This is UC President Mark G. Yudof's response, dated March 29, to four state senators, who inquired about UC's response to recent acts of intolerance on five UC campuses. Yudof responded on behalf of himself and the chancellors: Robert J. Birgeneau of Berkeley, Linda P.B. Katehi of Davis, Michael V. Drake or Irvine, Marye Anne Fox of San Diego and George Blumenthal or Santa Cruz. Read the senators' letter.

Dateline story: "Yudof answers senators on hate"

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Dear Sens. Steinberg, Romero, Ducheny and Liu:

On behalf of all of the University of California's chancellors, I want to thank you for your letter of March 3. In order to ensure that we are fully responsive to your questions, my office has coordinated with the five chancellors to whom you also sent your letter. This response incorporates their input, as well as input from the other campuses in the system.

I want to preface the answers to your specific questions with a few key points.

What we have witnessed in recent weeks are quite simply the worst acts of racism and intolerance I've seen on college campuses in 20 years.

We must — and we will — deal with the causes of the offending behaviors, both the immediate and the underlying. We will address the campus climates that gave rise to these actions. And while we must not abandon fair process, in those instances where policies or laws have been violated, the perpetrators in each instance will face appropriate consequences.

It is also important not to let these incidents cause us to forget what the University of California stands for: a commitment to access and opportunity for all Californians. One-third of our undergraduates are eligible for Pell Grants; nearly a third are the first in their families to attend college; half of our students come from homes where English is not the only language spoken. No other top-tier public research university in the country comes close on these measures. And diversity is a critical topic of discussion in the annual performance evaluation that I give each chancellor.

I have taken the following concrete steps to address the recent events. First, I have appointed Dean Christopher Edley of UC Berkeley Law School, a distinguished civil rights and constitutional law expert, to act as a special adviser to me and to Chancellor (Marye Ann) Fox on racial issues on the UC San Diego campus.

Second, I am issuing a clarion call for alumni, friends of the university, and for all concerned Californians to come together and raise scholarship funds that will support underrepresented minorities on UC campuses. Far too often, we see many of our most talented candidates accept offers from private universities, who do not face the same restrictions on affirmative outreach that we do, and who can offer far more generous financial aid. Proposition 209 is, of course, the law, and, as a public university we must operate within its confines. But there is nothing preventing private individuals and private entities from targeted giving, and you can expect to see a major expansion of the opportunities in this area.

Third, we have begun to review student-proposed legislation on campus hate crimes. We intend to work with the students to identify gaps in existing laws that can be addressed while still upholding the constitutional principles that we value.

Fourth, I am taking steps to re-evaluate our campus admissions processes. I want an admissions system that is fair and effectively considers multiple factors in addition to test scores and GPA. I also want to enlarge the applicant pool, and I believe this will occur with the implementation of the new eligibility policy in for freshmen entering the university in the fall of 2012. I believe we can be inclusive and fair without violating the ban on considering race in admissions approved by the voters of California.

We have acted decisively and with dispatch to address the recent incidents on our campuses. With respect to your specific questions:

Question 1: What policies does UC have in place with respect to prohibiting the vandalism of school property with hate speech (such as the painting or carving of swastikas or other hateful graffiti on the property)? Is there a uniform UC policy or do individual campuses set their own policies? (To the extent that individual campuses set individual policies, please note and elaborate in the following questions as well.)

Response: The Student Code of Conduct is a systemwide policy, found at http://www.ucop.edu/ucophome/coordrev/ucpolicies/aos/uc100.html. It includes numerous prohibitions relevant to the incidents we have been experiencing, including conduct that threatens the health or safety of anyone; destruction or damage to university property; disruption of university activities; failure to comply with the directions of a university official; and sexual, racial, and other forms of harassment, which is defined as follows:

“Harassment is defined as conduct that is so severe and/or pervasive, and objectively offensive, and that so substantially impairs a person's access to university programs or activities, that the person is effectively denied equal access to the university's resources and opportunities on the basis of his race, color, national or ethnic origin, alienage, sex, religion, age, sexual orientation, gender identity, martial status, veteran status, physical or mental disability, or perceived membership in any of these classifications.”

The general counsel advises that this language is consistent with current sexual/racial harassment case law and federal agency guidance. See, e.g. Davis v. Monroe Bd. of Educ., 526 U.S. 629 (1999). Our policy focuses on conduct, not pure speech, as is appropriate given First Amendment protections.

