Does Our Current Constitution Provide the Protections and Rights We Need? with Dean Erwin Chemerinsky

Episode Notes

Transcript

Dean Erwin Chemerinsky:

What about considering the possibility of a new constitution? I’ve always found it absurd that we’re governed in the 21st century by a document written in the late 18th century for small country in a relatively narrow geographic area and a country where there are enslaved people. How likely is it? It’s impossible unless we start advocating for it. If you share the premise of my book that there’s real crisis facing American democracy, then I think we’ve got to start facing what the solutions are. There’s not going to be a new constitution next year, probably not in five years, but it’ll never happen unless we start focusing on how essential it is that we make these changes.

Announcer:

That’s today’s guest on SideBar Erwin Chemerinsky Dean of the University of California Berkeley Law SideBar is brought to you by Monterey College of Law, San Luis Abispo College of Law, Kern County College of Law, empire College of Law, located in Santa Rosa and the colleges of law with campuses in Santa Barbara and Ventura. Welcome to SideBar discussions with local, state and national experts about protecting our most critical individual and civil rights Co-hosts Law Deans Jackie Gardina and Mitch Winick

Jackie Gardina:

Mitch. We ended last academic year with protests across college campuses, canceled classes, canceled graduation speakers, and even dramatically altered graduation events. We saw university presidents be subpoenaed to appear before Congress to defend their handling of campus protests and we saw universities call police to clear encampments or otherwise quell protests. Now, this isn’t a new phenomena in the us. The Vietnam warp protests on campuses are well-documented, and I actually remember the shanty town encampments protesting apartheid at my college campus. Yet we don’t seem to be getting any better on how to respond to these events.

Mitch Winick:

Jackie, the past several years have been some of the most turbulent times on college and law school campuses in decades. In 2020 university leaders were dealing with protests responding to the Black Lives Matter movement in the wake of police killing of George Floyd. In the past year, campus leaders have again been confronted with protests and confrontations following the October 7th attack by Hamas militants who killed more than 1200 people in southern Israel and took more than 200 people hostage. Israel’s military response to the attack and the ongoing humanitarian catastrophe and reported death toll of more than 40,000 in Gaza in the West Bank has continued to stoke controversy on campuses across the entire country. These challenges have raised serious constitutional issues related to academic free speech on campus, in publications and in the classroom,

Jackie Gardina:

And these aren’t the only issues facing higher education. Today, the US Supreme Court has reversed 45 years of precedent supporting affirmative action that will impact how educational institutions will address providing fair and open access to higher education going forward. As usual, when faced with these types of challenging legal and constitutional questions, we turn to a noted expert.

Mitch Winick:

Erwin Chemerinsky is Dean of the University of California Berkeley Law. Prior to assuming this position, he was the founding dean at the University of California Irvine School of Law. During his lengthy and distinguished academic career, he also served as a law professor at Duke University, university of Southern California Law School and DePaul College of Law in 2024 National Jurist Magazine, again named Dean Ky as the most influential person in legal education in the United States. He’s a prolific author of books and articles including his new book, no Democracy Lasts Forever, how The Constitution Threatens the United States. Welcome to SideBar Dean Chemerinsky.

Dean Erwin Chemerinsky:

Such a pleasure to talk with you.

Jackie Gardina:

I’m going to pivot right to the campus protest issues that we raised in the introduction. I think people struggle with the difference between a protest on a public street or in a public park, but the Supreme Court is called the traditional public forum and a protest on a campus. While both are protected by the First Amendment, there are differences in how universities can respond and discipline students on campus versus how the local government can respond to the same event in a park. Can you help us understand those differences?

