The Visible Elbow of the Protests

Recently, I had occasion to reread Charles Tilly's article "Invisible Elbow." Tilly's basic (oversimplified) thesis is that the "invisible hand" metaphor presumes far too much precision and fine-motor coordination for how social change happens, and misses the degree to which much of human action is a series of halting, try-your-best efforts that have a ton of unanticipated consequences and plenty of errors, followed by error and course corrections as we try to feel our way through to a satisfactory result. As far as the metaphor goes, instead of a delicate hand guiding change, things proceed more like trying to open a screen door with your elbow while holding a full bag of groceries. It's directional, it often works, but it's very imprecise and awkward and sometimes you miss the door and lose the groceries and everything splatters onto the floor.

I was thinking about this idea in relation to the campus protests wracking universities across the country. We've gone in the usual circles of "are they counterproductive", and my standard line on that whether a protest is "productive" depends on what it's trying to produce. But to give a bit more color, it seems clear to me that the protests are producing some things -- not always exactly what the protesters want, but also not necessarily orthogonal to their demands or desires either. It's not a hand, and it's certainly not invisible, but there is a visible elbow that's part of a blunt, awkward, jostling process that is creating change. That change is sometimes good, sometimes bad, sometimes in favor of the protesters, sometimes against, but one can't say the protests are not exhibiting an impact.

For example, one complaint I've heard from the protesting camp is that they're frustrated the media is focused on them rather than on what's happening now in Gaza. I'm not especially sympathetic to that complaint, but I also think they're underselling themselves -- I think the protests are actually doing a bang-up job of keeping the Israel/Gaza war forefront in American's minds at a time when it was starting to ebb a little bit. My template here was Russia's invasion of Ukraine, which riveted the nation's eyes and sparked intense activism ... for a few months. Eventually, though, it became background news as nothing really changed -- not that Russia started behaving better, but it stopped being new and fresh and started being part of the foreign policy normal. The Israel/Gaza war seemed like it was inching toward a similar status, but the campus protests (and the hyper-aggressive Columbia-style response to them) has warded that off for now. I think that has to be seen as a success for the protesters in the aggregate.

At the micro level, the "productivity" of the protests is going to depend a lot on local facts and practices. In some places, it's yielding deals to at least talk about divestment, and these deals in turn are being met with anger by Jewish stakeholder groups who are now asking "do we have to occupy a building to be heard?" My prediction on these meetings is that they will not result in termination of academic exchange programs with Israeli universities (perhaps excepting some symbolic carveouts where entire slates of programs were set to be phased out anyway -- I have to think that's what's happening here). There might be new rules on divesting from weapons manufacturers more broadly that are not structured as Israel-only one-offs but reflect some generally-enforceable decision not to invest in the sector.

It's also likely that in other quadrants the protests might generate broader-based backlash. Protesters appeared to have trashed the library at Portland State University following their occupation, it's hard to imagine that will redound to their benefit. One of Columbia's constituent schools elected an Israeli student body president propelled, it seems, in significant part by backlash to the protesters. And of course, if the protests end up giving a leg up to Donald Trump in the 2024 election -- based on a mix of "fracturing the Democratic coalition" and "independent voters just have an instinctive aversion to the sense of disorder" -- that, too, is a consequence.

On the whole, the protests are a "they" and not an "it" -- they are diverse in methods, tactics, goals, and productivity. They'll accomplish some things and fail to accomplish others, some of what they do is intended and some is unanticipated. Even if there is a "master plan", it's not going to come to fruition -- but that doesn't mean they're moot.

And the final thing I'll say is this: as someone who is generally averse to protest (and always has been -- say what you will, but for me there's no "well back in my day...." aspect to this), if you're unhappy at the conclusion that protesters are even in part driving the forces of social change either on campus or in the world as a whole, then it's incumbent on you to reflect on what other social forces might have filled the void and why they didn't. There's plenty that the protesters say or demand that I strongly disagree with. But I do think it's a positive that the institutions of American government and society are starting to treat Palestinian lives and rights as an integral part of the calculus we use to assess our policy in the Middle East, and to be blunt it's hard for me to say with a straight face that would have happened absent these sort of protest initiatives. If one doesn't like the protesters claiming credit for that shift, then one should have insisted on incorporating those interests into the calculus without the protests having been necessary. There has been a complacency (at best) in Congress for many, many years surrounding Palestinians rights and interests, and it was inevitable that void was going to be filled. If you don't like who is filling it now, ask yourself why the domain had been left empty for so long.

Steinbach's Revenge

My next law review article is on academic speech issues and the regulation of campus protest. You know, taking a break from the fraught topic of antisemitism and shifting over to something placid and uncontroversial. The article was accepted for publication in March, but I did ask my editors if I could make some revisions before we started the editing process due to, er, recent developments (they've been very supportive).