All individual campuses enforce these rules. Campuses may also have conduct policies and implementing regulations, consistent with the systemwide policies. I would be happy to provide some or all of these to you at your request. In addition, all the campuses have Principles of Community, which, while not enforceable by means of discipline, lay out the values of the campus in a way that is designed to encourage an environment in which, to quote the Berkeley statement, “the dignity of all individuals” is affirmed, and “discrimination and hate are not tolerated.” If you would like copies of these statements or campus policies, I will be happy to provide them.

Question 2: What penalties or disciplinary actions do the UC policies impose for the vandalism of school property with such hate speech?

Response: There is a range of sanctions, from warning/censure and probation, to loss of privileges and exclusion from activities, to suspension or dismissal. Some campuses have expanded upon these sanctions. Each campus has its own process for hearing student conduct cases, consistent with the requirements of fair process. In general, hearing committees consisting of students, faculty and staff conduct hearings and make findings of fact and recommendations for discipline, which are acted upon by administrators. There also typically is an appeal process to a higher level administrator on the campus for a student, seeking review of a finding of culpability or of the proposed discipline.

Question 3: How does UC make its students aware of its policies?

Response: All campuses advise students of the systemwide and campuswide policies governing student conduct, providing either hard copies of the policies or url links to the policies. The information is shared repeatedly with students, as part of orientation programs for new students; it is printed in student newspapers each term; included in the registration guide and schedule of classes; and, for students living on campus, there are additional resident life materials. In addition, copies are available from the Office of Student Affairs, student government offices, housing and residence halls, campus ombuds offices and other locations on campus, as well as being available on the campus Web site.

With regard to Web access, each campus’s Web site advises students as to what constitutes a hate or bias-related incident, how to report such an incident, and identifies on-campus resources that are available to students who experience such bias.

Question 4. In the past five years, how many incidents of these and similar forms of vandalism have been reported to UC campus officials?

Response:

Campus police department records contain reports on the following incidents of vandalism involving hate speech:

• Berkeley — 16 incidents; one suspect identified and referred for criminal prosecution and for discipline by the Office of Student Conduct.

• Davis — 19 incidents (some involving several acts of vandalism at the same time); one responsible party identified and referred to Student Judicial Affairs for discipline.

• Los Angeles — 19 incidents; one suspect identified and referred for criminal prosecution.

• Merced — One incident; responsible party identified and disciplined.

• Riverside — 13 incidents (eight believed to be the work of a single individual over time; these are still under investigation; one incident involved several acts of vandalism at the same time); no responsible parties yet identified.

• San Diego — 10 incidents; no responsible parties identified.

• San Francisco — One incident; no responsible party identified.

• Santa Barbara — Nine incidents (three involved several acts of vandalism at the same time); no responsible parties identified.

• Santa Cruz — 13 incidents; no responsible parties identified.

Question 5: What is UC’s policy with respect to the investigation of these acts and how many incidents in the past five years were investigated?

Response: UC’s policy is to investigate whenever there has been a complaint of vandalism involving hate speech to Student Affairs or to the campus police, to try to determine who is responsible. Of the incidents cited above, the investigations did not always succeed in identifying the responsible party. Outcomes are described above, in response to question number 4.

Question 6: What is UC's policy with respect to the disciplining or prosecution of the offender? How many disciplinary actions or prosecutions have been taken in the past five years?

Response: When the individual responsible for acts of vandalism is identified, discipline is pursued using the applicable disciplinary procedures, for students or employees, if the individual is a member of the university community. If the campus believes a crime has been committed, the matter is also referred to the city attorney or the district attorney’s office. Off-campus individuals are referred to the local police to determine whether a crime has been committed. Individual outcomes are described above, in response to question number 4.

Question 7: What discipline or corrective actions have UC taken in response to the recent incidents on the five UC campuses. What policy changes, if any, will be made?

Response: Reviews and investigations have been undertaken at all five campuses. Where a person has been identified as responsible for a violation of the Student Code of Conduct, the campus is taking disciplinary action; where a crime may have been committed, the matter has been referred to the city attorney or the district attorney’s office.

