Constitution, and Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 2000d et seq.).
(e)(1)On or before January 2, 2025, and annually thereafter, the Trustees of the California State University and the governing board of each community college district shall submit a report to the Legislature on the implementation and administration of this section. This report shall include information on student code of conduct violations relating to incidents described in subparagraphs (A) and (B) of paragraph (1) of subdivision (c).
(2)A report submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.
(f)The University of California is requested to comply with this section.
(g)This section is intended to be interpreted consistent with the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution.
(h)The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 3.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)As used in this section, the following definitions apply:
(1)Calling for genocide means only those acts, verbal or otherwise, that are both intended to, and reasonably understood as, calling for genocide.(2)Genocide means conduct set forth in Article II of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), whether that conduct is committed with the intent to destroy, in whole or in part, protected groups specified in the Genocide Convention or protected groups specified in Section 51 of the Civil Code.(3) Intimidation has the same meaning as intimidate in subdivision (c) of Section 423.1 of the Penal Code.(4)(1)Institution means a campus of the California Community Colleges, the California State University, or the University of California.
(5)(2)Segment means the University of California, the California State University, or the California Community Colleges.
(b)The Legislature finds and declares all of the following:
(1)Free speech, academic freedom, and the free exchange of views among students and faculty are all critical to the educational missions of the segments.
(2)It is also critical to the educational missions of the segments that speech and the exchange of ideas take place in a constructive environment of mutual respect for diversity of backgrounds, ideas, and viewpoints in order to do all of the following:
(A)Maximize the exchange of views.
(B)Achieve the goals of excellence in research, teaching, and learning.
(C)Achieve the goal of developing lifelong citizenship skills.
(3)The educational missions and goals of the segments are severely disrupted by actions that constitute violence, harassment, intimidation, and discrimination in violation of federal or state law, segment rules, or institution institutions codes of conduct.
(4)The values of free speech, the free exchange of ideas, and the opportunities to all who wish to express their views on campus at an institution are important values and provide critical contributions to the educational missions of the segments.
(5)A constructive environment of mutual respect is just as important to furthering free speech as it is to furthering the educational missions of the segments.
(6)The values of free speech, the free exchange of ideas, and the opportunities to all who wish to express their views on campus at an institution are impaired by actions that constitute violence, harassment, intimidation, and discrimination in violation of federal or state law, segment rules, or institution codes of conduct.
(7)Violence, harassment, intimidation, and discrimination based on a persons identity, ideas, or viewpoints violate the rights of the victims and impair both the educational missions of the segments and the values of free speech.
(8)Violence, harassment, intimidation, and discrimination may violate federal and state antidiscrimination laws applicable to the segments, including Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 2000d et seq.) and Section 66270 of the Education Code, and frustrate the efforts of the segments to comply with these laws and ensure that the victims have the opportunity to participate fully and equally in their chosen institution experience.
(9)Violence, harassment, intimidation, and discrimination in the sheltered environment of a residential institution impair the educational missions of the segment, undermine the value of antidiscrimination embodied in federal and state civil rights laws, and diminish, in the aggregate, the exercise of free speech by intimidating members of the institutions community who become reluctant to express their views.
(10)In numerous instances, participants in institution activities have done all both of the following:
(A)Engaged in violence, harassment, intimidation, and discrimination.
(B)Interfered, through force, threat of force, or intimidation, with rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, or otherwise interfered with the free exchange of ideas or the educational mission of the segment.
(C)Called for genocide.(11)The activities described in paragraph (10) have impaired the educational missions of the segments, undermined federal and state antidiscrimination laws, interfered with the exercise of rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, and interfered with the free exchange of ideas by the members of institution communities.
SEC. 2.Section 66270.7 is added to the Education Code, to read:66270.7.(a)As used in this section, the following definitions apply:
(1)Calling for genocide means only those acts, verbal or otherwise, that are both intended to, and reasonably understood as, calling for genocide.(2)Genocide means conduct set forth in Article II of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), whether that conduct is committed with the intent to destroy, in whole or in part, protected groups specified in the Genocide Convention or protected groups specified in Section 51 of the Civil Code.(1)Hostile environment means unwelcomed conduct based on a persons actual or perceived race, color, ethnicity, national origin, religion, or disability status, that based on the totality of circumstances, is subjectively and objectively offensive, and is so severe or pervasive that it limits or denies a persons ability to participate in or benefit from an institutions education program or activity.
(3)(2)Institution means a campus of the California Community Colleges, the California State University, or the University of California.
(4) Intimidation has the same meaning as intimidate in subdivision (c) of Section 423.1 of the Penal Code.(5)(3)Segment means the University of California, the California State University, or the California Community Colleges.
(b)In order to prevent violence, harassment, intimidation, and discrimination that impairs the educational missions of the segments, violates federal and state antidiscrimination laws, interferes with the free exercise of rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, and interferes with the free exchange of ideas by members of institution communities, it is the policy of the segments to prevent and eliminate violence, harassment, intimidation, and discrimination that undermine these objectives.(c)The Trustees of the California State University and the Board of Governors of the California Community Colleges shall do all of the following:(1)Adopt and enforce policies, in institution-based student codes of conduct, that prohibit all of the following:(A)Engaging in violence, harassment, intimidation, and discrimination in violation of state or federal antidiscrimination laws or other relevant laws. (B)Interfering, through force, threat of force, or intimidation, with the rights established under the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution, or otherwise interfering with the free exchange of ideas or the educational mission of the segment.(C)Calling for genocide.(2)Maintain and enforce reasonable time, place, and manner restrictions.(3)Clearly set forth the institutions time, place, and manner restrictions, and any advance permitting requirements adopted by the institution.(4)Clearly set forth the portions of the institution that are public fora, limited public fora, or nonpublic fora, and the meaning of each designation.(b)The governing board of a community college district, the Trustees of the California State University, and the Regents of the University of California have the primary responsibility to prevent and address conduct that either creates a hostile environment for students on campus, or results in differential treatment of students on campus based on a students actual or perceived race, color, ethnicity, national origin, religion, or disability status.
(c)The governing board of each community college district and the Trustees of the California State University shall do all of the following:
(1)Adopt rules and procedures in the student codes of conduct to provide all of the following elements:
(A)Prohibit violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus.
(B)Prohibit conduct that limits or denies a persons ability to participate in or benefit from the free exchange of ideas or the educational mission of the segment.
(C)Establish reasonable time, place, and manner restrictions, and, if applicable, any advance permitting requirements for protests on campus.
(2)Adopt rules and procedures to take reasonable steps to respond to each incident described in subparagraphs (A) and (B) of paragraph (1) that creates a hostile environment on campus.
(3)Require each campus to publish on the campuss internet website the time, place, and manner restrictions, and any advance permitting requirements for protests on campus.
(5)(4)Develop mandatory training programs to educate students on both all of the following:
(A)What constitutes violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus, and the procedures for investigating violations of the student code of conduct.
(A)(B)When and where protests and gatherings may be held, including the difference between public fora, limited public fora, nonpublic fora, and private property, consistent with the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution.
(B)(C)How to exchange views in an atmosphere of mutual respect and civility.
(6)(5)Require, as a condition of enrollment at an institution, each student attending the institution, to acknowledge their obligation to comply with the institutions student code of conduct.
(d)Each institution, the Trustees of the California State University, and the Board of Governors of the California Community Colleges governing board of each community college district shall ensure that any policy adopted or enforced pursuant to this section, as applicable, is consistent with the First Amendment to the United States Constitution, Section 2 of Article I of the California Constitution, and Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 2000d et seq.).
(e)(1)On or before January 2, 2025, and annually thereafter, the Trustees of the California State University and the Board of Governors of the California Community Colleges governing board of each community college district shall submit a report to the Legislature on the implementation and administration of this section. This report shall include information on institution student code of conduct violations relating to incidents described in subparagraphs (A) and (B) of paragraph (1) of subdivision (c).
(2)A report submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.
(f)The University of California is requested to comply with this section.
(g)This section is intended to be interpreted consistent with the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution.
(h)The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 3.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)As used in this section, the following definitions apply:
(1)Calling for genocide means only those acts, verbal or otherwise, that are both intended to, and reasonably understood as, calling for genocide.
(2)Genocide means conduct set forth in Article II of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), whether that conduct is committed with the intent to destroy, in whole or in part, protected groups specified in the Genocide Convention or protected groups specified in Section 51 of the Civil Code.
(3)Intimidation has the same meaning as intimidate in subdivision (c) of Section 423.1 of the Penal Code.
(4)Institution means a campus of the California Community Colleges, the California State University, or the University of California.
(5)Segment means the University of California, the California State University, or the California Community Colleges.
(b)The Legislature finds and declares all of the following:
(1)Free speech, academic freedom, and the free exchange of views among students and faculty are all critical to the educational missions of the segments.
(2)It is also critical to the educational missions of the segments that speech and the exchange of ideas take place in a constructive environment of mutual respect for diversity of backgrounds, ideas, and viewpoints in order to do all of the following:
(A)Maximize the exchange of views.
(B)Achieve the goals of excellence in research, teaching, and learning.
(C)Achieve the goal of developing lifelong citizenship skills.
(3)The educational missions and goals of the segments are severely disrupted by actions that constitute violence, harassment, intimidation, and discrimination in violation of federal or state law, segment rules, or institution codes of conduct.
(4)The values of free speech, the free exchange of ideas, and the opportunities to all who wish to express their views on campus at an institution are important values and provide critical contributions to the educational missions of the segments.
(5)A constructive environment of mutual respect is just as important to furthering free speech as it is to furthering the educational missions of the segments.
(6)The values of free speech, the free exchange of ideas, and the opportunities to all who wish to express their views on campus at an institution are impaired by actions that constitute violence, harassment, intimidation, and discrimination in violation of federal or state law, segment rules, or institution codes of conduct.
(7)Violence, harassment, intimidation, and discrimination based on a persons identity, ideas, or viewpoints violate the rights of the victims and impair both the educational missions of the segments and the values of free speech.
(8)Violence, harassment, intimidation, and discrimination may violate federal and state antidiscrimination laws applicable to the segments, including Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 2000d et seq.) and Section 66270 of the Education Code, and frustrate the efforts of the segments to comply with these laws and ensure that the victims have the opportunity to participate fully and equally in their chosen institution experience.
(9)Violence, harassment, intimidation, and discrimination in the sheltered environment of a residential institution impair the educational missions of the segment, undermine the value of antidiscrimination embodied in federal and state civil rights laws, and diminish, in the aggregate, the exercise of free speech by intimidating members of the institutions community who become reluctant to express their views.
(10)In numerous instances, participants in institution activities have done all of the following:
(A)Engaged in violence, harassment, intimidation, and discrimination.
(B)Interfered, through force, threat of force, or intimidation, with rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, or otherwise interfered with the free exchange of ideas or the educational mission of the segment.
(C)Called for genocide.
(11)The activities described in paragraph (10) have impaired the educational missions of the segments, undermined federal and state antidiscrimination laws, interfered with the exercise of rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, and interfered with the free exchange of ideas by the members of institution communities.
SEC. 2.Section 66270.7 is added to the Education Code, to read:66270.7.(a)As used in this section, the following definitions apply:
(1)Calling for genocide means only those acts, verbal or otherwise, that are both intended to, and reasonably understood as, calling for genocide.
(2)Genocide means conduct set forth in Article II of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), whether that conduct is committed with the intent to destroy, in whole or in part, protected groups specified in the Genocide Convention or protected groups specified in Section 51 of the Civil Code.
(3)Institution means a campus of the California Community Colleges, the California State University, or the University of California.
(4)Intimidation has the same meaning as intimidate in subdivision (c) of Section 423.1 of the Penal Code.
(5)Segment means the University of California, the California State University, or the California Community Colleges.
(b)In order to prevent violence, harassment, intimidation, and discrimination that impairs the educational missions of the segments, violates federal and state antidiscrimination laws, interferes with the free exercise of rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, and interferes with the free exchange of ideas by members of institution communities, it is the policy of the segments to prevent and eliminate violence, harassment, intimidation, and discrimination that undermine these objectives.
(c)The Trustees of the California State University and the Board of Governors of the California Community Colleges shall do all of the following:
(1)Adopt and enforce policies, in institution-based student codes of conduct, that prohibit all of the following:
(A)Engaging in violence, harassment, intimidation, and discrimination in violation of state or federal antidiscrimination laws or other relevant laws.
(B)Interfering, through force, threat of force, or intimidation, with the rights established under the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution, or otherwise interfering with the free exchange of ideas or the educational mission of the segment.
(C)Calling for genocide.
(2)Maintain and enforce reasonable time, place, and manner restrictions.
(3)Clearly set forth the institutions time, place, and manner restrictions, and any advance permitting requirements adopted by the institution.
(4)Clearly set forth the portions of the institution that are public fora, limited public fora, or nonpublic fora, and the meaning of each designation.
(5)Develop mandatory training programs to educate students on both of the following:
(A)When and where protests and gatherings may be held, including the difference between public fora, limited public fora, nonpublic fora, and private property, consistent with the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution.
(B)How to exchange views in an atmosphere of mutual respect and civility.
(6)Require, as a condition of enrollment at an institution, each student attending the institution, to acknowledge their obligation to comply with the institutions student code of conduct.
(d)Each institution, the Trustees of the California State University, and the Board of Governors of the California Community Colleges shall ensure that any policy adopted or enforced pursuant to this section, as applicable, is consistent with the First Amendment to the United States Constitution, Section 2 of Article I of the California Constitution, and Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 2000d et seq.).
(e)(1)On or before January 2, 2025, and annually thereafter, the Trustees of the California State University and the Board of Governors of the California Community Colleges shall submit a report to the Legislature on the implementation and administration of this section. This report shall include information on institution code of conduct violations relating to incidents described in subdivision (c).
(2)A report submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.
(f)The University of California is requested to comply with this section.
(g)This section is intended to be interpreted consistent with the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution.
(h)The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 3.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)As used in this section, the following definitions apply:
(1)Campus means a campus of the University of California, the California State University, or the California Community Colleges.(1)Calling for genocide means only those acts, verbal or otherwise, that are both intended to, and reasonably understood as, calling for genocide.
(2)Genocide means conduct set forth in Article II of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), whether that conduct is committed with the intent to destroy, in whole or in part, protected groups specified in the Genocide Convention or protected groups specified in Section 51 of the Civil Code.
(3)Intimidation has the same meaning as intimidate in subdivision (c) of Section 423.1 of the Penal Code.
(4)Institution means a campus of the California Community Colleges, the California State University, or the University of California.
(2)(5)Segment means the University of California, the California State University, or the California Community Colleges.
(b)The Legislature finds and declares all of the following:
(1)Free speech, academic freedom, and the free exchange of views among students and faculty are all critical to the educational missions of the segments.
(2)It is also critical to the educational missions of the segments that speech and the exchange of ideas take place in a constructive environment of mutual respect for diversity of backgrounds, ideas, and viewpoints in order to do all of the following:
(A)Maximize the exchange of views.
(B)Achieve the goals of excellence in research, teaching, and learning.
(C)Achieve the goal of developing lifelong citizenship skills.
(3)The educational missions and goals of the segments are severely disrupted by actions that constitute violence, harassment, intimidation, and discrimination in violation of federal or state law, segment rules, or campus institution codes of conduct.
(4)The values of free speech, the free exchange of ideas, and the opportunities to all who wish to express their views on campus at an institution are important values and provide critical contributions to the educational missions of the segments.
(5)A constructive environment of mutual respect is just as important to furthering free speech as it is to furthering the educational missions of the segments.
(6)The values of free speech, the free exchange of ideas, and the opportunities to all who wish to express their views on campus at an institution are impaired by actions that constitute violence, harassment, intimidation, and discrimination in violation of federal or state law, segment rules, or campus institution codes of conduct.
(7)Violence, harassment, intimidation, and discrimination based on a persons identity, ideas, or viewpoints violate the rights of the victims and impair both the educational missions of the segments and the values of free speech.
(8)Violence, harassment, intimidation, and discrimination may violate federal and state antidiscrimination laws applicable to the segments, including Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 2000d, 2000d et seq.) and Section 66270 of the Education Code, and frustrate the efforts of the segments to comply with these laws and ensure that the victims have the opportunity to participate fully and equally in their chosen campus institution experience.
(9)Violence, harassment, intimidation, and discrimination in the sheltered environment of a residential campus institution impair the educational missions of the segment, undermine the value of antidiscrimination embodied in federal and state civil rights laws, and diminish, in the aggregate, the exercise of free speech by intimidating members of the campus institutions community who become reluctant to express their views.
(10)In numerous instances, participants in campus institution activities have engaged done all of the following:
(A)Engaged in violence, harassment, intimidation, and discrimination that were intended, and were reasonably understood by the victims or hearers, to do either, or both, of the following: discrimination.
(A)Interfere with(B)Interfered, through force, threat of force, or intimidation, with rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, or otherwise interfere interfered with the free exchange of ideas. ideas or the educational mission of the segment.
(B)Call for or support genocide, as that term is defined by the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), whether that genocide is aimed at protected groups specified in the Genocide Convention, or aimed at protected groups specified in Section 51 of the Civil Code.(C)Called for genocide.
(11)The violence, harassment, intimidation, and discrimination activities described in paragraph (10) have impaired the educational missions of the segments, undermined federal and state antidiscrimination laws, interfered with the exercise of rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, and interfered with the free exchange of ideas by members of campus institution communities.
SEC. 2.Section 66270.7 is added to the Education Code, to read:66270.7.(a)As used in this section, institution the following definitions apply:
(1)Calling for genocide means only those acts, verbal or otherwise, that are both intended to, and reasonably understood as, calling for genocide.
(2)Genocide means conduct set forth in Article II of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), whether that conduct is committed with the intent to destroy, in whole or in part, protected groups specified in the Genocide Convention or protected groups specified in Section 51 of the Civil Code.
(3)Institution means a campus of the California Community Colleges, the California State University, or the University of California.
(4)Intimidation has the same meaning as intimidate in subdivision (c) of Section 423.1 of the Penal Code.
(5)Segment means the University of California, the California State University, or the California Community Colleges.
(b)In order to prevent violence, harassment, intimidation, and discrimination that impairs the educational missions of the public segments of postsecondary education, segments, violates federal and state antidiscrimination laws, and interferes with the free exercise of rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, and interferes with the free exchange of ideas by members of institution communities, it is the policy of the public segments of postsecondary education to segments to prevent and eliminate violence, harassment, intimidation, and discrimination that undermine these objectives.
(c)The Trustees of the California State University and the Board of Governors of the California Community Colleges shall do all of the following:
(1)Adopt and enforce policies, in institution-based student codes of conduct, that prohibit violence, harassment, intimidation, and discrimination that are intended to, and are reasonably understood by the victims or hearers, to do either of the following: all of the following:
(A)Interfere with(A)Engaging in violence, harassment, intimidation, and discrimination in violation of state or federal antidiscrimination laws or other relevant laws.
(B)Interfering, through force, threat of force, or intimidation, with the free exercise of rights established under the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution. Constitution, or otherwise interfering with the free exchange of ideas or the educational mission of the segment.
(B)Call for or support genocide.(C)Calling for genocide.
(2)Maintain and enforce reasonable time, place, and manner restrictions, including advance authorization provisions, for public protests and demonstrations at institutions. restrictions.
(3)Clearly set forth the institutions time, place, and manner restrictions, and any advance permitting requirements adopted by the institution.
(4)Clearly set forth the portions of the institution that are public fora, limited public fora, or nonpublic fora, and the meaning of each designation.
(3)(5)Develop mandatory training programs to educate students on how to exchange views in an atmosphere of mutual respect and civility. both of the following:
(A)When and where protests and gatherings may be held, including the difference between public fora, limited public fora, nonpublic fora, and private property, consistent with the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution.
(B)How to exchange views in an atmosphere of mutual respect and civility.
(4)(6)Require, as a condition of admission and continued matriculation enrollment at an institution, each student attending the institution, and each new applicant in their application for admission to the institution, to acknowledge their obligation to comply with this section and the institutions student code of conduct.
(d)Each institution, the Trustees of the California State University, and the Board of Governors of the California Community Colleges shall ensure that any policy adopted or enforced pursuant to this section, as applicable, is consistent with the First Amendment to the United States Constitution, Section 2 of Article I of the California Constitution, and Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 2000d et seq.).
(d)(e)(1)On or before January 2, 2025, and annually thereafter, the Trustees of the California State University and the Board of Governors of the California Community Colleges shall submit a report to the Legislature on the implementation and administration of this section. This report shall include information on institution code of conduct violations relating to incidents described in subdivision (c).
(2)A report submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.
(e)(f)The University of California is requested to comply with this section.
(g)This section is intended to be interpreted consistent with the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution.
(f)(h)The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 3.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)As used in this section, the following definitions apply:
(1)Campus means a campus of the University of California, the California State University, or the California Community Colleges.
(2)Segment means the University of California, the California State University, or the California Community Colleges.
(b)The Legislature finds and declares all of the following:
(1)Free speech, academic freedom, and the free exchange of views among students and faculty are all critical to the educational missions of the segments.
(2)It is also critical to the educational missions of the segments that speech and the exchange of ideas take place in a constructive environment of mutual respect for diversity of backgrounds, ideas, and viewpoints in order to do all of the following:
(A)Maximize the exchange of views.
(B)Achieve the goals of excellence in research, teaching, and learning.
(C)Achieve the goal of developing lifelong citizenship skills.
(3)The educational missions and goals of the segments are severely disrupted by actions that constitute harassment, intimidation, and discrimination in violation of federal or state law, segment rules, or campus codes of conduct.
(4)The values of free speech, the free exchange of ideas, and the opportunities to all who wish to express their views on campus are important values and provide critical contributions to the educational missions of the segments.
(5)A constructive environment of mutual respect is just as important to furthering free speech as it is to furthering the educational missions of the segments.
(6)The values of free speech, the free exchange of ideas, and the opportunities to all who wish to express their views on campus are impaired by actions that constitute harassment, intimidation, and discrimination in violation of federal or state law, segment rules, or campus codes of conduct.
(7)Violence, harassment, intimidation, and discrimination based on a persons identity, ideas, or viewpoints violate the rights of the victims and impair both the educational missions of the segments and the values of free speech.
(8)Violence, harassment, intimidation, and discrimination violate federal and state antidiscrimination laws applicable to the segments, including Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 2000d, et seq.) and Section 66270 of the Education Code, and frustrate the efforts of the segments to comply with these laws and ensure that the victims have the opportunity to participate fully and equally in their chosen campus experience.
(9)Violence, harassment, intimidation, and discrimination in the sheltered environment of a residential campus impair the educational missions of the segment, undermine the value of antidiscrimination embodied in federal and state civil rights laws, and diminish, in the aggregate, the exercise of free speech by intimidating members of the campus community who become reluctant to express their views.
(10)In numerous instances, participants in campus activities have engaged in violence, harassment, intimidation, and discrimination that were intended, and were reasonably understood by the victims or hearers, to do either, or both, of the following:
(A)Interfere with rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, or otherwise interfere with the free exchange of ideas.
(B)Call for or support genocide, as that term is defined by the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), whether that genocide is aimed at protected groups specified in the Genocide Convention, or aimed at protected groups specified in Section 51 of the Civil Code.
(11)The violence, harassment, intimidation, and discrimination described in paragraph (10) have impaired the educational missions of the segments, undermined federal and state antidiscrimination laws, interfered with the exercise of rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, and interfered with the free exchange of ideas by members of campus communities.
SEC. 2.Section 66270.7 is added to the Education Code, to read:66270.7.(a)As used in this section, institution means a campus of the California Community Colleges, the California State University, or the University of California.
(b)In order to prevent harassment, intimidation, and discrimination that impairs the educational missions of the public segments of postsecondary education, violates federal and state antidiscrimination laws, and interferes with the free exercise of rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, it is the policy of the public segments of postsecondary education to eliminate harassment, intimidation, and discrimination that undermine these objectives.
(c)The Trustees of the California State University and the Board of Governors of the California Community Colleges shall do all of the following:
(1)Adopt and enforce policies, in institution-based student codes of conduct, that prohibit violence, harassment, intimidation, and discrimination that are intended to, and are reasonably understood by the victims or hearers, to do either of the following:
(A)Interfere with the free exercise of rights established under the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.
(B)Call for or support genocide.
(2)Maintain and enforce reasonable time, place, and manner restrictions, including advance authorization provisions, for public protests and demonstrations at institutions.
(3)Develop mandatory training programs to educate students on how to exchange views in an atmosphere of mutual respect and civility.
(4)Require, as a condition of admission and continued matriculation at an institution, each student attending the institution, and each new applicant in their application for admission to the institution, to acknowledge their obligation to comply with this section and the institutions student code of conduct.
(d)(1)On or before January 2, 2025, and annually thereafter, the Trustees of the California State University and the Board of Governors of the California Community Colleges shall submit a report to the Legislature on the implementation and administration of this section.
(2)A report submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.
(e)The University of California is requested to comply with this section.
(f)The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 3.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
SECTION 1.Section 51200 of the Education Code is amended to read:51200.Except as otherwise provided, the provisions contained in this chapter are the requirements for courses of study in grades 1 to 12, inclusive.Except as otherwise provided, the provisions contained in this chapter are the requirements for courses of study in grades 1 through 12. to 12, inclusive.
|
Date
|
Status
|
|---|---|
| Sep 28, 2024 | Chaptered by Secretary of State. Chapter 892, Statutes of 2024. |
| Sep 28, 2024 | Approved by the Governor. |
| Sep 4, 2024 | Enrolled and presented to the Governor at 4 p.m. |
| Aug 28, 2024 | Assembly amendments concurred in. (Ayes 35. Noes 3. Page 5594.) Ordered to engrossing and enrolling. |
| Aug 28, 2024 | In Senate. Concurrence in Assembly amendments pending. |
| Aug 27, 2024 | Read third time. Passed. (Ayes 70. Noes 0. Page 6651.) Ordered to the Senate. |
| Aug 20, 2024 | Read second time. Ordered to third reading. |
| Aug 19, 2024 | Read second time and amended. Ordered to second reading. |
| Aug 15, 2024 | From committee: Do pass as amended. (Ayes 11. Noes 0.) (August 15). |
| Aug 7, 2024 | August 7 set for first hearing. Placed on suspense file. |
| Jul 3, 2024 | Read second time and amended. Re-referred to Com. on APPR. |
| Jul 2, 2024 | From committee: Do pass as amended and re-refer to Com. on APPR. (Ayes 11. Noes 0.) (July 2). |
| Jun 20, 2024 | Read second time and amended. Re-referred to Com. on JUD. |
| Jun 19, 2024 | From committee: Do pass as amended and re-refer to Com. on JUD. (Ayes 7. Noes 1.) (June 18). |
| Jun 3, 2024 | Referred to Coms. on HIGHER ED. and JUD. |
| May 23, 2024 | In Assembly. Read first time. Held at Desk. |
| May 22, 2024 | Read third time. Passed. (Ayes 30. Noes 1. Page 4139.) Ordered to the Assembly. |
| May 20, 2024 | Read second time. Ordered to third reading. |
| May 16, 2024 | Read second time and amended. Ordered to second reading. |
| May 16, 2024 | From committee: Do pass as amended. (Ayes 5. Noes 0. Page 3978.) (May 16). |
| May 14, 2024 | Set for hearing May 16. |
| May 13, 2024 | May 13 hearing: Placed on APPR suspense file. |
| May 3, 2024 | Set for hearing May 13. |
| Apr 29, 2024 | Read second time and amended. Re-referred to Com. on APPR. |
| Apr 25, 2024 | From committee: Do pass as amended and re-refer to Com. on APPR. (Ayes 10. Noes 0. Page 3726.) (April 23). |
| Apr 10, 2024 | From committee: Do pass and re-refer to Com. on JUD. (Ayes 7. Noes 0. Page 3560.) (April 10). Re-referred to Com. on JUD. |
| Apr 9, 2024 | Set for hearing April 23 in JUD. pending receipt. |
| Apr 4, 2024 | Set for hearing April 10. |
| Apr 3, 2024 | Re-referred to Coms. on ED. and JUD. |
| Mar 20, 2024 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on RLS. |
| Feb 29, 2024 | Referred to Com. on RLS. |
| Feb 16, 2024 | From printer. May be acted upon on or after March 17. |
| Feb 15, 2024 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 28, 2024 | Unfinished Business SB1287 Glazer et al. Concurrence | Senate Floor |
Passed |
|
| Aug 27, 2024 | SB 1287 Glazer Senate Third Reading By Gabriel | Assembly Floor |
Passed |
|
| Aug 15, 2024 | Do pass as amended. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jul 2, 2024 | Do pass as amended and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Judiciary |
Passed |
|
| Jun 18, 2024 | Do pass as amended and be re-referred to the Committee on [Judiciary] | Assembly Standing Committee on Higher Education |
Passed |
|
| May 22, 2024 | Senate 3rd Reading SB1287 Glazer et al. | Senate Floor |
Passed |
|
| May 16, 2024 | Do pass as amended | Senate Standing Committee on Appropriations |
Passed |
|
| May 13, 2024 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Apr 23, 2024 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] | Senate Standing Committee on Judiciary |
Passed |
|
| Apr 10, 2024 | Do pass, but first be re-referred to the Committee on [Judiciary] | Senate Standing Committee on Education |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| 30 Years After | ** Support | |
| Aclu California Action | ** Against | |
| AJC San Francisco | ** Support | |
| American Jewish Committee San Diego | ** Support | |
| American Jewish Committee, Los Angeles | ** Support | |
| Anti Defamation League | ** Support | |
| Arab American Caucus of The California Democratic Party | ** Against | |
| Arab American Civic Council | ** Against | |
| Asian Americans and Pacific Islanders for Civic Empowerment | ** Against | |
| Asian Pacific Environmental Network | ** Against | |
| Associated Students of UC Davis | ** Against | |
| Associated Students, University of California, Davis | ** Against | |
| Berkeley Student Cooperative | * Against | Jun 18, 2024 |
| Beyt Tikkun: a Synagogue without Walls | ** Against | |
| California Democratic Party | * Against | Jul 2, 2024 |
| California Faculty Association | * Against | Jul 2, 2024 |
| Center for Community Action & Environmental Justice | ** Against | |
| CFT - Union of Educators and Classified Professionals | * Against Unless Amend | Jul 2, 2024 |
| Church State Council | ** Support | |
| Collective Resilience | ** Against | |
| Communities for a Better Environment | ** Against | |
| Council Of Uc Faculty Associations | ** Against | |
| Council on American Islamic Relations | ** Against | |
| Courage California | ** Against | |
| Crime Survivors for Safety and Justice | * Support | Apr 23, 2024 |
| Democrats for Israel - CA | ** Support | |
| Democrats for Israel Los Angeles | ** Support | |
| ETTA | ** Support | |
| Foundation for Individual Rights and Expression | ** Against | |
| GENup | ** Against | |
| Hadassah | ** Support | |
| Hillel at Davis and Sacramento | ** Support | |
| Hillel At Ucla | ** Support | |
| Hillel of San Diego | ** Support | |
| Hillel of Silicon Valley | ** Support | |
| Holocaust Museum LA | ** Support | |
| Indivisible State Strong | * Against | Jul 2, 2024 |
| Interfaith Communities United for Justice and Peace | ** Against | |
| Interfaith Movement for Human Integrity | ** Against | |
| JCRC Bay Area | ** Support | |
| JCRC of the Sacramento Region | ** Support | |
| Jewish Big Brothers Big Sisters of Los Angeles | ** Support | |
| Jewish Center for Justice | ** Support | |
| Jewish Community Federation and Endowment Fund | ** Support | |
| Jewish Community Relations Council Sacramento Region | ** Support | |
| Jewish Community Relations Council, Santa Barbara | ** Support | |
| Jewish Democratic Club of Marin | ** Support | |
| Jewish Democratic Club of Solano County | ** Support | |
| Jewish Democratic Club of the Bay Area | ** Support | |
| Jewish Democratic Coalition of the Bay Area | ** Support | |
| Jewish Democrats of San Diego County | ** Support | |
| Jewish Family & Community Services East Bay | ** Support | |
| Jewish Family and Children's Services of San Francisco, the Peninsula, Marin and Sonoma Counties | ** Support | |
| Jewish Family and Children’s Service of Long Beach and Orange County | ** Support | |
| Jewish Family Service of Los Angeles | ** Support | |
| Jewish Family Service of San Diego | ** Support | |
| Jewish Family Services of Silicon Valley | ** Support | |
| Jewish Federation of Greater Los Angeles | ** Support | |
| Jewish Federation of Greater Santa Barbara | ** Support | |
| Jewish Federation of The Greater San Gabriel and Pomona Valleys | ** Support | |
| Jewish Federation Of The Sacramento Region | ** Support | |
| Jewish Free Loan Association | ** Support | |
| Jewish Long Beach | ** Support | |
| Jewish Public Affairs Committee | ** Support | |
| Jewish Silicon Valley | ** Support | |
| Jewish Voice for Peace South Bay | * Against | Jul 2, 2024 |
| Jewish War Veterans of the United States of America | ** Support | |
| Jewish Youth for Community Action | ** Against | |
| JFCS Long Beach and Orange County | ** Support | |
| JVP Action Greater Los Angeles | ** Against | |
| JVS SoCal | ** Support | |
| Mosaic Law Congregation | * Support | Apr 23, 2024 |
| msa west | ** Against | |
| North Coast Coalition for Palestine | ** Against | |
| Palestine American League | ** Against | |
| Palestine American League PAC | ** Against | |
| Palestinian American League | ** Against | |
| Progressive Zionists of California | ** Support | |
| Rank and File for a Democratic Union | ** Against | |
| Raoul Wallenberg Jewish Democratic Club | ** Support | |
| Sacramento County Democratic Party | ** Against | Jul 2, 2024 |
| Sacramento Democrats for Justice in Palestine | ** Against | |
| Sacramento Jewish Voice for Peace | * Against | Jul 2, 2024 |
| Sacramento State | * Against | Jul 2, 2024 |
| Sacramento State Student Encampment for Palestine | * Against | Jul 2, 2024 |
| Secure Justice | ** Against | |
| Sonoma Counties | ** Support | |
| Starting Over Strong | ** Against | |
| Students for Quality Education at Sacramento State | ** Against | |
| The Palestinian Youth Movement LA-OC-IE Chapter | ** Against | |
| Titan YDSA, CSUF Chapter | ** Against | |
| UAW Local 4811 | ** Against | |
| UC Berkeley | * Against | Jul 2, 2024 |
| UC Davis | * Against | Jul 2, 2024 |
| UC Davis Law | * Against | Apr 23, 2024 |
| UC-AFT | * Against | Jun 18, 2024 |
| UC-AFT Local 1474 | ** Against | |
| UCLA | * Against | Jul 2, 2024 |
| University of California | * Against | Jul 2, 2024 |
| University Of California Student Association | ** Against | |
| UPTE-CWA | ** Against | |
| UPTE-CWA 9119 | ** Against | |
| US Campaign for Palestinian Rights | ** Against | |
| Wellstone Progressive Democratic Club of Sacramento | ** Against |
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB 1287 |
UNFINISHED BUSINESS
Bill No: SB 1287
Author: Glazer (D), et al.