Dean Erwin Chemerinsky:

To start with of course, is an enormous difference between a public university and a private university. The public university has to comply with the First Amendment. A private university doesn’t have to comply with the First Amendment. It’s more complicated in California though because there is a statute in California, the Leonard Law that says that a private school cannot punish speech that a public school can’t punish because of the First Amendment. The simple answer to your question is that while a park is a quintessential public forum, generally a campus is regarded as what we call a limited public forum in the government, therefore has much more latitude to regulate, but whether you call it in the language of the First Amendment, a public form or a limited public form, there’s no doubt that a campus can have time, place and manner restrictions with regard to speech so long as they’re not based on the content of the speech and so long as they leave adequate places for communication. So a campus undoubtedly can have a rule that says no encampments on campus. A campus can have a rule that says no demonstrations near classroom buildings or a classroom in session. A campus can have a rule saying no sound amplification equipment can be used. A campus can prevent protests and demonstrations outside dormitories, evenings and nighttime, so campuses have much more ability to restrict speech to preserve their functioning and also to preserve their educational mission.

Mitch Winick:

At the risk of getting too far in the weeds, this issue of private space versus public space raises the question in my mind, whether private campuses, use of government, police and or military to arguably suppress free speech demonstrations and encampments raises a different issue than if a private institution uses private campus security and doesn’t involve government employees. Is that a fair distinction?

Dean Erwin Chemerinsky:

It’s a fair distinction, but it’s not clear under the law how much that distinction matters. The issue came up long ago in the civil rights movement. A private business then had the ability to exclude those that wanted to even on the basis of race, but if a private store used the police to do that, was the presence of the police enough for state action? The Supreme Court had a case about it, bell versus Maryland, but they ended up splitting and not deciding the issue.

Jackie Gardina:

I’m going to switch a little bit. These issues on campus have also raised questions regarding the protection of religious freedom on campuses. We have a United States District Court. Judge Mark c Karzi recently issued an order stating in the year 2024 in the United States of America, in the state of California, in the city of Los Angeles, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. UCLA does not dispute this, but claims that it has no responsibility to protect the religious freedom of its Jewish students because the exclusion was engineered by third party protestors, but under constitutional principles, UCLA may not allow services to some students When UCLA knows that other students are excluded on religious grounds regardless of who engineered the exclusion. Can you help us unbundle this issue and explain how this might affect campus policies and responses related to future group protests and encampments?

Dean Erwin Chemerinsky:

I think the starting point is to be title six of the 1964 Civil Rights Act. It says Recipients of federal funds cannot discriminate based on race or national origin. This has long been interpreted to include things like being Jewish or Muslim as well as national origin like being Israeli or Palestinian in a campus cannot be deliberately indifferent with regard to discrimination or harassment on the basis of race, national origin, ethnic identity, and we’re talking about religion as well, and I think what the federal judge said in part was that UCLA was deliberately indifferent, that the encampment that developed did serve to discriminate against to lead harassment of to obstruct access for Jewish students, but interestingly, he would further and said that this was also discrimination on the basis of religion against the Jewish students, and it’s interesting to put it in that context, not just the Title six context.

Mitch Winick:

I think intertwining of religious liberty and free speech was at the forefront of the House Committee on Education and Workforce Committee hearings that many of us watched and that resulted in the resignation of at least three university presidents. Jackie and I have talked about this and we’ve noted that all of those were women. The house passed a resolution that states that anti-Zionism is antisemitism and the house also passed a bill that would direct the Department of Education to treat any targeting of the state of Israel as antisemitism. One of the most famous modern free speech cases is when the Supreme Court held that it was unconstitutional to deny the Nazi party the ability to have a march in Skokie, Illinois. Even though the March would offend Skokie citizens, many of whom were Jewish, how can we reconcile Congress’s reaction to campus protests with this type of a free speech doctrine

Dean Erwin Chemerinsky:

Under the First Amendment, all ideas and views can be expressed. This includes the ability to express even very offensive ones such as antisemitic ones. What you referred to in Skokie is now almost a half century ago that the Nazi party wanted in March in a suburb of Chicago, Skokie, Illinois that was predominantly Jewish at the time and a large number of Holocaust survivors, and Skokie did everything it could to exclude the Nazi party, but the Supreme Court and conver Smith, as did the lower court said that the Nazi party is the right to march. Likewise, the Nazi party has the right to march on campus. There’s a right to have white supremacist speakers on campus or speakers of any other viewpoint, but when the presence of antisemitic speech on campus or racist speech creates a hostile environment, title VI means that the campus can’t be deliberately indifferent. The Assistant Secretary of Education for Civil Rights, Catherine Lehman, has made very clear that when there’s antisemitism, the campus can’t be deliberately indifferent, but that doesn’t mean necessarily that the campus can or even should punish speech. Her point is there are many other things that campuses can do to fulfill their legal requirements of Title vi apart from in any way regulating speech.