With respect to individual discipline or corrective actions in response to the recent incidents, the university is prohibited by federal law from publicly sharing the details of any individual student’s discipline. The Family Educational Rights and Privacy Act (FERPA) generally prohibits the disclosure of “personally identifiable information” without the student’s consent, including information from student disciplinary records. (20 U.S.C. 1232g(b)(1); 34 CFR 99.31). (See also U.S. v. Miami University, 294 F.3d 797 (6th Cir. 200). FERPA would allow disclosure of information about student disciplinary matters where the information was deidentified, meaning that a reasonable person in the community would not be able to identify the student(s) involved. In many of these incidents, however, the identity of the student(s) involved is already widely known in the campus community and beyond, such that any information disclosed about their disciplinary action would be considered identifiable.

In terms of changes in UC policies, we are considering several. One proposal is based on language in the Penal Code that is currently applicable only in part on UC campuses. Penal Code 11411 addresses hanging a noose for the purposes of terrorizing anyone associated with a school or college campus (a); placing a symbol or other physical impression, including but not limited to a swastika, without authorization, on private property for the purposes of terrorizing the owner/occupant or in reckless disregard of the risk of terrorizing the owner/occupant (b); and burning a cross or other religious symbol on the private property of another for the purpose of terrorizing the owner/occupant or in reckless disregard of the risk of terrorizing the owner/occupant; or burning a cross or other religious symbol on the property of a primary or secondary school for the purpose of terrorizing anyone associated with the school (d).

“Terrorize” means to cause a person of ordinary emotions and sensibilities to fear for personal safety.

The only one of these provisions that is applicable on a UC campus is the prohibition on hanging a noose, and only if it is done for the purpose of terrorizing anyone associated with the school; the reckless disregard standard applies only if the noose is hung on private property.

We are researching whether there is any constitutional problem with applying the “reckless disregard” standard on university property. Assuming there is no constitutional prohibition, we will consider adding the following prohibition to the UC Student Code of Conduct:

“Hanging a noose, burning a cross, or placing a symbol, such as a swastika, without authorization, on university property or at official university functions, for the purpose of terrorizing one or more university students, faculty or staff, or in reckless disregard of the risk of terrorizing one or more university students, faculty or staff.”

We would use the same definition of “terrorize” as in the Penal Code: causing a person of ordinary emotions and sensibilities to fear for personal safety.

Alternatively, we may consider an even broader prohibition, as follows:

“Conduct engaged in on university property, or at official university functions, for the purpose of terrorizing, or in reckless disregard of the risk of terrorizing, one or more university students, faculty, or staff. Examples include hanging a noose, or
burning a cross, without authorization, if the requisite purpose, or reckless disregard, is present.”

In considering these policies, we must be mindful of the First Amendment protections even for hateful speech. Hate speech, per se, cannot be prohibited. However, speech that constitutes “fighting words” or “true threats” can be sanctioned. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Virginia v. Black, 538 U.S. 343 (2003).

Finally, we will likely consider adding a provision to our systemwide policies that any violation of the policies, motivated by hate or bias against an individual on the basis of race, ethnicity, sex, sexual orientation, religion, and other protected classifications will subject the individual responsible to increased sanctions. The Supreme Court has found that enhancing sanctions in such cases does not violate the First Amendment. Wisconsin v. Mitchell, 508 U.S. 476 (1993).

Question 8: What deficiencies have been identified in UC policies that could enable a racist or hateful climate to exist on any UC campus? And what improvements to those policies have been or are being considered?

Response: While I have identified improvements in our policies that we will be pursuing, I don’t believe that the recent incidents of hate and bias are a result of deficiencies in policies. Frankly, if a change in policies would address the problem of campus climate, it would be a simple thing to fix. I have outlined above some of the immediate steps I am taking to address the issue of campus climate. In addition, I will be funding a comprehensive survey of the campus climate on each of the 10 UC campuses for the purpose of identifying what more can be done to ensure that everyone on our campuses feels secure, safe and welcome, and that Principles of Community are understood and followed.

Finally, you may be interested to know that the chairman of the Board of Regents, Russ Gould, has announced the creation of a committee on campus climate. The intent of the committee is to monitor the university's progress on improving campus climate and related issues. Regent Eddie Island will chair it and the complete membership roster will be announced later this week.

Please be assured we are committed to diversity and inclusiveness, and we are unwavering in our pursuit of tolerance, civility and respect. I hope I have responded to your questions and concerns. I hope you will let me know if you would like additional information.

With best wishes, I am,

Sincerely yours,

Mark G. Yudof
President