Amended: 8/19/24
Vote: 21
SENATE EDUCATION COMMITTEE: 7-0, 4/10/24
AYES: Newman, Ochoa Bogh, Cortese, Glazer, Gonzalez, Smallwood-Cuevas, Wilk
SENATE JUDICIARY COMMITTEE: 10-0, 4/23/24
AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Gonzalez, Laird, Min, Niello
NO VOTE RECORDED: Wahab
SENATE APPROPRIATIONS COMMITTEE: 5-0, 5/16/24
AYES: Caballero, Jones, Ashby, Becker, Seyarto
NO VOTE RECORDED: Bradford, Wahab
SENATE FLOOR: 30-1, 5/22/24
AYES: Ashby, Atkins, Becker, Blakespear, Cortese, Dahle, Dodd, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Rubio, Seyarto, Stern, Umberg, Wiener, Wilk
NOES: Wahab
NO VOTE RECORDED: Allen, Alvarado-Gil, Archuleta, Bradford, Caballero, Durazo, Roth, Skinner, Smallwood-Cuevas
ASSEMBLY FLOOR: 70-0, 8/27/24 - See last page for vote
SUBJECT: Public postsecondary education: Equity in Higher Education Act: prohibition on violence, harassment, intimidation, and discrimination
SOURCE: Author
DIGEST:
This bill requires the Trustees of the California State University (CSU) and requests the Regents of the University of California (UC) to (1) adopt rules and procedures in the student codes of conduct that prohibit violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus; (2) adopt rules and procedures in the student codes of conduct that prohibit conduct that limits or denies a person’s ability to participate in or benefit from the free exchange of ideas or the educational mission of the segment; (3) develop mandatory training programs for students; and, (4) require each student to acknowledge the code of conduct.
Assembly Amendments
(1) remove applicability to the California Community Colleges (CCCs), thereby applying the provisions of this bill only to UC and CSU; (2) strike provisions that reference “calling for genocide” in relation to the adoption and enforcement of policies in student codes of conduct; (3) specify that reasonable time, place, and manner restriction are to be content-neutral; (4) reduce the student acknowledgment of the institution’s student code of conduct to remove the acknowledgement of students’ obligation to comply with the code of conduct; (5) expand mandatory training programs for students to include what constitutes violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment, and the procedures for investigating violations of the student code of conduct; and, (6) shift responsibility from the CCC Board of Governors to the governing board of each community college district related to (a) ensuring policies are consistent with the First Amendment and anti-discrimination statutes, and (b) the submission of a report on the implementation and administration of this bill.
ANALYSIS: Existing law establishes the Equity in Higher Education Act, which provides, among other things, that all students have the right to participate fully in the educational process, free from discrimination and harassment, and that California’s postsecondary educational institutions have an affirmative obligation to combat racism, sexism, and other forms of bias, and a responsibility to provide equal educational opportunity. (Education Code § 66250 et seq.)
This bill:
- Requires the CSU Trustees, and the UC Regents to have the primary responsibility to prevent and address conduct that either creates a hostile environment for students on campus, or results in differential treatment of students on campus based on a student’s actual or perceived race, color, ethnicity, national origin, religion, or disability status.
- Requires the CSU Trustees, and requests the UC Regents, to do all of the following:
Codes of conduct and time, place, and manner restrictions
- Adopt rules and procedures in the student codes of conduct to provide all of the following elements:
- Prohibit violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus.
- Prohibit conduct that limits or denies a person’s ability to participate in or benefit from the free exchange of ideas or the educational mission of the CSU/UC.
- Establish reasonable content-neutral time, place, and manner restriction, and if applicable, any advance permitting requirements for protests on campus.
- Prohibit violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus.
- Adopt rules and procedures to take reasonable steps to respond to each incident described in (i) and (ii) above that creates a hostile environment on campus.
- Require each campus to publish on the campus’s website the time, place, and manner restrictions, and any advance permitting requirements for protests on campus.
Training
- Develop mandatory training programs to educate students on all of the following:
- What constitutes violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus, and the procedures for investigating violations of the student code of conduct.
- When and where protests and gatherings may be held, including the difference between public fora, limited public fora, non-public fora, and private property, consistent with the First Amendment and state law.
- How to exchange views in an atmosphere of mutual respect and civility.
- What constitutes violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus, and the procedures for investigating violations of the student code of conduct.
Acknowledgment
- Require, as a condition of enrollment at a CSU/UC campus, each student to acknowledge the campus’s student code of conduct.
General provisions
- Requires/requests the CSU Trustees/UC Regents and each campus to ensure that any policy adopted or enforced pursuant to this bill is consistent with the First Amendment, state law, and Title VI of the federal Civil Rights Act.
- Requires/requests the CSU Trustees/UC Regents, by January 2, 2025, and annually thereafter, to submit a report to the Legislature on the implementation and administration of this bill, and include information on student code of conduct violations relating to incidents described in # 2(a)(i) and (ii).
- Provides that this bill is intended to be interpreted consistent with the First Amendment and state law.
- Provides that the provisions of this bill are severable. If any provision of this bill or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
Comments
- Recent incidents on campuses, an investigation, a lawsuit, and proposed new policies. As cited by the author, there have been numerous incidents on California college and university campuses recently that have resulted in a sense of an unsafe environment and even injury. There are too many to list in this analysis, including several involving faculty; of note is a February 26, 2024, incident where a guest speaker at UC Berkeley was interrupted by hundreds of protesters who shattered the venue’s glass doors and windows, gained entry, and assaulted attendees.
On March 19, 2024, the United States House of Representatives Committee on Education and the Workforce issued a letter to the President of UC, Chancellor of UC Berkeley, and Chair of the Board of Regents notifying them that the Committee is investigating UC Berkeley’s “response to antisemitism and its failure to protect Jewish students.” The letter continues, “We have grave concerns regarding the inadequacy of UC Berkeley’s response to antisemitism on its campus. Several recent incidents have been particularly troubling.” The letter further states, “An environment of pervasive antisemitism has been documented at UC Berkeley dating back to well before the October 7, 2023, terrorist attack.” The letter specifically mentions the February 26, 2024 incident at UC Berkeley cited above, stating “The university’s response to the incident failed to identify the riot as an act of anti-Jewish hate.”
On April 1, 2024, the StandWithUs Center for Legal Justice filed a federal Title VI complaint with the federal Office of Civil Rights, accusing UC Davis of neglecting and ignoring their Jewish students’ complaints of rising campus antisemitism. The complaint asks the Office of Civil Rights to “fully investigate all incidents of antisemitic behavior at UC Davis; require the university to adopt the International Holocaust Remembrance Alliance (IHRA) Working Definition of Antisemitism and be guided by this definition when addressing potential incidents of antisemitic discrimination; and require UC Davis to provide training regarding Jewish identity and antisemitism, including information about the IHRA Working Definition of Antisemitism and its examples, to administrators, faculty, and staff directly involved in processing, investigating, and/or resolving complaints and other reports of antisemitic discrimination or Israeli national origin discrimination.” - Student codes of conduct and free speech. Existing law requires postsecondary educational institutions to adopt anti-discrimination and harassment policies. Existing law further authorizes institutions to adopt rules and regulations that are designed to prevent hate violence from being directed at students in a manner that denies them their full participation in the educational process, if the rules and regulations conform to standards established by the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution for citizens generally.
The UC, CSU, and community college districts, and their respective campuses, have student codes of conduct in place. These codes of conduct also provide for the discipline of students for violating those codes of conduct. This bill requires the CSU, and requests the UC, to adopt rules and procedures in the student codes of conduct that (1) prohibit violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus; (2) prohibit conduct that limits or denies a person’s ability to participate in or benefit from the free exchange of ideas or the educational mission of the segment; and, (3) take reasonable steps to respond to each incident described in (1) and (2) above that creates a hostile environment on campus.
The First Amendment generally protects speech unless it incites imminent lawless action, is considered “fighting words” or true threats, intends to harm the interests of the United States, and other criteria such as blackmail, perjury, and defamation. - Reasonable time, place, and manner restrictions. Freedom of speech on campuses of public postsecondary educational institutions is allowed within the confines of codes of conduct and time, place, and manner restrictions. Institutions cannot discipline a student for engaging in a free speech activity, but can discipline a student if the free speech activity crosses into unlawful behavior, or otherwise violates the institution’s time, place and manner restrictions.
All UC and CSU campuses maintain time, place, and manner restrictions to ensure safety, security, and order. As established by case law, reasonable time, place and manner restrictions are permissible, provided that they are carefully designed to (a) coordinate the appropriate use of a particular location for speech activities, and not to prohibit particular forms of expression; (b) serve a significant government interest and are not more extensive than necessary to serve that interest; and, (c) leave open ample alternative channels for communication of the information.
While postsecondary educational institutions are currently allowed to establish time, place, and manner restrictions – as existing law is silent – this bill requires CSU, and requests UC, to adopt rules and procedures in the student codes of conduct to establish reasonable content-neutral time, place, and manner restriction, and if applicable, any advance permitting requirements for protests on campus (get a permit in advance), and requires/requests each campus to publish on the campus’s website the time, place, and manner restrictions, and any advance permitting requirements for protests on campus.
Case law also permits the requirement that groups get a permit in advance of an event, protest or demonstration when those requirements are content neutral and are a reasonable restriction under all of the circumstances (such as public safety).
The UC and CSU each maintain a handbook, manual, or policies at the system-level that provide guidance to their campuses on free speech issues and policies.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
According to the Assembly Appropriations Committee, this bill would impose the following costs:
- One-time General Fund costs to CSU in the mid-hundreds-of-thousands of dollars to develop the training for students.
- One-time General Fund costs to UC of between $275,000 and $1 million to develop the training for students.
SUPPORT: (Verified 8/26/24)
30 Years After
AJC San Francisco
American Jewish Committee Los Angeles
American Jewish Committee San Diego
Anti Defamation League
Church State Council
Democrats for Israel - CA
Democrats for Israel Los Angeles
ETTA
Hadassah
Hillel at Davis and Sacramento
Hillel at UCLA
Hillel of San Diego
Hillel of Silicon Valley
Holocaust Museum LA
JCRC Bay Area
Jewish Big Brothers Big Sisters of Los Angeles
Jewish Center for Justice
Jewish Community Federation and Endowment Fund
Jewish Community Relations Council Sacramento Region
Jewish Community Relations Council, Santa Barbara
Jewish Democratic Club of Marin
Jewish Democratic Club of Solano County
Jewish Democratic Club of the Bay Area
Jewish Democratic Coalition of the Bay Area
Jewish Democrats of San Diego County
Jewish Family & Community Services East Bay
Jewish Family and Children’s Service of Long Beach and Orange County
Jewish Family and Children’s Services of San Francisco, the Peninsula, Marin and Sonoma Counties
Jewish Family Service of Los Angeles
Jewish Family Service of San Diego
Jewish Family Services of Silicon Valley
Jewish Federation of Greater Los Angeles
Jewish Federation of Greater Santa Barbara
Jewish Federation of the Greater San Gabriel and Pomona Valleys
Jewish Federation of the Sacramento Region
Jewish Free Loan Association
Jewish Long Beach
Jewish Public Affairs Committee
Jewish Silicon Valley
JVS SoCal
Progressive Zionists of California
Raoul Wallenberg Jewish Democratic Club
OPPOSITION: (Verified 8/26/24)
ACLU California Action
Arab American Civic Council
Associated Students, University of California, Davis
Beyt Tikkun: a Synagogue Without Walls
Council on American Islamic Relations
Interfaith Communities United for Justice and Peace
Jewish Youth for Community Action
JVP Action Greater Los Angeles
Palestine American League
Rank and File for A Democratic Union
Secure Justice
Students for Quality Education at Sacramento State
UAW Local 4811
University of California Student Association
ASSEMBLY FLOOR: 76-1, 9/13/23
AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
NOES: Boerner
NO VOTE RECORDED: Calderon, Connolly, Muratsuchi
Prepared by: Lynn Lorber / ED. / (916) 651-4105
8/27/24 19:51:26
SENATE THIRD READING
STR Bill Id:SB 1287
Author:(Glazer)
As Amended Ver:August 19, 2024
Majority vote
SUMMARY
Requires the Trustees of the California State University and requests the Regents of the University of California to: (1) adopt and enforce student code of conduct policies pertaining to specified behavior on campus; (2) maintain and enforce time, place, and manner restrictions; (3) respond to incidents that create a hostile environment on campus; and, (4) develop mandatory training programs for students pertaining to protests and the exchange of ideas on campus.
Major Provisions
- Requires the Trustees of the CSU to do the following:
- Adopt and enforce student code of conducts that do the following:
- Prohibiting violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus;
- Prohibits conduct that limits or denies a person's ability to participate in or benefit from the free exchange of ideas or the educational mission of the segment;
- Establish reasonable content-neutral time, place, and manner restrictions
- Maintain and enforce reasonable time, place, and manner restrictions. If applicable, include any advance requirements for permits for on-campus protests.
- Adopt rules and procedures to take reasonable steps to respond to incidents that create a hostile environment, as defined.
- Develop a mandatory training program for students that explains:
- What constitutes violent, harassing, intimidating, or discriminatory conduct that would create a hostile environment and the procedures in place for investigating violations of the student code of conduct;
- When and where protests and gatherings may be held;
- Which sections of the campus are considered public, limited public, nonpublic, and private property; and,
- How students can exchange views in an atmosphere of mutual respect and civility.
- Require each student attending the institution to acknowledge the student code of conduct.
- Adopt and enforce student code of conducts that do the following:
- Each campus of the CSU will ensure that any policy adopted or enforced as required above is consistent with the first amendment of the United States Constitution and the freedom of speech requirements of the California State Constitution.
- Requires the CSU beginning on January 2, 2025, to submit a report to the Legislature on the implementation and administration of the measure and any student code of conduct violations resulting from the policies established by the measure.
- Requests the UC to comply with the above.
COMMENTS
Student codes of conduct. The Education Code authorizes the governing boards of each community college, the Board of Trustees of the CSU, and the Board of Regents at the UC to establish student codes of conduct or the "specific rules and regulations governing student behavior." Both the CSU and the UC have systemwide student codes of conduct that apply to all campuses within the segment.
The CSU student code of conduct includes a list of conduct that is grounds for student discipline including:
- Unauthorized entry, presence in, use of, or misuse of University property;
- Willful disruption or obstruction of a University-related activity or any on-campus activity;
- Participating in an activity that disrupts the normal operations of the University or infringes on the rights of members of the University community;
- Disorderly, lewd, indecent, or obscene behavior at a University related activity or directed toward a member of the University community;
- Conduct that threatens or endangers the health or safety of any person within or related to the University community, including, physical abuse, threats, intimidation, harassment, or sexual misconduct;
- Unauthorized destruction, or damage to University property or other property in the University community; and,
- Any act chargeable as a violation of a federal, state, or local law that poses a substantial threat to the safety or well-being of members of the University community, to property within the University community or poses a significant threat of disruption or interference with University operations (California Code of Regulations 5 CA ADC 41301).
The UC student code of conduct has similar provisions.
Tools available to postsecondary education institutions to address acts of discrimination. As mentioned in the existing law section of this analysis, the public postsecondary education institutions already have the authority to discipline any student or employee they deem as willfully disrupting the orderly operations of the campus. Cal Poly Humboldt used this provision to place students on an interim suspension during an investigation into the students' alleged willful disruption during the April 2024 protests that lead to occupation of Siemens Hall on campus. On May 24, 2024, CalMatters published an article, "Hundreds arrested and suspended: How California colleges are disciplining faculty and students over protests"; which found that least 567 people had either been disciplined by the university or arrested for their participation in the protests on campuses.
Campuses are utilizing the tools currently available to them to discipline students through student code of conduct violations for their participation in activating that either are:
- Intimidating, violent, harassing, and discriminatory in nature; or,
- Interfering with the operation of the educational mission of the campus (the operations of the campus).
There are range of disciplinary actions an institution may take against a student. Suspension and expulsion are reserved for egregious offenses. Suspensions are removal from the campus for a finite period of time; whereas expulsions are permanent removals not just from the campus, but from the system. A student who is expelled from UC Davis would be barred from admission to all UC campuses. Both disciplinary actions are noted on a student's transcript and therefore, it is possible that another system could bar admissions based on the severity of the disciplinary action.
The U. S. Department of Education Office for Civil Rights (OCR) is endowed with the responsibility of enforcing the protections afforded to students by federal law. Protection provided by Title VI of the Civil Rights Act of 1964 (Title VI); specifically, protections from discrimination based on race, color, or national origin including shared ancestry, or ethnic characteristics, is extended to students on postsecondary education institutions who receive federal funding. Each community college, CSU, and UC campus receives federal funding; and therefore, are legally obligated take prompt and effective steps to end the harassing conduct, to eliminate any hostile environments, and to prevent the harassment from recurring. This measure builds upon the requirements of the Civil Rights Act of 1964 and codifies best practices suggested by the OCR to not only have policies in place to prohibit discriminatory behavior but to have training programs to helps students identify actions that would be considered discriminatory.
According to the Author
According to the author, "across our higher education system the freedom of expression has been impaired with increasing reoccurrences of harassment, intimidation, and violence on campus targeted towards those with differing viewpoints. California's colleges and universities have a responsibility to promote free speech and to prevent harassment and discrimination that violates anti-discrimination laws. Many marginalized communities are suffering from discriminatory attached. SB 1287 is about making sure that California universities are places where everyone can share their thoughts and ideas freely. We want to protect free speech and academic freedom while also preventing any form of harassment or discrimination. The need has been highlighted by incidents of antisemitism that have resulted from the October 7th terrorist attack in Israel. By having the higher education institution's set clear rules and reporting systems, we're making sure that universities can maintain an environment where everyone feels respected and can learn without fear of intimidation, harassment, or violence."
Arguments in Support
The Jewish Public Affairs Committee of California supports the measure as, "the protections in SB 1287 are particularly urgent for our community, which has experienced a 2,000% increase in antisemitic incidents on college campuses in the five months since the Hamas attacks on October 7, 2023, compared to the same period the year prior. But the growing trend of intolerance for differing viewpoints is a threat to everyone in a diverse, pluralistic society. Free speech is a cornerstone of our democracy, and harassment, intimidation, and violence against people with differing viewpoints threaten our shared values. Institutions of higher education must be accountable for preserving students' right to safely engage in activities protected by the United States and California Constitutions."
Arguments in Opposition
The American Civil Liberties Union California Action respectfully opposes the provision of SB 1287 as, "Harassment is not protected speech, as California law defines it as 'unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses that person, and that serves no legitimate purpose.' Cal. Code Civ. Proc. Section 527.6(b). Existing law already requires postsecondary educational institutions to adopt anti-discrimination and harassment policies. Existing law further authorizes institutions to adopt rules and regulations that are designed to prevent hateful violence from being directed at students in a manner that denies them their full participation in the educational process. Campuses already have codes of conduct prohibiting unlawful harassment, violence, and threats. These existing policies ensure safe educational environments without encroaching on vital First Amendment freedoms. Importantly, California's schools and universities are equipped with existing standards and regulations that enable them to address violence and harassment in the educational environment. Therefore, SB 1287 is unnecessary to address harassment claims and only serves to chill the speech of students."
FISCAL COMMENTS
According to the Assembly Committee on Appropriations:
- One-time General Fund costs to UC of between $275,000 and $1 million to develop the training for students.
- One-time General Fund costs to CSU in the mid-hundreds-of-thousands of dollars to develop the training for students.
VOTES
SENATE FLOOR: 30-1-9
YES: Ashby, Atkins, Becker, Blakespear, Cortese, Dahle, Dodd, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Rubio, Seyarto, Stern, Umberg, Wiener, Wilk
NO: Wahab
ABS, ABST OR NV: Allen, Alvarado-Gil, Archuleta, Bradford, Caballero, Durazo, Roth, Skinner, Smallwood-Cuevas
ASM HIGHER EDUCATION: 7-1-3
YES: Mike Fong, Ta, Boerner, Irwin, Jackson, Low, Quirk-Silva
NO: Essayli
ABS, ABST OR NV: Arambula, Chen, Muratsuchi
ASM JUDICIARY: 11-0-1
YES: Kalra, Dixon, Bauer-Kahan, Bryan, Connolly, Haney, Maienschein, McKinnor, Pacheco, Joe Patterson, Reyes
ABS, ABST OR NV: Sanchez
ASM APPROPRIATIONS: 11-0-4
YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua
ABS, ABST OR NV: Sanchez, Dixon, Jim Patterson, Ta
UPDATED
VERSION: August 19, 2024
CONSULTANT: Ellen Cesaretti-Monroy / HIGHER ED. / (916) 319-3960 FN: 0004062
Date of Hearing: August 7, 2024
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Buffy Wicks, Chair
SBPCA Bill Id:SB 1287
Author:(Glazer) – As Amended Ver:July 3, 2024
Policy Committee: | Higher Education | Vote: | 7 - 1 |
Judiciary | 11 - 0 | ||
|
|
Urgency: No State Mandated Local Program: Yes Reimbursable: Yes
SUMMARY:
This bill requires the California State University (CSU) and the California Community Colleges (CCC), and requests the University of California (UC), to adopt student codes of conduct that, among other things, prohibit violence, harassment, intimidation, and discrimination. The bill also requires CSU and CCC, and requests UC, to develop mandatory training programs for students related to these topics, among other requirements.
Specifically, this bill requires CSU and CCC, and requests UC, to:
- Adopt rules and procedures in the student codes of conduct to prohibit violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus, to prohibit conduct that limits or denies a person’s ability to participate in or benefit from the free exchange of ideas or the educational mission of the segment, and to establish reasonable content-neutral time, place, and manner restrictions and any advance permitting requirements for protests on campus.
- Adopt rules and procedures to take reasonable steps to respond to incidents that create a hostile environment on campus.
- Publish on each campuses’ website the time, place, and manner restrictions, and any advance permitting requirements, for protests on campus.
- Develop mandatory training programs to educate students on what constitutes violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus and when and where protests and gatherings may be held, among other related topics.
- Require, as a condition of enrollment at an institution, each student attending the institution to acknowledge the institution’s student code of conduct.
- Submit, by January 2, 2025, and annually thereafter, a report to the Legislature on the implementation and administration of this bill. The report is to include information on student code of conduct violations.
FISCAL EFFECT:
- One-time General Fund costs to UC of between $275,000 and $1 million to develop the training for students. In addition, minor costs to update existing student codes of conduct and comply with other requirements of this bill. UC’s codes of conduct is largely consistent with this bill. UC has nine campuses.
- One-time General Fund costs in the mid-hundreds-of-thousands of dollars to develop the training for students. In addition, minor costs to update existing student codes of conduct and comply with other requirements of this bill. CSU’s codes of conduct are largely consistent with this bill. CSU has 23 campuses.
- One-time Proposition 98 General Fund costs to CCC in the low tens of millions of dollars to update codes of conduct and develop training for students. Ongoing Proposition 98 General Fund costs to in the low millions to collect and report data on code of conduct violations, and comply with other requirements of this bill. CCC has 115 campuses and 73 CCC districts.
If the Commission on State Mandates determines the bill’s requirements to be a reimbursable state mandate, the state would need to reimburse these costs to CCCs.
- One-time and ongoing General Fund costs to the CCC Chancellor’s Office of about $236,000 for various workload activities. Of this, $126,000 would be one-time costs to the office to develop regulations on student code of conduct and free speech policies.
According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.
COMMENTS:
- Purpose. According to the author, this bill was introduced in response to recent incidents of antisemitism at California colleges and universities resulting from the October 7th terrorist attack in Israel and subsequent military conflicts since that time.
- Background. Current law authorizes the governing boards of each CCC, the Board of Trustees of the CSU, and the Board of Regents at the UC to establish student codes of conduct, otherwise described as the “specific rules and regulations governing student behavior.” Both the CSU and the UC have systemwide student codes of conduct, while the CCC has codes of conduct that differ across the state’s 73 CCC districts. Both the UC’s and CSU’s codes of conduct contain provisions similar to the requirements of this bill.
Current law bars the CCC, CSU, and UC from authorizing or enforcing a rule that would discipline students solely on the basis of speech, if the speech would have been protected by the United States Constitution or the California State Constitution were the student off-campus. However, a campus may adopt rules and regulations that prevent conduct that is considered harassment, threatening, or intimidating, unless constitutionally protected. Colleges and universities may also adopt rules and regulations that prevent “hate violence” from being directed at students in a manner that denies students full participation in their education.
This bill requires colleges and universities to adopt certain elements in their student codes of conduct that prohibit violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus and provide related trainings, among other requirements.
- Support and Opposition. This bill is supported by various groups, including Jewish organizations, the Holocaust Museum LA, and the Anti-Defamation League, among others. Supporters cite the need for colleges and universities to better protect students from harassment, intimidation, and violence.
This bill is opposed by various groups, including the University of California Student Association, the American Civil Liberties Union, and Jewish Voice for Peace California, among others. Opponents’ criticism largely centers around their concern that this bill would result in a chilling effect on free speech on campuses.
Analysis Prepared by: Natasha Collins / APPR. / (916) 319-2081
Date of Hearing: July 2, 2024
ASSEMBLY COMMITTEE ON JUDICIARY
Ash Kalra, Chair
SBPCA Bill Id:SB 1287
Author:(Glazer) – As Amended Ver:June 20, 2024
SENATE VOTE: 30-1
SUBJECT: Public postsecondary education: Equity in Higher Education Act: prohibition on violence, harassment, intimidation, and discrimination
KEY ISSUES:
- should the legislature require California State University and the Community college system, and request the University of California, to develop codes of student conduct that prohibit violence, harassment, intimidation, and discrimination?
- Should a college compel students to acknowledge an “obligation to obey” a generally worded code of conduct as a condition of enrollment?
SYNOPSIS
Last year the Presidents of three Ivy League universities testified before a Congressional committee investigating alleged antisemitism on college campuses. After the hearing, the presidents faced heavy criticism (and calls for resignation) for their unwillingness to say definitively that calling for the genocide of Jews would violate their student codes of conduct. As many commentators noted later, as private universities, their codes of conduct could, and likely do, prohibit such statements. The presidents’ lawyerly responses that it depended upon the “context” of the speech might have applied if they led public universities that, as government actors, must comply with the First Amendment. While the First Amendment does not prohibit public universities from imposing reasonable limitations on conduct and speech, it does require them to do so in a way that is content-neutral and narrowly tailored to limit no more speech than is necessary. However, the creative verbal formulations and fuzzy generalities of First Amendment case law rarely offer a definite answer in a specific dispute, which is why both the supporters and opponents of this bill plausibly claim that the First Amendment is on their side. As suggested in the analysis, however, the bill may raise more significant policy questions than constitutional questions.
