Berkeley Has a Tough Task Ahead of It

I just finished a draft article (now before law reviews!) entitled "They Managed a Protest: Prohibitory, Ethical, and Prudential Policing of Academic Speech." As the name implies, it addresses recent controversies regarding free speech on campus, though the framing device is the Kyle Duncan incident at Stanford Law which these days feels almost quaint. In any event, one of my main objectives in the paper is to explore the position of the university administrators -- often untenured -- who are tasked with enforcing free speech policies in the context of campus protests. They occupy difficult positions, not the least because many external observers think their position is easy -- just severely punish disruptive protesters and call it day. What could be simpler than that?

Of course, things aren't as simple as that, even in the seemingly clearest cases. Earlier this week, a group of protesters organized by the "Bears for Palestine" student organization managed to violently shut down a scheduled talk by a right-wing Israeli speaker at UC-Berkeley. Protesters smashed windows and the door of the building where the talk was scheduled to occur, and allegedly assaulted and slurred Jewish students trying to attend the event.

There's little question that this behavior violated UC-Berkeley policy and, probably, state law. The UC-Berkeley Chancellor, Carol Christ, has written a strong statement denouncing these actions. And for my part, as much as I respect the right of students to engage in protest, the allegations of what happened in this event are such that severe punishment -- including potentially suspensions or expulsions -- would seem to be warranted for at least the most serious offenders. To that extent, this is a simple case.

Even still, though, I do not envy the Student Affairs officials* who are tasked with operationalizing that simple case into actual disciplinary action.

To begin, it is abundantly clear that Berkeley is under immense pressure to significantly punish someone. If at the end of their process nobody gets more than a slap on the wrist for violations of this magnitude, they will be accused of turning a blind eye to this sort of behavior, or even tacitly sanctioning it. It needs, at the end of this, to put a few heads on pikes.

But to that end, while I suspect that Berkeley will be able to identify many of the students present at the protest, it likely will not be easy to figure who exactly is responsible for the more egregious acts that would justify the harshest punishment (the antisemitic slurs, the destruction of university property). Many protesters wore masks, and the group itself was comprised of students and non-students. 

So what is the university to do? It could adopt a policy wherein it just throws the book at everyone -- "expel 'em all and let God sort it out." But that sort of short-circuiting of normal due process protections will generate intense backlash and possibly make them vulnerable to a lawsuit. Breaking windows, smashing doors; these are violations of university speech policies. But -- depending on what went down at the event -- being in the vicinity of those actions, without participating in them, may not be. It's the difference between attending Trump's "Stop the Steal" rally versus actually breaching the Capitol. One might not think the former are good people, but they haven't done anything illegal.

In short, there are severe cross-cutting pressures at play here that make reaching even the "simple" right outcome harder than it appears. Those pressures are amplified by the very loud voices on both ends of the spectrum, some of whom will insist that nothing short of a complete extirpation of all pro-Palestinian advocacy on campus means capitulation, others of whom will fulminate that any consequence to any righteous protester on any ground is tantamount to jackbooted censorial thuggery. While we can perhaps justly demand that Student Affairs professionals ignore those voices (easier said than done), their presence, too, complicates significantly the more legitimate problems the office will face in its quest to come to a good decision.

* Disclosure: My wife works in the UC-Berkeley Student Affairs Division, albeit not in a role that has anything to do with meting out student discipline.