MEMEGATE: Pomona’s Disciplinary Options Limited by California Law
After discovering a student-run meme page that contained “deplorable” and “deeply offensive” pictures and text, Pomona College launched a “Bias-Incident Response Team,” which quickly concluded that the meme page constitutes a “bias-related incident.”
The college, however, has very limited legal grounds for action against the students in the group—even those who posted the most offensive content—due to a certain California law that extends federal First Amendment protections to all students at higher education institutions, public and private alike.
Pomona College deems an incident “bias-related” when it expresses “hostility against another individual (or group) because of the other person’s (or group’s) race, color, religion [etc.] … or because the perpetrator perceives that the other person (or group) has one or more of these characteristics.”
In his email discussing the college’s decision, Dean Ric Townes did remind the recipients of his email that “[d]epending on the circumstances, a bias-related incident may not be a crime and may be protected speech.”
He also revealed, however, that the incident is still under review “with regard to the Student Code or other policy violation,” implying that the college may have some kind of authority over the content of a private meme page to which many of its students belonged.
This implication opens a number of critical questions: What is protected speech in a California private college? How much jurisdiction does a California private college have concerning speech policy violations? And, what sort of punishments can the college administer in response to “bias-related incidents”?
In 1992, the Leonard Law—named for its author, State Senator Bill Leonard—was passed by the California State Legislature. This law extends the First Amendment and the California Constitution’s protections of freedom of speech to students at private colleges in California.
“No private postsecondary educational institution shall make or enforce a rule subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.”
In light of this law, Pomona College would need to show either that the content on the meme page is unprotected by the First Amendment or the California Constitution, or, alternatively, that the content constitutes “hate violence.”
Three classes of unprotected speech are relevant to the case at hand. The first is speech classed as “incitement”—speech that is both “directed at inciting or producing imminent lawless action” and “likely to incite or produce such action,” as established in Brandenburg v. Ohio.
The second is the category of “fighting words,” which are words that “tend to incite an immediate breach of the peace,” as determined in Chaplinsky v. New Hampshire.
Last is the category of words with “the intent to intimidate,” which were ruled unprotected under the First Amendment in Virginia v. Black.
One of the exceptions of Leonard Law is that it “does not prohibit an institution from adopting rules and regulations that are designed to prevent hate violence, as defined in subdivision (a) of Section 4 of Chapter 1363 of the Statutes of 1992.”
The Statutes of 1992 define “hate violence” as follows: “any act of physical intimidation or physical harassment, physical force or physical violence that is directed against any person or group of persons, or the property of any person or group of persons because of the ethnicity, race, national, origin, religion, sex, sexual orientation, disability, or political or religious beliefs of that person or group.”
“Acts shall not be considered ‘hate violence’… based on speech alone,” the statute clarifies, “except upon a showing that the speech itself threatens violence against a specific person or group of persons, that the person or group of persons against whom the threat is directed reasonably fears that the violence will be committed because of the speech, and that the person threatening violence had the apparent ability to carry out that threat.”
Under Pomona’s speech policy, an act of speech either must constitute a threat of violence or must meet all three of the following standards in order to be proscribed:
“(1) the speech, considered objectively, is abusive and insulting rather than a communication of ideas,
(2) the speech is directed at an individual and actually used in an abusive manner in a situation that presents an actual danger that it will cause an immediate breach of the peace by inciting a violent reaction by the individual to whom the speech is addressed and,
(3) the student intends the speech to be abusive and insulting rather than a communication of ideas.” (emphasis added)
From what I have seen of the most egregious contents of said Facebook group (view here), the meme group has violated none of the above speech codes. The images and jokes on the page cannot in any way be reasonably interpreted as incitement to lawlessness or to a breach of the peace, as intimidation, as harassment, or as a threat of violence.
So, why does the Pomona College administration not come out and state the obvious? Is it because they are not aware of the Leonard Law? Not aware of what constitutes unprotected speech? Do they intend to challenge the Leonard Law in the Supreme Court? Or rather, do they have other, more political, reasons for failing to level with their student body about the college’s actual authority over student speech?
If the answer is ignorance, then Pomona’s administration is not the only party that fails to grasp the legal protections to which California college students are entitled. The coverage of ‘Memegate’ has also failed to discuss the implications of the Leonard Law and has emphasized the possibility of disciplinary action despite the college’s limited powers.
In an article published by Inside Higher Ed this week in response to the meme page and Pomona’s investigation, Kevin Kruger—the President of NASPA, “the leading association for the advancement, health, and sustainability of the student affairs profession”—said that “I think it would be hard, but not impossible, to take action simply on the basis of a student participating in the group, or even posting an offensive meme, if that meme was not in and of itself threatening or harassing to an individual.” (emphasis added)
Teen Vogue’s article about the meme group claimed that “if the university [sic] decides that the meme group does fall within their bias incident rules, the students may be fully penalized.”
Similarly, Ross Steinberg claimed in his exposé of the group that “The Pomona College Code lists as violations acts of speech where ‘the student intends the speech to be abusive and insulting rather than a communication of ideas’ as well as when, ‘the speech, considered objectively, is abusive and insulting rather than a communication of ideas.’”
But, importantly, such communications are not violations unless they also constitute an “actual danger” to its addressee. Steinberg entirely omitted this critical point from his discussion of the policy.
All of these characterizations of the college’s legal powers and of the purpose of the incident response team are inaccurate. The college’s own policy fully acknowledges that, even if speech is determined to be a “bias incident,” the speech in question may still be protected by law and therefore cannot legally be subject to any sanction whatsoever.
If these people are simply misinformed or uninformed, then the best I can do is to point out where they have erred. Pomona College, however, has a responsibility to its students to be entirely transparent about the extent of their ability, as a California college, to punish students for their speech. They have an obligation to inform their students of their rights—whether the college agrees with their speech or not.
I can only conclude that, in omitting this critical information, Pomona’s administrators intend one of two things: either they desire that students perceive them to have authority where they in fact have none, or they are attempting to satisfy a certain political narrative popular among their student body, a narrative in which to defend freedom of speech is to endorse the “hateful” or “offensive” speech that this fundamental right protects.
In the wake of the college’s decision not to punish Pomona students who created an illicit blockade at Claremont McKenna College last semester, my hope is that our new president, Gabi Starr, reaffirms David Oxtoby’s commitment to “the exercise of free speech,” which our former president made in an email sent out concerning the Athenaeum affair last semester. To be silent is a disservice to her students, who are legally entitled to free speech, but who may not be aware of their rights and fear repercussions for exercising them.
Photo: Flickr / Sam Howzit