For all the intense feelings it generates, this bill makes very few, if any, changes to existing law. Most notably, the bill requires the California State University and Community College system, and requests the UC system, to develop codes of student conduct that prohibit violence, harassment, intimidation, discrimination, or any conduct that creates a “hostile environment.” Some of the required elements of these codes invoke First Amendment principles, but these principles already apply. The Committee’s review of CSU codes of conduct suggests that all of them appear to conform to the requirements of this bill. To be sure, the bill adds a new requirement that colleges provide training on how students might engage each other in an atmosphere of mutual respect. Yet many colleges and universities already provide student orientations that stress the importance of diversity and inclusion, values that presumably include treating each other with mutual respect. Finally, the bill requires the CSU and community colleges to submit an annual report to the Legislature on the implementation of this bill.
This author-sponsored bill is a priority of the Legislative Jewish Caucus and supported by dozens of Jewish organizations from across the state. Several community organizations, including progressive Democratic clubs and labor groups, oppose the bill. ACLU California Action and the Foundation for Individual Rights and Expression (FIRE) oppose the bill, unless amended in ways discussed in the analysis. The bill recently passed out of the Assembly Higher Education Committee on a 7-1 vote, with three members not voting. The analysis recommends amendments, but it is not clear at the time of this writing whether the author will accept any or all of them.
SUMMARY: Requires the California State University (CSU) and the California Community Colleges (CCC), and requests the University of California (UC), to adopt student codes of conduct that, among other things, prohibit violence, harassment, intimidation, and discrimination. Specifically, this bill:
- Makes findings and declarations relating to the value of free speech, academic freedom, and the free exchange of views among students and faculty, while at the same time recognizing that actions that constitute violence, harassment, intimidation, and discrimination in violation of law or an institution’s codes of conduct disrupts the educational mission.
- Declares that the governing bodies of CSU, CCC, and UC have the primary responsibility to prevent and address conduct that either creates a hostile environment for students on campus, or results in differential treatment of students on campus based on a student’s actual or perceived race, color, ethnicity, national origin, religion, or disability status.
- Defines “hostile environment,” for purposes of the above, to mean unwelcome conduct based on protected characteristics, and that, based on the totality of circumstances, is subjectively and objectively offensive, and so severe or pervasive that it limits or denies a person’s ability to participate in, or benefit from, an institution’s education program or activity.
- Requires the governing board of each community college district and the Trustees of CSU to do all of the following:
- Adopt rules and procedures in the student codes of conduct that (1) prohibit violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus; (2) prohibit conduct that limits or denies a person’s ability to participate in or benefit from the free exchange of ideas or the educational mission; and (3) establish reasonable time, place, and manner restrictions, and, if applicable, any advance permitting requirements for protests on campus.
- Adopt rules and procedures to take reasonable steps to respond to each incident that creates a hostile environment on campus.
- Require each campus to publish on the campus’s internet website the time, place, and manner restrictions, and any advance permitting requirements for protests on campus.
- Develop mandatory training programs to educate students on the content and implications of the student code of conduct, the proper means and places for student protests, and how to exchange ideas in an atmosphere of mutual respect and civility.
- Require, as a condition of enrollment at an institution, each student attending the institution, to acknowledge their obligation to comply with the institution’s student code of conduct.
- Requires the governing bodies of CSU and each community college district to submit an annual report to the Legislature on the implementation and administration of these provisions, including information on violations of the student code of conduct.
EXISTING LAW:
- Requires public colleges and universities in the state to adopt procedures and designate a person to take disciplinary actions against students, faculty, support staff, or administrators who have been found to have willfully disrupted the orderly operation of the campus. Establishes an adjudication process, as defined, for those who have been accused of willful disruption and permits the disciplinary actions to include dismissal, suspension, or expulsion. (Education Code Section 66017; subsequent citations refer to the Education Code.)
- Prohibits higher education institutions from adopting or enforcing a rule that would discipline students solely based on speech protected by the United States Constitution or the California State Institution in an off-campus setting. Prohibits the institution from dismissing, suspending, disciplining, reassigning, transferring, or retaliating against an employee who protects a student’s right to protest peacefully. (Section 66301.)
- Requires the California State University, and requests the University of California, to designate an individual to serve as a liaison between campus law enforcement and students exercising their First Amendment rights. (Section 66303.)
- Prohibits any institution of higher education that receives state financial assistance from discriminating based on any protected characteristic, as enumerated in state anti-discrimination statutes, including any other characteristic that is contained in the prohibition of hate crimes defined in Section 422.6 subdivision (a) of the Penal Code. (Section 66270.)
- Provides that every person may freely speak, write, and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press. (California Constitution, Article I, Section 2.)
- Prohibits governments from making any law abridging the freedom of speech, press, or assembly. (U.S. Constitution, Amendment I, as applied to the states by the Amendment XIV.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: According to the author, “SB 1287 is about making sure that California’s universities are places where everyone can share their thoughts and ideas freely. We want to protect free speech and academic freedom while also preventing any form of harassment or discrimination.” In citing the need for this bill, the author points to “incidents of antisemitism that have resulted from the October 7th terrorist attack in Israel.” By having our colleges and universities establish “clear rules and reporting systems,” the author contends, “we're making sure that universities can maintain an environment where everyone feels respected and can learn without fear of intimidation, harassment, or violence.”
Background. Although the bill’s language is phrased in general and neutral language, as the author’s statement above makes clear, the bill responds to a very specific development: campus protests in California and elsewhere against Israel’s actions in Gaza. The Israel military actions followed the brutal October 7, 2023 terrorist attacks by Hamas against Jews in Israel. Indeed, an earlier version of this bill would have required student codes of conduct to prohibit “calling for genocide,” although the author removed this language because it would have been a clear content-based restriction that violated the First Amendment. The complex historical, political, and moral aspects of the Israeli-Hamas conflict lay far beyond the scope of this analysis. However, protests on university campuses over the issue quickly prompted public debates about the tenor of student protests, and about how college administrators should respond.
During Congressional hearings in December, the Presidents of three Ivy League universities faced heavy criticism (and calls for resignation) for their unwillingness to state definitively that calling for the genocide of Jews would violate their student codes of conduct. As many commentators noted later, as private universities, their codes of conduct could, and likely do, prohibit such statements. The presidents’ lawyerly responses that it would depend upon the “context” of the speech might have applied if they led public universities that, as government actors, must comply with the First Amendment. This does not mean that public universities have no right to impose reasonable limitations on conduct and speech; but they must do so in a way that is content-neutral and narrowly tailored to limit no more speech than is necessary.
In the months since these hearings, California has witnessed its own disruptive protests at UC and CSU campuses and criticisms of university officials for their response, or lack thereof. Some claimed that the colleges responded too quickly and forcefully; others claimed that they did not respond forcefully enough. For example, at UCLA, some student protesters allegedly prevented Jewish students who refused to disavow Zionism to enter the university library, and university officials did nothing to stop this. At the same campus, counter-protesters violently attacked an encampment of pro-Palestinian protesters while UCLA campus police either failed to intervene or did so belatedly. In sum, there is no lack of evidence of a disheartening lack of mutual respect, regardless of one’s position on the bill.
For a bill that evokes sincere, thoughtful, and impassioned views – as seen in the many letters of support, opposition, and concern – the measure makes very little change to existing law. Most notably, the bill requires the California State University and Community College districts, and requests the University of California (UC), to develop codes of student conduct that prohibit violence, harassment, intimidation, discrimination, or any conduct that creates a “hostile environment” (discussed in more detail below). Some of the required elements of these codes invoke First Amendment principles that supposedly limit restrictions in the code, but those principles will apply no matter what this bill says. Indeed, the Committee’s review of CSU codes of conduct suggests that they already conform to the requirements of this bill. All of them mention that “reasonable time, place, and manner” restrictions apply to student speech and expression on campus.
To be sure, the bill imposes several new requirements on the colleges. First, the colleges must provide training on how students might engage each other in an atmosphere of mutual respect. (Yet many colleges and universities already provide student orientations that stress the importance of diversity and inclusion, values that presumably include treating each other with mutual respect.) Second, the bill requires the colleges to adopt rules and procedures in the student codes of conduct that prohibit violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus. Third, the bill makes acknowledgement of an “obligation to comply” with the student code of conduct a “condition of enrollment. Finally, the bill requires the colleges to submit an annual report to the Legislature on the implementation of this bill, including information on any violations of the code.
Preventing a “hostile environment.” ACLU California Action (ACLU) and the Foundation for Individual Rights (FIRE) oppose this bill unless it is amended, and most of their concerns lie with allegedly “vague” or “ambiguous” language in the bill’s definitions of “hostile environment,” which includes the equally contested phrase, “severe or pervasive.” The bill’s definition reads as follows:
“Hostile environment” means unwelcomed conduct based on a person’s actual or perceived race, color, ethnicity, national origin, religion, or disability status, that based on the totality of circumstances, is subjectively and objectively offensive, and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from an institution’s education program or activity. [Emphasis added.]
Some of the bill’s opponents correctly point out that the First Amendment protects “unwelcomed,” “offensive,” and even hateful and bigoted speech. One might add to this that the point of even peaceful protest, as Martin Luther King Jr, noted in his 1963 “Letter from the Birmingham Jail,” is too create enough “tension” to make people uncomfortable, to prick their conscience and complacency in the face of injustice. In addition, FIRE argues that the “severe or pervasive” language, when coupled with the phrase “a person’s ability to participate in or benefit from an institution’s education program or activity,” would read “broad swaths of protected speech. If, for example, expression that is protected may serve as grounds for disciplinary investigation and punishment because it is ‘pervasive,’ even if not ‘severe,’ then widespread political protest may be actionable.”
While ACLU and FIRE raise valid and thoughtful concerns about this language, the definition does not only say that the conduct cannot be unwelcome, offensive, and severe or pervasive. Rather, it says that the conduct cannot be so severe and pervasive “that it limits or denies a person’s ability to participate in or benefit from an institution’s education program of activity.” Similarly, when the Assembly Higher Education Committee heard this bill, one of the members (who did not vote for the bill) focused on the word “subjectively” in the definition. However, this definition would not permit a college to conclude that the “subjective” experience of some particularly sensitive student or group of students would create a hostile environment. The critical word in the definition is “and.” The conduct must be subjectively AND objectively offensive. The word “and” makes this definition more protective than an objective, or “reasonable person,” standard alone. Because in addition to being objectively offensive to a reasonably person, the targeted person must have actually experienced the conduct as offensive. For example, if a reasonably objective person found conduct directed at me offensive, if I did not subjectively experience it as offensive, then the conduct did not create a hostile environment.
However, FIRE raises another valid objection to this definition, acknowledging that while the severe or pervasive conduct must be so severe or pervasive that it “limits” a person’s ability to participate in and benefit from the educational experience. “Limits,” FIRE suggests, is too vague and could prohibit protected expression. FIRE has a valid point. For example, AB 1504, which is also before this Committee, like the Cyberbullying Protection Act it amends, defines “severe or pervasive” cyberbullying content to include any content that would cause “a reasonable minor to experience substantial interference with the minor’s ability to participate in, or benefit from, the services, activities, or privileges provided by a school.” (See existing law, Business & Professions Code Section 22589 (b).)
The author may wish to consider, therefore, amending the definition of “hostile environment” in this bill to add the word “substantially” before the word “limits.” When the Committee suggested this earlier, the author’s office claimed a definition in a recent federal Office of Civil Rights (OCR) letter did not include the word “substantially.” However, the Committee may wish to consider whether the bill should follow a non-binding OCR letter, or if it should seek consistency with other California statutes that apply to the educational context. The OCR letter may suggest that the definition without the word “substantially” would not violate the First Amendment, but offering more protection than the First Amendment requires does not violate the First Amendment either.
Should an obligation to obey be a “condition of enrollment?” As noted above, the codes of conduct required by this bill will not prohibit any behavior not already prohibited by existing law and, quite possibly, no college will need to change its existing student code. Nevertheless, the Committee still has concerns about the provision in the bill that makes acknowledgement of an “obligation to comply” with the student code of conduct a “condition of enrollment.” (See proposed Section 66270.7 (c)(5).) Making a student profess a duty to obey a very generally, and in places ambiguously, worded code of conduct might compel students to assert something that they do not, in fact, believe.
For example, the student may reasonably believe that what the code deems “a reasonable time, place, or manner restriction,” is an unreasonable, content-based restriction that is not narrowly tailored enough to meet First Amendment requirements. Of course, students will be subject to a code of conduct, even if they disagree, but they should not be compelled to pledge an obligation to obey the code. This does not mean that the student is free to ignore the code of conduct, but that is quite different than requiring a student to pledge fealty to the institution’s view or, if they refuse to do so, face expulsion from the college.
Moreover, a student might reserve a right to engage in civil disobedience, notwithstanding the fact that it violates both the law and the student code of conduct. If a student engages in true civil disobedience – that is, they knowingly break the law to make a point – they should expect to be subject to forced removal, arrest, and perhaps even a night in jail. Indeed, returning to Dr. Martin Luther King, Jr. and the “Letter from the Birmingham Jail,” the last of the four steps of “direct action” requires accepting the legal consequences of one’s actions. However, expulsion from a university is a far higher price to pay than a night in jail.
The Committee, and the author, may wish to consider if requiring students as a condition of enrollment to acknowledge their obligation to comply with a code of conduct with which they may disagree is too high a price to pay for the ability to enroll at one of the colleges. One simple solution would be to strike the provision altogether. Without this language, students would still be subject to the student code of conduct, as they are now. However, the bill would require that colleges compel students to admit an “obligation to comply,” something they might not believe. Short of removing the provision, the language could simply require the student to acknowledge the existence of the code of conduct, instead of acknowledging an “obligation to comply.”
Unlike both the proponents and opponents of this bill, the Committee analysis does not necessarily see mandatory codes of conduct as a First Amendment issue. Proponents argue that the First Amendment clearly permits such codes, and may even require them to the extent that protesters stifle the speech of others. Opponents argue that the vague language proposed for the codes violates the First Amendment. The Committee analysis adopts neither position. Not every issue is a constitutional issue, after all. Even if the “condition of enrollment” provision were constitutional, it does not follow that the Legislature must or should adopt it as a matter of policy. The First Amendment sets a limitation on what the Legislature may enact; it does not command what it shall or should enact.
Suggested Amendments. In light of the points made above, the Committee may wish to explore the following amendments with the author, which the author could consider taking if the bill moves out of this Committee.
- On page 6, line 2, insert substantially before “limits”
- On page 7, line 24, insert and content-neutral” after “reasonable” and before “time”
- On page 8, lines 11-12, delete “their obligation to comply with”
ARGUMENTS IN SUPPORT: The Jewish Public Affairs Committee (JPAC) of California writes in support:
The protections in SB 1287 are particularly urgent for our community, which has experienced a 2,000% increase in antisemitic incidents on college campuses in the five months since the Hamas attacks on October 7, 2023, compared to the same period the year prior.
There is broad consensus that stronger measures must be taken in this regard. As part of its ongoing investigation of unchecked antisemitism at UC Berkeley, the House Committee on Education and the Workforce expressed “grave concerns regarding the inadequacy of UC Berkeley’s response to antisemitism on campus.” In a letter sent to UC Berkeley on March 19, 2024, the Committee lists several troubling incidents including the assault of Jewish students by anti-Israel activists on campus and the exclusion of an Israeli student from a class conference because of her nationality. Similar incidents across the state prompted the California Legislative Jewish Caucus to send a letter on November 7, 2023, to the UC and CSU systems. It explained that “there is a widespread feeling among Jewish students—as well as within the broader Jewish community— that many campus administrators do not understand the severity of the crisis and have been unwilling to take appropriate action to meet this moment.” Administrators are simply not dealing with these incidents on their campuses. As a result, students are being deprived of their right to participate fully and equally in the education process.
SB 1287 offers a tangible solution to address this problem by requiring colleges and universities to update their student codes of conduct to explicitly address violence, harassment, intimidation, and discrimination, and to maintain and enforce time, place, and manner restrictions that encourage a culture of civility and mutual respect. Students must also acknowledge that they will comply with the conduct code. Furthermore, the provision mandating each system of higher education to develop training programs to educate students on how to constructively engage with each other will begin to address the culture of intolerance and hostility on campuses by promoting civil discourse. Educators have an obligation to prepare students for the real world. The ability to peacefully and respectfully disagree with others is foundational to succeeding in a diverse society.
ARGUMENTS IN OPPOSITION: The Arab American Caucus of the California Democratic Party (AAC) opposes this bill because it “targets students on college campuses who exercise their First Amendment right to free speech and assembly.” AAC makes two primary arguments. First, AAC contends that “in its amended form, SB 1287 likely chills students' First Amendment rights to free speech because it mandates that students sign their University's Code of Conduct as a condition to enrollment in the University. Furthermore, this bill would require that new sections be adopted into the Student Code of Conduct including language requiring time, place, and manner restrictions and permitting requirements for protests. Additionally, this bill could trigger costly litigation if students who hold a reasonable belief that their First Amendment rights would be violated by signing the Code of Conduct refuse to sign it and as a result, are denied enrollment.”
Second, AAC argues that existing California law and policies “already offer protections against any unlawful harassment, violence, and threats to students without encroaching on students' vital First Amendment rights. For example, California law authorizes institutions to adopt rules and regulations to prevent hateful violence in a manner that denies full participation in the educational process. All UC and CSU campuses have the ability to maintain time, place, and manner restrictions to ensure safety, security, and order on campus. Furthermore, campuses already have codes of conduct prohibiting unlawful harassment, violence, and threats. Additionally, Title VI already provides near expansive protections for students to be free from threats and discrimination, is backed by many instances of case law, and covers all of the concerns raised by SB 1287.”
ARGUMENTS IN OPPOSITION, UNLESS AMENDED: The Foundation for Individual Rights and Expression (FIRE), supports this bill only if it is amended to remove certain language that FIRE believes is constitutionally vague or ill-defined. For example, FIRE agrees that colleges and universities “have both a legal and a moral duty to effectively respond to all accusations of discriminatory harassment.” However, institutions must accomplish this goal without trampling on the First Amendment rights of students. Institutions can meet this dual mandate effectively if the definition of hostile environment is based on the Supreme Court’s ruling in Davis v. Monroe County Board of Education.” In Davis, the Court “defined student-on-student harassment as targeted, discriminatory conduct which is ‘so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.’” FIRE believes that this standard “ensures that schools address discriminatory conduct without infringing on the First Amendment.”
ACLU California opposes the bill unless amended, for substantially similar reasons as those articulated by FIRE. However, ACLU stresses, in particular, the need to remove the provision requiring a student to acknowledge an obligation to comply with the code of conduct.
REGISTERED SUPPORT / OPPOSITION:
Support
30years After
American Jewish Committee - Los Angeles
American Jewish Committee - San Diego
American Jewish Committee - San Francisco
Anti Defamation League
Democrats for Israel - CA
Democrats for Israel Los Angeles
ETTA
Hadassah
Hillel At UCLA
Hillel of San Diego
Hillel of Silicon Valley
Holocaust Museum LA
Jewish Big Brothers Big Sisters of Los Angeles
Jewish Center for Justice
Jewish Community Federation and Endowment Fund
Jewish Community Relations Council - Bay Area
Jewish Community Relations Council - Sacramento
Jewish Community Relations Council - Santa Barbara
Jewish Democratic Club of Marin
Jewish Democratic Club of Solano County
Jewish Democratic Coalition of The Bay Area
Jewish Democrats of San Diego County
Jewish Family & Community Services East Bay
Jewish Family and Children's Service of Long Beach and Orange County
Jewish Family and Children's Services of San Francisco, the Peninsula, Marin and Sonoma Counties
Jewish Family Service of Los Angeles
Jewish Family Service of San Diego
Jewish Family Services of Silicon Valley
Jewish Federation of Greater Los Angeles, the
Jewish Federation of Greater Santa Barbara
Jewish Federation of the Greater San Gabriel and Pomona Valleys
Jewish Federation of the Sacramento Region
Jewish Free Loan Association
Jewish Long Beach
Jewish Public Affairs Committee
Jewish Silicon Valley
JVS SoCal
Progressive Zionists of California
Raoul Wallenberg Jewish Democratic Club
Opposition
Arab American Caucus of the California Democratic Party
Asian Americans and Pacific Islanders for Civic Empowerment
Asian Pacific Environmental Network (APEN)
Beyt Tikkun: a Synagogue without Walls
California Faculty Association
Center for Community Action & Environmental Justice
Collective Resilience
Communities for a Better Environment
Council of UC Faculty Associations
Council on American Islamic Relations
Courage California
Democratic Party of Sacramento County
Genup (Generation Up)
Graduate Student Association, University of California Davis
Interfaith Communities United for Justice and Peace
Interfaith Movement for Human Integrity
Jewish Voice for Peace California
Jewish Youth for Community Action
MSA West
North Coast Coalition for Palestine
Palestine American League PAC
Sacramento Democrats for Justice in Palestine
Secure Justice
Starting Over Strong
Students for Quality Education (SQE) at CSU Sacramento
UAW Local 4123
UAW Local 4811
UC-AFT Local 1474
University of California Student Association
UPTE-CWA
UPTE-CWA 9119
Wellstone Progressive Democratic Club of Sacramento
Opposition Unless Amended
ACLU California Action
Foundation for Individual Rights and Expression (FIRE)
Analysis Prepared by: Tom Clark / JUD. / (916) 319-2334
Date of Hearing: June 18, 2024
ASSEMBLY COMMITTEE ON HIGHER EDUCATION
Mike Fong, Chair
SBPCA Bill Id:SB 1287
Author:(Glazer) – As Amended Ver:May 16, 2024
[Note: This bill is double referred to the Assembly Judiciary Committee and will be heard by that Committee as it related to issues under its jurisdiction.]
SENATE VOTE: 30-1
SUBJECT: Public postsecondary education: Equity in Higher Education Act: prohibition on violence, harassment, intimidation, and discrimination
SUMMARY: Requires the Trustees of the California State University and the Board of Governors of the California Community Colleges, and requests the Regents of the University of California to: (1) adopt and enforce student code of conduct policies pertaining to specified behavior on campus; (2) maintain and enforce time, place, and manner restrictions; (4) designate the sections of campuses that are considered public and non – public spaces; and, (5) develop mandatory training programs for students pertaining to protests and the exchange of ideas on campus. Specifically, this bill:
- Stipulates it is the policy of the California Community Colleges (CCC), the California State University (CSU), and the University of California (UC) to prevent and eliminate violence, harassment, intimidation, and discrimination that undermine the objectives of the segments to prevent actions that impair the educational mission of the segments, violates federal and state antidiscrimination laws, interferes with the free exercise of freedom of speech, as defined, and interferes with the free exchange of ideas on campus.
- Requires the Trustees of the CSU and the Board of Governors of the CCC to do all of the following:
- Adopt and enforce student code of conducts that prohibit the following:
- Engaging in violence, harassment, intimidation, and discrimination in violation of state or federal antidiscrimination laws, or other relevant laws;
- Interfering through force, threat of force, or intimidation the freedom of speech, as defined, the free exchange of ideas, or the educational mission of the CCC, CSU, or the UC; and,
- Calling for genocide;
- Maintain and enforce reasonable time, place, and manner restrictions;
- Clearly set forth the campus’ time, place, and manner restrictions and any advance permitting required by the campus;
- Clearly set forth the portions of the campus that are considered public, limited public, and nonpublic and the meaning of the designation;
- Develop a mandatory training program for students that includes the following:
- When and where protests and gatherings may be held;
- Which sections of the campus are considered public, limited public, nonpublic, and private property; and,
- How students can exchange views in an atmosphere of mutual respect and civility.
- Adopt and enforce student code of conducts that prohibit the following:
- Each campus of the CSU and CCC will ensure that any policy adopted or enforced as required above will be consistent with the first amendment of the United States Constitution and the freedom of speech requirements of the California State Constitution.
- Requires the CSU and the CCC each year, beginning on January 2, 2025, to submit a report to the Legislature on the implementation and administration of (2) of this analysis. The report will include any student code of conduct violations relating to incidents pursuant to (2) of this analysis.
- Stipulates it is intended that the requirements as listed above are interpreted in a manner that is consistent with the first amendment of the United States Constitution and the freedom of speech requirements of the California State Constitution.
- Clarifies the provisions as listed above are severable and if issued invalid, the subdivision or clause issued invalid will not render every subdivision or clause invalid.
- Requests the UC to comply with the above.
- Defines the following:
- “Calling for genocide” means only those acts, verbal, or otherwise that are both intended to and reasonably understood as, calling for genocide;
- “Genocide” has the same definition as conduct set forth in Article II of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide, whether the conduct is committed with the intent to destroy, in whole, or in part, protected groups specified in the Genocide Convention or protected groups specified in Section 51 of the Civil Code; and,
- “Intimidation” has the same definition as “intimidate” in subdivision (c) of Section 423.1 of the Penal Code.
- Makes various findings and declarations on behalf of the Legislature regarding free speech, academic freedom, and the exchange of ideas on campus and the need to preserve such rights in a manner that ensures student safety.
EXISTING LAW: The Constitution of the United States of America.
- Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of pseech, or of the press, or the right of the people to peaceably to assemble, and to petition the Government for a redress of grievances (Amendment I of the Constitution of the United States of America; Bill of Rights ratified 1791).
Federal law.
- Provides that recipeients of federal funding must comply with themandate that no person on the basis of race, color, or national origin be excluded form the paticipation in, denied the benefit of, or be subjected to discrimination in any federally funded program or activitiy (Title IV of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq.).
The Constitution of the State of California.
- Every person may freely speak, write, and public his or her sentiments on all subject, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press (Section 2 of Article I of the California Constitution).
State law.
- Requires the CCC, CSU, and UC to adopt procedures and designate a person to take disciplinary actions against students, faculty, support staff, or administrators who have been found to have willfully disrupted the orderly operation of the campus. Establishes the adjudication process, as defined, for those who have been accused of willful disruption and permits the disciplinary actions to include dismissal, suspension, or expulsion (Education Code (EDC) Section 66017).
- Prohibits higher education institutions from adopting or enforcing a rule that would discipline students solely on the basis of conducting speech that would be considered protected by the United States Constitution or the California State Institution in an off-campus setting. Prohibits the institution from dismissing, suspending, disciplining, reassigning, transferring, or retaliating against an employee who protects student’s right to peacefully protest (EDC Section 66301).
- Requires the CSU and requests the UC to designate an individual to serve as a liaison between campus law enforcement agencies and students exercising their rights guaranteed under the first amendment to peacefully protest (EDC Section 66303).
- No person participating in any program or activity conducted by any postsecondary education institution, that receives state financial assistance or enrolls students who receive state financial aid, is to be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any characteristic listed or defined in Section 11135 of the Government Code or any other characteristic that is contained in the prohibition of hate crimes defined in Section 422.6 subdivision (a) of the Penal Code, including immigration status (EDC Section 66270).
FISCAL EFFECT: According to the Senate Committee on Appropriations:
- The CSU indicates that the bill could result in unknown, but potentially significant legal liability costs if the bill were not amended to clarify the meaning of “calling for genocide.” Additionally, the mandatory training program would have unknown, upfront costs to be developed and ongoing costs to deliver it each year to students. The CSU indicates that the annual reporting requirement and the time, manner, and place provisions would be minor and absorbable within existing resources (General Fund).
- The University of California estimates one-time General Fund costs ranging from $250,000 to $1 million to develop training to educate students the bill’s provisions regarding when and where protests and gatherings may be held and how to exchange views in an atmosphere of mutual respect civility. The cost to update student codes of conduct are expected to be minor and absorbable.
- The CCC Chancellor’s Office estimates one-time Proposition 98 General Fund costs of $4.6 million for community colleges to update free speech and student codes of conduct policies and ongoing costs of approximately $16.1 million for the colleges to develop mandatory training programs to educate students and add a question to CCC Apply for students to acknowledge their obligation to comply with the institution’s code of conduct. The Chancellor’s Office also estimates ongoing Proposition 98 General Fund costs of up to $8.8 million for colleges to report data on institution code of conduct violations. Further, there would be General Fund administrative costs of about $236,000 to the Chancellor’s Office for various workload activities, including one-time expenses of $126,000 to develop regulations on student code of conduct and free speech policies.
COMMENTS: Need for the measure. According to the author, “across our higher education system the freedom of expression has been impaired with increasing reoccurrences of harassment, intimidation, and violence on campus targeted towards those with differing viewpoints. California’s colleges and universities have a responsibility to promote free speech and to prevent harassment and discrimination that violates anti-discrimination laws. Many marginalized communities are suffering from discriminatory attached. SB 1287 is about making sure that California universities are places where everyone can share their thoughts and ideas freely. We want to protect free speech and academic freedom while also preventing any form of harassment or discrimination. The need has been highlighted by incidents of antisemitism that have resulted from the October 7th terrorist attack in Israel. By having the higher education institution’s set clear rules and reporting systems, we're making sure that universities can maintain an environment where everyone feels respected and can learn without fear of intimidation, harassment, or violence.”
Incidents of intimidation, harassment, and violence on college campuses. Disruption of the peace on campus is not an insular event to the current academic year. Since the beginning of the Civil Rights movement, students have gathered and raised their voices to bring collective awareness to the infringement upon the rights of marginalized communities.
In some cases, student protests on campus have yielded policy changes whose affects were felt for generations. The result of the student protests at San Francisco State University in the late 1960s resulted in the creation of the first College of Ethnic studies. Decades later, this college was instrumental in the mandates for ethnic studies as a CSU degree requirement. Protests on campus following the murder of George Floyd resulted in campuses of the CCC, CSU, and UC changing their policies for how police interact with students on campus.
While an effective tool for change, student protests on campus can become extreme and often, the behavior of students blurs the lines between peaceful demonstrations and potentially, criminal behavior.
On December 2, 1965, students at UC Berkeley occupied an administration building and were subsequently arrested for trespassing.[1] The protests escalated to other colleges and universities. In 1967, then-Governor Ronald Reagan penned a letter to Glenn Dumke, the chancellor of San Francisco State college, and opined:
“How far do we go in tolerating these people & this trash under the excuse of academic freedom & freedom of expression? Please understand, that question isn’t made in any tone of accusation. I mean myself too in that use of the term ‘we.’ Hasn’t the time come to take on those neurotics in our faculty group and lay down some rules of conduct for the students comparable to what we’d expect in our own families? If we do and the ‘we’ this time means you’d have all the backing I could give you, I believe the people of California would take the state college system to their hearts.”[2]
SB 1287 (Glazer) would fulfill the intent of then-Governor Ronald Reagan by mandating student code of conduct on CCC and CSU campuses to contain prohibitions not just on behavior that is violent, harassing, intimidating, or discriminatory; but on “calls for genocide” and any conduct that is considered interfering through force, threat of force, or through intimidation, the freedom of speech on campus, the free exchange of ideas, or the educational mission of the segment.
