Students at an encampment staged to protest the Israel Hamas War on the UCLA campus, Monday, April ... [+]
The current wave of student protests on U.S. college campuses is the latest in a tradition of civil disobedience that began in the 1960s. It’s also shaping up to be one of the rare chapters in more than 50 years in which colleges deploy police to disperse and arrest protesters in large numbers. As pressure mounts from both sides of the debate, First Amendment advocates are urging caution in responding to student protests.
“Times like this may seem to present the most righteous justifications for bending the rules in one direction or the other, to either permit the censorship of protected speech or to allow unprotected speech or violence to go unpunished,” wrote Foundation for Individual Rights and Expression Legal Director Will Creeley in November 2023 — weeks after the Hamas attack on Israel. “But we cannot let either happen.”
Widespread Protest And Historic Arrests
As The New York Times
A letter from dozens of faculty members at colleges in the Washington, D.C. region stated, “George Washington University, and indeed universities across the DMV and the United States as a whole, will fail in their most basic promises and commitments if they continue to repress, arrest, suspend, and stifle the free speech and political activity of their students.”
GWU was among the colleges that called on police to disperse protesters, though D.C. police refused to intervene because the demonstrations were so civil, according to reporting by The Washington Post.
By all accounts, most of the protests have been peaceful criticisms of Israel’s actions. Data also shows that antisemitism has more than tripled since the October Hamas attack, according to the Anti-Defamation League, and many Jewish students feel unsafe amid the protests. Colleges are grappling with the tension between their obligations to keep students safe and to honor their legal rights and the intellectual spirit of higher education.
The first reported police response was at the New York City campus of Columbia University on April 18, after its president called for police to clear out encampments. More than 100 students were arrested that day, according to The New York Times. The events at Columbia appear to have inspired widespread protests at U.S. colleges since then, with many adopting a similar protest strategy of encampment.
More than 1,000 pro-Palestinian protesters have since been arrested at more than 20 universities, according to Associated Press reporting, with some force involved. The Guardian reported that students at Emory University in Atlanta were subject to tasing and tear gas. At the University of Texas at Austin, where more than 100 people were arrested and some were pepper sprayed, outside agitators helped organize some of the protests, according to reporting by the Austin American-Statesman.
These are historically exceptional numbers in a nation that has for decades tolerated peaceful student protests and treated violations of institutional rules as mostly internal matters.
A Brief History Of Student Protest And Police Force
In 1964, almost 800 students were arrested at UC Berkeley for a sit-in protesting McCarthy-era limitations on campus speech and advocacy. The students won and those restrictions were overturned. Those protests laid the groundwork for the anti-war protests that erupted several years later. In 1970, students gathered on the campus of Kent State University in Ohio to protest U.S. involvement in the Vietnam War and its invasion of Cambodia. The National Guard was called in, opening fire into a crowd of protesters and bystanders, killing four young people. The events at Kent State inspired a nationwide student strike that forced hundreds of colleges to close temporarily. Thousands of students were arrested across the country. Just a few days later, police opened fire at students protesting racial injustice at Jackson State College (now Jackson State University) in Mississippi, killing two students and injuring 12 others.
Anti-war demonstrators raise their hands toward the White House as they protest the shootings at ... [+]
Protests on college campuses aren’t new. From the calls in the 1980s to divest from South Africa during apartheid (led by students at Columbia) to Take Back the Night rallies to end sexual violence, college students have been engaged with some of the most urgent moral challenges of our time and demanded changes from their institutions. For the most part, college administrators have tolerated the disruption of these protests and treated them as internal — not criminal — violations.
Colleges Can Balance Safety And Free Speech
The political dynamics at the center of today’s campus activism may be new, but the uncomfortable questions that this activism raises about speech and safety are not. College administrations can learn lessons from past demonstrations and their ill-fated police responses.
A review of recommendations from nonpartisan organizations concerned about First Amendment rights and higher education revealed a few clear themes for college administrators to consider when responding to protests. The following is drawn from recommendations from: FIRE, the American Civil Liberties Union, PEN America, the Institute for Constitutional Advocacy and Protection at Georgetown University, and Findings from a Critical Issues Forum of Historically Black Colleges and Universities.
In sum:
Plan Ahead And Know Your Protesters
Understanding the activists’ demands and the political and cultural conditions of the moment are essential for communicating with college activists and minimizing the potential for escalation.
Know Which Speech Is Protected
Public colleges are bound by the First Amendment, while private ones are generally not. However, it can be useful for private colleges to be guided by the same principles.
The categories of actionable misconduct that are not protected by the First Amendment are: violence; true threats and intimidation; incitement; discriminatory harassment; and the suppression of speech or heckler’s veto. When students engage in these behaviors, schools have an obligation to respond proportionately to protect the rest of the college and community.
Everything else, when done peacefully, is likely permissible.
Use Proportionality In Your Response
Responses to students should be tailored to match the energy level and actions of the crowd. If a few individuals are behaving in a dangerous or threatening manner, broad action should not be taken against the crowd when those individuals can be handled directly. Peaceful protests should not be met with aggression.
It is also wise to remember that some police enforcement tools — such as guns, batons and shields — can escalate hostilities simply by their militarizing presence. Law enforcement should be judicious when deciding which tools are necessary.
Apply These Principles Evenly And Resist Political Pressure
In an open letter to college presidents, the ACLU called on leaders in higher education to remain neutral on the subject matter of these protests, stating: “Schools must not single out particular viewpoints for censorship, discipline, or disproportionate punishment.”
This may be the most difficult principle to uphold as colleges can be subject to political pressure from donors, alumni and elected officials. The threat of funding withheld or political retaliation can be chilling. But the consequences of bending core principles to meet such demands could do irreparable harm to the broader institution of higher education in a thriving democracy.
As PEN America states in its Principles on Campus Free Speech:
“College should be acknowledged as a time for students to engage with new ideas and participate in robust debates, which can involve testing boundaries and experimenting with forms of speech and activism.”