Jackie Gardina:

I just want to go back and follow up on that because it said treat any targeting of the state of Israel as antisemitism. When wouldn’t antisemitism create a hostile environment? It seems like if there’s antisemitism, there’s a hostile educational environment for students. Could professors or students actually speak out against the state of Israel or is that automatically going to result in some kind of reaction from the university?

Dean Erwin Chemerinsky:

First? Of course, the definition of antisemitism is much disputed. I think we have spent far too much time trying to argue over what antisemitism means. I do not believe that criticism of the state of Israel is in any way antisemitic any more than criticism of the United States policies are anti-American. On the other hand, there are things that have gone on on campus across the country that are blatantly antisemitic. I remember seeing a sign at a demonstration at George Washington University where they held up and said the final solution. There are a number of instances across campus of Jewish students being yelled at and told, go back to Poland. There was a poster put on every billboard in this law school that had me with a caricature, holding a bloody knife and fork with blood among my lips, calling for a boycott of Zionist chimp. That’s blatantly antisemitic. Now, the fact that there’s anti-Semitic speech doesn’t necessarily create a hostile environment. One comment isn’t enough usually for a hostile environment, but there could be under certain circumstances when there’s a hostile environment, it means that the school must do something. It can’t be deliberately indifferent.

Mitch Winick:

We are going to take a short break when we return. We’re going to continue our conversation with Erwin Chemerinsky, Dean of Berkeley Law and author of the recently released book, no Democracy Lasts Forever, how the Constitution Threatens the United States

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Mitch Winick:

I want to pivot slightly. We recently spoke to Robbie Kaplan and Brandon Trice. Two attorneys involved in the litigation against Florida’s Don’t say Gay Law. During that conversation, we touched on an argument made in Florida that’s now being repeated in Indiana that public K 12 teachers and public colleges and university professors are actually engaged in government speech when they’re in the classroom and as a result they can be disciplined for straying from government positions or speaking against state laws. What do you think about this position and its likelihood of success with this Supreme Court

Dean Erwin Chemerinsky:

In 2006 in Garcetti versus Alis? The Supreme Court said there’s no First Amendment protection for the speech of government employees on the job in the scope of their duties. On the other hand, the United States Court of Appeals for the Ninth Circuit, a case called Deemers versus Austin said, at least at the college and university level, Garcetti Ali doesn’t apply that college and university professors have academic freedom that safeguarded by the First Amendment and that therefore they can’t be discipline that goes on in the classroom. Would this extend to K through 12? We don’t know. There’s certainly a similar enterprise teaching, but also there’s tradition of much greater control over what’s taught K to 12 as opposed to in universities. I

Jackie Gardina:

Listened to the 11th circuit argument regarding the Stop Woke Act and the primary argument made by Florida’s attorney was that the public university professors were engaged in government speech and therefore there wasn’t a First Amendment issue at play. One of the things that came up during the argument is that one of the judges said, are you applying this to scholarship as well? And the attorney said, not at this time. I’m wondering what you’re thinking about the ability to perhaps control what happens in the classroom versus the scholarship that is produced through the money and support of the university.

Dean Erwin Chemerinsky:

A university let alone K through 12 has some ability to control what goes on in the classroom. If I assign someone to teach contracts and they don’t want to do it and as a protest they say they’re going to just talk about sports all year, that person can be disciplined. On the other hand, there’s a University of California world that says there can’t be indoctrination in the classroom. Where is the line drawn between what’s permissible speech and indoctrination? Where is the line drawn between the ability to tell somebody this is what you have to teach, but still they’re having freedom of speech? We don’t have answers to those questions. I find it even more difficult when it comes to scholarship to say that when somebody is writing a book, an article, an op-ed, that they’re then not expressing freedom of speech that they’re then to be regarded as a government speaker.

