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.

The Uncommitted Story

Last night, Joe Biden won the Michigan primary with approximately 81% of the vote. Donald Trump also won with 68% of the vote (you wouldn't necessarily clock that Trump did comparatively worse than Biden given the coverage, but that's hardly a surprise anymore). But while the foregone conclusion outcome isn't super interesting, many people have been keeping an eye on the relative performance of "uncommitted" in the Democratic column. 

For those of you who don't know, a campaign largely emanating from Michigan's substantial Arab and Muslim community urged Democratic primary voters to cast a ballot for "uncommitted" as a means of signaling discontent with President Biden's support for Israel in the war in Gaza. A few days ago, I registered my genuine curiosity regarding how "uncommitted" would play out in the Michigan Democratic primary. On the one hand, I said, I absolutely could see it "capturing genuine frustration amongst [Democratic] partisans (so getting substantial support)." On the other, I also could see it "mostly an online/activisty thing (so being a nothing burger come the actual vote tallies)." Since both hypotheses seemed plausible, I was genuinely interested to see what the reality would be.

Towards the start of the evening (with, as I recall, approximately 20% of the votes tallied), I wrote the following:

If “uncommitted” typically gets 10% and it holds at 16% (which it may not, in either direction), I’d say that’s not a huge performance (6% over baseline) but still meaningful given how tight MI will be. It’s not something that should be ignored; but neither is it “popular groundswell of rebellion”.

The "10%" baseline is based on the last analogous election where an incumbent Democrat was running -- Barack Obama in 2012. Ten percent (10.7%, to be precise) of Democratic voters then voted "uncommitted" despite there not being (to my knowledge) any significant organized campaign pushing for the vote, suggesting that this is baseline level of support for "uncommitted" that isn't attributable to anything more than inchoate background status quo discontent. Given that, my assessment was that getting an additional six percentage points of support is not trivial, but also isn't proof of some broad-based sentiments of frustration and opposition.

As I said, though, the tally was early and things might change in either direction over the course of the evening. I saw some people suggest that they expected the number to rise as the night went on, on the theory that "bluer" jurisdictions like cities were going to report later and the assumption that "uncommitted" voters would be more prevalent in those areas. But what ended up happening is that "uncommitted" faded over the course of the evening, finally settling at 13.2% -- about 2.5% over the baseline expectation (it's also below the 15% threshold necessary to pick up statewide delegates at the DNC, though it did get two delegates due to strong local performances).

From my vantage point, this really can't be said to be that impressive of a performance. It still matters in the sense that Michigan will likely be close and so every little bit counts. But ultimately, a well-organized campaign, with the support of some significant local Democratic figures (albeit opposition from many others) managing to overperform doing nothing by 2.5% really doesn't demonstrate much in the way of serious political muscle. I don't want to say the frustration that the "uncommitted" campaign is tapping into isn't real. But objectively speaking, it doesn't seem to be translating into significant alterations in Democratic voter behavior -- to that extent, it may be a largely cloistered thing. If I'm the Biden campaign, I'm certainly not ignoring this issue (for a variety of reasons, not the least being that its salience to activist, elite, and media cadres clearly punches above its weight, and then also because one wants to do the right thing and have a good policy that takes into account the views of all relevant stakeholders). But I think we've dispensed with the need for incipient panic.

That said, the "uncommitted" campaign did a wonderful job of setting expectations. The nice thing about a symbolic play like this is that since an objective win is obviously off the table (and not the realistic goal) pretty much anything can be sold as a victory. If you lose an actual election, you have to (well, I guess we've learned you don't have to) concede defeat. If you're not actually running to win but instead are just trying to trumpet your existence as a voting bloc, however, there's essentially no outcome where one has to "concede defeat". You will never see organizers release a statement to the effect of:

Our goal was to demonstrate that the people of Michigan care about X issue and that our values cannot be ignored. But given our anemic performance, the voters today have made clear that Michigan voters don't care about X at all and that we completely overestimated our influence. Thanks to everyone for taking part in this civic experiment, and we'll adjust our priors accordingly.

Here, the uncommitted organizers really basically set their bar on the floor -- they said their goal was to get 10,000 votes for "uncommitted", and they are celebrating for blowing past that tally. On the one hand, 10,000 is not a completely made-up figure -- it was roughly Donald Trump's margin of victory in 2016. On the other hand, in this primary 10,000 votes would have been barely over 1% of the total tally -- less than half of Dean Phillips' tally and a tenth of the Obama 2012 baseline. It is true that turnout is up considerably since 2012 (10.7% then was a little less than 21,000 votes; 13.2% in 2024 is over 100,000 votes) -- but it's hard to view that as bad news for Democrats.

The other observation I want to make relates to that prediction I saw that the "uncommitted" tally would rise as bluer, urban jurisdictions came in, when the reality was that "uncommitted" faded over the course of the evening. I wasn't following the returns closely enough to confirm whether the bluer areas were in fact reporting later. Assuming that they did, though, I think this is a good time to correct another common and understandable misapprehension: that the most partisan Democratic areas of a state are also necessarily the most progressive.

