Submission: Viewpoint neutrality needed from Graduate Students Association

In October 2015, the president of the Graduate Students Association told the Diversity Caucus that it would fund their Diversity Caucus Town Hall event only on the condition that the event have “zero connection” to the “Divest from Israel” movement – a reference to the student movement campaigning to divest specifically from American and international corporations violating Palestinian rights. In doing so, the GSA restricted whom the Diversity Caucus could associate with, and restricted what beliefs it could hold. This was viewpoint discrimination. It violated the U.S. Constitution and insulted bedrock principles of free expression on a university campus.

The First Amendment of the U.S. Constitution protects freedom of speech – what you can express – and freedom of association – whom you can be connected to – from interference by the government. As a public school, UCLA, and by extension the GSA, is an arm of the government. This means GSA must uphold First Amendment protections.

As part of protecting free speech, the First Amendment prohibits government “viewpoint discrimination.” This prohibition means that the university cannot punish students or deny students access to university resources because school officials don’t like the group’s message.

The U.S. Supreme Court held that when public schools distribute “mandatory student fees” – funds that originate from tuition that all students are required to pay – they must distribute the money without regard to political viewpoint. Thus, GSA may not decide to withhold funding for events because the event is “pro-divestment” or because the event is “anti-divestment” or because it is inconsistent with a “neutrality” position that GSA may have adopted.

If the GSA wishes to remain neutral on the question of divestment from Israel, it has the right to do so. But it cannot attach funding restrictions to events as a way to implement its neutrality. It must fund campus events without considering what views the event may express – or not express – about divestment, or any other topic.

There are not two sides to this issue; it’s not up for debate. If GSA funding comes from tuition dollars, and it does, then the GSA president cannot tell the Diversity Caucus to suppress its beliefs about divestment as a condition of funding. The U.S. Supreme Court said so.

But the restriction the GSA imposed did not just threaten the rights of students with a particular viewpoint on Palestine and Israel – it undermined open debate on controversial issues for all students. If university officials and student government leaders are permitted to restrict the speech of students advocating for Palestinian rights then they could do the same to others. For example, they can exclude activists against fee hikes, advocates for gun control or gun rights or campaigners for Hillary Clinton or Donald Trump. All of these constituencies could be told that they can have “zero connection” to GSA funded events. This would erode the free speech protections that define our society and our intellectually rigorous university environment.

In an effort to help repair the damage, last week, graduate students and a representative of the American Civil Liberties Union of Southern California visited the GSA Forum to explain the legal issues and outline ways the GSA can recommit itself to upholding free speech values.

The first step is to amend the GSA bylaws to make it clear that the GSA will not engage in viewpoint discrimination, meaning it will distribute funds to a variety of student organizations without regard to the viewpoints expressed. We hope the GSA Forum does this at its next meeting in February and formally apologizes to students affected by its funding restriction.

But the administration also needs to do its part. It must train and advise the GSA on free speech law, and when student government officials go wrong, as they did here by violating the law and chilling important political speech on campus, the administration must take a clear stand. But instead, the administration has not said a public word for over two months. Worse, certain administrators were informed about the funding restriction when it happened in October, and also said nothing.

The silence from the administration has eroded students’ confidence in their rights to free speech on campus. Confusion about viewpoint discrimination will take time to undo and meanwhile students who support divestment are left to wonder if they can be penalized for expressing their beliefs. It’s going to take more than a bylaw amendment to undo that damage.

The administration must send clear instructions clarifying the law and how it applies to all student affairs staff who oversee student groups, and student government organizations that allocate funding. It must unequivocally state that campus members may not be penalized for supporting divestment.

Finally, we need to hear from the chancellor that the university values open discussion about important social and political issues, and firmly commits to providing funding to a variety of student organizations on a viewpoint neutral basis.

Jackson is an attorney with Palestine Legal and cooperating counsel with the Center for Constitutional Rights. Kurwa is a graduate student. Eliasberg is the legal director of the ACLU of Southern California.