Mitch Winick:

Is it a natural extension of that idea to remind some of these employees, whether they be K 12 or a state university employee who’s teaching that this is a contractual issue as well, that there are elements within their contract that the university could identify as limitations and they either agree to take the job with those limitations or not?

Dean Erwin Chemerinsky:

That too could raise a very difficult constitutional question. On the one hand, you might think of the contractual provision is a waiver. People can waive constitutional rights. On the other hand, there’s a doctrine of constitutional law called the Unconstitutional Conditions doctrine. It says the government can’t condition a benefit on having going to give a right. The government couldn’t say to somebody, you can have a job as a public employee but only on the condition. You never criticize the president, the governor, the president of the university. That would be unconstitutional. Well, likewise to say that you can have a job teaching only if you give up your First Amendment rights, I think would be an impermissible unconstitutional condition. I

Jackie Gardina:

Want to change the conversation a little bit. I recently spoke to community college administrators who want to set the foundation for what they call courageous conversations on campus, a way to discuss difficult topics civilly and for it to be productive conversations. They wanted to start with an understanding of the First Amendment, but the First Amendment protects speech that doesn’t always contribute to civil discourse. It protects lies and speech that denigrates and dehumanizes people. How do we move from a discussion about free speech to one about productive civil engagement?

Dean Erwin Chemerinsky:

I think it’s important to draw a distinction between your right to say something and whether you should say it. Just because you have the right to say something doesn’t mean it should be said. I think that schools need to do three things. First, I think academic leaders need to articulate their values including the value of civilized discourse. Second, I think that academic leaders need to model that which they want their students to engage in respectful civilized discourse. And finally, I think there are programs about talking across difference or courageous conversations that students can either required to or encouraged to participate in.

Mitch Winick:

Erwin changing topics following the Supreme Court’s decision in students for fair admissions versus President and Fellows of Harvard College. In a six three decision with the majority opinion written by Chief Justice John Roberts, the court overruled 45 years of precedent leaving open many questions about what colleges and universities may do to achieve diversity. The court held that colleges and universities cannot give preference based on race, but it did not keep them from pursuing diversity through race neutral means. Practically speaking, what does that really mean and what effect do you think this is going to have in providing fair and open access to higher education?

Dean Erwin Chemerinsky:

During the week of August 26th, there was national news about the number of students of color at MIT had fallen in a year because their inability to engage in affirmative action. After California voters adopted Proposition 2 0 9 in 1996 that kept University of California and all parts of state government from engaging in affirmative action. The number of black and Latinx freshmen at UCLA and at Berkeley fell by 50%. UCLA took them 19 years to get back to their pre 1996 levels of diversity of their undergraduate population. Berkeley had not done so even by 2019 as Justice Sotomeyer pointed out her dissent in that case, it will take an enormous effort, much trial and error for schools to find ways to achieve diversity without affirmative action. Some will just give up, some will fail even if those who succeed, it’s going to take a long time.

Mitch Winick:

We are going to take another short break when we return Jackie and I will continue our conversation with Erwin Chemerinsky, Dean of Berkeley Law and author of the recently released book, no Democracy Lasts Forever. How the Constitution Threatens the United States,

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Jackie Gardina:

I want to talk a little bit about some broader constitutional issues. You have a new book called No Democracy Lasts Forever. How the Constitution Threatens the United States When you consider it might be time to have some revisions to the Constitution one amendment that’s been floating out there for 50 plus years. The Equal Rights Amendment, we had Kathy Spiller on and she is very much someone who is pushing to have it recognized as a ratified amendment and we discussed the challenges involved in that. Do you think the Equal Rights Amendment having been ratified by the States and approved by the Congress as required is ratified and it’s just ministerial act on the part of the archives to include it or do you think there’s real constitutional challenges to getting it put in the Constitution?

