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As the great UC San Diego free speech crisis unfolded, I noticed that UCSD had missed the memo from President Mark C. Yudof regarding the as of October 2009. (FIREhas a good idea about exactly why the policy was changed at that time, but that is a story not yet ready to be told.) This policy replaced all the old sexual harassment policies for students across the University of California system.

It appears that, like UCSD, four other campuses also missed the memo. The new policy is nowhere to be found online at UC Merced, UC San Francisco, UC Santa Barbara, or UC Santa Cruz. (It seems that the UC campuses at Berkeley, Davis, Irvine, Los Angeles, and Riverside all did get the memo and actually incorporated it into their policies.)

As President Mark C. Yudof explained to all ten UC chancellors on October 15, 2009, the old policy was problematic for several reasons including "legal vulnerabilities." Specifically, the old policy failed to track the actual standard for peer harassment announced by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999): behavior that is "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." Sexually harassing conduct also has to be (1) unwelcome, (2) discriminatory, (3) on the basis of gender, and (4) directed at the complaining individual, and these criteria are pretty much the same when it comes to other kinds of discriminatory harassment. Thus, President Yudof addressed these issues with the new policy, which largely tracks the Davis standard with regard to students and which treats all kinds of discriminatory harassment under the same standard. 

The new policy does away with language that is still posted online by schools that missed the memo. For example, UC Merced's '09-10 UCM Housing & Residence Life Handbook (), dated September 28, 2009, shows no sign of having been updated following Yudof's memo. In fact, the new language is seemingly nowhere to be found on UC Merced's website. 

So at present, students on five UC campuses are living under superseded, unconstitutional policies that unduly restrict their protected speech. At Merced, for instance, this is because the obsolete policy defines harassment as follows:

the use, display, or other demonstration of words, gestures, imagery, or physical materials, or the engagement in any form of bodily conduct, on the basis of race, color, national or ethnic origin, alienage, sex, religion, age, sexual orientation, or physical or mental disability, that has the effect of creating a hostile and intimidating environment sufficiently severe or pervasive to substantially impair a reasonable person's participation in university programs or activities, or use of university facilities; b) must target a specific person or persons; and c) must be addressed directly to that person or persons.

Compare this to the Davis standard above, and you'll see significant differences including several missing requirements under the law. If the old policy is applied to students' protected speech—speech that does not meet the exacting legal standard for true harassment, as defined by Davis—UC Merced will be violating their free speech rights. The five UC schools need to reverse the chilling effect on their students' speech and let them know that they have the free speech to which they are now entitled under both UC policy and the First Amendment.