SB 1287 (Glazer) would effectively constitute a policy that aligns with then-Governor Reagan’s plea to the campus Chancellor, to “lay down some rules of conduct for the students comparable to what we’d expect in our own families” by curtailing the freedom of speech on campus and the freedom to assemble.
The Committee may wish to consider how the student code of conduct to prohibit the “interfering through force, threat of force, or intimidation the educational mission of the segment” will be used in the future by the institutions against student protestors. For example if students were to protest future tuition increases, campuses could interpret this action as intimidating and interfering with the educational mission of the segment.
The provision of SB 1287 (Glazer) changing the student code of conduct is not limited to the actions of student protests as not every incident of violence, intimidation, harassment, and discrimination is the result of a protest. In documentation provided by the author, an incident in 2019 of a white student using a racial slur against black people prompted UC Berkeley prompted to issue a letter of condemnation against instances of discrimination and aggression.
In a letter to the leadership of UC and CSU in November 2023, the California Legislative Jewish Caucus expressed their collective outrage and concern regarding the increased number of antisemitic incidents occurring on campuses since the Israeli-Hamas conflict began on October 7, 2023. The letter included the following details on antisemitic incidents which had been described to various members of the Caucus:
“In recent days, we have heard from Jews across California who have been targeted by hate on our campuses. Among numerous other examples, we have heard from Jewish students at UC Berkeley, UC Davis, and San Jose State who report being physically attacked for expressing support for Israel; Jewish students at UC San Diego who required a police escort in order to safely leave a student meeting; obscene anti-Israel graffiti on a Jewish ritual space at Cal Poly Humboldt; anti-Israel rallies at UCLA that interrupted classes with hate-filled rhetoric; a social media post by a UC Davis faculty member with knife, axe, and blood emojis calling for violence against Zionists in their homes and their ‘kids in school;’ and an increased need for armed security at Jewish student centers on multiple campuses. Shockingly, anti-Israel student groups immediately celebrated the Hamas terrorist attack on October 7th, while the UC Ethnic Studies Faculty Council glorified the largest mass murder, rape, and kidnapping of Jewish civilians since the Holocaust as worthy of support as part of the ‘Palestinian freedom struggle.’”
The National Center for Education Statistics, found that the three most common types of on-campus hate crimes were intimidation, vandalism, and simple assault and the top three categories of bias motivating those hate crimes were race, sexual orientation, and ethnicity.[3]
Committee Staff note that neither the State nor the Federal Government require institutions to report on the number of violent, harassing, intimidating, nor discriminatory incidents on campus.
Unless the incidents rise to criminal behavior, neither the public nor the Legislature are made aware. SB 1287 (Glazer) seeks to rectify this data exclusion by requiring the CCC and the CSU and requesting the UC to provide annual reports on the number of student code violations that resulted from behavior was violent, harassing, intimidating, or discriminatory; “calls for genocide”; and, any conduct that is considered interfering through force, threat of force of intimidation the freedom of speech on campus, the free exchange of ideas, or the educational mission of the segment.
Student codes of conduct. The Education Code authorizes the governing boards of each community college, the Board of Trustees of the CSU, and the Board of Regents at the UC to establish student codes of conduct or the “specific rules and regulations governing student behavior.” Both the CSU and the UC have systemwide student codes of conduct that apply to all campuses within the segment; whereas, the CCC student code of conduct requirements differs across all 73 community college districts.
The CSU student code of conduct includes a list of conduct that is grounds for student discipline including:
- Unauthorized entry, presence in, use of, or misuse of University property;
- Willful disruption or obstruction of a University-related activity or any on-campus activity;
- Participating in an activity that disrupts the normal operations of the University or infringes on the rights of members of the University community;
- Disorderly, lewd, indecent, or obscene behavior at a University related activity or directed toward a member of the University community;
- Conduct that threatens or endangers the health or safety of any person within or related to the University community, including, physical abuse, threats, intimidation, harassment, or sexual misconduct;
- Unauthorized destruction, or damage to University property or other property in the University community; and,
- Any act chargeable as a violation of a federal, state, or local law that poses a substantial threat to the safety or well being of members of the University community, to property within the University community or poses a significant threat of disruption or interference with University operations (California Code of Regulations 5 CA ADC 41301).
The UC student code of conduct has similar provisions. Committee Staff examined the student code of conducts of several CCC districts and each contained similar provisions to the CSU policy.
The Committee may wish to consider if the provisions of this measure are redundant of existing policies and whether the provisions remove the autonomy of the institutions to determine what acts are considered threatening or endangering to the health and safety of the campus community.
Student codes of conduct and free speech. Pursuant to the Education Code of California, the CCC, CSU, and UC are barred from authorizing or enforcing a rule that would discipline students solely on the basis of speech, if the speech is protected by United States Constitution or the California State Constitution when the student is off-campus. However, a higher education institution may adopt rules and regulations that preventing conduct that is considered harassment, threats, or intimidating, unless constitutionally protected. The institutions may also adopt rules and regulations that prevent “hate violence” from being directed at students in a manner that denies students their full participation in the education process.
SB 1287 (Glazer) circumvents the above provision and authorizes CCC and the CSU and potentially the UC to adopt and enforce student codes of conduct that would curb the freedom of speech on campus by prohibiting specific conduct regardless of whether the conduct has interfered with students’ participation in the education process.
Under SB 1287 (Glazer), anyone who disrupts the free exchange of ideas on campus would be considered in violation of the student code of conduct. By this definition, the students who peacefully protested against Ben Shapiro speaking at UC Berkeley in 2017 would be considered in violation of the student code of conduct; and therefore, could be expelled from the higher education institution.[4]
Universities in other states have attempted to adopt policies curbing a student’s rights of freedom of speech enumerated by the first amendment to the United States Constitution. In 1988, the Regents of the University of Michigan adopted a policy that would have disciplined students for “hate speech,” or speech that would have been considered negative speech against marginalized communities. In the case documents provided to the U.S. District Court for Eastern District of Michigan, the University of Michigan intended to use the new student code of conduct to discipline students who, “told jokes about gay men and lesbians or displayed a confederate flag on the door their residence room, or, made a derogatory comments about a specific person or group’s physical appearance, sexual orientation or cultural origins, or religious beliefs.”[5]
In the court case that reviewed the student code of conduct, Doe v. University of Michigan (1989), 721 F. Supp. 852. E.D. Mich., the student code of conduct was deemed unconstitutional on the grounds it violated the students first amendment rights under the United States Constitution. Since the Michigan case, universities in other states have attempted to adopt regulations or enforce policies to curb the speech rights of students; however, federal courts have continually upheld the first amendment to the United States Constitution and ruled the “rules and enforcement” unconstitutional.[6]
The student code of conduct attempted by the University of Michigan in 1989 contains similar clauses to SB 1287 (Glazer); and therefore, the Committee may wish to review whether it is prudent to pass similar languagethat has been considered by a federal court and determined to be unconstitutional.
Tools available to postsecondary education institutions to address acts of discrimination. As mentioned in the existing law section of this analysis, the public postsecondary education institutions already have the authority to discipline any student or employee they deem as willfully disrupting the orderly operations of the campus. Cal Poly Humboldt used this provision to place students on an interim suspension during an investigation into the students’ alleged willful disruption during the April 2024 protests that lead to occupation of Siemens Hall on campus.[7] On May 24, 2024, CalMatters published an article, “Hundreds arrested and suspended: How California colleges are disciplining faculty and students over protests”; which found that least 567 people had either been disciplined by the university or arrested for their participation in the protests on campuses.[8]
Campuses are utilizing the tools currently available to them to discipline students through student code of conduct violations for their participation in activating that either are:
- Intimidating, violent, harassing, and discriminatory in nature; or,
- Interfering with the operation of the educational mission of the campus (the operations of the campus).
The Committee may wish to examine whether SB 1287 (Glazer) is premature. Nothing in the current student codes of conduct prevent campuses from issuing disciplinary sanctions against students whose conduct is considered harassing, intimidating, violent, or discriminatory.
There are range of disciplinary actions an institution may take against a student. Suspension and expulsion are reserved for egregious offenses. Suspensions are removal from the campus for a finite period of time; whereas expulsions are permanent removals not just from the campus, but from the system. A student who is expelled from UC Davis would be barred from admission to all UC campuses. Both disciplinary actions are noted on a student’s transcript and therefore, it is possible that another system could bar admissions based on the severity of the disciplinary action.
Moving forward the author may wish to include a requirement for the institutions to disclose the disciplinary sanction levied against the student to ensure the disciplinary action matches the severity of the student code of conduct violation.
The U. S. Department of Education Office for Civil Rights (OCR) is endowed with the responsibility of enforcing the protections afforded to students by federal law. Protection provided by Title VI of the Civil Rights Act of 1964 (Title VI); specifically, protections from discrimination based on race, color, or national origin including shared ancestry, or ethnic characteristics, is extended to students on postsecondary education institutions who receive federal funding. Each community college, CSU, and UC campus receives federal funding; and therefore, are legally obligated take prompt and effective steps to end the harassing conduct, to eliminate any hostile environments, and to prevent the harassment from recurring.
Based on this information, requiring a prohibition against a “call for genocide” in a student code of conduct seems to align with preventing discrimination based on race, color, or national origin including shared ancestry, or ethnic characteristics. However, based on case law regarding the protection of offensive rhetoric, prohibiting a call for genocide could be seen as violating a student’s first amendments rights afforded to them by the United States Constitution. Specifically, Texas v. Johnson, 491 U. S., 491 397 (1989) stated, “if there is a bedrock principle underlying the First Amendment it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."6
Case law has determined that some educational institutions have the authority to restrict student’s speech in defined circumstances, Bethel School District v. Fraser (1986) 478 U.S. 675. The premises discussed by the case centered on the permissions provided to public primary and secondary schools to punish students for lewd, indecent, or offensive speech, because the behavior was disruptive to the school-sponsored function, and the rights of high school students are not equal to the rights of adults.[9]
This ruling does not apply to postsecondary education institutions as the Supreme Court determined in Healy v. James, 408 U.S. 169 (1972), that, “state colleges and universities are not enclaves immune from the sweep of the First Amendment... the precedents of this Court leave no room for the view that... First Amendment protections should apply with less force on college campuses than in the community at large. The college classroom with its surrounding environs is peculiarly the marketplace of ideas.”6
In the May 7, 2024 the OCR “Dear Colleague” letter to educational institutions (both K-12 and postsecondary) opined as to the legal requirements for institutions to honor the First Amendment to the U.S. Constitution while also providing Title VI protections to students:
“Nothing in Title VI or regulations implementing it requires or authorizes a school to restrict any rights otherwise protected by the First Amendment to the U.S. Constitution. OCR enforces the laws within our jurisdiction consistent with the First Amendment. The fact that harassment may involve conduct that includes speech in a public setting or speech that is also motivated by political or religious beliefs, however, does not relieve a school of its obligation to respond under Title VI as described below, if the harassment creates a hostile environment in school for a student or students. Schools have a number of tools for responding to a hostile environment—including tools that do not restrict any rights protected by the First Amendment. To meet its obligation, a university can, among other steps, communicate its opposition to stereotypical, derogatory opinions; provide counseling and support for students affected by harassment; or take steps to establish a welcoming and respectful school campus, which could include making clear that the school values, and is determined to fully include in the campus community, students of all races, colors, and national origins. OCR does not interpret Title VI to require any recipient to abridge any rights protected under the First Amendment. For instance, if students at a public university engage in offensive speech about members of a particular ethnic group and that speech contributes to a hostile environment within an education program about which the university knows or should know, the university has a legal obligation to address that hostile environment for students in school. The university may, however, be constrained or limited in how it responds if speech is involved.”[10]
The OCR “Dear Colleague” letter leaves little room for doubt as to the duties a postsecondary education must fulfill to address discrimination in order to be in compliance with Title VI:
“As OCR has articulated many times, OCR could find a Title VI violation in its enforcement work if it determines that: (1) a hostile environment based on race, color, or national origin exists; (2) the school had actual or constructive notice of the hostile environment; and (3) the school failed to take prompt and effective steps reasonably calculated to (i) end the harassment, (ii) eliminate any hostile environment and its effects, and (iii) prevent the harassment from recurring.”10
One could argue that the offensiveness of a “call for genocide” is enough to constitute a hostile environment; and therefore, should elicit a response from the postsecondary education institutions. However, OCR would disagree:
“The offensiveness of a particular expression as perceived by some students, standing alone, is not a legally sufficient basis to establish a hostile environment under Title VI. OCR evaluates the conduct from the perspective of the student who is allegedly being harassed and from the perspective of a reasonable person in that student’s position, considering all the circumstances. In order to create a hostile environment, the harassing conduct, which may include speech or expression, must be so severe or pervasive that it limits or denies a student’s ability to participate in or benefit from the school’s program or activity.”10
The Committee may wish to examine realigning the measure to align with the hostile environment definitions as explained by the OCR to protect students’ freedom of speech rights and to protect the institutions from potential OCR violations.
The OCR letter indicates that institutions have a duty to end the harassment and eliminate any hostile environment and its effects. The institutions also have an affirmed responsibility to prevent the harassment from recurring. A narrow interpretation of the letter would be to provide punitive measures to violators. However as indicated by examples in the letter, simply levying disciplinary sanction is not enough to eliminate the effects of the hostile environment. Supportive measures must be provided to the survivors of incidents to educational equity.
Moving forward, the author may wish to examine whether punitive measures against students is the right recourse for discriminatory events on campus; and, to adopt provisions requiring the institutions to provide supportive measures, including, but not limited to mental health resources, to survivors of discriminatory events.
Congress has begun to examine whether the tools available to postsecondary education institutions are sufficient to address acts of discrimination. The House of Representatives Committee on Education and the Workforce considered and passed H.R. 8648 authored by Representative Chavez-DeRemmer on June 13, 2024.[11] If the measure becomes law it would require institutions to report how they investigate Title VI complaints, to designate an employee to coordinate compliance, and adhere to new standards created by the OCR for how to investigate complaints.
Arguments in support. The Jewish Public Affairs Committee of California supports SB 1287 (Glazer) as, “the protections in SB 1287 are particularly urgent for our community, which has experienced a 2,000% increase in antisemitic incidents on college campuses in the five months since the Hamas attacks on October 7, 2023, compared to the same period the year prior. But the growing trend of intolerance for differing viewpoints is a threat to everyone in a diverse, pluralistic society. Free speech is a cornerstone of our democracy, and harassment, intimidation, and violence against people with differing viewpoints threaten our shared values. Institutions of higher education must be accountable for preserving students’ right to safely engage in activities protected by the United States and California Constitutions.”
“There is broad consensus that stronger measures must be taken in this regard. As part of its ongoing investigation of unchecked antisemitism at UC Berkeley, the House Committee on Education and the Workforce expressed ‘grave concerns regarding the inadequacy of UC Berkeley’s response to antisemitism on campus.’ In a letter sent to UC Berkeley on March 19, 2024, the Committee lists several troubling incidents including the assault of Jewish students by anti-Israel activists on campus and the exclusion of an Israeli student from a class conference because of her nationality. Similar incidents across the state prompted the California Legislative Jewish Caucus to send a letter on November 7, 2023, to the UC and CSU systems. It explained that ‘there is a widespread feeling among Jewish students—as well as within the broader Jewish community— that many campus administrators do not understand the severity of the crisis and have been unwilling to take appropriate action to meet this moment.’ Administrators are simply not dealing with these incidents on their campuses. As a result, students are being deprived of their right to participate fully and equally in the education process.”
“SB 1287 offers a tangible solution to address this problem by requiring colleges and universities to update their student codes of conduct to explicitly address violence, harassment, intimidation, and discrimination, and to maintain and enforce time, place, and manner restrictions that encourage a culture of civility and mutual respect. Students must also acknowledge that they will comply with the conduct code.”
“Furthermore, the provision mandating each system of higher education to develop training programs to educate students on how to constructively engage with each other will begin to address the culture of intolerance and hostility on campuses by promoting civil discourse. Educators have an obligation to prepare students for the real world. The ability to peacefully and respectfully disagree with others is foundational to succeeding in a diverse society.”
Arguments in opposition. The American Civil Liberties Union California Action respectfully opposes the provision of SB 1287 as, “this legislation will foreseeably lead colleges and universities to silence a range of protected speech based on viewpoint alone. By demanding that institutions follow SB 1287’s strictures, and threatening penalties when they do not, institutions will inevitably err too far and violate a speaker’s constitutional rights—which will, in turn, subject both the institution and the state to liability for constitutional damages and attorneys’ fees. The state should not expend taxpayer dollars to defend an infirm law. Here, the Senate Judiciary Committee analysis is illustrative: ‘It is also unclear if this prohibition would survive the extremely strict scrutiny applied to content-based and viewpoint-based speech restrictions.’ […] ‘Additionally, because the bill gives the institutions wide discretion on how to adopt the bill’s requirements, there is a risk that a school will interpret this bill as a mandate to impose overbroad restrictions on campus protest activity. If it turns out that institutions are consistently overzealously applying this bill’s requirements, the bill may be susceptible to an as-applied challenge.’”
“Already, California universities are overzealously targeting students, suppressing lawful speech and assembly. Since the Senate Judiciary hearing on April 23, 2024, we have seen tactics at schools and universities using law enforcement and disciplining students which is stifling and restricting speech that is protected by both the U.S. and California Constitutions. The state and schools should not be wasting time and money defending a law that will likely be found in violation of the First Amendment. Importantly, California’s schools and universities are equipped with existing standards and regulations that enable them to address violence and harassment in the educational environment. Therefore, SB 1287 is also unnecessary.”
“Discrimination or harassment directed at individuals because of their race, ethnicity, or religion, is not, of course, permissible. Antisemitic, Islamophobic, anti-Palestinian, or speech targeted at individuals because of their ethnicity or national origin constitutes invidious discrimination, and cannot be tolerated. Universities must not single out particular viewpoints — however offensive they may be to some members of the community — for censorship, discipline, or disproportionate punishment. The speech we censor today will set the stage for what we censor tomorrow. And as Justice Kennedy noted in a concurrence in the case Matal v. Tam, ‘a law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.’”
Committee comments. SB 1287 (Glazer) prompts two policy questions to be considered by the Committee:
- Should hate speech be banned from college campuses and do higher education institutions have an obligation to students to identify and eradicate hate speech?
- Should campuses be permitted to restrict behavior that interfere with the free exchange of ideas or the educational mission of the campus?
The United States, unlike many European countries, has not adopted laws regulating the use of hate speech. Countries, such as Germany, have defined hate speech as, “in a manner liable to disturb the public peace, (a) incites hatred against parts of the population or invites violence or arbitrary acts against them, (b) attaches the human dignity of other by insulting, malicious degrading or defaming parts of the population.”[12]
Exemptions exist for the freedom of speech rights in the first amendment. Courts have permitted the government to censor and punish “obscenity; fighting words; and incitement of imminent lawless acts.9 However, each of these exceptions are narrow and only a handful of cases have been upheld by the courts.
In 1990, the Duke Law Journal published “Regulating Racist Speech on Campus: A Modest Proposal?” which examined if higher education institutions have the ability to restrict hate speech while also preserving the freedom speech rights founded in the first amendment to the U.S. Constitution.[13] The proposal ultimately upheld that a student code of conduct which disciplines students for hate speech would not withstand the scrutiny of the court as “the prevention of hate speech” does not fit neatly into the exceptions to the first amendment to the U.S. Constitution.12
Students are the most vulnerable population on campus and yet; the restrictions of SB 1287 (Glazer) only applies to them. If the goal of SB 1287 (Glazer) is to protect the educational mission of the institution; then the bill should address the behavior of the members of the campus community and not just one set of the population.
The Committee may wish to examine if the behavioral restrictions of SB 1287 (Glazer) should only be applied to the most vulnerable population on campus who lack any additional forms of protections against accusations.
To address the concerns listed throughout this analysis and to remove potential questions regarding the constitutionality of the bill, the Committee has recommended and the author has agreed to the following amendments:
- Section 1 – Removes from uncodified language subdivision (a) paragraphs (1) – (3) specifically the definitions for “calling for genocide”, “genocide,” and “intimidation.”
- Section 1 – Removes from uncodified language subdivision (b) paragraph (10) subparagraph (C), to read:
(10) In numerous instances, participants in institution activities have done all both of the following:
(A) Engaged in violence, harassment, intimidation, and discrimination.
(B) Interfered, through force, threat of force, or intimidation, with rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, or otherwise interfered with the free exchange of ideas or the educational mission of the segment.
(C) Called for genocide.
- Section 66270.7 – Removes from subdivision (a) the following paragraphs (1), (2) and (4) and adds a definition of “hostile environment”. Amends the language to read:
(1) “Calling for genocide” means only those acts, verbal or otherwise, that are both intended to, and reasonably understood as, calling for genocide.
(2) “Genocide” means conduct set forth in Article II of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), whether that conduct is committed with the intent to destroy, in whole or in part, protected groups specified in the Genocide Convention or protected groups specified in Section 51 of the Civil Code.
(1) “Hostile environment” means unwelcomed conduct based on a person’s actual or perceived race, color, ethnicity, national origin, religion, or disability status, that based on the totality of circumstances, is subjectively and objectively offensive, and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from an institution’s education program or activity.
(3)
(2) “Institution” means a campus of the California Community Colleges, the California State University, or the University of California.
(4) “Intimidation” has the same meaning as “intimidate” in subdivision (c) of Section 423.1 of the Penal Code.
- Amends subdivision (b) to read:
(b) In order to prevent violence, harassment, intimidation, and discrimination that impairs the educational missions of the segments, violates federal and state antidiscrimination laws, interferes with the free exercise of rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, and interferes with the free exchange of ideas by members of institution communities, it is the policy of the segments to prevent and eliminate violence, harassment, intimidation, and discrimination that undermine these objectives.
(b) The governing board of a community college district, the Trustees of the California State University, and the Regents of the University of California have the primary responsibility to prevent and address conduct that either creates a hostile environment for students on campus, or results in differential treatment of students on campus based on a student’s actual or perceived race, color, ethnicity, national origin, religion, or disability status.
- Amends subdivision (c) to read”
(c) The governing board of each community college district and the Trustees of the California State University shall do all of the following:
(1) Adopt rules and procedures in the student codes of conduct to provide all of the following elements:
(A) Prohibit violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus.
(B) Prohibit conduct that limits or denies a person’s ability to participate in or benefit from the free exchange of ideas or the educational mission of the segment.
(C) Establish reasonable time, place, and manner restrictions, and, if applicable, any advance permitting requirements for protests on campus.
(2) Adopt rules and procedures to take reasonable steps to respond to each incident described in subparagraphs (A) and (B) of paragraph (1) that creates a hostile environment on campus.
(3) Require each campus to publish on the campus’s internet website the time, place, and manner restrictions, and any advance permitting requirements for protests on campus.
(5)
(4) Develop mandatory training programs to educate students on both all of the following:
(A) What constitutes violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus, and the procedures for investigating violations of the student code of conduct.
(A)
(B) When and where protests and gatherings may be held, including the difference between public fora, limited public fora, nonpublic fora, and private property, consistent with the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution.
(B)
(C) How to exchange views in an atmosphere of mutual respect and civility.
(6)
(5) Require, as a condition of enrollment at an institution, each student attending the institution, to acknowledge their obligation to comply with the institution’s student code of conduct.
- Amends subdivision (d) to read:
(d) Each institution, the Trustees of the California State University, and the Board of Governors of the California Community Colleges governing board of each community college district shall ensure that any policy adopted or enforced pursuant to this section, as applicable, is consistent with the First Amendment to the United States Constitution, Section 2 of Article I of the California Constitution, and Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 2000d et seq.).
- Amends subdivision (e) to read:
(e) (1) On or before January 2, 2025, and annually thereafter, the Trustees of the California State University and the Board of Governors of the California Community Colleges governing board of each community college district shall submit a report to the Legislature on the implementation and administration of this section. This report shall include information on institution student code of conduct violations relating to incidents described in subparagraphs (A) and (B) of paragraph (1) of subdivision (c).
(2) A report submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.
REGISTERED SUPPORT / OPPOSITION:
Support
30years After
AJC San Francisco
American Jewish Committee (AJC) San Diego
American Jewish Committee - Los Angeles
Anti Defamation League
Anti-defamation League (UNREG)
Church State Council
Democrats for Israel - CA
Democrats for Israel Los Angeles
Etta
Hadassah
Hillel At Davis and Sacramento
Hillel At UCLA
Hillel of San Diego
Hillel of Silicon Valley
Holocaust Museum LA
JCRC Bay Area
Jewish Big Brothers Big Sisters of Los Angeles
Jewish Center for Justice
Jewish Community Federation and Endowment Fund
Jewish Community Relations Council (SACRAMENTO)
Jewish Community Relations Council, Santa Barbara
Jewish Democratic Club of Marin
Jewish Democratic Club of Solano County
Jewish Democratic Club of the Bay Area
Jewish Democratic Coalition of The Bay Area
Jewish Democrats of San Diego County
Jewish Family & Community Services East Bay
Jewish Family and Children's Service of Long Beach and Orange County
Jewish Family and Children's Services of San Francisco, the Peninsula, Marin and Sonoma Counties
Jewish Family Service of Los Angeles
Jewish Family Service of San Diego
Jewish Family Services of Silicon Valley
Jewish Federation of Greater Los Angeles, the
Jewish Federation of Greater Santa Barbara
Jewish Federation of The Greater San Gabriel and Pomona Valleys
Jewish Federation of The Sacramento Region
Jewish Free Loan Association
Jewish Long Beach
Jewish Public Affairs Committee
Jewish Silicon Valley
JVS SoCal
Progressive Zionists of California
Raoul Wallenberg Jewish Democratic Club
Oppose
ACLU California Action
Arab American Civic Council
Asian Americans and Pacific Islanders for Civic Empowerment
Associated Students, University of California, Davis
California Faculty Association
Council of UC Faculty Associations
Council on American Islamic Relations
Interfaith Communities United for Justice and Peace
Interfaith Movement for Human Integrity
Jewish Voice for Peace California
Jewish Voice for Peace, Sacramento Chapter
Jewish Youth for Community Action
JVP Action Greater Los Angeles
MSA West
North Coast Coalition for Palestine
Palestine American League
Rank and File for A Democratic Union
Students for Quality Education (SQE) At CSU Sacramento
Students for Quality Education (SQE) At Sacramento State
Students for Quality Education At Sacramento State
Titan YSDA
UAW Local 4123
UAW Local 4811
UC-AFT
UC-AFT Local 1474
University of California Student Association
UPTE-CWA
UPTE-CWA 9119
Analysis Prepared by: Ellen Cesaretti-Monroy / HIGHER ED. / (916) 319-3960
https://billofrightsinstitute.org/essays/protests-at-the-university-of-california-berkeley ↑
https://www.gilderlehrman.org/history-resources/spotlight-primary-source/ronald-reagan-unrest-college-campuses-1967 ↑
https://nces.ed.gov/programs/coe/indicator/a22/postsecondary-hate-crimes ↑
https://www.cnn.com/2017/09/14/us/berkeley-ben-shapiro-speech/index.html ↑
Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) :: Justia ↑
https://www.sacbee.com/news/local/article288236900.html ↑
https://calmatters.org/education/higher-education/2024/05/campus-protest-arrests-suspensions/ ↑
Raskin, Jamie. We the Students: Supreme Court Cases for and about Students. Thousand Oaks, CA. CQ Press, 2015. Print. ↑
Dear Colleague Letter: Protecting Students from Discrimination, such as Harassment, Based on Race, Color, or National Origin, Including Shared Ancestry or Ethnic Characteristics (PDF) ↑
https://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=410671 ↑
https://journals.ala.org/index.php/jifp/article/view/6906/9503 ↑
https://scholarship.law.duke.edu/dlj/vol39/iss3/3 ↑
Date of Hearing: June 18, 2024
ASSEMBLY COMMITTEE ON HIGHER EDUCATION
Mike Fong, Chair
SBPCA Bill Id:SB 1287
Author:(Glazer) – As Amended Ver:May 16, 2024
[Note: This bill is double referred to the Assembly Judiciary Committee and will be heard by that Committee as it related to issues under its jurisdiction.]
SENATE VOTE: 30-1
SUBJECT: Public postsecondary education: Equity in Higher Education Act: prohibition on violence, harassment, intimidation, and discrimination
SUMMARY: Requires the Trustees of the California State University and the Board of Governors of the California Community Colleges, and requests the Regents of the University of California to: (1) adopt and enforce student code of conduct policies pertaining to specified behavior on campus; (2) maintain and enforce time, place, and manner restrictions; (4) designate the sections of campuses that are considered public and non – public spaces; and, (5) develop mandatory training programs for students pertaining to protests and the exchange of ideas on campus. Specifically, this bill:
- Stipulates it is the policy of the California Community Colleges (CCC), the California State University (CSU), and the University of California (UC) to prevent and eliminate violence, harassment, intimidation, and discrimination that undermine the objectives of the segments to prevent actions that impair the educational mission of the segments, violates federal and state antidiscrimination laws, interferes with the free exercise of freedom of speech, as defined, and interferes with the free exchange of ideas on campus.
- Requires the Trustees of the CSU and the Board of Governors of the CCC to do all of the following:
- Adopt and enforce student code of conducts that prohibit the following:
- Engaging in violence, harassment, intimidation, and discrimination in violation of state or federal antidiscrimination laws, or other relevant laws;
- Interfering through force, threat of force, or intimidation the freedom of speech, as defined, the free exchange of ideas, or the educational mission of the CCC, CSU, or the UC; and,
- Calling for genocide;
- Maintain and enforce reasonable time, place, and manner restrictions;
- Clearly set forth the campus’ time, place, and manner restrictions and any advance permitting required by the campus;
- Clearly set forth the portions of the campus that are considered public, limited public, and nonpublic and the meaning of the designation;
- Develop a mandatory training program for students that includes the following:
- When and where protests and gatherings may be held;
- Which sections of the campus are considered public, limited public, nonpublic, and private property; and,
- How students can exchange views in an atmosphere of mutual respect and civility.
- Adopt and enforce student code of conducts that prohibit the following:
- Each campus of the CSU and CCC will ensure that any policy adopted or enforced as required above will be consistent with the first amendment of the United States Constitution and the freedom of speech requirements of the California State Constitution.
- Requires the CSU and the CCC each year, beginning on January 2, 2025, to submit a report to the Legislature on the implementation and administration of (2) of this analysis. The report will include any student code of conduct violations relating to incidents pursuant to (2) of this analysis.
- Stipulates it is intended that the requirements as listed above are interpreted in a manner that is consistent with the first amendment of the United States Constitution and the freedom of speech requirements of the California State Constitution.