Dean Erwin Chemerinsky:

I think that the Equal Rights Amendment has been ratified because three quarters of the states now have approved it. I think though it would take a joint resolution of Congress to deem it to be part of the Constitution and the precedent for this is the adoption of the 14th Amendment. After Congress had sent the 14th Amendment to the states, the southern states all rejected it. Congress then passed the Reconstruction Act and said that the southern states would be readmitted to the union only after they ratified the 14th Amendment. They did so under protest, but meanwhile, two northern states that had ratified the 14th Amendment rescinded the ratification. Congress then passed a joint resolution saying we now have three quarters of the states counting the states that had rescinded their ratification and it was deemed to be part of the Constitution. Well, we have the issue now of some states that had ratified the array rescinded their ratification. I think if Congress follows the precedent of the 14th amendment and Congress says the ERA is a part of the Constitution, then it’s deemed properly ratified. I don’t think it can just be the archivist.

Jackie Gardina:

Does Congress have the authority to actually set a time limit as they have with the ERA that it must be ratified within seven years or it must something must occur and that if that expires suddenly the constitutional requirements for ratification no longer apply?

Dean Erwin Chemerinsky:

There are a number of constitutional amendments that in their text say that order to be effective, it is ratified within seven years. That is not the ERA. There’s nothing in the text of the amendment that creates a time limit for ratification. There was though a preamble not part of the amendment preparatory to it that indicated seven years, but since that’s not part of the amendment and since Congress set the seven years, Congress can extend or ignore the seven years and Erwin,

Mitch Winick:

The idea of rescission is not included in the Constitution. Is it the issue of those states that subsequently rescinded is up for question as well?

Dean Erwin Chemerinsky:

It is up for question though. The story of the ratification of the 14th Amendment provides an answer. I think even though two states had rescinded their ratification and even though there wouldn’t have been three quarters of the states without those two, nonetheless, Congress deemed three quarters of the states to having passed the 14th amendment. Congress then passed a joint resolution saying it’s now part of the Constitution. It was good enough. Then sure could be good enough for the era a

Mitch Winick:

Erwin. I want to circle back to your book because in your book a lot of it said right there in the title, no Democracy Lasts Forever, how The Constitution threatens the United States, you suggest that it might be time to reconsider revisions to the Constitution. We had a wonderful similar conversation with historian Larry Goldstone, who I must say shares many of your same concerns that there are gaps and omissions, some intentional, some unintentional in the 1787 document that under current judicial interpretation maybe leading us to undemocratic outcomes. This could be an episode all in its own and in fact we may have you back just to talk about this, but to tantalize us with some ideas, what do you think are the top concerns with the current constitution and what we should be focusing on?

Dean Erwin Chemerinsky:

The electoral college, it was a terrible way of choosing the president when it was created in 1787, but in the 21st century, it’s really become enormously problematic because the population shifts and partisan realignment, it’s so likely we can have an electoral college chosen president who lost the popular vote happened in 2000, happened in 2016, almost happened in 2004. In 2020. The United States Senate two senators per state I think was a bad idea in 1787, but then the difference between the largest state in the smallest state and population is 12 to one. Now, the difference between the largest state and the smallest state is 68 to one. In the last session of Congress, there were 50 Democratic senators and 50 Republican senators. The 50 Democratic senators represented 42 million more people than the 50 Republican senators. The filibuster has made all of it much worse. Now it takes 60 votes in the Senate to pass any legislation other than budget legislation, partisan gerrymandering.

It’s always existed, but because sophisticated computer programs, it occurs now with far more precision and it means that the House of Representatives, which is supposed to be the most representative part of the federal government now isn’t Democratic life. Tenure for Supreme Court Justices is a real problem. In 1787, average life expectancy was 36 years. Thankfully, it’s much longer now, but the result is from 1787 to 1970, the average tenure of Supreme Court Justice was 15 years, but those appointed since 1970. The average tenure has been 27 years. When you talk about all the mistakes made in drafting the Constitution with regard to race, and we can also talk about, I think the Constitution made a big mistake making it so difficult to amend and change,

Mitch Winick:

So how likely do you think a pathway to constitutional change is going to be? As you talked about, getting 60 votes certainly in the current era seems almost impossible, so getting constitutional amendments or a new Constitution seems somewhat overwhelming. How do you envision that could come about? Now,

