University of California Hastings College of the Law
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Freedom of Expression in Next-Generation Computing
No full textExtended reality (XR)—the integration of virtual, augmented, and mixed reality technologies—creates immersive, embodied, and behaviorally integrated forms of communication that challenge traditional understandings of freedom of expression. While XR offers new opportunities for creativity, civic engagement, and cross-cultural participation, its immersive nature introduces risks of censorship, surveillance, biometric profiling, algorithmic manipulation, and inequitable access.
This Article situates XR within the framework of European human rights law. It begins by identifying the technical and psychological features that distinguish XR from conventional platforms, particularly presence, immersion, and embodiment, which transform speech into multisensory and interactive experiences. It then evaluates how existing legal protections— chiefly Article 10 of the European Convention on Human Rights, the EU Charter of Fundamental Rights, and Council of Europe recommendations—apply to XR contexts. Although these frameworks emphasize legality, necessity, and proportionality, their application remains underdeveloped where expression occurs through avatars, immersive environments, and biometric data. Key cases such as Handyside v. United Kingdom, Delfi AS v. Estonia, and Bărbulescu v. Romania illustrate both the adaptability and limits of current doctrine when extended into immersive settings.
The Article concludes by proposing reforms to adapt human rights protections to XR. These include clarifying platform liability for real-time immersive interactions, enhancing transparency in algorithmic governance, strengthening privacy safeguards for biometric and behavioral data, addressing immersive misinformation or “mis-experience,” and promoting equitable access to XR technologies. Taken together, these measures would help ensure that XR develops as an inclusive and rights-respecting medium rather than a frontier for unchecked corporate or state control. By grounding its analysis in European legal traditions, this Article demonstrates both the urgency and feasibility of adapting existing frameworks to safeguard expressive freedoms in the age of immersive computing
The Role of First Amendment in Equal Protection and Affirmative Action Analysis: the Compelling Governmental Interest
No full textThe Supreme Court’s decision in Students for Fair Admissions v. Harvard College has transformed the legal framework governing university admissions, sharply limiting race-conscious policies and compelling institutions to align their diversity objectives with the newly shaped heightened scrutiny under the Equal Protection Clause. Concurrently, the Trump administration’s broad-based attack on diversity, equity, and inclusion (DEI) programs—culminating in executive orders restricting race-conscious initiatives— has further intensified the legal and political pressure on colleges and universities striving to foster inclusive academic environments. This article contends that the First Amendment—particularly its protections of academic freedom and free speech—plays a critical and underutilized role in reinforcing Equal Protection and affirmative action analysis. Rooted in longstanding jurisprudence that recognizes the university as a distinctive sphere within the constitutional order, First Amendment principles support institutional autonomy in shaping academic communities and pursuing educational missions that include diversity as a pedagogical imperative. Drawing on case law, including Students for Fair Admissions v. U.S. Naval Academy, and recent lower courts’ opinions such as National Association of Diversity Officers in Higher Education et al. v. Donald Trump et al., 2025 WL 573764 (D. Md. Feb. 21, 2025), this article demonstrates how constitutional protections can shield universities from governmental overreach. By integrating the First Amendment with Equal Protection and Procedural Due Process analysis, this article outlines a constitutional strategy that bolsters the legal sustainability of diversity initiatives in higher education. It complements my companion article, The Role of Procedural Due Process in Equal Protection and Affirmative Action Analysis, by proposing a multifaceted theoretical framework that ensures institutional efforts toward inclusion remain both constitutionally grounded and resilien
Academic Village Finance Authority Board of Directors Meeting - Notice and Agenda 09/12/2025
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The Role of Procedural Due Process in Equal Protection and Affirmative Action Analysis: the Narrowly Tailored Prong
No full textThe Supreme Court’s decision in Students for Fair Admissions v. Harvard College marked the end of affirmative action as traditionally practiced in higher education admissions, forcing universities to seek alternative legal pathways for fostering diversity. At the same time, the Trump administration’s executive orders targeting DEI initiatives have exacerbated the legal uncertainty, raising critical questions about how institutions can preserve fairness in admissions while withstanding both judicial and political scrutiny.
This article argues that Procedural Due Process—when read in conjunction with Equal Protection—provides a constitutionally sound and structurally fair framework for admissions policies that align with strict scrutiny while preserving diversity. Specifically, it explores the narrowly tailored component of the Equal Protection analysis, assessing how universities can design transparent, neutral, and procedurally robust admissions programs that enhance legitimacy and resilience against constitutional challenges.
The strength of this approach is confirmed by some recent lower federal courts’ opinions, granting equitable relief against such orders on Procedural Due Process and First Amendment grounds, showing how fairness, neutrality, and structured decision-making can provide a constitutionally viable means for universities to sustain diversity efforts.
This article is closely connected to my companion piece, The Role of First Amendment in Equal Protection and Affirmative Action Analysis: The Compelling Governmental Interest, arguing that academic freedom and free speech offer additional constitutional grounding for race-conscious admissions and legitimate DEI initiatives. Together, these works provide a forward- looking constitutional roadmap to help universities navigate the post- Students for Fair Admissions era and resist new government efforts to dismantle DEI programs
