This year the Government Code sec. 11135 made it clear that California State University (CSU) cannot tolerate anti-GLBT actions in any of its programs or activities. What seems unfortunate to me, as a former Associated Students president and president of the Young Alumni Association at SDSU, is that the CSU Board of Trustees has taken little action to educate the CSU community about the nature of the law.

As we witnessed with the threat against a gay administrator in The Koala, the First Amendment does not insulate from criminal or civil liability any person or entity when the expression he or she uses conveys a threat, constitutes a hate crime and/or is perceived by others to be harassment based upon race or sexual orientation.

Today, courts look at universities much as they do “workplaces.” Universities act, in some ways, as employers and have to safeguard and protect their employees. Universities also act as custodians for the safety of students.

Thus, courts compare campus newspapers and Web sites, etc., to office newsletters, e-mail, and such – they’re immune from censorship and can be distributed publicly, but

the editors/publisher/writers are criminally and civilly liable for what they print.

The author of a threat faces liability under the Penal Code and the Education Code for making a threat to the person or property of a campus official, even if the threat was intended in jest. The test is whether the target of the threat reasonably perceives a threat to self or property.

Prosecutors can enhance the punishment if the threat is because of the person’s sexual orientation or gender identity. And, on the civil side, the university can incur liability under the Government Code and federal law for failing to protect students from a “hostile” environment based upon race, religion, sexual orientation, or gender identity.

The courts draw a fairly clear line here.

It’s one thing for a campus to tolerate commentary opposed to same-sex marriage, etc. That’s certainly protected by the First Amendment. But it’s quite another for students to tolerate and not be offended when someone resorts to historically derogatory slang terms like the “N” word and “fags” to denigrate a group.

In determining liability, courts use the standard as to how a “reasonable gay” person would react to the use of such terms – would a reasonable gay person feel threatened or intimidated. Thus, the use of the term “fag” in an English text, or the “N” word in the writings of Mark Twain would certainly be offensive, but probably a reasonable gay or black person would understand the context.

The university is a “marketplace” of ideas. But there are civil ways to express ideas and differences: Such expression must not constitute a threat of violence, nor should it create an unreasonably hostile environment for students.