Dean Erwin Chemerinsky:

What I say in the book is much of the problem could be fixed by statute without needing constitutional change. Congress could pass a law eliminating winner take all in states for electoral college. Congress could expand the size of the House of Representatives. The Senate could eliminate the filibuster. We can go on with things that can be done. Congress could pass a law eliminating partisan gerrymandering for house seats, but almost everything can be fixed by a constitutional amendment, and I then say, rather than a flurry of independent and separate amendments, what about considering the possibility of a new constitution? I’ve always found it absurd that we’re governed in the 21st century by a document written in the late 18th century for a small country in a relatively narrow geographic area and a country where there are enslaved people. How likely is it? It’s impossible unless we start advocating for it. If you share the premise of my book that there’s real crisis facing American democracy, then I think we’ve got to start facing what the solutions are. There’s not going to be a new constitution next year, probably not in five years, but it’ll never happen unless we start focusing on how essential it is that we make these changes.

Jackie Gardina:

Erwin, we always like to end a podcast with a call to action, and we have a lot of listeners who aren’t lawyers and aren’t deeply involved with the legal system. What would you say to citizens of the United States about what acts they can take to help support and further our democratic values

Dean Erwin Chemerinsky:

Vote? The most important thing is for people to vote. We’re talking about the Supreme Court. If Hillary Clinton had won in 2016 rather than Donald Trump, she would’ve picked three justices, rover’s, Wade wouldn’t been overruled. The affirmative action cases wouldn’t been overruled. Elections really matter to get involved in organizations and there are organizations that we can work through to do these. If people are concerned about issues with regard to democracy, there are organizations like Common Cause. If the concern with civil liberties organizations like the A CLU concerned the racial justice organizations like the Field League Defense Fund, Mexican American League Defense Fund, Kathy Spiller from the Feminist Majority Foundation, if someone’s concerned about women’s rights, these organizations are there and if people get involved and support them, that’s how we can make a difference.

Mitch Winick:

Erwin, thank you for joining Jackie and me on SideBar today. We hope that you’ll return to talk more about your book and to help us all continue to remember that the Constitution is the foundation of our democracy and it still can be improved.

Dean Erwin Chemerinsky:

Truly my pleasure. Thank you having me on.

Jackie Gardina:

Mitch, as always, it’s great to listen to Erwin Chemerinsky because he is so incredibly knowledgeable. He’s probably, I was going to say forgotten more constitutional law than I know, but my guess is he hasn’t forgotten anything. His grasp of the concepts and ability to explain them in a way that are easy to understand for anyone is such a gift to have and really appreciated the insight he brought into not just the campus protest and First Amendment issues that we talked about, but the other constitutional issues that we raised.

Mitch Winick:

I think one of the things that’s important to consider and Erwin brings it home, is that the Constitution is not simple. They’re not just knee jerk simplistic answers that this is okay and this is not okay. He very quickly showed us that these are nuanced issues that have to be thought through and considered, not just in the original text of the Constitution, but in each of these major cases that have provided interpretation. Erwin tells us how important it is to understand the Constitution. If you want to understand the foundation of our rule of law, if everyone’s like me, you’re going to listen to it once and then say, you know what? I couldn’t get all that. I’m going to go back and listen to it again so that I can better understand these critical issues.

Jackie Gardina:

Once again, I want to thank everyone who joined us today on SideBar, and as always, Mitch and I would love to know what’s on your mind. You can reach us at SideBar media.org.

Mitch Winick:

SideBar would not be possible without our producer, David Eakin, who composes and plays all of the music you hear on SideBar. Thank you also to Dina Dowsett who creates and coordinates sidebar’s. Social media marketing.

Jackie Gardina:

Colleges of law and Monterey College of Law are part of a larger organization called California Accredited Law Schools. All of our schools are dedicated to providing access and opportunity to legal education to marginalized communities. For

Mitch Winick:

More information about the California accredited Law schools, go to ca law schools.org. That’s ca law schools.org.

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