It's an understandable inference. In a two-party system, we might imagine that a voter who is only slightly left-of-center would regularly be at least tempted to vote GOP (given the "right" candidates), a voter who is more decisively liberal would be less likely to crossover, and the most liberal voter would also be the least likely to be tempted away to the other party. From that, we would infer that the most partisan Democratic voters (those least likely to ever vote Republican) are also the most progressive voters (there preferences are furthest away from those of Republicans).

But it isn't necessarily true. At one level, it's falsified by the presence of "both parties are the same" uber-leftists -- such persons may or may not be tempted to vote GOP, but they're obviously not Democratic partisans. The most partisan Democratic clusters are persons who are probably progressive enough not to be tempted by the GOP, but also not so left-wing that they find arguments like that appealing. But beyond that, there's more that goes into committed Democratic Party loyalty than ideological alignment. We know, for instance, that African-American voters are the most committed Democrats and that African-American Democrats are more likely to identify as moderate or conservative compared to White Democrats. There are other factors beyond ideology that are significantly responsible for why Black voters are Democratic loyalists. Likewise, the post 9/11 trend whereby Muslim voters overwhelmingly voted Democratic also was not primarily a feature of deep-seated ideological leftism -- it stemmed from "other factors" (i.e., rampant GOP Islamophobia) which superseded still-extant ideological moderation or even conservatism.

All of this is to say that the assumption that Black voters, because they are steadfast Democratic voters, also must sit on the left edge of the party on an ideological level, is a mistaken apprehension, and consequently the sorts of issues that are motivating the ideological left-edge of the party are not necessarily the same ones that motivate the base of the party. This isn't to say that the Democratic base is actually conservative; it's still probably true that it is relatively to the left of the average person who votes Democrat in any given November. It's just not all the way at the left-most edge of the party. That mistake, I suspect, is a large part of what generated the wrong assumption that "uncommitted" would perform substantially better in those locales.

For what it's worth, on a very quick gaze there doesn't seem to be much correlation between the Black vote and "uncommitted"; if anything, it seems to have underperformed. The overall Black population of Michigan is approximately 14%, and there are four counties which have proportionally larger Black populations than that: Wayne County (Detroit and Dearborn), Genesee County (Flint), Saginaw County (Saginaw), and Berrien County (St. Joseph) (Oakland County, north of Detroit, is exactly 14% Black).

Wayne County saw "uncommitted" get 16% -- but that's almost certainly more a product of Dearborn than Detroit (disaggregating those figures would be very interesting, but the fact that "uncommitted" outright won in Dearborn and Hamtramck, both of which are approximately half Arab-American, mathematically suggests it did much weaker numbers elsewhere in the county). By contrast, Genesee County, which contains Flint, saw "uncommitted" have one of its worst performances -- 9.5%. Saginaw County saw "uncommitted" get 10.2%, Berrien County 9.6%, and Oakland County 12.5%.

Plot "uncommitted" based on the most Democratic parts of the state (based on 2020 Democratic vote share), and things similarly look blurry at best. Joe Biden only won 11 counties in Michigan last time around. He won all of the above-mentioned counties except Berrien, plus Washtenaw (Ann Arbor), Ingham (Lansing), Kalamazoo (Kalamazoo), Kent (Grand Rapids), Muskegon (Muskegon), Leelanau (Traverse Bay), and Marquette (Marquette, on the upper peninsula). "Uncommitted" had possibly its best performance in the entire state in Washtenaw County, at 17.2% -- certainly a product of the University of Michigan community. And it did slightly better than its statewide average in Kent County (13.8%). But in every other county Joe Biden won, "uncommitted" underperformed its statewide average -- from 13.1% in Ingham to 9.1% in Saginaw. That said, the two counties "uncommitted" performed best in (Wayne and Washtenaw) are two of the heaviest Democratic hitters (along with Oakland) in terms of raw Democratic vote margins; the other counties listed, while won by Democrats, tend to be either smaller or closer (or both). 

So I'd say these results are mixed, and again, my advice to Biden isn't to just ignore this issue outright. Rather, it's to observe that the coalitional politics that drove the "uncommitted" movement are distinct from "the base" (and, in particular, Black voters). That's an important thing -- democracy is about appealing to diverse constituencies who have an array of distinct and differentiated interests, and this issue certainly had strong salience amongst Michigan's Arab and Muslim community, plus a fair amount of weight in the collegiate environs of Ann Arbor -- but it's not necessarily the same thing as it's been presented.

Dealing with the Deal After the Day After

Bibi Netanyahu has finally released a "day after" plan for Gaza. It's not a real plan, for many reasons. It's not surprising it took this long, and it's not surprising it's not real: even though the nominal military objectives Israel is pursuing in the Gaza Strip are obviously impossible to effectuate without some serious plan for "what comes after", any serious day after plan is a conceptual non-starter for the hard-right coalition keeping Bibi in power. So of course Bibi is going to tap dance around this issue and defer it as much as possible; a new iteration of the old "airstrikes while you wait" policy. While in theory Israel is blowing up Gaza to accomplish certain policy objectives -- from the short-term bringing the hostages home to the long-term securing of the Gaza/Israel border -- in practice Israel is blowing up Gaza because as long as it's doing that it can avoid thinking seriously about how to accomplish those objectives insofar as a serious grappling with said issues would require concessions that are ideologically unacceptable by the Israeli right -- for example, recognizing Palestinians' legitimate rights to self-determination. 