- Clarifies the provisions as listed above are severable and if issued invalid, the subdivision or clause issued invalid will not render every subdivision or clause invalid.
- Requests the UC to comply with the above.
- Defines the following:
- “Calling for genocide” means only those acts, verbal, or otherwise that are both intended to and reasonably understood as, calling for genocide;
- “Genocide” has the same definition as conduct set forth in Article II of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide, whether the conduct is committed with the intent to destroy, in whole, or in part, protected groups specified in the Genocide Convention or protected groups specified in Section 51 of the Civil Code; and,
- “Intimidation” has the same definition as “intimidate” in subdivision (c) of Section 423.1 of the Penal Code.
- Makes various findings and declarations on behalf of the Legislature regarding free speech, academic freedom, and the exchange of ideas on campus and the need to preserve such rights in a manner that ensures student safety.
EXISTING LAW: The Constitution of the United States of America.
- Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of pseech, or of the press, or the right of the people to peaceably to assemble, and to petition the Government for a redress of grievances (Amendment I of the Constitution of the United States of America; Bill of Rights ratified 1791).
Federal law.
- Provides that recipeients of federal funding must comply with themandate that no person on the basis of race, color, or national origin be excluded form the paticipation in, denied the benefit of, or be subjected to discrimination in any federally funded program or activitiy (Title IV of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq.).
The Constitution of the State of California.
- Every person may freely speak, write, and public his or her sentiments on all subject, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press (Section 2 of Article I of the California Constitution).
State law.
- Requires the CCC, CSU, and UC to adopt procedures and designate a person to take disciplinary actions against students, faculty, support staff, or administrators who have been found to have willfully disrupted the orderly operation of the campus. Establishes the adjudication process, as defined, for those who have been accused of willful disruption and permits the disciplinary actions to include dismissal, suspension, or expulsion (Education Code (EDC) Section 66017).
- Prohibits higher education institutions from adopting or enforcing a rule that would discipline students solely on the basis of conducting speech that would be considered protected by the United States Constitution or the California State Institution in an off-campus setting. Prohibits the institution from dismissing, suspending, disciplining, reassigning, transferring, or retaliating against an employee who protects student’s right to peacefully protest (EDC Section 66301).
- Requires the CSU and requests the UC to designate an individual to serve as a liaison between campus law enforcement agencies and students exercising their rights guaranteed under the first amendment to peacefully protest (EDC Section 66303).
- No person participating in any program or activity conducted by any postsecondary education institution, that receives state financial assistance or enrolls students who receive state financial aid, is to be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any characteristic listed or defined in Section 11135 of the Government Code or any other characteristic that is contained in the prohibition of hate crimes defined in Section 422.6 subdivision (a) of the Penal Code, including immigration status (EDC Section 66270).
FISCAL EFFECT: According to the Senate Committee on Appropriations:
- The CSU indicates that the bill could result in unknown, but potentially significant legal liability costs if the bill were not amended to clarify the meaning of “calling for genocide.” Additionally, the mandatory training program would have unknown, upfront costs to be developed and ongoing costs to deliver it each year to students. The CSU indicates that the annual reporting requirement and the time, manner, and place provisions would be minor and absorbable within existing resources (General Fund).
- The University of California estimates one-time General Fund costs ranging from $250,000 to $1 million to develop training to educate students the bill’s provisions regarding when and where protests and gatherings may be held and how to exchange views in an atmosphere of mutual respect civility. The cost to update student codes of conduct are expected to be minor and absorbable.
- The CCC Chancellor’s Office estimates one-time Proposition 98 General Fund costs of $4.6 million for community colleges to update free speech and student codes of conduct policies and ongoing costs of approximately $16.1 million for the colleges to develop mandatory training programs to educate students and add a question to CCC Apply for students to acknowledge their obligation to comply with the institution’s code of conduct. The Chancellor’s Office also estimates ongoing Proposition 98 General Fund costs of up to $8.8 million for colleges to report data on institution code of conduct violations. Further, there would be General Fund administrative costs of about $236,000 to the Chancellor’s Office for various workload activities, including one-time expenses of $126,000 to develop regulations on student code of conduct and free speech policies.
COMMENTS: Need for the measure. According to the author, “across our higher education system the freedom of expression has been impaired with increasing reoccurrences of harassment, intimidation, and violence on campus targeted towards those with differing viewpoints. California’s colleges and universities have a responsibility to promote free speech and to prevent harassment and discrimination that violates anti-discrimination laws. Many marginalized communities are suffering from discriminatory attached. SB 1287 is about making sure that California universities are places where everyone can share their thoughts and ideas freely. We want to protect free speech and academic freedom while also preventing any form of harassment or discrimination. The need has been highlighted by incidents of antisemitism that have resulted from the October 7th terrorist attack in Israel. By having the higher education institution’s set clear rules and reporting systems, we're making sure that universities can maintain an environment where everyone feels respected and can learn without fear of intimidation, harassment, or violence.”
Incidents of intimidation, harassment, and violence on college campuses. Disruption of the peace on campus is not an insular event to the current academic year. Since the beginning of the Civil Rights movement, students have gathered and raised their voices to bring collective awareness to the infringement upon the rights of marginalized communities.
In some cases, student protests on campus have yielded policy changes whose affects were felt for generations. The result of the student protests at San Francisco State University in the late 1960s resulted in the creation of the first College of Ethnic studies. Decades later, this college was instrumental in the mandates for ethnic studies as a CSU degree requirement. Protests on campus following the murder of George Floyd resulted in campuses of the CCC, CSU, and UC changing their policies for how police interact with students on campus.
While an effective tool for change, student protests on campus can become extreme and often, the behavior of students blurs the lines between peaceful demonstrations and potentially, criminal behavior.
On December 2, 1965, students at UC Berkeley occupied an administration building and were subsequently arrested for trespassing.[1] The protests escalated to other colleges and universities. In 1967, then-Governor Ronald Reagan penned a letter to Glenn Dumke, the chancellor of San Francisco State college, and opined:
“How far do we go in tolerating these people & this trash under the excuse of academic freedom & freedom of expression? Please understand, that question isn’t made in any tone of accusation. I mean myself too in that use of the term ‘we.’ Hasn’t the time come to take on those neurotics in our faculty group and lay down some rules of conduct for the students comparable to what we’d expect in our own families? If we do and the ‘we’ this time means you’d have all the backing I could give you, I believe the people of California would take the state college system to their hearts.”[2]
SB 1287 (Glazer) would fulfill the intent of then-Governor Ronald Reagan by mandating student code of conduct on CCC and CSU campuses to contain prohibitions not just on behavior that is violent, harassing, intimidating, or discriminatory; but on “calls for genocide” and any conduct that is considered interfering through force, threat of force, or through intimidation, the freedom of speech on campus, the free exchange of ideas, or the educational mission of the segment.
SB 1287 (Glazer) would effectively constitute a policy that aligns with then-Governor Reagan’s plea to the campus Chancellor, to “lay down some rules of conduct for the students comparable to what we’d expect in our own families” by curtailing the freedom of speech on campus and the freedom to assemble.
The Committee may wish to consider how the student code of conduct to prohibit the “interfering through force, threat of force, or intimidation the educational mission of the segment” will be used in the future by the institutions against student protestors. For example if students were to protest future tuition increases, campuses could interpret this action as intimidating and interfering with the educational mission of the segment.
The provision of SB 1287 (Glazer) changing the student code of conduct is not limited to the actions of student protests as not every incident of violence, intimidation, harassment, and discrimination is the result of a protest. In documentation provided by the author, an incident in 2019 of a white student using a racial slur against black people prompted UC Berkeley prompted to issue a letter of condemnation against instances of discrimination and aggression.
In a letter to the leadership of UC and CSU in November 2023, the California Legislative Jewish Caucus expressed their collective outrage and concern regarding the increased number of antisemitic incidents occurring on campuses since the Israeli-Hamas conflict began on October 7, 2023. The letter included the following details on antisemitic incidents which had been described to various members of the Caucus:
“In recent days, we have heard from Jews across California who have been targeted by hate on our campuses. Among numerous other examples, we have heard from Jewish students at UC Berkeley, UC Davis, and San Jose State who report being physically attacked for expressing support for Israel; Jewish students at UC San Diego who required a police escort in order to safely leave a student meeting; obscene anti-Israel graffiti on a Jewish ritual space at Cal Poly Humboldt; anti-Israel rallies at UCLA that interrupted classes with hate-filled rhetoric; a social media post by a UC Davis faculty member with knife, axe, and blood emojis calling for violence against Zionists in their homes and their ‘kids in school;’ and an increased need for armed security at Jewish student centers on multiple campuses. Shockingly, anti-Israel student groups immediately celebrated the Hamas terrorist attack on October 7th, while the UC Ethnic Studies Faculty Council glorified the largest mass murder, rape, and kidnapping of Jewish civilians since the Holocaust as worthy of support as part of the ‘Palestinian freedom struggle.’”
The National Center for Education Statistics, found that the three most common types of on-campus hate crimes were intimidation, vandalism, and simple assault and the top three categories of bias motivating those hate crimes were race, sexual orientation, and ethnicity.[3]
Committee Staff note that neither the State nor the Federal Government require institutions to report on the number of violent, harassing, intimidating, nor discriminatory incidents on campus.
Unless the incidents rise to criminal behavior, neither the public nor the Legislature are made aware. SB 1287 (Glazer) seeks to rectify this data exclusion by requiring the CCC and the CSU and requesting the UC to provide annual reports on the number of student code violations that resulted from behavior was violent, harassing, intimidating, or discriminatory; “calls for genocide”; and, any conduct that is considered interfering through force, threat of force of intimidation the freedom of speech on campus, the free exchange of ideas, or the educational mission of the segment.
Student codes of conduct. The Education Code authorizes the governing boards of each community college, the Board of Trustees of the CSU, and the Board of Regents at the UC to establish student codes of conduct or the “specific rules and regulations governing student behavior.” Both the CSU and the UC have systemwide student codes of conduct that apply to all campuses within the segment; whereas, the CCC student code of conduct requirements differs across all 73 community college districts.
The CSU student code of conduct includes a list of conduct that is grounds for student discipline including:
- Unauthorized entry, presence in, use of, or misuse of University property;
- Willful disruption or obstruction of a University-related activity or any on-campus activity;
- Participating in an activity that disrupts the normal operations of the University or infringes on the rights of members of the University community;
- Disorderly, lewd, indecent, or obscene behavior at a University related activity or directed toward a member of the University community;
- Conduct that threatens or endangers the health or safety of any person within or related to the University community, including, physical abuse, threats, intimidation, harassment, or sexual misconduct;
- Unauthorized destruction, or damage to University property or other property in the University community; and,
- Any act chargeable as a violation of a federal, state, or local law that poses a substantial threat to the safety or well being of members of the University community, to property within the University community or poses a significant threat of disruption or interference with University operations (California Code of Regulations 5 CA ADC 41301).
The UC student code of conduct has similar provisions. Committee Staff examined the student code of conducts of several CCC districts and each contained similar provisions to the CSU policy.
The Committee may wish to consider if the provisions of this measure are redundant of existing policies and whether the provisions remove the autonomy of the institutions to determine what acts are considered threatening or endangering to the health and safety of the campus community.
Student codes of conduct and free speech. Pursuant to the Education Code of California, the CCC, CSU, and UC are barred from authorizing or enforcing a rule that would discipline students solely on the basis of speech, if the speech is protected by United States Constitution or the California State Constitution when the student is off-campus. However, a higher education institution may adopt rules and regulations that preventing conduct that is considered harassment, threats, or intimidating, unless constitutionally protected. The institutions may also adopt rules and regulations that prevent “hate violence” from being directed at students in a manner that denies students their full participation in the education process.
SB 1287 (Glazer) circumvents the above provision and authorizes CCC and the CSU and potentially the UC to adopt and enforce student codes of conduct that would curb the freedom of speech on campus by prohibiting specific conduct regardless of whether the conduct has interfered with students’ participation in the education process.
Under SB 1287 (Glazer), anyone who disrupts the free exchange of ideas on campus would be considered in violation of the student code of conduct. By this definition, the students who peacefully protested against Ben Shapiro speaking at UC Berkeley in 2017 would be considered in violation of the student code of conduct; and therefore, could be expelled from the higher education institution.[4]
Universities in other states have attempted to adopt policies curbing a student’s rights of freedom of speech enumerated by the first amendment to the United States Constitution. In 1988, the Regents of the University of Michigan adopted a policy that would have disciplined students for “hate speech,” or speech that would have been considered negative speech against marginalized communities. In the case documents provided to the U.S. District Court for Eastern District of Michigan, the University of Michigan intended to use the new student code of conduct to discipline students who, “told jokes about gay men and lesbians or displayed a confederate flag on the door their residence room, or, made a derogatory comments about a specific person or group’s physical appearance, sexual orientation or cultural origins, or religious beliefs.”[5]
In the court case that reviewed the student code of conduct, Doe v. University of Michigan (1989), 721 F. Supp. 852. E.D. Mich., the student code of conduct was deemed unconstitutional on the grounds it violated the students first amendment rights under the United States Constitution. Since the Michigan case, universities in other states have attempted to adopt regulations or enforce policies to curb the speech rights of students; however, federal courts have continually upheld the first amendment to the United States Constitution and ruled the “rules and enforcement” unconstitutional.[6]
The student code of conduct attempted by the University of Michigan in 1989 contains similar clauses to SB 1287 (Glazer); and therefore, the Committee may wish to review whether it is prudent to pass similar languagethat has been considered by a federal court and determined to be unconstitutional.
Tools available to postsecondary education institutions to address acts of discrimination. As mentioned in the existing law section of this analysis, the public postsecondary education institutions already have the authority to discipline any student or employee they deem as willfully disrupting the orderly operations of the campus. Cal Poly Humboldt used this provision to place students on an interim suspension during an investigation into the students’ alleged willful disruption during the April 2024 protests that lead to occupation of Siemens Hall on campus.[7] On May 24, 2024, CalMatters published an article, “Hundreds arrested and suspended: How California colleges are disciplining faculty and students over protests”; which found that least 567 people had either been disciplined by the university or arrested for their participation in the protests on campuses.[8]
Campuses are utilizing the tools currently available to them to discipline students through student code of conduct violations for their participation in activating that either are:
- Intimidating, violent, harassing, and discriminatory in nature; or,
- Interfering with the operation of the educational mission of the campus (the operations of the campus).
The Committee may wish to examine whether SB 1287 (Glazer) is premature. Nothing in the current student codes of conduct prevent campuses from issuing disciplinary sanctions against students whose conduct is considered harassing, intimidating, violent, or discriminatory.
There are range of disciplinary actions an institution may take against a student. Suspension and expulsion are reserved for egregious offenses. Suspensions are removal from the campus for a finite period of time; whereas expulsions are permanent removals not just from the campus, but from the system. A student who is expelled from UC Davis would be barred from admission to all UC campuses. Both disciplinary actions are noted on a student’s transcript and therefore, it is possible that another system could bar admissions based on the severity of the disciplinary action.
Moving forward the author may wish to include a requirement for the institutions to disclose the disciplinary sanction levied against the student to ensure the disciplinary action matches the severity of the student code of conduct violation.
The U. S. Department of Education Office for Civil Rights (OCR) is endowed with the responsibility of enforcing the protections afforded to students by federal law. Protection provided by Title VI of the Civil Rights Act of 1964 (Title VI); specifically, protections from discrimination based on race, color, or national origin including shared ancestry, or ethnic characteristics, is extended to students on postsecondary education institutions who receive federal funding. Each community college, CSU, and UC campus receives federal funding; and therefore, are legally obligated take prompt and effective steps to end the harassing conduct, to eliminate any hostile environments, and to prevent the harassment from recurring.
Based on this information, requiring a prohibition against a “call for genocide” in a student code of conduct seems to align with preventing discrimination based on race, color, or national origin including shared ancestry, or ethnic characteristics. However, based on case law regarding the protection of offensive rhetoric, prohibiting a call for genocide could be seen as violating a student’s first amendments rights afforded to them by the United States Constitution. Specifically, Texas v. Johnson, 491 U. S., 491 397 (1989) stated, “if there is a bedrock principle underlying the First Amendment it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."6
Case law has determined that some educational institutions have the authority to restrict student’s speech in defined circumstances, Bethel School District v. Fraser (1986) 478 U.S. 675. The premises discussed by the case centered on the permissions provided to public primary and secondary schools to punish students for lewd, indecent, or offensive speech, because the behavior was disruptive to the school-sponsored function, and the rights of high school students are not equal to the rights of adults.[9]
This ruling does not apply to postsecondary education institutions as the Supreme Court determined in Healy v. James, 408 U.S. 169 (1972), that, “state colleges and universities are not enclaves immune from the sweep of the First Amendment... the precedents of this Court leave no room for the view that... First Amendment protections should apply with less force on college campuses than in the community at large. The college classroom with its surrounding environs is peculiarly the marketplace of ideas.”6
In the May 7, 2024 the OCR “Dear Colleague” letter to educational institutions (both K-12 and postsecondary) opined as to the legal requirements for institutions to honor the First Amendment to the U.S. Constitution while also providing Title VI protections to students:
“Nothing in Title VI or regulations implementing it requires or authorizes a school to restrict any rights otherwise protected by the First Amendment to the U.S. Constitution. OCR enforces the laws within our jurisdiction consistent with the First Amendment. The fact that harassment may involve conduct that includes speech in a public setting or speech that is also motivated by political or religious beliefs, however, does not relieve a school of its obligation to respond under Title VI as described below, if the harassment creates a hostile environment in school for a student or students. Schools have a number of tools for responding to a hostile environment—including tools that do not restrict any rights protected by the First Amendment. To meet its obligation, a university can, among other steps, communicate its opposition to stereotypical, derogatory opinions; provide counseling and support for students affected by harassment; or take steps to establish a welcoming and respectful school campus, which could include making clear that the school values, and is determined to fully include in the campus community, students of all races, colors, and national origins. OCR does not interpret Title VI to require any recipient to abridge any rights protected under the First Amendment. For instance, if students at a public university engage in offensive speech about members of a particular ethnic group and that speech contributes to a hostile environment within an education program about which the university knows or should know, the university has a legal obligation to address that hostile environment for students in school. The university may, however, be constrained or limited in how it responds if speech is involved.”[10]
The OCR “Dear Colleague” letter leaves little room for doubt as to the duties a postsecondary education must fulfill to address discrimination in order to be in compliance with Title VI:
“As OCR has articulated many times, OCR could find a Title VI violation in its enforcement work if it determines that: (1) a hostile environment based on race, color, or national origin exists; (2) the school had actual or constructive notice of the hostile environment; and (3) the school failed to take prompt and effective steps reasonably calculated to (i) end the harassment, (ii) eliminate any hostile environment and its effects, and (iii) prevent the harassment from recurring.”10
One could argue that the offensiveness of a “call for genocide” is enough to constitute a hostile environment; and therefore, should elicit a response from the postsecondary education institutions. However, OCR would disagree:
“The offensiveness of a particular expression as perceived by some students, standing alone, is not a legally sufficient basis to establish a hostile environment under Title VI. OCR evaluates the conduct from the perspective of the student who is allegedly being harassed and from the perspective of a reasonable person in that student’s position, considering all the circumstances. In order to create a hostile environment, the harassing conduct, which may include speech or expression, must be so severe or pervasive that it limits or denies a student’s ability to participate in or benefit from the school’s program or activity.”10
The Committee may wish to examine realigning the measure to align with the hostile environment definitions as explained by the OCR to protect students’ freedom of speech rights and to protect the institutions from potential OCR violations.
The OCR letter indicates that institutions have a duty to end the harassment and eliminate any hostile environment and its effects. The institutions also have an affirmed responsibility to prevent the harassment from recurring. A narrow interpretation of the letter would be to provide punitive measures to violators. However as indicated by examples in the letter, simply levying disciplinary sanction is not enough to eliminate the effects of the hostile environment. Supportive measures must be provided to the survivors of incidents to educational equity.
Moving forward, the author may wish to examine whether punitive measures against students is the right recourse for discriminatory events on campus; and, to adopt provisions requiring the institutions to provide supportive measures, including, but not limited to mental health resources, to survivors of discriminatory events.
Congress has begun to examine whether the tools available to postsecondary education institutions are sufficient to address acts of discrimination. The House of Representatives Committee on Education and the Workforce considered and passed H.R. 8648 authored by Representative Chavez-DeRemmer on June 13, 2024.[11] If the measure becomes law it would require institutions to report how they investigate Title VI complaints, to designate an employee to coordinate compliance, and adhere to new standards created by the OCR for how to investigate complaints.
Arguments in support. The Jewish Public Affairs Committee of California supports SB 1287 (Glazer) as, “the protections in SB 1287 are particularly urgent for our community, which has experienced a 2,000% increase in antisemitic incidents on college campuses in the five months since the Hamas attacks on October 7, 2023, compared to the same period the year prior. But the growing trend of intolerance for differing viewpoints is a threat to everyone in a diverse, pluralistic society. Free speech is a cornerstone of our democracy, and harassment, intimidation, and violence against people with differing viewpoints threaten our shared values. Institutions of higher education must be accountable for preserving students’ right to safely engage in activities protected by the United States and California Constitutions.”
“There is broad consensus that stronger measures must be taken in this regard. As part of its ongoing investigation of unchecked antisemitism at UC Berkeley, the House Committee on Education and the Workforce expressed ‘grave concerns regarding the inadequacy of UC Berkeley’s response to antisemitism on campus.’ In a letter sent to UC Berkeley on March 19, 2024, the Committee lists several troubling incidents including the assault of Jewish students by anti-Israel activists on campus and the exclusion of an Israeli student from a class conference because of her nationality. Similar incidents across the state prompted the California Legislative Jewish Caucus to send a letter on November 7, 2023, to the UC and CSU systems. It explained that ‘there is a widespread feeling among Jewish students—as well as within the broader Jewish community— that many campus administrators do not understand the severity of the crisis and have been unwilling to take appropriate action to meet this moment.’ Administrators are simply not dealing with these incidents on their campuses. As a result, students are being deprived of their right to participate fully and equally in the education process.”
“SB 1287 offers a tangible solution to address this problem by requiring colleges and universities to update their student codes of conduct to explicitly address violence, harassment, intimidation, and discrimination, and to maintain and enforce time, place, and manner restrictions that encourage a culture of civility and mutual respect. Students must also acknowledge that they will comply with the conduct code.”
“Furthermore, the provision mandating each system of higher education to develop training programs to educate students on how to constructively engage with each other will begin to address the culture of intolerance and hostility on campuses by promoting civil discourse. Educators have an obligation to prepare students for the real world. The ability to peacefully and respectfully disagree with others is foundational to succeeding in a diverse society.”
Arguments in opposition. The American Civil Liberties Union California Action respectfully opposes the provision of SB 1287 as, “this legislation will foreseeably lead colleges and universities to silence a range of protected speech based on viewpoint alone. By demanding that institutions follow SB 1287’s strictures, and threatening penalties when they do not, institutions will inevitably err too far and violate a speaker’s constitutional rights—which will, in turn, subject both the institution and the state to liability for constitutional damages and attorneys’ fees. The state should not expend taxpayer dollars to defend an infirm law. Here, the Senate Judiciary Committee analysis is illustrative: ‘It is also unclear if this prohibition would survive the extremely strict scrutiny applied to content-based and viewpoint-based speech restrictions.’ […] ‘Additionally, because the bill gives the institutions wide discretion on how to adopt the bill’s requirements, there is a risk that a school will interpret this bill as a mandate to impose overbroad restrictions on campus protest activity. If it turns out that institutions are consistently overzealously applying this bill’s requirements, the bill may be susceptible to an as-applied challenge.’”
“Already, California universities are overzealously targeting students, suppressing lawful speech and assembly. Since the Senate Judiciary hearing on April 23, 2024, we have seen tactics at schools and universities using law enforcement and disciplining students which is stifling and restricting speech that is protected by both the U.S. and California Constitutions. The state and schools should not be wasting time and money defending a law that will likely be found in violation of the First Amendment. Importantly, California’s schools and universities are equipped with existing standards and regulations that enable them to address violence and harassment in the educational environment. Therefore, SB 1287 is also unnecessary.”
“Discrimination or harassment directed at individuals because of their race, ethnicity, or religion, is not, of course, permissible. Antisemitic, Islamophobic, anti-Palestinian, or speech targeted at individuals because of their ethnicity or national origin constitutes invidious discrimination, and cannot be tolerated. Universities must not single out particular viewpoints — however offensive they may be to some members of the community — for censorship, discipline, or disproportionate punishment. The speech we censor today will set the stage for what we censor tomorrow. And as Justice Kennedy noted in a concurrence in the case Matal v. Tam, ‘a law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.’”
Committee comments. SB 1287 (Glazer) prompts two policy questions to be considered by the Committee:
- Should hate speech be banned from college campuses and do higher education institutions have an obligation to students to identify and eradicate hate speech?
- Should campuses be permitted to restrict behavior that interfere with the free exchange of ideas or the educational mission of the campus?
The United States, unlike many European counties, has adopted laws regulating the use of hate speech. Countries, such as Germany, have defined hate speech as, “in a manner liable to disturb the public peace, (a) incites hatred against parts of the population or invites violence or arbitrary acts against them, (b) attaches the human dignity of other by insulting, malicious degrading or defaming parts of the population.”[12]
Exemptions exist for the freedom of speech rights in the first amendment. Courts have permitted the government to censor and punish “obscenity; fighting words; and incitement of imminent lawless acts.9 However, each of these exceptions are narrow and only a handful of cases have been upheld by the courts.
In 1990, the Duke Law Journal published “Regulating Racist Speech on Campus: A Modest Proposal?” which examined if higher education institutions have the ability to restrict hate speech while also preserving the freedom speech rights founded in the first amendment to the U.S. Constitution.[13] The proposal ultimately upheld that a student code of conduct which disciplines students for hate speech would not withstand the scrutiny of the court as “the prevention of hate speech” does not fit neatly into the exceptions to the first amendment to the U.S. Constitution.12
Students are the most vulnerable population on campus and yet; the restrictions of SB 1287 (Glazer) only applies to them. If the goal of SB 1287 (Glazer) is to protect the educational mission of the institution; then the bill should address the behavior of the members of the campus community and not just one set of the population.
The Committee may wish to examine if the behavioral restrictions of SB 1287 (Glazer) should only be applied to the most vulnerable population on campus who lack any additional forms of protections against accusations.
To address the concerns listed throughout this analysis and to remove potential questions regarding the constitutionality of the bill, the Committee has recommended and the author has agreed to the following amendments:
- Section 1 – Removes from uncodified language subdivision (a) paragraphs (1) – (3) specifically the definitions for “calling for genocide”, “genocide,” and “intimidation.”
- Section 1 – Removes from uncodified language subdivision (b) paragraph (10) subparagraph (C), to read:
(10) In numerous instances, participants in institution activities have done all both of the following:
(A) Engaged in violence, harassment, intimidation, and discrimination.
(B) Interfered, through force, threat of force, or intimidation, with rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, or otherwise interfered with the free exchange of ideas or the educational mission of the segment.
(C) Called for genocide.
- Section 66270.7 – Removes from subdivision (a) the following paragraphs (1), (2) and (4) and adds a definition of “hostile environment”. Amends the language to read:
(1) “Calling for genocide” means only those acts, verbal or otherwise, that are both intended to, and reasonably understood as, calling for genocide.
(2) “Genocide” means conduct set forth in Article II of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), whether that conduct is committed with the intent to destroy, in whole or in part, protected groups specified in the Genocide Convention or protected groups specified in Section 51 of the Civil Code.
(1) “Hostile environment” means unwelcomed conduct based on a person’s actual or perceived race, color, ethnicity, national origin, religion, or disability status, that based on the totality of circumstances, is subjectively and objectively offensive, and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from an institution’s education program or activity.
(3)
(2) “Institution” means a campus of the California Community Colleges, the California State University, or the University of California.
(4) “Intimidation” has the same meaning as “intimidate” in subdivision (c) of Section 423.1 of the Penal Code.
- Amends subdivision (b) to read:
(b) In order to prevent violence, harassment, intimidation, and discrimination that impairs the educational missions of the segments, violates federal and state antidiscrimination laws, interferes with the free exercise of rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, and interferes with the free exchange of ideas by members of institution communities, it is the policy of the segments to prevent and eliminate violence, harassment, intimidation, and discrimination that undermine these objectives.
(b) The governing board of a community college district, the Trustees of the California State University, and the Regents of the University of California have the primary responsibility to prevent and address conduct that either creates a hostile environment for students on campus, or results in differential treatment of students on campus based on a student’s actual or perceived race, color, ethnicity, national origin, religion, or disability status.
- Amends subdivision (c) to read”
(c) The governing board of each community college district and the Trustees of the California State University shall do all of the following:
(1) Adopt rules and procedures in the student codes of conduct to provide all of the following elements:
(A) Prohibit violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus.
(B) Prohibit conduct that limits or denies a person’s ability to participate in or benefit from the free exchange of ideas or the educational mission of the segment.
(C) Establish reasonable time, place, and manner restrictions, and, if applicable, any advance permitting requirements for protests on campus.
(2) Adopt rules and procedures to take reasonable steps to respond to each incident described in subparagraphs (A) and (B) of paragraph (1) that creates a hostile environment on campus.
(3) Require each campus to publish on the campus’s internet website the time, place, and manner restrictions, and any advance permitting requirements for protests on campus.
(5)
(4) Develop mandatory training programs to educate students on both all of the following:
(A) What constitutes violent, harassing, intimidating, or discriminatory conduct that creates a hostile environment on campus, and the procedures for investigating violations of the student code of conduct.
(A)
(B) When and where protests and gatherings may be held, including the difference between public fora, limited public fora, nonpublic fora, and private property, consistent with the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution.
(B)
(C) How to exchange views in an atmosphere of mutual respect and civility.
(6)
(5) Require, as a condition of enrollment at an institution, each student attending the institution, to acknowledge their obligation to comply with the institution’s student code of conduct.
- Amends subdivision (d) to read:
(d) Each institution, the Trustees of the California State University, and the Board of Governors of the California Community Colleges governing board of each community college district shall ensure that any policy adopted or enforced pursuant to this section, as applicable, is consistent with the First Amendment to the United States Constitution, Section 2 of Article I of the California Constitution, and Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 2000d et seq.).
- Amends subdivision (e) to read:
(e) (1) On or before January 2, 2025, and annually thereafter, the Trustees of the California State University and the Board of Governors of the California Community Colleges governing board of each community college district shall submit a report to the Legislature on the implementation and administration of this section. This report shall include information on institution student code of conduct violations relating to incidents described in subparagraphs (A) and (B) of paragraph (1) of subdivision (c).
(2) A report submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.
