UCMFA Letter on Expressive Policies

Sent: December 5, 2024

Dear UC Merced Administration,

UCM Faculty Association writes to express concerns with multiple provisions and the underlying purpose of UC Merced’s new Campus Climate Initiative. We have submitted this letter via the anonymous survey. We are also taking this opportunity to send you our comments, as we look forward to the opportunity to discuss our concerns directly with members of the administration.

UC Merced, along with the UC system has proposed a policy that will restrict freedom of expression by providing expansive coverage for the administration to prohibit and discipline (without full due process) speech that it deems disruptive, dangerous, or in breach of this overly broad and vague policy.

We request that the UC Merced administration pause the implementation of this policy until the UC Merced campus community can be fully and adequately informed of the policy through public forums (e.g., campuswide virtual town hall sessions for faculty, students and staff) and the UC Merced administration receives and shares feedback and transparently includes faculty, staff, and students in the final policymaking process. This discussion should be open, able to affect the policy, and not take the simple form of feedback from an anonymous survey that is not reported back to the campus.

UCMFA’s MAJOR CONCERNS REGARDING UC Merced Interim Policy on Expressive Activities and Assembly: Protests, Demonstrations, Non-University Speakers and Signage on Campus and in University Facilities

This policy should be considered in the context of what it portends in today’s political environment and the chilling effects it would have on student speech once enacted. Potential protesters whose free speech runs up against the will of the administration will read this policy knowing the long history of violent University police and administrative crackdowns against student protest in the United States, and more recent escalations in that violence in light of campus protests against police brutality and the war in Gaza. It is easy, for example, to read a document like this and imagine how UC administrators might use it to permit and retroactively justify campus police using pepper spray against sit-in protesters (cf. UC Davis), batons against encampers (cf. UC Berkeley), or an LRAD sound cannon against “undie” runners (cf. UCLA).

As we outline in our comments on its specific provisions, the policy imposes specific rules that protesters must follow while outlining only vague principles for police and administrative responses when those rules are violated. This conspicuous contrast between specificity and vagueness is dangerous. The language about “least possible” force against peacefully disruptive protesters is particularly slippery in this context, because it allows administrators to retroactively justify almost any such force as necessary. Our position is that UC administration should have a clear policy prohibiting violent response against non-violent disruptive campus protest altogether, along the lines of Columbia University’s revised policies in the aftermath of their violent crackdowns against the occupation of Hamilton Hall in 1968.

The administration should also consider that the national political environment has shifted since it drafted this policy. The incoming U.S. president has publicly threatened retributive police, military, and mob violence against protesters who disagree with his positions, and is openly hostile against higher education, Latinos, and the state of California. If UCM administration is at all serious about its stated goal of protecting our students’ rights, it must now more than ever be proactive around creating rules prohibiting violent response to the kind of non-violent disruptive protests that might spring up against, for instance, federal troops occupying the campus in an effort to round up our undocumented students in line with President Trump’s explicit campaign promises.

Allowing speech is not the same as protecting and fostering speech
The UCM Campus Climate Initiative (CCI) states that the University should “protect and foster extensive opportunities for free expression, speech, and assembly.” Provision 1 states: “The right to free expression and association should be actively protected and encouraged, even where the issues and positions advocated are controversial and unpopular.” Additionally, the California funding bill states that campuses should “foster healthy discourse … and viewpoints that are ideologically different.”

In practice, a policy solely focused on what is “allowable” emphasizes adherence on the part of those engaging in expression rather than positive inclusive action on the part of the campus. This policy as written encourages no controversial or unpopular speech. Rather the opposite: it licenses administration to maintain past practices of limiting certain kinds of expression via police action. We consider it the administration’s duty to ensure that all campus community members, particularly those who may contend with unique vulnerabilities (e.g., lacking citizenship), are always protected and free to speak. Our position is that the administration can accomplish this by revising this policy so it reflects the goals laid out in their Campus Climate Initiative.

Issue 1: Draconian policies
We are particularly concerned that numerous parts of the policies create overly broad and draconian limitations on freedom of speech and expression. Specific examples include but are not limited to the following:

