Professor Kenneth L. Marcus's article in these pages, "Higher Education, Harassment, and First Amendment Opportunism,"1 simply ignores the most basic principle of free speech law: the government generally cannot punish speech based on content. Professor Marcus argues that the First Amendment should not be applied to hate speech on campus, especially anti-Semitic speech, and indeed dismisses concerns over freedom of expression as "First Amendment opportunism."2 But the regulation of speech on the campus of a public university, even hateful speech, is inherently a First Amendment issue.
Although I strongly believe that Professor Marcus is wrong both descriptively as to what public universities may do and normatively as to what universities should do about hate speech, I would not have taken the time to write a response had I not been the focus of his introduction and conclusion. He describes the controversy concerning my hiring as dean of the law school at the University of California, Irvine, and juxtaposes this with the University's handling of anti-Semitic speech on campus.3
I am not sure why Professor Marcus chose to focus his attention on me and the University of California, Irvine, but to a large extent he has his facts wrong. He certainly is wrong as to many of the facts involving my hiring.4 But much worse, he is wrong in terms of what has occurred on campus at the University of California, Irvine. He repeatedly accepts the worst accusations as if they were truths and fans to describe much of what the campus administration has done to respond to hate speech and to create a hospitable environment for its students.
From the moment that it was rumored in the press that I was a serious candidate to be the founding dean of its law school, I have been drawn into the controversy concerning hate speech on the University of California, Irvine, campus. Before I accepted the offer to be dean, I carefully investigated what had happened. As a Jew, I certainly did not want to spend the rest of my career in a place that is anti-Semitic or move my family to live in a hostile environment.5
What I learned is that almost without exception, the events on the University of California, Irvine, campus involved speech. This included speech critical of Israel and sometimes speech that was anti- Jewish. Some very offensive things were said. Professor Marcus omits that there often were equally hostile responses from Jewish students. But virtually every incident was speech. The Office for Civil Rights of the United States Department of Education did a thorough investigation and concluded that there was no basis for finding that there was a hostile or intimidating environment for Jewish students on campus at the University of California, Irvine.6 Its conclusion was that "there is insufficient evidence to support the complainant's allegation that the University failed to respond promptly and effectively to complaints by Jewish students that they were harassed and subjected to a hostile environment."7
After the Office for Civil Rights conducted its investigation, there was a request for the campus Hillel to conduct its own investigation. It declined, apparently because it did not perceive a problem on campus warranting any further action.8 A group of individuals with no connection to the University believed that there was a problem, appointed themselves as a task force, and conducted their own investigation.9 It found that there was a problem. 10 But again, virtually every incident in this report involved speech on campus.11 In response to this report, the student leaders of every major Jewish organization on campus issued an open letter declaring that they did not perceive anti-Semitism on campus and that they found the University of California, Irvine, a "safe and secure" place for Jewish students.12 Professor Marcus does not mention this.13
Nor does Professor Marcus mention the many efforts by the University's administration and officials to make Jewish students feel safe and welcome. …