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Church State Council
Democrats for Israel - CA
Democrats for Israel Los Angeles
Etta
Hadassah
Hillel At Davis and Sacramento
Hillel At UCLA
Hillel of San Diego
Hillel of Silicon Valley
Holocaust Museum LA
JCRC Bay Area
Jewish Big Brothers Big Sisters of Los Angeles
Jewish Center for Justice
Jewish Community Federation and Endowment Fund
Jewish Community Relations Council (SACRAMENTO)
Jewish Community Relations Council, Santa Barbara
Jewish Democratic Club of Marin
Jewish Democratic Club of Solano County
Jewish Democratic Club of the Bay Area
Jewish Democratic Coalition of The Bay Area
Jewish Democrats of San Diego County
Jewish Family & Community Services East Bay
Jewish Family and Children's Service of Long Beach and Orange County
Jewish Family and Children's Services of San Francisco, the Peninsula, Marin and Sonoma Counties
Jewish Family Service of Los Angeles
Jewish Family Service of San Diego
Jewish Family Services of Silicon Valley
Jewish Federation of Greater Los Angeles, the
Jewish Federation of Greater Santa Barbara
Jewish Federation of The Greater San Gabriel and Pomona Valleys
Jewish Federation of The Sacramento Region
Jewish Free Loan Association
Jewish Long Beach
Jewish Public Affairs Committee
Jewish Silicon Valley
JVS SoCal
Progressive Zionists of California
Raoul Wallenberg Jewish Democratic Club
Oppose
ACLU California Action
Arab American Civic Council
Asian Americans and Pacific Islanders for Civic Empowerment
Associated Students, University of California, Davis
California Faculty Association
Council of UC Faculty Associations
Council on American Islamic Relations
Interfaith Communities United for Justice and Peace
Interfaith Movement for Human Integrity
Jewish Voice for Peace California
Jewish Voice for Peace, Sacramento Chapter
Jewish Youth for Community Action
JVP Action Greater Los Angeles
MSA West
North Coast Coalition for Palestine
Palestine American League
Rank and File for A Democratic Union
Students for Quality Education (SQE) At CSU Sacramento
Students for Quality Education (SQE) At Sacramento State
Students for Quality Education At Sacramento State
Titan YSDA
UAW Local 4123
UAW Local 4811
UC-AFT
UC-AFT Local 1474
University of California Student Association
UPTE-CWA
UPTE-CWA 9119
Analysis Prepared by: Ellen Cesaretti-Monroy / HIGHER ED. / (916) 319-3960
https://billofrightsinstitute.org/essays/protests-at-the-university-of-california-berkeley ↑
https://www.gilderlehrman.org/history-resources/spotlight-primary-source/ronald-reagan-unrest-college-campuses-1967 ↑
https://nces.ed.gov/programs/coe/indicator/a22/postsecondary-hate-crimes ↑
https://www.cnn.com/2017/09/14/us/berkeley-ben-shapiro-speech/index.html ↑
Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) :: Justia ↑
https://www.sacbee.com/news/local/article288236900.html ↑
https://calmatters.org/education/higher-education/2024/05/campus-protest-arrests-suspensions/ ↑
Raskin, Jamie. We the Students: Supreme Court Cases for and about Students. Thousand Oaks, CA. CQ Press, 2015. Print. ↑
Dear Colleague Letter: Protecting Students from Discrimination, such as Harassment, Based on Race, Color, or National Origin, Including Shared Ancestry or Ethnic Characteristics (PDF) ↑
https://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=410671 ↑
https://journals.ala.org/index.php/jifp/article/view/6906/9503 ↑
https://scholarship.law.duke.edu/dlj/vol39/iss3/3 ↑
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB 1287 |
THIRD READING
Bill No: SB 1287
Author: Glazer (D), et al.
Amended: 5/16/24
Vote: 21
SENATE EDUCATION COMMITTEE: 7-0, 4/10/24
AYES: Newman, Ochoa Bogh, Cortese, Glazer, Gonzalez, Smallwood-Cuevas, Wilk
SENATE JUDICIARY COMMITTEE: 10-0, 4/23/24
AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Gonzalez, Laird, Min, Niello
NO VOTE RECORDED: Wahab
SENATE APPROPRIATIONS COMMITTEE: 5-0, 5/16/24
AYES: Caballero, Jones, Ashby, Becker, Seyarto
NO VOTE RECORDED: Bradford, Wahab
SUBJECT: Public postsecondary education: Equity in Higher Education Act: prohibition on violence, harassment, intimidation, and discrimination
SOURCE: Author
DIGEST:
This bill requires the Trustees of the California State University (CSU) and the Board of Governors of the California Community Colleges (CCCs) to (1) adopt and enforce policies in institution-based student codes of conduct that prohibit violence, harassment, intimidation, and discrimination, interfering through force or intimidation with First Amendment rights, or calling for genocide; (2) maintain and enforce reasonable time, place, and manner restrictions; (3) develop mandatory training programs for students; and, (4) require each student to acknowledge their obligation to comply with the code of conduct.
ANALYSIS:
Existing law:
Establishes the Equity in Higher Education Act, which provides, among other things, that all students have the right to participate fully in the educational process, free from discrimination and harassment, and that California’s postsecondary educational institutions have an affirmative obligation to combat racism, sexism, and other forms of bias, and a responsibility to provide equal educational opportunity. (Education Code § 66250 et seq.)
This bill:
- Requires the CSU Trustees and CCC Board of Governors, and requests the UC Regents, to do all of the following:
Codes of conduct
- Adopt and enforce policies, in institution-based student codes of conduct, that prohibit all of the following:
- Engaging in violence, harassment, intimidation, and discrimination in violation of state or federal anti-discrimination laws or other relevant laws.
- Interfering, through force, threat of force, or intimidation, with the rights established under the First Amendment, or otherwise interfering with the free exchange of ideas or the educational mission of the segment.
- Calling for genocide.
- Engaging in violence, harassment, intimidation, and discrimination in violation of state or federal anti-discrimination laws or other relevant laws.
Time, place, and manner restrictions
- Maintain and enforce reasonable time, place, and manner restrictions.
- Clearly set forth the institution’s time, place, and manner restrictions, and any advance permitting requirements adopted by the institution.
- Clearly set forth the portions of the institution that are public fora, limited public fora, or non-public fora, and the meaning of each designation.
Training
- Develop mandatory training programs to educate students on both of the following:
- When and where protests and gathering may be held, including the difference between public fora, limited public fora, non-public fora, and private property, consistent with the First Amendment and state law.
- How to exchange views in an atmosphere of mutual respect and civility.
- When and where protests and gathering may be held, including the difference between public fora, limited public fora, non-public fora, and private property, consistent with the First Amendment and state law.
Acknowledgment
- Require, as a condition of enrollment at an institution, each student to acknowledge their obligation to comply with the institution’s student code of conduct.
General provisions
- Requires each institution, the CSU Trustees, and the CCC Board of Governors, to ensure that any policy adopted or enforced pursuant to this bill is consistent with the First Amendment, state law, and Title VI of the federal Civil Rights Act.
- By January 2, 2025 and annually thereafter, submit a report to the Legislature on the implementation and administration of this bill, and include information on institution code of conduct violations relating to incidents described in #1.
- Provides that this bill is intended to be interpreted consistent with the First Amendment and state law.
- Provides that the provisions of this bill are severable. If any provision of this bill or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
- States, in order to prevent violence, harassment, intimidation, and discrimination that impairs the educational missions of the segments, violates federal and state anti-discrimination laws, interferes with the free exercise of rights established under the First Amendment, and interferes with the free exchange of ideas by members of institution communities, it is the policy of the segments to prevent and eliminate violence, harassment, intimidation, and discrimination that undermine these objectives.
- States legislative intent relative to the importance of free speech, academic freedom, and the free exchange of views among students and faculty that is free of violence, harassment, intimidation, and discrimination.
Comments
- Recent incidents on campuses, an investigation, a lawsuit, and proposed new policies. As cited by the author, there have been numerous incidents on California college and university campuses recently that have resulted in a sense of an unsafe environment and even injury. There are too many to list in this analysis, including several involving faculty; of note is a February 26, 2024, incident where a guest speaker at UC Berkeley was interrupted by hundreds of protesters who shattered the venue’s glass doors and windows, gained entry, and assaulted attendees.
On March 19, 2024, the United States House of Representatives Committee on Education and the Workforce issued a letter to the President of UC, Chancellor of UC Berkeley, and Chair of the Board of Regents notifying them that the Committee is investigating UC Berkeley’s “response to antisemitism and its failure to protect Jewish students.” The letter continues, “We have grave concerns regarding the inadequacy of UC Berkeley’s response to antisemitism on its campus. Several recent incidents have been particularly troubling.” The letter further states, “An environment of pervasive antisemitism has been documented at UC Berkeley dating back to well before the October 7, 2023, terrorist attack.” The letter specifically mentions the February 26, 2024 incident at UC Berkeley cited above, stating “The university’s response to the incident failed to identify the riot as an act of anti-Jewish hate.”
On April 1, 2024, the StandWithUs Center for Legal Justice filed a federal Title VI complaint with the federal Office of Civil Rights, accusing UC Davis of neglecting and ignoring their Jewish students’ complaints of rising campus antisemitism. The complaint asks the Office of Civil Rights to “fully investigate all incidents of antisemitic behavior at UC Davis; require the university to adopt the International Holocaust Remembrance Alliance (IHRA) Working Definition of Antisemitism and be guided by this definition when addressing potential incidents of antisemitic discrimination; and require UC Davis to provide training regarding Jewish identity and antisemitism, including information about the IHRA Working Definition of Antisemitism and its examples, to administrators, faculty, and staff directly involved in processing, investigating, and/or resolving complaints and other reports of antisemitic discrimination or Israeli national origin discrimination.”
The UC Regents are currently considering a proposal that would prohibit department homepages from expressing the personal or collective opinions of department members and instead by used only to conduct official business of that department. The proposal would allow individual faculty members, groups of faculty, or departments to choose to express opinions on other pages of a department’s website (not the homepage) provided that they include a disclaimer that the opinions do not represent the official views of the UC or the department. The proposal was scheduled for a vote on March 20, 2024, during a joint meeting of the Academic and Student Affairs and Compliance and Auditing committees, but the Regents have delayed the vote until May. - Student codes of conduct and free speech. Existing law requires postsecondary educational institutions to adopt anti-discrimination and harassment policies. Existing law further authorizes institutions to adopt rules and regulations that are designed to prevent hate violence from being directed at students in a manner that denies them their full participation in the educational process, if the rules and regulations conform to standards established by the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution for citizens generally.
The UC, CSU, and community college districts, and their respective campuses, have student codes of conduct in place. These codes of conduct also provide for the discipline of students for violating those codes of conduct. This bill requires the adoption of policies, via student codes of conduct, that prohibit violence, harassment, intimidation, and discrimination that are intended to, and are reasonably understood by the victims or hearers, to either interfere with the free exercise of rights, or call for or support genocide.
The First Amendment generally protects speech unless it incites imminent lawless action, is considered “fighting words” or true threats, intends to harm the interests of the United States, and other criteria such as blackmail, perjury, and defamation. - Reasonable time, place, and manner restrictions. Freedom of speech on campuses of public postsecondary educational institutions is allowed within the confines of codes of conduct and time, place, and manner restrictions. Institutions cannot discipline a student for engaging in a free speech activity, but can discipline a student if the free speech activity crosses into unlawful behavior, or otherwise violates the institution’s time, place and manner restrictions.
All UC and CSU campuses maintain time, place, and manner restrictions to ensure safety, security, and order (as of the drafting of this analysis, committee staff was still verifying whether this is true for all CCC campuses). As established by case law, reasonable time, place and manner restrictions are permissible, provided that they are carefully designed to (a) coordinate the appropriate use of a particular location for speech activities, and not to prohibit particular forms of expression; (b) serve a significant government interest and are not more extensive than necessary to serve that interest; and, (c) leave open ample alternative channels for communication of the information.
While postsecondary educational institutions are currently allowed to establish time, place, and manner restrictions – as existing law is silent – this bill requires CSU and the CCCs, and requests UC, to maintain and enforce reasonable time, place, and manner restrictions, including advance authorization provisions (get a permit in advance), for public protests and demonstrations at institutions.
Case law also permits the requirement that groups get a permit in advance of an event, protest or demonstration when those requirements are content neutral and are a reasonable restriction under all of the circumstances (such as public safety).
The UC and CSU each maintain a handbook, manual, or policies at the system-level that provide guidance to their campuses on free speech issues and policies.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes
According to the Senate Appropriations Committee, this bill would impose the following costs:
- The CSU indicates that the bill could result in unknown, but potentially significant legal liability costs if the bill were not amended to clarify the meaning of “calling for genocide.” Additionally, the mandatory training program would have unknown, upfront costs to be developed and ongoing costs to deliver it each year to students. The CSU indicates that the annual reporting requirement and the time, manner, and place provisions would be minor and absorbable within existing resources. (General Fund)
- The University of California estimates one-time General Fund costs ranging from $250,000 to $1 million to develop training to educate students the bill’s provisions regarding when and where protests and gatherings may be held and how to exchange views in an atmosphere of mutual respect civility. The cost to update student codes of conduct are expected to be minor and absorbable.
- The Chancellor’s Office estimates one-time Proposition 98 General Fund costs of $4.6 million for community colleges to update free speech and student codes of conduct policies and ongoing costs of approximately $16.1 million for the colleges to develop mandatory training programs to educate students and add a question to CCC Apply for students to acknowledge their obligation to comply with the institution’s code of conduct. The Chancellor’s Office also estimates ongoing Proposition 98 General Fund costs of up to $8.8 million for colleges to report data on institution code of conduct violations. Further, there would be General Fund administrative costs of about $236,000 to the Chancellor’s Office for various workload activities, including one-time expenses of $126,000 to develop regulations on student code of conduct and free speech policies.
SUPPORT: (Verified 5/16/24)
30 Years After
American Jewish Committee Los Angeles
American Jewish Committee San Diego
American Jewish Committee San Francisco
Anti-Defamation League
Democrats for Israel - CA
Democrats for Israel Los Angeles
ETTA
Hadassah
Hillel at Davis and Sacramento
Hillel at UCLA
Hillel of San Diego
Hillel of Silicon Valley
Holocaust Museum LA
Jewish Big Brothers Big Sisters of Los Angeles
Jewish Center for Justice
Jewish Community Federation and Endowment Fund
Jewish Community Relations Council Bay Area
Jewish Community Relations Council Sacramento Region
Jewish Community Relations Council, Santa Barbara
Jewish Democratic Club of Marin
Jewish Democratic Club of Solano County
Jewish Democratic Coalition of the Bay Area
Jewish Democrats of San Diego County
Jewish Family & Community Services East Bay
Jewish Family and Children's Service of Long Beach and Orange County
Jewish Family and Children's Services of San Francisco, the Peninsula, Marin and
Sonoma Counties
Jewish Family Service of Los Angeles
Jewish Family Service of San Diego
Jewish Family Services of Silicon Valley
Jewish Federation of Greater Los Angeles
Jewish Federation of Greater Santa Barbara
Jewish Federation of the Greater San Gabriel and Pomona Valleys
Jewish Federation of the Sacramento Region
Jewish Free Loan Association
Jewish Long Beach
Jewish Public Affairs Committee
Jewish Silicon Valley
Jewish War Veterans of the United States of America
JVS SoCal
Progressive Zionists of California
Raoul Wallenberg Jewish Democratic Club
OPPOSITION: (Verified 5/16/24)
ACLU California Action
Arab American Civic Council
Associated Students of UC Davis
Council on American-Islamic Relations - California
Interfaith Communities United for Justice and Peace
Jewish Voice for Peace Action, California Chapters
Jewish Voice for Peace Action, Greater Los Angeles
Palestinian American League
Rank and File for a Democratic Union
Students for Quality Education at CSU Sacramento
The Palestinian Youth Movement LA-OC-IE Chapter
Titan YDSA, CSUF Chapter
UAW Local 4811
UAW Local 4123
UC-AFT
University of California Student Association
UPTE-CWA 9119
US Campaign for Palestinian Rights
Five individuals
Prepared by: Lynn Lorber / ED. / (916) 651-4105
5/20/24 18:52:52
SENATE COMMITTEE ON
Senator Anna Caballero, Chair
2023 - 2024 Regular Session
SB 1287 (Glazer) - Public postsecondary education: Equity in Higher Education Act: prohibition on violence, harassment, intimidation, and discrimination
Version: | Policy Vote: |
Urgency: | Mandate: |
Hearing Date: | Consultant: |
Bill Summary:
This bill requires the Trustees of the California State University (CSU) and the Board of Governors of the California Community Colleges (CCCs) to adopt and enforce policies in institution-based student codes of conduct that prohibit: engaging in violence, harassment, intimidation, and discrimination in violation of state or federal antidiscrimination laws or other relevant laws; through force, threat of force, or intimidation, interfering with First Amendment rights; and calling for genocide.
*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********
The following information is revised to reflect amendments
adopted by the committee on May 16, 2024
Fiscal Impact:
- The CSU indicates that the bill could result in unknown, but potentially significant legal liability costs if the bill were not amended to clarify the meaning of “calling for genocide.” Additionally, the mandatory training program would have unknown, upfront costs to be developed and ongoing costs to deliver it each year to students. The CSU indicates that the annual reporting requirement and the time, manner, and place provisions would be minor and absorbable within existing resources. (General Fund)
- The University of California estimates one-time General Fund costs ranging from $250,000 to $1 million to develop training to educate students the bill’s provisions regarding when and where protests and gatherings may be held and how to exchange views in an atmosphere of mutual respect civility. The cost to update student codes of conduct are expected to be minor and absorbable.
- The Chancellor’s Office estimates one-time Proposition 98 General Fund costs of $4.6 million for community colleges to update free speech and student codes of conduct policies and ongoing costs of approximately $16.1 million for the colleges to develop mandatory training programs to educate students and add a question to CCC Apply for students to acknowledge their obligation to comply with the institution’s code of conduct. The Chancellor’s Office also estimates ongoing Proposition 98 General Fund costs of up to $8.8 million for colleges to report data on institution code of conduct violations. Further, there would be General Fund administrative costs of about $236,000 to the Chancellor’s Office for various workload activities, including one-time expenses of $126,000 to develop regulations on student code of conduct and free speech policies.
Author Amendments:
Remove Senator Smallwood-Cuevas and add Senators Jones, Niello, and Stern as coauthors.
-- END --
SENATE COMMITTEE ON APPROPRIATIONS
Senator Anna Caballero, Chair
2023 - 2024 Regular Session
SB 1287 (Glazer) - Public postsecondary education: Equity in Higher Education Act: prohibition on violence, harassment, intimidation, and discrimination
Version: April 29, 2024 | Policy Vote: ED. 7 - 0, JUD. 10 - 0 |
Urgency: No | Mandate: Yes |
Hearing Date: May 13, 2024 | Consultant: Lenin Del Castillo |
Bill Summary:
This bill requires the Trustees of the California State University (CSU) and the Board of Governors of the California Community Colleges (CCCs) to adopt and enforce policies in institution-based student codes of conduct that prohibit: engaging in violence, harassment, intimidation, and discrimination in violation of state or federal antidiscrimination laws or other relevant laws; through force, threat of force, or intimidation, interfering with First Amendment rights; and calling for genocide.
Fiscal Impact:
- The CSU indicates that the bill could result in unknown, but potentially significant legal liability costs if the bill were not amended to clarify the meaning of “calling for genocide.” Additionally, the mandatory training program would have unknown, upfront costs to be developed and ongoing costs to deliver it each year to students. The CSU indicates that the annual reporting requirement and the time, manner, and place provisions would be minor and absorbable within existing resources. (General Fund)
- The University of California estimates one-time General Fund costs ranging from $250,000 to $1 million to develop training to educate students the bill’s provisions regarding when and where protests and gatherings may be held and how to exchange views in an atmosphere of mutual respect civility. The cost to update student codes of conduct are expected to be minor and absorbable.
- The Chancellor’s Office estimates one-time Proposition 98 General Fund costs of $4.6 million for community colleges to update free speech and student codes of conduct policies and ongoing costs of approximately $16.1 million for the colleges to develop mandatory training programs to educate students and add a question to CCC Apply for students to acknowledge their obligation to comply with the institution’s code of conduct. The Chancellor’s Office also estimates ongoing Proposition 98 General Fund costs of up to $8.8 million for colleges to report data on institution code of conduct violations. Further, there would be General Fund administrative costs of about $236,000 to the Chancellor’s Office for various workload activities, including one-time expenses of $126,000 to develop regulations on student code of conduct and free speech policies.
Background:
Existing law states that no person shall be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any characteristic listed or defined the Government Code or any other characteristic that is contained in the prohibition of hate crimes set forth in the Penal Code, including immigration status, in any program or activity conducted by any postsecondary educational institution that receives, or benefits from, state financial assistance or enrolls students who receive state student financial aid.
Existing law provides that every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. Existing law prohibits a law from restraining or abridging liberty of speech or press.
Existing law prohibits the Regents of the University of California (UC), the Trustees of the CSU, the governing board of a community college district, and an administrator of any campus of those institutions, from making or enforcing a rule subjecting a student to disciplinary sanction solely on the basis of conduct that is speech or other communication that, when engaged in outside a campus of those institutions, is protected from governmental restriction.
Existing law provides that an institution is not prohibited from adopting rules and regulations that are designed to prevent hate violence from being directed at students in a manner that denies them their full participation in the educational process, if the rules and regulations conform to standards established by the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution for citizens generally.
Existing law requires the governing board of a community college district to adopt rules and regulations relating to the exercise of free expression by students upon the premises of each community college maintained by the district, which shall include reasonable provisions for the time, place, and manner of conducting such activities. Existing law provides that such rules and regulations shall not prohibit the right of students to exercise free expression, except that expression which is obscene, libelous, or slanderous according to current legal standards, or which so incites students as to create a clear and present danger of the commission of unlawful acts on community college premises, or the violation of lawful community college regulations, or the substantial disruption of the orderly operation of the community college, shall be prohibited.
Proposed Law:
This bill states, in order to prevent violence, harassment, intimidation, and discrimination that impairs the educational missions of the public segments of postsecondary education, violates federal and state anti-discrimination laws, and interferes with the free exercise of rights established under the First Amendment, it is the policy of the public segments of postsecondary education to prevent and address violence, harassment, intimidation, and discrimination that undermine these objectives.
This bill requires the CSU Trustees and CCC Board of Governors, and requests the UC Regents, to do all of the following:
- Adopt and enforce policies, in institution-based student codes of conduct, that prohibit: engaging in violence, harassment, intimidation, and discrimination in violation of state or federal antidiscrimination laws or other relevant laws; through force, threat of force, or intimidation, interfering with rights established under the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution or otherwise interfering with the free exchange of ideas or the educational mission of the segment; and calling for genocide.
- Maintain and enforce reasonable time, place, and manner restrictions.
- Clearly set forth the institution’s time, place, and manner restrictions, along with any advanced permitting requirements the institution has adopted.
- Clearly set forth which portions of the institution are public fora, limited public fora, or nonpublic fora, and the meaning of each designation.
- Develop mandatory training programs to educate students on when and where protests and gatherings may be held, as specified, and how to exchange views in an atmosphere of mutual respect and civility.
- Require, as a condition enrollment, each student attending the institution to acknowledge their obligation to comply with the institution’s student code of conduct.
This bill requires the institutions, the Trustees of the CSU, and the Board of Governors of the CCCs, and the Regents of the UC if they elect to comply with this section, to ensure that any policy adopted or enforced pursuant to this section is consistent with the First Amendment of the United States Constitution, Section 2 or Article I of the California Constitution, and Title VI of the federal Civil Rights Act of 1964.
This bill requires the CSU Trustees and CCC Board of Governors, by January 2, 2025 and annually thereafter, submit a report to the Legislature on the implementation and administration of this bill, as specified.
This bill provides that its provisions are severable and if any provision of this bill or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application. The bill also provides that the provisions are intended to be interpreted consistent with the First Amendment of the United States Constitution and Section 2 or Article I of the California Constitution.
Related Legislation:
AB 2925 (Friedman, 2024) expands the existing obligation of postsecondary educational institutions to combat racism and other forms of bias to specifically include hate-based discrimination including anti-Semitism and Islamophobia. AB 2925 is pending in the Assembly Appropriations Committee.
Staff Comments:
Existing state law requires postsecondary educational institutions to protect their students from discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or immigration status. Additionally, existing federal law requires that no person at an educational institution that receives federal funds, including colleges and universities, may be discriminated against on the basis of race, color, or national origin. These terms have been interpreted to include shared ancestry or ethnic characteristics, or citizenship or residency in a country with a dominant religion or distinct religious identity.
While college campuses have been places of protest, in the wake of the October 7, 2023 Hamas attack on Israel and Israel’s war on Gaza, on-campus protests at California’s colleges and universities have become more frequent and, in some cases, more violent. Students also report an increase in harassment on campuses on the basis of protected bases. To illustrate, the federal Office of Civil Rights at the Department of Education has opened investigations into discrimination on the basis of “shared ancestry” at 10 different California campuses.
In response to the recent incidents of violence and harassment that have taken place on state university campuses, this bill imposes new requirements on the CSU and community colleges, and requests the UC, to adopt new requirements, relating to when and how students can express their views. This bill also requires the CSU and the CCCs, and requests the UC, to adopt specified policies relating to violence, harassment, intimidation, and discrimination on campuses.
-- END --
Senator Thomas Umberg, Chair
2023-2024 Regular Session
Bill No: SB 1287 (Author:Glazer)
Version: March 20, 2024
Hearing Date: April 23, 2024
Fiscal: Yes
Urgency: No
Consultant: AWM
SUBJECT
Public postsecondary education: Equity in Higher Education Act: prohibition on harassment, intimidation, and discrimination
DIGEST
This bill requires the Trustees of the California State University and the Board of Governors of the California Community Colleges, and requests the Regents of the University of California, to adopt certain policies prohibiting violence, harassment, intimidation, and harassment on campus and setting forth each institution’s policies regarding protests, as specified; and to develop mandatory training programs for students, as specified.
EXECUTIVE SUMMARY
Existing state law requires postsecondary educational institutions to protect their students from discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or immigration status. Existing federal law requires that no person at an educational institution that receives federal funds, including colleges and universities, may be discriminated against on the basis of race, color, or national origin; these terms have been interpreted to include shared ancestry or ethnic characteristics, or citizenship or residency in a country with a dominant religion or distinct religious identity.
Campuses have long been hotbeds of protest. In the wake of the October 7 Hamas attack on Israel and Israel’s war on Gaza, however, on-campus protests at California’s colleges and universities have become more frequent and, in some cases, more violent. Students also report an increase in harassment on campuses on the basis of protected bases; the federal Office of Civil Rights at the Department of Education has opened investigations into discrimination on the basis of “shared ancestry” at 10 different California campuses.
This bill requires the California State University (CSU) and the California Community Colleges (CCCs), and requests the Regents of the University of California (UC), to adopt specified policies relating to violence, harassment, intimidation, and discrimination on campuses. The author’s intent for the bill is to bring civility back to on-campus discourse. The author has agreed to amendments that eliminate certain content-based provisions, and that narrow certain provisions, to avoid conflicts with the First Amendment and the California Constitution’s guarantees of free speech and the right to assemble. As amended, the bill will retain provisions which will be subjected to strict scrutiny by the courts, which is a high bar to clear. A mockup of the amendments is included as Appendix A to this analysis.
This bill is sponsored by the author and is supported by over 40 organizations, including religious, student, and community organizations. This bill is opposed by ACLU California Action, the Arab American Civic Council, Jewish Voice for Peace Action - Greater Los Angeles, the Palestinian American League, Rank and File for a Democratic Union, The Palestinian Youth Movement LA-OC-IE Chapter, the University of California Student Association, US Campaign for Palestinian Rights, and five individuals. The Senate Education Committee passed this bill with a vote of 7-0.
PROPOSED CHANGES TO THE LAW
Existing constitutional law:
- Provides that Congress shall make no law abridging the freedom of speech, or the right of the people to peaceably assemble, and to petition the government for redress of grievances. (U.S. Const., 1st amend. (the First Amendment) & 14th amends.; see Gitlow v. People of State of New York (1925) 268 U.S. 652, 666 (First Amendment guarantees apply to the states through the due process clause of the Fourteenth Amendment).)
- Provides that every person may freely speak, write, and publish their sentiments on all subjects, and that a law may not restrain or abridge liberty of speech. (Cal. Const., art. I, § 2 (Section 2).)
- Provides that the people have the right to petition for redress of grievances and assemble freely to consult for the common good. (Cal. Const., art. I, § 3.)
Existing federal law and regulations:
- Provide that no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. (42 U.S.C. § 2000d.)
- Defines, through the Department of Education’s Office of Civil Rights’ interpretation of 1), discrimination on the basis of race, color, or national origin to include discrimination on the basis of shared ancestry or ethnic characteristics, or citizenship or residency in a country with a dominant religion or distinct religious identity. (See, e.g., U.S. Dept. of Ed., Office of Civil Rights, Fact Sheet: Protecting Students from Discrimination Based on Shared Ancestry or Ethnic Characteristics (Jan. 2023).)
Existing state law:
- Provides that it is the policy of this State to afford all persons in public schools equal rights and opportunities in the educational institutions of this state, regardless of their actual or perceived disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, immigration status, or association with a person or group with one or more of these actual or perceived characteristics. (Ed. Code, §§ 200, 210.2.)
- Provides that no person shall be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any characteristic listed or defined in Section 11135 of the Government Code, or any other characteristic that is contained in the prohibition of hate crimes set forth in subdivision (a) of Section 422.6 of the Penal Code, including immigration status, in any program or activity conducted by any postsecondary educational institution that receives, or benefits from, state financial assistance or enrolls students who receive state student financial aid. (Ed. Code, § 66270.)
- Prohibits the Regents of the University of California, the Trustees of the California State University, the governing board of a community college district, or an administrator of any campus of those institutions from making or enforcing a rule subjecting a student to disciplinary sanction solely on the basis of conduct that is speech or other communication that, when engaged in outside a campus of those institutions, is protected from governmental restriction by the First Amendment or Section 2. (Ed. Code, § 66301(a).)
- Provides that 3) does not prohibit the imposition of discipline for harassment, threats, or intimidation, unless constitutionally protected, or prohibit an institution from adopting rules and regulations that are designed to prevent hate violence, as defined, from being directed at students in a manner that denies them their full participation in the educational process, if the rules and regulations conform to the standards established by the First Amendment and Section 2 of Article I of the California Constitution for citizens generally. (Ed. Code, § 66301(d), (e).)
- Permits a student enrolled in an institution at the time the institution has made or enforced a rule in violation of 3) may commence a civil action to obtain appropriate injunctive and declaratory relief as determined by the court; the court may award attorney’s fees to a prevailing plaintiff. (Ed. Code, § 66301(b).)
- Requires the governing board of a community college to adopt rules and regulations relating to the exercise of free expression by students upon the premises of each community college maintained by the district, which shall include reasonable provisions for the time, place, and manner of conducting such activities.
