BILL ANALYSIS �
ACR 76
Page 1
Date of Hearing: August 27, 2013
ASSEMBLY COMMITTEE ON HIGHER EDUCATION
Das Williams, Chair
ACR 76 (Lowenthal) - As Introduced: August 15, 2013
SUBJECT : Freedom of speech: Institutions of higher education.
SUMMARY : Recognizes the supreme importance of the right to
freedom of speech on college campuses as a mechanism for sharing
and discussion of diverse ideas and opinions; condemns biased,
hurtful, and dangerous speech intended to stoke fear and
intimidation in its listeners; and encourages public
postsecondary institutions to ensure that they provide a safe,
encouraging environment for exercising the right to freedom of
speech and for the vibrant discussion of ideas and opinions from
people of all walks of life. Further, this resolution finds :
1)The people of the United States enjoy a long history of the
right to freedom of speech and the ability to engage in
vigorous political debate, and nowhere is this better
exhibited than in California.
2)Free speech is the cornerstone of American culture and the
American political system, and it is therefore no coincidence
that this freedom is enshrined in the First Amendment to the
United States Constitution and Article I of the California
Constitution.
3)California's college campuses are forums for the sharing and
discussion of diverse and sometimes competing ideas and
opinions, and they provide an ideal setting for interactions
among diverse student populations of differing identities,
heritages, and persuasions.
4)Of all environments, college campuses should be safe harbors
for fair and reasoned debate that invites the views and voices
of all Americans, including conservatives and liberals alike,
people of faith and nonbelievers alike, or any other
combination of people whose ideas may differ, but who can and
will respect each other's constitutional right to free speech.
5)Speech critical of an idea or opinion does not always equate
to criticism of the individual, just as speech that condemns a
government policy does not implicitly condemn a government's
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citizenry, nor is speech critical of a religious organization
inherently critical of a faith or its followers.
6)Unfortunately, college campuses are also sometimes home to
some of the most vitriolic speech directed at individuals.
7)Freedom of speech sometimes requires that society tolerate the
intolerant, but not without limitation.
8)A positive response to intolerance is for fair-minded, decent
men and women of all political persuasions to exercise their
own constitutionally protected right to free speech to condemn
biased, hurtful, and dangerous speech that is intended to
stoke fear and intimidation in its listeners.
9)It is incumbent upon students, professors, administrators, and
other school officials at all campuses across the state to
create a safe and enriching learning environment for all
students that protects and encourages an individual's right to
free speech.
EXISTING LAW :
1)Requires the Regents of the University of California (UC), the
Trustees of the California State University (CSU), and the
governing board of every community college district (CCD), to
adopt, and inform students of, specific rules and regulations
governing student behavior along with applicable penalties for
violation of the rules and regulations. (Education Code
�66300).
2)Prohibits the UC Regents, CSU Trustees, and CCD governing
boards 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 to the United States
Constitution or Section 2 of Article I of the California
Constitution. Authorizes a student to commence a civil action
against an institution that has made or enforced such a rule.
(EC �66301).
3)Clarifies that the aforementioned law does not prohibit the
imposition of discipline for harassment, threats, or
intimidation, unless constitutionally protected; nor does it
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prohibit an institution from adopting rules and regulations
designed to prevent hate violence from being directed at
students in a manner that denies full participation in the
educational process, if the rules and regulations conform to
constitutional rights. (EC �66301).
4)Prohibits an employee from being dismissed, suspended,
disciplined, reassigned, transferred, or otherwise retaliated
against solely for acting to protect a student engaged in
conduct protected by the constitution or the aforementioned
laws, or for refusing to infringe upon conduct that is
protected by the constitution or the aforementioned laws. (EC
�66301).
5)Requests the UC Regents, the CSU Trustees, and the governing
boards of CCD, adopt and publish policies on harassment,
intimidation, and bullying. (EC �66302).
6)Requires the CSU Trustees, and requests the UC Regents,
designate an individual to serve as a liaison between campus
law enforcement agencies and students exercising
constitutionally guaranteed rights. (EC �66302).
7)Establishes protected classes for the purposes of guaranteeing
civil rights and labor rights, fair employment and housing,
prohibiting public employment discrimination, and prosecuting
hate crimes. (Civil Code �51, Labor Code �1101, �1102,
Government Code �11135, �12920, �12955, Penal Code
�422.55-�422.56).
FISCAL EFFECT : None.
COMMENTS : Purpose of this resolution . According to the author,
ACR 76 seeks to recognize the supreme importance of the right to
freedom of speech and its rightful place on college campuses as
a mechanism for the sharing and discussion of diverse ideas and
opinions, including those that challenge a person to consider
the merits of his or her own positions.
Background . Freedom of speech is a fundamental American
freedom, and many believe that nowhere should it be more valued
and protected than at colleges and universities. Recognizing
the importance of protecting freedom of speech on college
campuses, the state and federal government have enacted a series
of laws ensuring campus policies do not infringe on a student's
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First Amendment right. However, incidents of hate crimes and
hate speech on campuses has led students, campus leaders, and
policy makers to question the appropriate role of colleges and
universities in ensuring the safety and well-being of the campus
community, as well as creating an environment that is free of
hate and bigotry.
The Assembly Higher Education Committee has convened several
oversight hearings on campus climate issues in recent years,
including Hate, Violence, and Bigotry on Public College and
University Campuses (June 2010) and two hearings on the
appropriate use of force in response to unlawful student protest
(December 2011 and May 2012). As witnesses at all hearings
observed, the underlying challenge is determining when speech or
action cross the line into violence or fear of violence or
infringes upon others' Constitutional rights.
The segments have systemwide policies that prohibit
discrimination, harassment and retaliation against students and
govern campus organizations and sponsored activities on campus,
as well as student and faculty codes of conduct.
Clarifying amendments . The author has proposed the following
clarifying amendments:
On Page 2, Lines 22-26:
WHEREAS, A positive response to intolerance is for fair-minded,
decent men and women of all political persuasions to exercise
their own constitutionally protected right to free speech to
condemn biased, hurtful, and dangerous speech that is intended
to stoke fear and intimidation in its listeners , including
speech that promotes discrimination based on a protected
characteristic such as race, color, national origin, religion,
sex, disability, age, genetic information, marital status,
sexual orientation and identity, medical condition, and
political activities or affiliations ; and
On Page 2, Lines 32-38:
Resolved by the Assembly of the State of California, the Senate
thereof concurring, That the Legislature recognizes the supreme
importance of the right to freedom of speech , as protected by
the First Amendment to the United States Constitution, and its
rightful place on college campuses as a mechanism for the
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sharing and discussion of diverse ideas and opinions, including
those that challenge a person to consider the merits of his or
her own positions; and be it further
On Page 3, Lines 1-3:
Resolved, That the Legislature hereby condemns biased, hurtful,
and dangerous speech intended to stoke fear and intimidation in
its listeners , including speech that promotes discrimination
based on a protected characteristic such as race, color,
national origin, religion, sex, disability, age, genetic
information, marital status, sexual orientation and identity,
medical condition, and political activities or affiliations ; and
be it further
REGISTERED SUPPORT / OPPOSITION :
Support
Faculty Association of California Community Colleges
Long Beach City College District
Opposition
None on file
Analysis Prepared by : Laura Metune / HIGHER ED. / (916)
319-3960