1. Provision I Part IV. D.10 on Unauthorized structures.
   1. Policy language: “No one shall erect, build, construct, set up, establish and/or maintain unauthorized structures on University Property without prior written authorization from the Designated University Official under this Policy. For purposes of this paragraph, a “structure or display” means any object larger than two feet in any dimension that is intended to be placed or displayed in a public area, or is left unattended in a public area. Unauthorized structures may include tents, platforms, benches, tables, buildings, barricades, and other structures.”
   2. Concern: This policy contradicts the tiered response policy, especially when structures do not pose a danger to the campus community members or disrupt University operations. It also contradicts other policies in Provision 1, which outline warnings for breaches of policy.
   3. Suggestion: UCM FA advises that only structures that present a clear and present danger to the campus should be considered unauthorized. Further, the tiered response system should apply to unauthorized structures.
2. Provision I Part V. A on “Time: Hours.”
   1. Policy language: “Individuals may conduct their assembly, demonstration and protest activities during normal business hours (8:00 a.m. to 5:00 p.m.) in the Public Areas of Indoor Facilities, or at any time on Grounds Open to the Public as defined herein. After-hours activities may be authorized in the Public Areas of Indoor Facilities, after consultation with the appropriate university officials and approval under Section E: Advanced Arrangements for Planned Activities. After-hours activities in indoor locations require the presence of campus staff and/or faculty acting as activity monitors.”
   2. Concern: Many campus and publicly accessible buildings are open beyond 8 am – 5 pm, and many campus events take place before and after these hours. To restrict protests in buildings to these time limits is not consistent with the actual hours of activity on campus. It would allow the University to simply schedule events and meetings that might draw protests during hours beyond this timeframe, creating an arbitrary time where speech and expression violate University policy.
   3. Suggestion: UCM FA advises that speech and expression be allowed during times in which classes and on-campus events are offered.
3. Provision 1 V. B. 6 on the restriction of library space and restriction of walkways and roadways.
   1. Policy Language: “All persons may exercise the constitutionally protected rights of free expression, speech, assembly, worship and distribution of literature incidental to the exercise of these freedoms; however, these activities: May not take place on internal or external stairs or landings and may not occur in outdoor areas of campus within thirty (30) feet of the following: a. university residential facilities; b. buildings, facilities, or areas where such use could impair entrance to or exit from the building, facility or area, or interfere with activities therein; c. parking lots; d. walkways and roadways; and e. libraries.”
   2. Library Concern: Other than the classroom, libraries are representative of spaces of learning. Prohibiting (non-disruptive—as most library protests have been silent protests) speech or assembly in the library (as has been done at multiple Universities across the nation), goes counter to fostering education, dialogue, and the exchange of oppositional viewpoints.
   3. Library Suggestion: UCM FA advises that libraries be allowed as a space of protest so long as they are not unduly disruptive.
   4. Walkways and Roadways Concern: Restricting protest from appearing on walkways or roadways could be used to prevent all outdoor gatherings. There are large spaces on campus (e.g., scholar’s lane) where expression of free speech or protest would not impede any normal university business.
   5. Walkways and Roadways Suggestion: UCM FA advises that walkways and roadways be removed from the space restrictions.
4. Provision V. C. 2 about masks.
   1. Policy Language: “Wearing masks or face coverings is permissible for all persons who are complying with University policies and applicable laws. No one may wear a mask or personal disguise or otherwise conceal their identity with the intent of intimidating any person or group, or for the purpose of evading or escaping discovery, recognition, or identification while committing violations of law or policy.”
   2. Concern: The policy states that individuals may wear masks so long as they are not breaking policies or the law. This policy is vague and can be easily overapplied. What if the individual is wearing a mask for public safety and/or because they are immunocompromised, but the university deems them to be concealing their identity? This policy is ableist against immunocompromised individuals.
   3. Suggestion: UCM FA advises the masking policy be removed or revised to explicitly allow people to wear masks at all times for health/safety reasons.

Issue 2: Vague and therefore overreaching policies
Many aspects of the policy use vague language, which can then be used to justify tiered response and repression of speech and expression. For example:

1. In Provision I V. C: “To respect the rights of other members of the university community to go about the mission and business of the university without interference.”
   1. Concern: The policy stipulation that speech and expression cannot produce “interference” empties the value of speech. Effective speech is oftentimes interfering. This policy merely allows rather than fosters/protects freedom of speech and expression. The word “interference” is problematically vague.
   2. Suggestion: UCM FA suggests using language that is found in other areas of the CCI. A phrase like “without dangerous interference” could be applied.
   3. While individuals participating in speech and/or protests should understand that breaking University policies and/or local, state, and federal laws could have an array of consequences, Provision 6 of the CCI has preemptively emptied all value and meaning from protests by stating that speech and assembly “should not disrupt the University’s function [or] impede orderly operations.”
   4. Concern: This statement merely affirms the right to non-meaningful speech. In other words, the University might claim benign actions or speech were “disruptive,” which then “justifies” the mobilization of a tiered response. The word “disrupt” is problematically vague.
   5. Suggestion: UCM FA suggests using language that is found in other areas of the CCI. For example Provision 1 V. C. 8, uses “substantial,” “unduly,” with “disruptive.” Additionally, words like “dangerously” could be applied.
2. Provision 6 suggests that students should not experience reasonable fear for their personal safety, which UCM FA supports.
   1. Concern: The policy, however, does not explain what constitutes reasonable fear.  Most cases of violent and threatening speech and expression have a clear intent to harm or incite fear or violence that is understood as such by the vast majority of people. Nevertheless, there are cases where intent and effect are less clear and interpretation can vary widely. For instance, a person might find threatening someone simply disagreeing with them ideologically. Vague and ambiguous language can lead to uneven application of policies.
   2. Suggestion: UCMFA recommends clarifying what constitutes reasonable fear and defining it not just from the perspective of someone opposed to the language being used (e.g., a pro-choice student encountering a pro-life protest), but also from the perspective of a reasonable and informed observer.