- These rules and regulations shall not prohibit the right of students to exercise free expression including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, and the wearing of buttons, badges, or other insignia; except that expression which is obscene, libelous or slanderous according to current legal standards, or which so incites students as to create a clear and present danger of the commission of unlawful acts on community college premises, or the violation of lawful community college regulations, or the substantial disruption of the orderly operation of the community college, shall be prohibited. (Ed. Code, § 76120.)
- Provides that it is a hate crime, punishable by imprisonment in a county jail not to exceed one year, or by a fine not to exceed $5,000, or by both, plus community service not to exceed 400 hours, for a person to:
- By force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to them by the Constitution or laws of this state or by the Constitution or laws of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in 8); however, no person shall be convicted of a violation of this provision based on speech alone, except upon a showing that the speech itself threatened violence against a specific person or group of persons and the defendant had the apparent ability to carry out that threat.
- Knowingly deface, damage, or destroy the real or personal property of any other person for the purpose of intimidating or interfering with the free exercise or enjoyment of any right or privilege secured to the other person by the Constitution or laws of this state or by the Constitution or laws of the United States, in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in 8). (Pen. Code, § 422.6.)
- Provides that a hate crime, for purposes of 4), includes acts committed, in whole or in part, due to one or more of the following actual or perceived characteristics of the victim: disability, gender, nationality, race or ethnicity, religion, sexual orientation, or association with a person or group with one or more of these actual or perceived characteristics. (Pen. Code, § 422.55.)
This bill:
- Defines the following, for purposes of the findings and declarations in 2):
- “Campus” is a campus of the University of California, the California State University, or the California Community Colleges.
- “Segment” is the University of California, the California State University, or the California Community Colleges.
- States that the Legislature finds and declares all of the following:
- Free speech, academic freedom, and the free exchange of views among students and faculty are all critical to the educational missions of the segments.
- It is also critical to the educational missions of the segments that speech and the exchange of ideas take place in a constructive environment of mutual respect for diversity of backgrounds, ideas, and viewpoints in order to (1) maximize the exchange of views, (2) achieve the goals of excellence in research, teaching, and learning, and (3) achieve the goals of developing lifelong citizenship skills.
- The educational missions and goals of the segments are severely disrupted by actions that constitute harassment, intimidation, and discrimination in violation of federal or state law, segment rules, or campus codes of conduct.
- The values of free speech, the free exchange of ideas, and the opportunities to all who wish to express their views on campus are important values and provide critical contributions to the educational missions of the segments.
- A constructive environment of mutual respect is just as important to furthering free speech as it is to furthering the educational missions of the segments.
- The values of free speech, the free exchange of ideas, and the opportunities to all who wish to express their views on campus are impaired by actions that constitute harassment, intimidation, and discrimination in violation of state law, segment rules, or campus codes of conduct.
- Violence, harassment, intimidation, and discrimination based on a person’s identity, ideas, or viewpoints violate the rights of the victims and impair both the educational missions of the segments and the values of free speech.
- Violence, harassment, and discrimination violate federal and state antidiscrimination laws applicable to the segments, including Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. § 2000d, et seq.) and Section 66270 of the Education Code, and frustrate the efforts of the segments to comply with these laws and ensure that the victims have the opportunity to participate fully and equally in their chosen campus experience.
- Violence, harassment, intimidation, and discrimination in the sheltered environment of a residential campus impair the educational missions of the segment, undermine the value of antidiscrimination embodied in federal and state civil rights laws, and diminish, in the aggregate, the exercise of free speech by intimidating members of the campus community who become reluctant to express their views.
- In numerous instances, participants in campus activities have engaged in violence, harassment, intimidation, and discrimination that were intended, and were reasonably understood by the victims or hearers, to do either, or both, of the following: (1) interfere with the rights established under the First Amendment or Section 2 of Article I of the California Constitution, or otherwise interfere with the free exchange of ideas, or (2) call for or support genocide, as that term is defined by the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), whether that genocide is aimed at protected groups specified in the Genocide Convention, or aimed at protected groups specified in Section 51 of the Civil Code.
- The violence, harassment, intimidation, and discrimination described in 2)(i) have impaired the educational missions of the segments, undermined federal and state antidiscrimination laws, interfered with the exercise of rights established under the First Amendment and Section 2 of Article I of the California Constitution, and interfered with the free exchange of ideas by members of campus communities.
- Defines, for purposes of 4)-8), “institution” as a campus of the California Community Colleges, the California State University, or the University of California.
- Provides that, in order to prevent harassment, intimidation, and discrimination that impairs the educational missions of the public segments of postsecondary education, violates federal and state antidiscrimination laws, and interferes with the free exercise of rights under the First Amendment and Section 2 of Article I of the California Constitution, it is the policy of the public segments of postsecondary education to eliminate harassment, intimidation, and discrimination that undermine these objectives.
- Requires the Trustees of the California State University and the Board of Governors of the California Community Colleges to do all of the following:
- Adopt and enforce policies, in institution-based codes of conduct, that prohibit violence, harassment, intimidation, and discrimination that are intended to, and are reasonably understood by the victims or hearers, to do either of the following:
- Interfere with the free exercise of rights under the First Amendment or Section 2 of Article I of the California Constitution.
- Call for or support genocide.
- Maintain and enforce reasonable time, place, and manner restrictions, including advance authorization provisions, for public protests and demonstrations at institutions.
- Develop mandatory training programs to educate students on how to exchange views in an atmosphere of mutual respect and civility.
- Require as a condition of admission and continued matriculation at an institution, each student attending the institution, and each new applicant in their applicant for admission to the institution, to acknowledge their obligation to comply with 5)(a)-(c) and the institution’s code of conduct.
- Adopt and enforce policies, in institution-based codes of conduct, that prohibit violence, harassment, intimidation, and discrimination that are intended to, and are reasonably understood by the victims or hearers, to do either of the following:
- Requires the Trustees of the California State University and the Board of Governors of the California Community Colleges, on or before January 1, 2025, and annually thereafter, to submit a report to the Legislature on the implementation and administration of 5). The report shall be submitted in compliance with Government Code section 9795.
- Requests the University of California to comply with 5)-6).
- Provides that the provisions of 3)-7) are severable, and that if any provision of 3)-7) is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
COMMENTS
- Author’s comment
According to the author:
SB 1287 is about making sure that California universities are places where everyone can share their thoughts and ideas freely. We want to protect free speech and academic freedom while also preventing any form of harassment or discrimination. The need has been highlighted by incidents of antisemitism that have resulted from the October 7th terrorist attack in Israel. By having the [institutions of higher education] set clear rules and reporting systems, we're making sure that universities can maintain an environment where everyone feels respected and can learn without fear of intimidation, harassment, or violence.
2. Background on incidents at California postsecondary institutions, pending investigations, and pending litigation regarding discrimination on campus
As explained by the Senate Education Committee’s analysis of this bill, which is incorporated herein by reference:
As cited by the author, there have been numerous incidents on California college and university campuses recently that have resulted in a sense of an unsafe environment and even injury. There are too many to list in this analysis, including several involving faculty; of note is a February 26, 2024, incident where a guest speaker at UC Berkeley was interrupted by hundreds of protesters who shattered the venue’s glass doors and windows, gained entry, and assaulted attendees.
Since the Senate Education Committee’s analysis was published, protests at Pomona College have escalated and 19 people who occupied the college president’s office and refused to identify themselves were arrested,[1] and the University of Southern California canceled its valedictorian’s graduation speech citing “substantial risks relating to security and disruption” arising from the “intensity of feelings, fueled by both social media and ongoing conflict in the Middle East.”[2]
On November 7, Catherine Lhamon, the Assistant Secretary for Civil Rights at the Office of Civil Rights at the Department of Education (OCR), wrote a “Dear Colleague” letter addressing the rise of hate crimes and harassment on campuses and reminding colleges and universities of their obligations under federal law:
As we witness a nationwide rise in reports of hate crimes and harassment, including an alarming rise in disturbing antisemitic incidents and threats to Jewish, Israeli, Muslim, Arab, and Palestinian students on college campuses and in P-12 schools, the fulfillment of school communities’ federal legal obligations to ensure nondiscriminatory environments have renewed urgency. As the President promised, the federal government is “…working with community partners to identify, prevent, and disrupt any threats that could harm the Jewish, Muslim, Arab American, Palestinian American, or any other communities.” Hate-based discrimination, including based on antisemitism and Islamophobia among other bases, have no place in our nation’s schools.
It is in this context that I write to remind colleges, universities, and schools that receive federal financial assistance of their legal responsibility under Title VI of the Civil Rights Act of 1964 and its implementing regulations (Title VI) to provide all students a school environment free from discrimination based on race, color, or national origin, including shared ancestry or ethnic characteristics. It is your legal obligation under Title VI to address prohibited discrimination against students and others on your campus—including those who are or are perceived to be Jewish, Israeli, Muslim, Arab, or Palestinian—in the ways described in this letter.[3]
The letter explained to colleges and universities that the OCR considers unwelcome conduct based on shared ancestry or ethnic characteristics that, based on the totality of the circumstances, is subjectively and objectively offensive and so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity to be the type of harassment that creates a hostile environment.[4] The letter went on to remind colleges and universities that they must take immediate and effective action to respond to harassment that creates a hostile environment.[5] The letter closed with a request that schools “[p]lease be vigilant in protecting your students’ rights under Title VI, understanding that we in OCR are and will be.”[6]
As of April 17, 2024, the OCR has 10 open “shared ancestry” discrimination investigations against postsecondary educational institutions in California: UC Santa Barbara, the Western University of Health Sciences, UC Berkeley, Abraham Lincoln University, San Diego State University, UC Davis, Stanford University, UCLA, Santa Monica College, and USC.[7] Additionally, a Title VI complaint with OCR against UC Davis, alleging that there is a “pervasively hostile, antisemetic campus climate, with incidents of unlawful discrimination and harassment, for students at UC Davis based on their national origin (Jewish shared ancestry or Israeli national origin).”[8]
3. Existing law regarding discrimination, harassment, and free speech at California’s public universities
As explained by the Senate Education Committee’s analysis of this bill:
Existing law requires postsecondary educational institutions to adopt anti-discrimination and harassment policies. Existing law further authorizes institutions to adopt rules and regulations that are designed to prevent hate violence from being directed at students in a manner that denies them their full participation in the educational process, if the rules and regulations conform to standards established by the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution for citizens generally.
The UC, CSU, and community college districts, and their respective campuses, have student codes of conduct in place. These codes of conduct also provide for the discipline of students for violating those codes of conduct.
That analysis also states that all UC and CSU campuses have existing time, place, and manner restrictions to ensure safety, security, and order on campus; at the time the analysis was drafted, Committee staff was still verifying whether all of the CCC campuses had such policies. Additionally, according to the analysis, the UC and CSU each maintain a handbook, manual, or policies at the system level that provide guidance on free speech issues and policies.
At the federal level, Title VI of the Civil Rights Act[9] prohibits discrimination at institutions that accept federal funds on the basis of race, color, or national origin.[10] As noted above, the OCR interprets “race, color, or national origin” to also include shared ancestry or ethnic characteristics, or citizenship or residency in a country with a dominant religion or distinct religious identity.[11] The acts of other students—e.g., student-on-student discriminatory harassment that rises to the level of having a “systematic effect” on the institution’s programs and activities—can give rise to a Title VI violation when the institution is aware of the discrimination and acts with deliberate indifference, i.e., fails to respond reasonably in light of the known circumstances.[12]
4. Background on First Amendment protections
The federal and state Constitutions prohibit the government from abridging the freedom of speech and the right to peaceably assemble.[13] “The vitality of civil and political institutions in our society depends on free discussion…it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effective. The right to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.”[14] And “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”[15]
a. The scope of speech protected by the First Amendment
Although the First Amendment’s speech guarantee is written as an absolute, there are certain narrow categories of speech that fall outside of the First Amendment’s protections.[16] Relevant to this analysis, these categories include:
- “True threats” of violence: “[w]hen a reasonable person would foresee that the context and import of the words will cause the listener to believe he or she will be subjected to physical violence, the threat falls outside First Amendment protection.”[17] While the rationale behind the true threats doctrine is based on the harm to the listener—“[t]rue threats subject individuals to ‘fear of violence’ and to the many kinds of ‘disruption that fear engenders’ ”—the Court recently held that “the First Amendment precludes punishment, whether civil or criminal, unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”[18]
- Inciting imminent lawless action: a state may “forbid advocacy of the use of force or of law violation” “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”[19] The “mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.”[20]
- “Fighting words”: in 1942, the Supreme Court held that “the insulting or ‘fighting words’—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace” are not protected by the First Amendment.[21] The Court has since clarified that fighting words must be “personally abusive epithets”[22] or “an invitation to exchange fisticuffs”[23] directed to a specific person, not generally provocative statements.[24] The Court has also arguably, though not officially, done away with the “inflict injury” prong of the fighting words doctrine.[25]
These doctrines have been used to uphold state laws criminalizing false bomb threats;[26] hate speech, where the speech itself threatened violence and the speaker had the apparent ability to carry out the threat;[27] and other threats that cause the listener to believe they will be subjected to physical violence.[28] But the First Amendment also protects speech that many people would rather do without. For example, a state cannot prohibit all cross-burning, but it can ban cross-burning “with intent to intimidate.”[29] A person can send hundreds of Facebook messages to a stranger, with details indicating they are surveilling the stranger’s movements and vitriolic profanity, and still be protected from government interference.[30] Students can publish pretty appalling opinions about immigrants in the school newspaper without censorship.[31] And, famously, the Court has held that the First Amendment protected a Ku Klux Klan rally, at which members wore full Klan regalia, some carried guns, and speakers made general statements about the need for violence if the government “continues to suppress the white, Caucasian race.”[32] The Court reiterated that “the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence[] is not the same as preparing a group for violent action and steeling it to such action.”[33]
The breadth of the First Amendment limits the government’s ability to adopt an anti-harassment policy or similar rules that may punish a speaker for the content of their speech.[34] The Legislature codified this tension in statute: Section 66031 of the Education Code provides that the UCs, CSUs, and CCCs may not “make or enforce a rule subjecting a student to disciplinary sanction solely on the basis of conduct that is speech or other communication that, when engaged in outside a campus at those institutions, is protected from governmental restriction” under the First Amendment or Section 2.[35] The statute goes on to state, however, that this prohibition in turn does not prohibit an institution from imposing “discipline for harassment, threats, or intimidation, unless constitutionally protected” or from adopting “rules and regulations that are designed to prevent hate violence…from being directed at students in a manner that denies them their full participation in the educational process.”[36] The statute then gives a caveat to the caveat: any anti-hate-violence rules or regulations must “conform to standards established by the First Amendment of the United States Constitution and Section 2 of Article I of the California Constitution for citizens generally.”[37] The First Amendment must remain paramount in any state laws attempting to regulate speech, on or off campus.
b. Where and when one may speak freely
The First Amendment requires government action. Accordingly, nongovernmental actors in charge of private property can place limits on speech without implicating the First Amendment.[38] When a state entity owns private property, the analysis becomes more complicated: “[n]othing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.”[39] Accordingly:
[r]ecognizing that the Government, no less than a private owner of property, has the power to preserve the property under its control for the use to which it is lawfully dedicated, the Court has adopted a forum analysis as a means of determining when the Government’s interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other interests.[40]
The three levels of fora are:
- Public forum: an area that has “historically been open to the public for speech activities.”[41] Traditional public fora include sidewalks, parks, and public ways.[42] Speakers can be excluded “only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.”[43]
- Limited public forum: an area that the government has “limited to use by certain groups or dedicated solely to the discussion of certain topics.”[44] In a limited public forum, the government may restrict speech provided that it does “not discriminate on the basis of viewpoint” and the restriction is “ ‘reasonable in light of the purpose served by the forum.’ ”[45] Limited public fora can include spaces at a public university that are not traditionally public fora (such as classrooms offered for student meetings), as well as to circumstances where a public university offers speech- and association-related benefits, such as a public university’s recognition of school groups.[46]
- Nonpublic forum: an area that is not traditionally open to the public for speech, “[w]here the government is acting as a proprietor, managing its internal operations, rather than acting as a lawmaker to regulate or license.”[47] Airports, government workplaces, and polling places have been deemed nonpublic fora.[48] In nonpublic fora, “the state may reserve the forum for its intended purposes, communicative or otherwise, so long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.”[49]
While it’s rare for government restrictions on speech in public fora to be upheld, the state may impose time, place, and manner restrictions on speech in a public forum “provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in doing so they leave open ample alternative channels for communication of the information.”[50] However, time, place, and manner “regulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment” and are subjected to strict scrutiny.[51] With respect to permit requirements, although permits “are not unconstitutional per se,” any system of prior restraint bears “a heavy presumption against its constitutional validity.”[52] A permit requirement therefore must include “definite and objective guiding standards” to avoid the “ ‘threat of content-based, discriminatory enforcement.’ ”[53]
c. The risk of “chilling effects”
“First Amendment freedoms need breathing space to survive.”[54] “The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions,”[55] because people will necessarily give a wide berth to any speech that might run afoul of the law—which leads to the chilling of legitimate speech.[56] As a result, prohibitions on matters that closely touch on First Amendment-protected activities must be both so clear as to clearly inform individuals as to what conduct is proscribed and so precise so as not to sweep in protected conduct.[57]
5. This bill requires the CSU and CCCs, and requests the UCs, to implement policies relating to student speech and protests on campus
In response to the recent incidents of violence and harassment that have taken place on state university campuses, this bill imposes new requirements on the CSUs and CCCs, and asks the UCs, to adopt new requirements, relating to when and how students can express their views. As currently in print, the bill has several provisions that are likely to be vulnerable to a First Amendment challenge. For example, the bill requires the CSUs and CCCs to impose time, place, and manner restrictions “for public protests and demonstrations” at institutions; this would create a content-based rule that seems unlikely to survive strict scrutiny. Likewise, the bill currently requires students and potential students to agree to comply with the bill’s provisions as a condition of continued admission or admission; but given that some of the bill’s provisions are vague, threatening expulsion or denial of admission for lack of compliance is likely to chill legitimate student speech.
In order to address many of the bill’s problematic provisions, the author has agreed to amend the bill. The amendments also incorporate recommendations from stakeholders. The full mockup of the bill with the amendments is set forth as Appendix A to this analysis. The changes made in the amendments include:
- Defining “intimidation,” which is not prohibited under Title VI or comparable state laws. The definition incorporates the definition of “intimidation” in Penal Code section 423.1, which is deliberately narrowly tailored to include only activity not protected by the First Amendment.
- Modifying the definition of “genocide” and eliminating references to “supporting genocide.” The modified definition is intended to more clearly refer to only overt calls for the specific acts that, when committed with intent to destroy, in whole or in part, a protected group, constitute genocide under Article II of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide: killing members of the group; causing serious bodily injury to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; or forcibly transferring children of the group to another group.[58] These amendments add clarity and avoid a vagueness challenge over the meaning of “supporting” genocide.
- Adding “through force, threat of force, or intimidation” to references to interference with students’ established rights or otherwise interfering with the free exchange of ideas or the educational mission of the segments. This language brings these provisions more closely in line with existing law on when interference with rights may be prohibited, such as California’s hate crime law.[59]
- Clarifying that the policies adopted by an institution must prohibit engaging in violence, harassment, intimidation, and discrimination that violate state or federal laws, including antidiscrimination laws.
- Deleting the requirement that institutions adopt advance permitting requirements for public protest and demonstrations.
- Adding requirements that the institutions, as part of their codes of conduct, (1) clearly set forth the institutions time, place, and manner restrictions, and any permitting requirements in place, (2) clearly designate which portions of the campus are public fora, limited public fora, or nonpublic fora, and (3) explain when and where protests may be held, including the significance of each designation and the rights of private property owners. These requirements are intended to give students a clearer picture of how they may exercise their rights to protest on campus consistent with existing First Amendment law.
- Modifying the requirement that students agree to the bill’s policies to impose a requirement that students agree, as a condition of enrollment, to acknowledge their obligation to comply with the institution’s code of conduct. This should reduce the likelihood of chilling effects addressed above.
- Clarifying that the institutions’ policies adopted under this bill shall be consistent with the First Amendment, Section 2, and Title VI, and that the bill should be interpreted consistent with the First Amendment and Section 2.
Overall, these amendments reduce the likelihood that a court would find this bill unconstitutional. There still are, however, portions of the bill that raise serious First Amendment concerns. Although more narrowly tailored than before, the bill’s requirement that institutions prohibit “calling for genocide” is both a content-based and a viewpoint-based restriction. It is unclear whether this provision can be squared with precedent holding that calls for violence, absent an immediate and actionable threat or incitement to violence, fall outside of First Amendment protection.[60] It is also unclear if this prohibition would survive the extremely strict scrutiny applied to content-based and viewpoint-based speech restrictions. Similarly, even though the bill’s references to interfering with “the free exchange of ideas or the educational mission of the segment” are now limited to interference by force, threat of force, or intimidation, there is a risk that the covered terms are vague enough that students will not understand what is prohibited. Additionally, because the bill gives the institutions wide discretion on how to adopt the bill’s requirements, there is a risk that a school will interpret this bill as a mandate to impose overbroad restrictions on campus protest activity. If it turns out that institutions are consistently overzealously applying this bill’s requirements, the bill may be susceptible to an as-applied challenge.
6. Arguments in support
According to a coalition of over 30 supporters in the Jewish Public Affairs Committee of California:
The protections in SB 1287 are particularly urgent for our community, which has experienced a 2,000% increase in antisemitic incidents on college campuses in the five months since the Hamas attacks on October 7, 2023, compared to the same period the year prior. But the growing trend of intolerance for differing viewpoints is a threat to everyone in a diverse, pluralistic society. Free speech is a cornerstone of our democracy, and harassment, intimidation, and violence against people with differing viewpoints threaten our shared values. Institutions of higher education must be accountable for preserving students’ right to safely engage in activities protected by the United States and California Constitutions.
There is broad consensus that stronger measures must be taken in this regard. As part of its ongoing investigation of unchecked antisemitism at UC Berkeley, the House Committee on Education and the Workforce expressed “grave concerns regarding the inadequacy of UC Berkeley’s response to antisemitism on campus.” In a letter sent to UC Berkeley on March 19, 2024, the Committee lists several troubling incidents including the assault of Jewish students by anti-Israel activists on campus and the exclusion of an Israeli student from a class conference because of her nationality. Similar incidents across the state prompted the California Legislative Jewish Caucus to send a letter on November 7, 2023, to the UC and CSU systems. It explained that “there is a widespread feeling among Jewish students—as well as within the broader Jewish community— that many campus administrators do not understand the severity of the crisis and have been unwilling to take appropriate action to meet this moment.” Administrators are simply not dealing with these incidents on their campuses. As a result, students are being deprived of their right to participate fully and equally in the education process.
SB 1287 offers a tangible solution to address this problem by requiring colleges and universities to update their student codes of conduct to explicitly address violence, harassment, intimidation, and discrimination, and to maintain and enforce time, place, and manner restrictions that encourage a culture of civility and mutual respect amongst students.
Furthermore, the provision mandating each system of higher education to develop training programs to educate students on how to constructively engage with each other will begin to address the culture of intolerance and hostility on campuses by promoting civil discourse. Educators have an obligation to prepare students for the real world. The ability to peacefully and respectfully disagree with others is foundational to succeeding in a diverse society.
7. Arguments in opposition
According to ACLU California Action:
Punishing students and speakers on campus when they exercise their fundamental right to free expression is wrong and unlawful—even when the speech being expressed might be offensive or inflammatory. “Speech on matters of public concern . . . is at the heart of the First Amendment’s protection,” Snyder v. Phelps, 562 U.S. 443, 451-52 (2011) (internal quotations and citation omitted), regardless of whether that speech is offensive. Indeed, the Supreme Court “ha[s] said time and again that the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” Matal v. Tam, 582 U.S. 218, 244 (2017) (internal quotations and citation omitted). Although “[t]he language of the political arena . . . is often vituperative, abusive, and inexact,” Watts v. U.S., 394 U.S. 705, 708 (1969), the point of the First Amendment, and “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Snyder v. Phelps, 562 U.S. at 458 (internal quotations and citation omitted). These staunch free speech protections enable democratic discussion and debate critical to “the bringing about of political and social changes desired by the people.” Likewise, the principles of academic freedom require higher education institutions to safeguard protected speech and political debate in order to help students pursue knowledge.
Of course, campuses need not tolerate speech the law does not shelter. Historically unprotected categories of speech include defamation, incitement, obscenity, and true threats. Moreover, harassment is not protected speech, as California law defines it as “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses that person, and that serves no legitimate purpose.” Cal. Code Civ. Proc. § 527.6(b). Existing law requires postsecondary educational institutions to adopt anti-discrimination and harassment policies. 42 U.S.C. § 2000d et seq., 28 C.F.R. 42.101 et seq. Existing law further authorizes institutions to adopt rules and regulations that are designed to prevent hateful violence from being directed at students in a manner that denies them their full participation in the educational process. Id. Campuses already have codes of conduct prohibiting unlawful harassment, violence, and threats. These existing policies ensure safe educational environments without encroaching on vital First Amendment freedoms.
This SB 1287 goes beyond such protections in ways that would likely lead colleges and universities to silence a range of protected speech based on viewpoint alone. It provides no clear standards for identifying forms of conduct or speech that will be “reasonably understood by the victims or hearers” to “call for or support genocide.” It is also overly broad and will likely sweep in a wide range of protected speech and expression. The lack of clear standards also means that the bill provides inadequate notice of the types of speech and expressive conduct that it prohibits. It is therefore unconstitutionally vague in addition to being overbroad.
SUPPORT
30 Years After
AJC Los Angeles
AJC San Diego
AJC San Francisco
Anti-Defamation League
Church State Council
Democrats for Israel – California
Democrats for Israel – Los Angeles
ETTA
Hadassah
Hillel at Davis and Sacramento
Hillel at UCLA
Hillel of San Diego
Hillel of Silicon Valley
Holocaust Museum LA
JCRC of the Sacramento Region
Jewish Big Brothers Big Sisters of Los Angeles
Jewish Center for Justice
Jewish Community Federation & Endowment Fund
Jewish Community Relations Council, Santa Barbara
Jewish Community Relations Council of the Bay Area
Jewish Democratic Club of Marin
Jewish Democratic Club of Solano County
Jewish Democratic Coalition of the Bay Area
Jewish Democrats of San Diego County
Jewish Family & Children’s Services of San Francisco, the Peninsula, Marin & Sonoma Counties
Jewish Family & Community Services East Bay
Jewish Family Service LA
Jewish Family Service of San Diego
Jewish Family Services of Silicon Valley
Jewish Federation Los Angeles
Jewish Federation of Greater Santa Barbara
Jewish Federation of the Greater San Gabriel and Pomona Valleys
Jewish Federation of the Sacramento Region
Jewish Free Loan Association
Jewish Long Beach
Jewish Silicon Valley
Jewish Public Affairs Committee of California
JFCS Long Beach and Orange County
JVS SoCal
Progressive Zionists of California
Raoul Wallenberg Jewish Democratic Club
OPPOSITION
ACLU California Action
Arab American Civic Council
Jewish Voice for Peace Action, Greater Los Angeles
Palestinian American League
Rank and File for a Democratic Union
The Palestinian Youth Movement LA-OC-IE Chapter
University of California Student Association
US Campaign for Palestinian Rights
Five individuals
RELATED LEGISLATION
Pending Legislation: AB 2925 (Friedman, 2023) expands and clarifies the Education Code’s antidiscrimination provisions to explicitly include persons from the State of Israel or Palestine and to explicitly prohibit antisemitism and Islamophobia. AB 2925 is pending before the Assembly Judiciary Committee.
Prior Legislation:
AB 2019 (Kiley, 2019) would have established the Free Speech on Campus Act, which would have required the CCC and CSU campuses, and requested the UC Regents, to make and disseminate a free speech statement that affirms the importance of, and the campus’ commitment to promoting, freedom of expression, including assurances that students and speakers would be protected from exclusionary behavior that violates the First Amendment. AB 2019 died in the Assembly Higher Education Committee.
AB 1571 (Kiley, Quirk, 2019) was substantially similar to AB 2019. AB 1571 died in the Assembly Judiciary Committee.
AB 1358 (Melendez, 2019) would have established the Campus Free Speech Act which would have, among other things, required the appropriate governing board or body of each public postsecondary educational institution to adopt free speech policies, as specified. AB 1358 died in the Assembly Higher Education Committee.
SB 1381 (Nielsen, 2018) would have declared the outdoor areas of public postsecondary educational institutions in the state to be traditional public fora for purposes of free expression legal analysis under the First Amendment; would have permitted those institutions to maintain and enforce reasonable time, place, and manner restrictions only when those restrictions are narrowly tailored; and would have required the restrictions to allow for members of the campus community to lawfully, spontaneously, and contemporaneously distribute literature and assemble. SB 1381 died in the Senate Appropriations Committee.
SB 1388 (Anderson, 2018) would have required the CSUs and CCCs, and requested the Regents, to adopt a policy on free expression that contains specified statements; required the outdoor areas of areas of public educational instructions to be declared traditional public fora; and required that persons who wish to engage in noncommercial expressive activity in those outdoor areas be permitted to do so, as provided. SB 1388 failed passage in the Senate Education Committee.
AB 2374 (Kiley, 2018) would have established the Free Speech on Campus Act of 2018, which would have, among other things, required the appropriate governing board or body of each public postsecondary educational institution to adopt free speech policies, as specified. AB 2374 died in the Assembly Appropriations Committee.
AB 2081 (Melendez, 2018) was substantially similar to AB 1358 (Melendez, 2019). AB 2081 failed passage in the Assembly Higher Education Committee.
PRIOR VOTES:
Senate Education Committee (Ayes 7, Noes 0)
**************
Appendix A
Proposed Committee Amendments to SB 1287 (Glazer)
Additions are in bold and underline; deletions are in strikethrough. The amendments are subject to any nonsubstantive changes the Office of Legislative Counsel may make.
The people of the State of California do enact as follows:
SECTION 1. (a) As used in this act section, the following definitions apply:
(1) “Campus” means a campus of the University of California, the California State University, or the California Community Colleges.
(2) “Institution” means a campus of the California Community Colleges, the California State University, or the University of California.
(3) “Intimidation” has the same meaning as in subdivision (c) of Section 423.1 of the Penal Code.
(4) “Segment” means the University of California, the California State University, or the California Community Colleges.
(5) “Genocide” means conduct set forth in Article II of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), whether that conduct is committed with the intent to destroy, in whole or in part, protected groups specified in the Genocide Convention or protected groups specified in Section 51 of the Civil Code.
(6) “Calling for genocide” means only those acts, verbal or otherwise, that are both intended to, and reasonably understood as, calling for genocide.