But tempting as it is, I'm not going to go on a rant regarding the inadequacies of this plan (though, to stress again, it's woefully inadequate and intentionally so). Rather, I want to focus in on one aspect of it -- the vague nod to some "local" Palestinian administrators and operatives who would implement these policies on the ground. The questions that immediately raised include "who exactly does Israel have in mind" and "what self-respecting Palestinian would agree to serve as the Israeli government's cat's paw?" My friend Layla referred to it as a proposed "quisling" regime, and in context that's difficult to argue against.

Yet I do think we need to unpack that issue a little more. One of the most unfair features of an eventual Israeli and Palestinian peace agreement is that it is going to have to be agreed to by people you hate. And by hate, I'm not referring to some sort of atavistic bigotry, I mean a hatred that has very real and justified foundations behind it. It's going to be agreed to by people who supported kidnapping Israeli kids on October 7. It's going to be agreed to by people who supported destroying Palestinian cultural heritage throughout the Gaza Strip. And that's going to be very difficult to deal with.

Consider the following statement: "If you find yourself agreeing with Hamas, stop and turn back, you're doing it wrong." Seems straightforward enough. And yet, any deal in the foreseeable future we might reach will be, quite literally, in part an agreement with Hamas. That's unavoidable (as Rabin famously observed: "You don't make peace with your friends."). And the problem is that where "agreeing with Hamas" is (understandably) taken as strong evidence that a position is a bad one, then necessarily every possible proposed deal will immediately become suspect the moment Hamas signals it might agree to it (i.e., it becomes an actual deal). It's a huge thumb on the scale in favor of rejectionism.

The same is true running in the reverse direction: a deal with Israel means a deal with Israel; by definition, the governmental structure that emerges in Gaza as part of that deal will be one that is at some level acceptable to Israel. Indeed, that's the hope of a good deal -- it's one that everyone will be happy or at least content with. But this very fact also means that any "deal" will be vulnerable to the charge that it represents capitulation to the hated Zionists -- the very fact that they find it agreeable proves it is a deal not worth taking. Again, to reiterate, I'm not accusing Layla of this -- in the context of this proposed "deal" the charges have very real legs. The point, though, is that this is an omnipresent phenomenon -- it stands ready to sabotage any agreement, insofar as agreeability from the wrong party can always be leveraged as proof that we're being taken for a ride.

I think this dilemma is what generates one of the great misguided fantasies that pervade discussion of Israel and Palestinian -- the belief that it is possible for one side ("my" side) to generate a solution and just impose it, without having to account for the other. Some "pro-Israel" writers imagine a sufficiently vanquished Palestinian people such that Israel can simply write the terms of the final arrangement and have it be accepted durably ever after; this fantasy is in many ways what motivated the plan Bibi just released. To the victors go the spoils and all that. And this also can be found in the "anti-normalization" kick amongst some "pro-Palestinian" activists: they affirmatively reject collaborationist peacebuilding initiatives with Israelis in favor of a fantastical future where practices of ostracization and coercion sufficiently squeeze the lifeforce out of Israel such that they can just decree the ultimate solution and Israelis will have no choice but to accede (or leave). 

In both cases, the fantasy is one where one can come to a "deal" without actually having to deal with the party that one hates. And while I can in concept understand the appeal of the fantasy, it is ultimately a fantasy. It can't be made real. Worse, it comes perilously close to suggesting that the way we know a deal is just is that the "bad" side hates it and has to be coerced into accepting it -- if they agree to it with any emotion other than miserable defeatism, then we're being exploited. That way lies disaster.

I've long been a fan of Amos Oz's observation that, on a national level, what Israelis and Palestinians need is a divorce, not a marriage. And the events of the past few months only reinforce that view. As distant as a just two-state solution may seem, a just one-state solution seems farther still. Given what Gaza's government did to Israelis on October 7, and what Israel's government is doing to Palestinians now, if you believe that there's a viable route to "and then both polities unite under a single political structure in the spirit of brotherhood and liberal tolerance, happily ever after", I'd say you're either hopelessly naive or you don't actually care about one faction's happily ever after at all (for casuals, it's typically the former; for more committed partisans, it's definitely the latter).

But that doesn't mean divorces are easy. While it might seem to be the most straightforward thing in the world -- just get two parties who hate each other to agree to separate from one another -- what makes some divorces impossibly acrimonious is when the participants decide that their dead giveaway for a "bad deal" is that their interlocutor finds it acceptable, and their lodestone guide for a "good deal" is that their counterparty despises it.

So I write this to prepare us all for the uncomfortable future we'll have to deal with if we want to see an actual deal (not a fiated decree by our righteously prevailing host). Making a deal will mean agreeing with people every bone in your body may say "it's a bad sign that I'm agreeing with them!" That challenge will always be on there by people who want to sabotage the deal. But it can't be enough. You don't make peace with your friends.