Issue 3: Lack of Due Process
The policy in general lacks clear guidelines for due process. Provision 6 states, “University must also take consistent and fair accountability measures against individuals whose conduct violates the University’s policies. These accountability measures are taken only after disciplinary proceedings are completed with appropriate procedural safeguards.” But in practice, we have seen numerous instances across University of California campuses (see CUCFA unfair labor practices filing), the nation, and in other countries of non-violent, Constitutionally protected speech being suppressed, where individuals are arrested, suspended, and / or expelled or groups are defunded entirely without proper (or in some cases any) due process, including a protected appeals process. The policy does not outline how due process, especially appeals processes, will be ensured and protected. This is an important issue to directly address because the CCI states it will foster and protect the right to speech and expression.

Issue 4: Presumption of those expressing free speech as culpable
Provisions 2, 3, and 5 of the CCI reference acceptable behavior, legal/illegal behavior, employment non-discrimination policy, and the consequences for “students, faculty, or staff who violate relevant institutional policies, state law, or federal law,” especially as they pertain to Title VI of the Civil Rights Act. Missing from the policy is how Universities will ensure that administrations will comply with federal laws regarding non-discrimination and what consequences exist for administrators who fail to uphold non-discrimination policies and laws as well as uphold freedom of speech and expression.

Issue 5: Application of non-discrimination policy
The UCMFA supports non-discrimination policy and law. We caution, however, the ways that such laws and language have been used to eliminate the rights and protections of specific groups. The CCI should include provisions that describe how the administration will be accountable for ensuring that all groups are protected under non-discrimination policy and law. For example, students, staff, and faculty advocating for the rights of Palestinians have been unduly targeted, arrested, and disciplined, violating Constitutional rights and due process. The Council of University of California Faculty Association (CUCFA) and Faculty Associations from seven UC campuses have filed unfair labor practices in response to the suppression of academic freedom and expression.

Issue 6: Use of Force
UCMFA does not believe that the UCM PD should be involved in the tiered response. Last Spring demonstrated how UC police at other campuses undermined peaceful protests to the detriment of campus safety in the ways that escalated violence, danger, and harm rather than reduced it. We advise the Protest Oversight Group (POG) should not include police and that the reconstituted (non-police) POG be given responsibilities and authority for engaging with protestors. We are alarmed by the language in Provision I VI on “Responsibilities” that states, “It is the university’s explicit intention to accomplish these goals with the least possible show or use of force or other means of control.” The University should always have the goal to engage all speech and protests with genuine dialogue and with no use of force.

Other Technical Concerns with the Policy:

• Provision 1:
  • In Part IV. D: Why do non-affiliates have smaller sign size limits?
  • In Part IV. D: “Note, however, that the university will not decline to allow Signage on the basis of the content or viewpoint expressed, except where the content violates University policies, or state or federal law.” We are unsure what this means and suggest the language be clarified.
  • In Part IV. D. 3: We are unsure why chalking is not allowed. The policy seems like an excessive restriction that will be unevenly applied. We suggest the prohibition on chalking be removed.
  • In Part IV. D. 5,6, and 7: How does D.5 (which allows controversial signs) align with D.6 and D.7 (only supposed to be related to sponsored events or research/educational)? This is confusing. UCM FA supports the allowance of signs that could be controversial and unpopular.
  • In Part IV. D. 11: Display of Handheld Signage: This policy (which prohibits signs made with “sticks, poles, or wood”) contradicts the opening section of Part D, which states that signs may have handles (typically made of wood). We recommend signs be allowed to have handles.

In sum, UCMFA believes that the Campus Climate Initiative should be revised to create an environment where speech, expression, and assembly are protected and fostered, not simply allowed. At the moment, rather than “foster[ing] healthy discourse” between  “ideologically different” viewpoints, this policy provides expansive coverage for the administration to prohibit and discipline (without full due process) speech that it deems disruptive, dangerous, or in breach of an overly broad policy. We believe that there are several places where the CCI can clarify language so that it cannot be overly applied to some groups over others based on the judgment of administrators at any given moment. Additionally, we believe the policy should have an intention of engaging and discussing with, rather than prohibiting, certain speech and punishing those who (perhaps unintentionally) violate the rules. We believe that clarifying language in this way will help protect and foster speech, expression, and assembly for all students, faculty, and staff.

UC Merced Faculty Association