(b) The Legislature finds and declares all of the following:
(1) Free speech, academic freedom, and the free exchange of views among students and faculty are all critical to the educational missions of the segments.
(2) It is also critical to the educational missions of the segments that speech and the exchange of ideas take place in a constructive environment of mutual respect for diversity of backgrounds, ideas, and viewpoints in order to do all of the following:
(A) Maximize the exchange of views.
(B) Achieve the goals of excellence in research, teaching, and learning.
(C) Achieve the goal of developing lifelong citizenship skills.
(3) The educational missions and goals of the segments are severely disrupted by actions that constitute violence, harassment, intimidation, and discrimination in violation of federal or state law, segment rules, or campus codes of conduct.
(4) The values of free speech, the free exchange of ideas, and the opportunities to all who wish to express their views on campus are important values and provide critical contributions to the educational missions of the segments.
(5) A constructive environment of mutual respect is just as important to furthering free speech as it is to furthering the educational missions of the segments.
(6) The values of free speech, the free exchange of ideas, and the opportunities to all who wish to express their views on campus are impaired by actions that constitute violence, harassment, intimidation, and discrimination in violation of federal or state law, segment rules, or campus codes of conduct.
(7) Violence, harassment, intimidation, and discrimination based on a person’s identity, ideas, or viewpoints violate the rights of the victims and impair both the educational missions of the segments and the values of free speech.
(8) Violence, harassment, intimidation, and discrimination may violate federal and state antidiscrimination laws applicable to the segments, including Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 2000d, et seq.) and Section 66270 of the Education Code, and frustrate the efforts of the segments to comply with these laws and ensure that the victims have the opportunity to participate fully and equally in their chosen campus experience.
(9) Violence, harassment, intimidation, and discrimination in the sheltered environment of a residential campus impair the educational missions of the segment, undermine the value of antidiscrimination embodied in federal and state civil rights laws, and diminish, in the aggregate, the exercise of free speech by intimidating members of the campus community who become reluctant to express their views.
(10) In numerous instances, participants in campus activities have:
(A) Eengaged in violence, harassment, intimidation, and discrimination; that were intended, and were reasonably understood by the victims or hearers, to do either, or both, of the following:
(AB) IThrough force, threat of force, or intimidation, interfered with rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, or otherwise interfered with the free exchange of ideas or the educational mission of the segment; and.
(BC) Called for or support genocide, as that term is defined by the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), whether that genocide is aimed at protected groups specified in the Genocide Convention, or aimed at protected groups specified in Section 51 of the Civil Code.
(11) The violence, harassment, intimidation, and discrimination activities described in paragraph (10) have impaired the educational missions of the segments, undermined federal and state antidiscrimination laws, interfered with the exercise of rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, and interfered with the free exchange of ideas by members of campus communities.
SEC. 2. Section 66270.7 is added to the Education Code, to read:
66270.7. (a) As used in this section, “institution” means a campus of the California Community Colleges, the California State University, or the University of California.
(ab) In order to prevent violence, harassment, intimidation, and discrimination that impairs the educational missions of the public segments of postsecondary education, violates federal and state antidiscrimination laws, and interferes with the free exercise of rights established under the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution, it is the policy of the public segments of postsecondary education to prevent and address violence, eliminate harassment, intimidation, and discrimination that undermine these objectives.
(bc) The Trustees of the California State University and the Board of Governors of the California Community Colleges shall do all of the following:
(1) Adopt and enforce policies, in institution-based student codes of conduct, that prohibit violence, harassment, intimidation, and discrimination that are intended to, and are reasonably understood by the victims or hearers, to do either of the following:
(A) Engaging in violence, harassment, intimidation, and discrimination in violation of state or federal antidiscrimination laws or other relevant laws;
(B) Through force, threat of force, or intimidation, interferinge with the free exercise of rights established under the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution or otherwise interfering with the free exchange of ideas or the educational mission of the segment; and.
(CB) Calling for or support genocide.
(2) Maintain and enforce reasonable time, place, and manner restrictions, including advance authorization provisions, for public protests and demonstrations at institutions.
(3) Clearly set forth the institution’s time, place, and manner restrictions, along with any advanced permitting requirements the institution has adopted.
(4) Clearly set forth which portions of the institution are public fora, limited public fora, or nonpublic fora, and the meaning of each designation.
(5) Develop mandatory training programs to educate students on both of the following: how to exchange views in an atmosphere of mutual respect and civility.
(A) When and where protests and gatherings may be held, including the difference between public fora, limited public fora, nonpublic fora, and private property, consistent with the First Amendment of the United States Constitution and Section 2 of Article I of the California Constitution; and
(B) How to exchange views in an atmosphere of mutual respect and civility.
(64) Require, as a condition of enrollmentadmission and continued matriculation at an institution, each student attending the institution, and each new applicant in their application for admission to the institution, to acknowledge their obligation to comply with this section and the institution’s student code of conduct.
(c) The institutions, the Trustees of the California State University, and the Board of Governors of the California Community Colleges, and the Regents of the University of California if they elect to comply with this section, shall ensure that any policy adopted or enforced pursuant to this section is consistent with the First Amendment of the United States Constitution, Section 2 of Article I of the California Constitution, and Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq.).
(d) (1) On or before January 2, 2025, and annually thereafter, the Trustees of the California State University and the Board of Governors of the California Community Colleges shall submit a report to the Legislature on the implementation and administration of this section. The report shall include information on code of conduct violations relating to incidents described in paragraph (b).
(2) A report submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.
(e) The University of California is requested to comply with this section.
(f) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
(g) These provisions are intended to be interpreted consistent with the First Amendment of the United States Constitution and Section 2 of Article I of the California Constitution.
SEC. 3. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
Kaleem & Petrow-Cohen, ‘I can’t focus on anything but rage.’ Pro-Palestinian protests roil elite Pomona College, L.A. Times (Apr. 24, 2024), available at https://www.latimes.com/california/story/2024-04-12/pomona-college-palestine-gaza-activism. All links in this analysis are current as of April 21, 2024. ↑
Kaleem, Citing safety concerns, USC cancels pro-Palestinian valedictorian’s graduation speech, L.A.Times (Apr. 15, 2024), available at https://www.latimes.com/california/story/2024-04-15/usc-valedictorian-asna-tabassum. ↑
United States Department of Education, Office for Civil Rights, November 7, 2023, Dear Colleague letter, p. 1, available at https://www2.ed.gov/about/offices/list/ocr/letters/colleague-202311-discrimination-harassment-shared-ancestry.pdf. ↑
Id. at p. 2. ↑
Ibid. ↑
Id. at p. 3. ↑
OCR, List of Open Title VI Shared Ancestry Investigations (last updated Apr. 16, 2024), https://www2.ed.gov/about/offices/list/ocr/sharedancestry-list.html?perPage=100. The list is updated every Tuesday, so this list might not be current as of the date this bill is set to be heard. (See id.) ↑
StandWithUs Center for Legal Justice, letter of complaint to OCR (Apr. 1, 2024), available at https://swulegaljustice.org/uc-davis-title-vi-campaign/. ↑
42 U.S.C. §§ 2000d et seq. ↑
Id., § 2000d. ↑
See, e.g., U.S. Dept. of Ed., Office of Civil Rights, Fact Sheet: Protecting Students from Discrimination Based on Shared Ancestry or Ethnic Characteristics (Jan. 2023). ↑
See Davis v. Monroe County Bd. of Educ. (1999) 526 U.S. 629, 648-651, 653 (Davis) (holding that deliberate indifference standard applies in Title IX suits alleging failure to stop third-party discrimination); see, e.g., Bryant v. Independent School Dist. No. I-38 (10th Cir. 2003) 334 F.3d 928, 934 (holding that the Davis deliberate indifference standard applies in Title VI suits alleging failure to stop third-party discrimination); United States v. County of Maricopa (9th Cir. 1999) 889 F.3d 648, 652 (same). ↑
U.S. Const., 1st & 14th Amends.; Cal. Const., art. I, §§ 2, 3. ↑
Terminiello v. City of Chicago (1949) 337 U.S. 1, 4 (1949) (Terminiello). ↑
Texas v. Johnson (1989) 491 U.S. 397, 414 (Johnson). ↑
Counterman v. Colorado (2023) 600 U.S. 66, 73. ↑
In re M.S. (1995) 10 Cal.4th 698, 711. ↑
Counterman, supra, 600 U.S. at pp. 74, 76. ↑
Brandenburg v. Ohio (1969) 395 U.S. 444, 447 (Brandenburg). ↑
Id. at p. 448 (cleaned up). ↑
Chaplinsky v. State of New Hampshire (1942) 315 U.S. 568, 572 (Chaplinsky). ↑
Cohen v. California (1971) 403 U.S. 15, 20 (Cohen). ↑
Johnson, supra, 491 U.S. at p. 409. ↑
Cohen, supra, 403 U.S. at p. 20. ↑
See, e.g., Terminiello, supra, 337 U.S. at p. 4 (freedom of speech “is protected against censorship or punishment, unless shown likely to produce a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance, or unrest”). Some have questioned whether the fighting words exception is still viable, given that the Court has not upheld a “fighting words” restriction since Chaplinsky. (E.g., Chemerinsky, Constitutional Law Principles and Policies (5th ed. 2015) pp. 1053-1054.) ↑
In re J.M. (36 Cal.App.5th 668, 677-679 (speech was a true threat that fell outside First Amendment protections). ↑
In re M.S., supra, 10 Cal.4th at pp. 714-715. ↑
People v. Toledo (2001) 26 Cal.4th 221, 223. ↑
Virginia v. Black (2003) 538 U.S. 343, 362-363. ↑
Counterman, supra, 600 U.S. at pp. 70-72. ↑
Smith v. Novato Unified School Dist. (2007) 150 Cal.App.4th 1439, 1446, 1458-1459. ↑
Brandenburg, supra, 395 U.S. at pp. 445-448. ↑
Id. at pp. 447-448. ↑
See, e.g., Rodriguez v. Maricopa County Community College Dist. (9th Cir. 1999) 605 F.3d 703, 708. ↑
Ed. Code, § 66301(a). ↑
Id., § 66301(d), (e). ↑
Id., § 66301(e). At a certain point, it becomes difficult to talk about the First Amendment and possible restrictions on speech without resorting to tautology: the First Amendment permits the government to restrict speech that isn’t protected by the First Amendment. ↑
E.g., Hudgens v. N.L.R.B. (1976) 424 U.S. 507, 513. ↑
Cornelius v. NAACP Legal Defense and Educational Fund, Inc. (1985) 473 U.S. 788, 799-800. ↑
Id. at p. 800 (cleaned up). ↑
McCullen v. Coakley (2014) 573 U.S. 464, 476. ↑
Ibid.; Perry Educ. Ass’n v. Perry Local Educators Ass’n (1983) 460 U.S. 37, 45 (Perry). ↑
Cornelius, supra, 473 U.S. at p. 800. The Court has also recognized the possibility of a “designated public forum,” in which the government voluntarily opens to speech a place that the government could close to speech. (E.g., Pleasant Grove City, Utah v. Summum (2009) 555 U.S. 460, 469 (Summum).) Government restrictions in designated public fora are the subject to the same strict scrutiny analysis as restrictions in a traditional public forum (id. at pp. 469-470), but as a practical matter, the government could always respond to an unfavorable ruling by removing the permission for the speech or converting the space to a limited public forum (see Chemerinsky, supra, at pp. 1200-1201.) ↑
Summum, supra, at p. 470. ↑
Good News Club v. Milford Central School (2001) 533 U.S. 98, 106-107 ; see also Rosenberger v. Rector and Visitors of University of Virginia (1995) 515 U.S. 819, 829-830 (in limited public forum analysis, there is “a distinction between, on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other hand, viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum’s limitations”). ↑
Christian Legal Society v. Martinez (2010) 561 U.S. 661, 679-683. ↑
Int’l Soc. For Krishna Consciousness, Inc. v. Lee (1992) 505 U.S. 672, 678. ↑
Ibid.; Cornelius, supra, at p. 804-805; Minnesota Voters Alliance v. Mansky (2018) 585 U.S. 1, 12 (Mansky). ↑
Perry, supra, 460 U.S. at p. 46; see also Mansky, supra, 585 U.S. at p. 12 (The Court “has long recognized that the government may impose some content-based restrictions on speech in nonpublic forums, including restrictions that exclude political advocates and forms of political advocacy.”). ↑
Heffron v. International Soc. For Krishna Consciousness, Inc. (1981) 452 U.S. 640, 647-648. ↑
City of Renton v. Playtime Theaters, Inc. (1986) 475 U.S. 41, 46-47; Barr v. American Ass’n of Political Consultants, Inc. (2020) 591 U.S. ___, 140 S.Ct. 2335, 2346. ↑
Epona v. County of Ventura (9th Cir. 2017) 876 F.3d 1214, 1222.) ↑
Ibid. ↑
National Ass’n for the Advancement of Colored People v. Button (1963) 371 U.S. 415, 433 (Button). ↑
Ibid. ↑
Keyishian v. Bd. of Regents of University of State of N.Y. (1967) 385 U.S. 589, 604. ↑
Button, supra, 371 U.S. at p. 433. ↑
U.N. Convention on the Prevention and Punishment of the Crime of Genocide, approved Dec. 9, 1948, art. II. ↑
See Pen. Code, § 422.6. ↑
See Brandenburg, supra, 395 U.S. at pp. 447-448. ↑
SENATE COMMITTEE ON EDUCATION
Senator Josh Newman, Chair
2023 - 2024 Regular
Bill No: 1287 Hearing Date: April 10, 2024
Author: | |||
Version: | March 20, 2024 | ||
Urgency: | No | Fiscal: | Yes |
Consultant: | Lynn Lorber | ||
Subject: Public postsecondary education: Equity in Higher Education Act: prohibition on harassment, intimidation, and discrimination.
NOTE: This bill has been referred to the Committees on Education and Judiciary. A "do pass" motion should include referral to the Committee on Judiciary.
SUMMARY
This bill requires the Trustees of the California State University (CSU) and the Board of Governors of the California Community Colleges (CCCs) to (1) adopt and enforce policies in institution-based student codes of conduct that prohibit violence, harassment, intimidation, and discrimination that are intended to interfere with the free exercise of First Amendment rights, or call for or support genocide; (2) maintain and enforce reasonable time, place, and manner restrictions; (3) develop mandatory training programs for students; and, (4) require each student to acknowledge their obligation to comply with the code of conduct.
BACKGROUND
Existing federal law:
- Title VI of the Civil Rights Act provides that no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. (United States Code, Title 42, § 2000d)
- Prohibits Congress from making any law respecting an establishment of religion, prohibiting the free exercise thereof, abridging the freedom of speech, the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. (First Amendment to the United States Constitution)
Existing state law:
- States that no person shall be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any characteristic listed or defined the Government Code or any other characteristic that is contained in the prohibition of hate crimes set forth in the Penal Code, including immigration status, in any program or activity conducted by any postsecondary educational institution that receives, or benefits from, state financial assistance or enrolls students who receive state student financial aid. (Education Code (EC) § 66270)
- Provides that every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. Existing law prohibits a law from restraining or abridging liberty of speech or press. (California Constitution, Article I, Section 2)
- Prohibits the Regents of the University of California (UC), the Trustees of the CSU, the governing board of a community college district, and an administrator of any campus of those institutions, from making or enforcing a rule subjecting a student to disciplinary sanction solely on the basis of conduct that is speech or other communication that, when engaged in outside a campus of those institutions, is protected from governmental restriction. (EC § 66301)
- Provides that #4 and 5 do not prohibit an institution from adopting rules and regulations that are designed to prevent hate violence from being directed at students in a manner that denies them their full participation in the educational process, if the rules and regulations conform to standards established by the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution for citizens generally. (EC § 66301 and § 94367)
- Requires the governing board of a community college district to adopt rules and regulations relating to the exercise of free expression by students upon the premises of each community college maintained by the district, which shall include reasonable provisions for the time, place, and manner of conducting such activities. Existing law provides that such rules and regulations shall not prohibit the right of students to exercise free expression, except that expression which is obscene, libelous, or slanderous according to current legal standards, or which so incites students as to create a clear and present danger of the commission of unlawful acts on community college premises, or the violation of lawful community college regulations, or the substantial disruption of the orderly operation of the community college, shall be prohibited. (EC § 76120)
- Authorizes a student to commence a civil action to obtain appropriate injunctive and declaratory relief as determined by the court. Upon a motion, a court may award attorney’s fees to a prevailing plaintiff in a civil action. (EC § 66301 and § 94367)
ANALYSIS
This bill:
- Requires the CSU Trustees and CCC Board of Governors, and requests the UC Regents, to do all of the following:
Codes of conduct
- Adopt and enforce policies, in institution-based student codes of conduct, that prohibit violence, harassment, intimidation, and discrimination that are intended to, and are reasonably understood by the victims or hearers, to do either of the following:
- Interfere with the free exercise of rights established under the First Amendment.
- Call for or support genocide.
- Interfere with the free exercise of rights established under the First Amendment.
Time, place, and manner restrictions
- Maintain and enforce reasonable time, place, and manner restrictions, including advance authorization provisions, for public protests and demonstrations at institutions.
Training
- Develop mandatory training programs to educate students on how to exchange views in an atmosphere of mutual respect and civility.
Acknowledgment
- Require, as a condition of admission and continued matriculation at an institution, each student and each new applicant to acknowledge their obligation to comply with the provisions of this bill and the institution’s student code of conduct.
General provisions
- By January 2, 2025 and annually thereafter, submit a report to the Legislature on the implementation and administration of this bill.
- Provides that the provisions of this bill are severable. If any provision of this bill or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
- States, in order to prevent harassment, intimidation, and discrimination that impairs the educational missions of the public segments of postsecondary education, violates federal and state anti-discrimination laws, and interferes with the free exercise of rights established under the First Amendment, it is the policy of the public segments of postsecondary education to eliminate harassment, intimidation, and discrimination that undermine these objectives.
- States legislative intent relative to the importance of free speech, academic freedom, and the free exchange of views among students and faculty that is free of violence, harassment, intimidation, and discrimination.
STAFF COMMENTS
- Need for the bill. According to the author, “SB 1287 is about making sure that California universities are places where everyone can share their thoughts and ideas freely. We want to protect free speech and academic freedom while also preventing any form of harassment or discrimination. The need has been highlighted by incidents of antisemitism that have resulted from the October 7th terrorist attack in Israel. By having the IHE’s set clear rules and reporting systems, we're making sure that universities can maintain an environment where everyone feels respected and can learn without fear of intimidation, harassment, or violence.”
- Recent incidents on campuses, an investigation, a lawsuit, and proposed new policies. As cited by the author, there have been numerous incidents on California college and university campuses recently that have resulted in a sense of an unsafe environment and even injury. There are too many to list in this analysis, including several involving faculty; of note is a February 26, 2024, incident where a guest speaker at UC Berkeley was interrupted by hundreds of protesters who shattered the venue’s glass doors and windows, gained entry, and assaulted attendees.
On March 19, 2024, the United States House of Representatives Committee on Education and the Workforce issued a letter to the President of UC, Chancellor of UC Berkeley, and Chair of the Board of Regents notifying them that the Committee is investigating UC Berkeley’s “response to antisemitism and its failure to protect Jewish students.” The letter continues, “We have grave concerns regarding the inadequacy of UC Berkeley’s response to antisemitism on its campus. Several recent incidents have been particularly troubling.” The letter further states, “An environment of pervasive antisemitism has been documented at UC Berkeley dating back to well before the October 7, 2023, terrorist attack.” The letter specifically mentions the February 26, 2024 incident at UC Berkeley cited above, stating “The university’s response to the incident failed to identify the riot as an act of anti-Jewish hate.” The Committee has requested that UC Berkeley provide several items, such as all reports of antisemitic acts or incidents, all documents explaining processes used to respond to allegations, and internal communications relative to any investigations into specified events by April 2, 2024. Committee staff believes that UC Berkeley may have responded with some but not all of the requested information. As of the drafting of this analysis, Committee staff does not have a copy of any response.
On April 1, 2024, the StandWithUs Center for Legal Justice filed a federal Title VI complaint with the federal Office of Civil Rights, accusing UC Davis of neglecting and ignoring their Jewish students’ complaints of rising campus antisemitism. The complaint asks the Office of Civil Rights to “fully investigate all incidents of antisemitic behavior at UC Davis; require the university to adopt the International Holocaust Remembrance Alliance (IHRA) Working Definition of Antisemitism and be guided by this definition when addressing potential incidents of antisemitic discrimination; and require UC Davis to provide training regarding Jewish identity and antisemitism, including information about the IHRA Working Definition of Antisemitism and its examples, to administrators, faculty, and staff directly involved in processing, investigating, and/or resolving complaints and other reports of antisemitic discrimination or Israeli national origin discrimination.”
The UC Regents are currently considering a proposal that would prohibit department homepages from expressing the personal or collective opinions of department members and instead by used only to conduct official business of that department. The proposal would allow individual faculty members, groups of faculty, or departments to choose to express opinions on other pages of a department’s website (not the homepage) provided that they include a disclaimer that the opinions do not represent the official views of the UC or the department. The proposal was scheduled for a vote on March 20, 2024, during a joint meeting of the Academic and Student Affairs and Compliance and Auditing committees, but the Regents have delayed the vote until May. - Student codes of conduct and free speech. Existing law requires postsecondary educational institutions to adopt anti-discrimination and harassment policies. Existing law further authorizes institutions to adopt rules and regulations that are designed to prevent hate violence from being directed at students in a manner that denies them their full participation in the educational process, if the rules and regulations conform to standards established by the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution for citizens generally.
The UC, CSU, and community college districts, and their respective campuses, have student codes of conduct in place. These codes of conduct also provide for the discipline of students for violating those codes of conduct. This bill requires the adoption of policies, via student codes of conduct, that prohibit violence, harassment, intimidation, and discrimination that are intended to, and are reasonably understood by the victims or hearers, to either interfere with the free exercise of rights, or call for or support genocide.
The First Amendment generally protects speech unless it incites imminent lawless action, is considered “fighting words” or true threats, intends to harm the interests of the United States, and other criteria such as blackmail, perjury, and defamation. What does it mean to interfere with First Amendment rights, and is that speech outside the protections of the First Amendment? Does this bill change what is considered protected speech? Could this bill result in the discipline of students for interfering with but not violating the First Amendment? - Genocide. This bill requires policies, via student codes of conduct, to prohibit violence, harassment, intimidation, and discrimination that are intended to, and are reasonably understood by the victims or hearers, to either interfere with the free exercise of rights, or call for or support genocide.
This bill references a definition of genocide adopted by the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide. That definition provides that genocide is “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group, as such: - Killing members of the group.
- Causing serious bodily or mental harm to members of the group.
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.
- Imposing measures intended to prevent births within the group.
- Forcibly transferring children of the group to another group.
What does it mean to “call for” or “support” genocide? Is this speech outside the protections of the First Amendment? Does this bill change what is considered protected speech?
- Required acknowledgment. This bill requires, as a condition of admission and continued matriculation at an institution, each student and each new applicant to acknowledge their obligation to comply with their institution’s student code of conduct and the provisions of this bill (required training and adhering to their institution’s time, place and manner restrictions).
Students are not currently required to acknowledge their obligation to comply with student codes of conduct, institutional policies, or laws in general. In what manner and how often would students make this acknowledgement? Should students who refuse to make this acknowledgement be refused the opportunity to attend a public postsecondary educational institution in California? - Reasonable time, place, and manner restrictions. Freedom of speech on campuses of public postsecondary educational institutions is allowed within the confines of codes of conduct and time, place, and manner restrictions. Institutions cannot discipline a student for engaging in a free speech activity, but can discipline a student if the free speech activity crosses into unlawful behavior, or otherwise violates the institution’s time, place and manner restrictions.
All UC and CSU campuses maintain time, place, and manner restrictions to ensure safety, security, and order (as of the drafting of this analysis, committee staff was still verifying whether this is true for all CCC campuses). As established by case law, reasonable time, place and manner restrictions are permissible, provided that they are carefully designed to (a) coordinate the appropriate use of a particular location for speech activities, and not to prohibit particular forms of expression; (b) serve a significant government interest and are not more extensive than necessary to serve that interest; and, (c) leave open ample alternative channels for communication of the information.
While postsecondary educational institutions are currently allowed to establish time, place, and manner restrictions – as existing law is silent – this bill requires CSU and the CCCs, and requests UC, to maintain and enforce reasonable time, place, and manner restrictions, including advance authorization provisions (get a permit in advance), for public protests and demonstrations at institutions.
Case law also permits the requirement that groups get a permit in advance of an event, protest or demonstration when those requirements are content neutral and are a reasonable restriction under all of the circumstances (such as public safety).
The UC and CSU each maintain a handbook, manual, or policies at the system-level that provide guidance to their campuses on free speech issues and policies (as of the drafting of this analysis, committee staff was still verifying whether this is true for the CCC). As an example, the CSU’s “Handbook of Free Speech Issues” includes information such as:
- Reasonable time, place and manner restrictions must be clear and specific enough to place the public on notice as to exactly what is authorized and what is forbidden. The handbook continues with information about considerations that must be made to ensure restrictions are legally sustainable.
- Campuses should make clear when and under what circumstances permits will be denied, and should also specify that permits will not be denied based on the content of the proposed speech. The handbook also suggests a provision for a review of any permit denial.
- The length of any advance notice requirement is critical to its reasonableness, and gives examples of case law that upheld advance notice of two or less days and struck down restrictions with a longer advance notice period.
- Any advance notice or permitting requirement should also contain an exception for spontaneous events.
- Having exclusive free speech zones where all free speech activity must occur will not be sustained, and instead suggests it can be effective to designate an entire campus open to free speech and exclude only those locations where such activity would significantly interfere with and/or disrupt university business (immediately adjacent to classrooms, narrow walkways or corridors).
- UC. Many of the incidents identified by the author relate to UC. Due to UC’s constitutional autonomy, this bill requests but does not require UC to comply with the provisions in this bill. Further, many situations of concern on UC campuses involve faculty or members of the general public. The provisions of this bill relative to codes of conduct, training, and acknowledgements apply only to students. Will UC comply with this bill?
- Related legislation.
AB 2925 (Friedman, 2024) expands the existing obligation of postsecondary educational institutions to combat racism and other forms of bias to specifically include hate-based discrimination including anti-Semitism and Islamophobia. AB 2925 requires CCCs, CSU, and independent or private institutions of higher education that receive state financial assistance, and requests UC, to include training to combat and address anti-Semitism as part of any anti-discrimination training or diversity, equity, and inclusion training that is offered by the institution. AB 2925 is scheduled to be heard in the Assembly Higher Education Committee on April 9, 2024. - Prior legislation.
SB 1381 (Nielsen, 2018) would have required a person who wishes to engage in expressive activity on the campus of a public postsecondary educational institution to be permitted to do so freely, as long as that person’s conduct is not unlawful and does not materially and substantially disrupt the functioning of the institution. SB 1381 was held in the Senate Appropriations Committee.
SB 1388 (Anderson) would have prohibited a public institution of higher education from denying a belief-based student organization a benefit or privilege available to any other student organization, and requires a person who wishes to engage in expressive activity on the campus of a public postsecondary educational institution to be permitted to do so freely, as long as that person’s conduct is not unlawful and does not materially and substantially disrupt the functioning of the institution. SB 1388 failed passage in the Senate Education Committee.
AB 2081 (Melendez) would have required the governing board or body for each higher education institution to develop and adopt a policy on free expression that contains specified components, establish a Committee on Free Expression for the institution or segment, include in its freshman orientation programs a section describing to its students the institution’s policies and regulations regarding free expression, authorizes institutions to restrict expressive conduct in the public areas of campus only if it demonstrates that the restriction meets specified requirements, conditions the receipt of any state funding except Cal Grant funds on compliance with this bill, and exempts religious organizations if this bill would be inconsistent with the religious tenets of that organization. AB 2081 failed passage in the Assembly Higher Education Committee.
AB 2374 (Kiley) would have established the Free Speech on Campus Act which, among other things, requires a campus of the CCC and CSU, and requests a campus of the UC, make and disseminate a free speech statement that affirms the importance of, and the campus’s commitment to promoting, freedom of expression. AB 2374 requires the statement to include assurances that students and controversial speakers will be protected from exclusionary behavior that violates freedom of expression. AB 2374 was held in the Assembly Appropriations Committee.
SB 472 (Nielsen) was nearly identical to SB 1381 of 2018. SB 472 passed this Committee on a 7-0 vote on April 19, 2017, passed the Senate Judiciary Committee on a 7-0 vote on April 25, 2017, and was subsequently held in the Senate Appropriations Committee.
AB 1212 (Grove, 2015) would have required the governing bodies of the CCC and CSU, and requests the Regents of the UC, to adopt a policy prohibiting their campuses from discriminating against a student organization with respect to a benefit available to any other student organization, based on that organization’s requirement that its leaders or voting members satisfy specified criteria. AB 1212 failed passage in the Assembly Higher Education Committee.
SUPPORT
30 Years After
American Jewish Committee Los Angeles
American Jewish Committee San Diego
American Jewish Committee San Francisco
Anti-Defamation League
Democrats for Israel - CA
Democrats for Israel Los Angeles
ETTA
Hadassah
Hillel at Davis and Sacramento
Hillel at UCLA
Hillel of San Diego
Hillel of Silicon Valley
Holocaust Museum LA
Jewish Big Brothers Big Sisters of Los Angeles
Jewish Center for Justice
Jewish Community Federation and Endowment Fund
Jewish Community Relations Council Bay Area
Jewish Community Relations Council Sacramento Region
Jewish Community Relations Council, Santa Barbara
Jewish Democratic Club of Marin
Jewish Democratic Club of Solano County
Jewish Democratic Coalition of the Bay Area
Jewish Democrats of San Diego County
Jewish Family & Community Services East Bay
Jewish Family and Children's Service of Long Beach and Orange County
Jewish Family and Children's Services of San Francisco, the Peninsula, Marin and
Sonoma Counties
Jewish Family Service of Los Angeles
Jewish Family Service of San Diego
Jewish Family Services of Silicon Valley
Jewish Federation of Greater Los Angeles
Jewish Federation of Greater Santa Barbara
Jewish Federation of the Greater San Gabriel and Pomona Valleys
Jewish Federation of the Sacramento Region
Jewish Free Loan Association
Jewish Long Beach
Jewish Public Affairs Committee
Jewish Silicon Valley
Jewish War Veterans of the United States of America
JVS SoCal
Progressive Zionists of California
Raoul Wallenberg Jewish Democratic Club
OPPOSITION
None received
-- END --
Discussed in Hearing
3MIN
Senate Floor
1MIN
Assembly Floor
38MIN
Assembly Standing Committee on Judiciary
52MIN
Assembly Standing Committee on Higher Education
1H
Senate Floor
3MIN
Senate Standing Committee on Appropriations
1MIN
Senate Standing Committee on Judiciary
22MIN