The framing device for my article was the student protests of a talk by Fifth Circuit Judge Kyle Duncan at Stanford Law last year (remember that?). Much of the attention surrounding that incident focused on the behavior of the Stanford administrator on-site, Tirien Steinbach. Steinbach was widely pilloried for her performance, which critics said was insufficiently protective of Judge Duncan's free speech rights and too accommodating towards the protesters. My view was that Dean Steinbach was being unfairly maligned -- she actually did a decent (not perfect, but who is?) job and that people were underestimating the difficult position she was in and the tough cross-cutting pressures that make superficially "easy" free speech issues hard.

I wonder if Steinbach is laughing, just a bit, right now.

A particular claim one saw coming out of the Stanford incident was that the disruptive behavior of the students was attributable to past and present failures by the Stanford administration to respond to illicit protest with a stern hand. Administrative indulgence was akin to tacit support, which emboldened the students to behave even more brazenly later on, and so the cycle went. If the university stopped mollycoddling and just crushed policy-violating protests with an iron fist, the argument went, then they'd send a message to the students that such activities were not okay, successfully deter future disruptions, and restore calm and campus order. Dean Steinbach's relatively conciliatory approach towards the Duncan protest was easily slotted into a villainous role under this narrative: it was a symbol of the limp and weak-willed administrative cowering that was ultimately responsible for "bad" protests.

When one looks at what is happening on campuses today, it's hard not to feel like that argument has been pretty decisively falsified. The current wave of protests and encampments really can be traced back to Columbia, and in particular Columbia President Minouche Shafik's decision to essentially immediately respond to largely peaceful encampments on her campus with a hyper-aggressive police intervention. The result, it turns out, was not that the students were duly chastened and slunk back to their dorms; the result was a cascading series of escalations and counter-escalations at Columbia and the emergence of copycat solidarity protest encampments at universities across the country. Even if one did believe that Shafik had the formal "right" to enact her decisions, it's hard for me to imagine that anyone can call these policies success stories, regardless of whether your metric is protecting free speech, preserving campus order, defending Jewish students, or anything else.

So with the benefit of now getting to see the road-not-taken, maybe Steinbach's choice to take a more conciliatory, non-confrontational approach toward the disruption at Stanford and not immediately resort to "am I formally allowed to call in the police to drag people away" didn't emanate from some personal disdain for freedom of speech. Maybe she was actually a professional who knew what she was doing.  Maybe there are lessons we can learn from her. Maybe the prevailing administrative value in responding to protests should not be reflexive insistence on asserting yourself as the boss.

There's very little for anyone to feel good about regarding what's happening on campus right now (I share Robert Farley's worry that we're rapidly constructing a social framing where "no one can be serious about protesting the war (or countering protests of the war) unless windows are broken and billy clubs bared"), but if anyone deserves to feel the slightest bit of schadenfreudean satisfaction, its Tirien Steinbach.

Campus Antisemitism Monitors Will Fail in Extraordinarily Predictable Fashion

Trying to capitalize on the latest headlines, a bipartisan group of legislators is seeking to create government "antisemitism monitors" that will be dispatched to colleges and universities across the country. Fail to meet their scrutiny, and colleges could lose gobs of federal funding.

If enacted, this policy will fail in spectacular fashion. How do I know? Because we have a template in state anti-BDS laws, which backfire in similarly predictable ways. The problem is that while it's conceptually possible to craft valid and legitimat anti-BDS legislation, in practice the laws will be enforced by some mixture of apathetic mid-level bureaucrats, terrified associate deans, and hotshot headline-chasing politicians. Put that cocktail together, and the result is such lovely headlines like "homeless hurricane victims can't get disaster relief until they sign anti-BDS pledge."

Indeed, if the antisemitism monitors do come into play, I can predict exactly the scenario that will go down shortly thereafter at Any College, USA.

1. A student group invites some Palestinian poet to give a talk;
2. Canary Mission or similar digs through the poet's instagram and finds a post where they say something that many people might find troublesome: "from the river to the sea" or "the Zionist state will be dismantled" or something of that ilk.
3. They shriek that this is a violation of IHRA and federal law and the university risks losing all its federal funding unless it acts.
4. Some associate dean for student affairs panics and cancels the talk.
5. There's a massive backlash from the students (possibly including protests) as well as various academic freedom/civil liberties watchdogs who call the cancellation out as censorial bullshit.
6. Pro-Israel/Jewish groups make surprised-Pikachu face at how they once again somehow became the poster child for heavy-handed campus censorship. Who could have predicted? (Answer: Everyone. Everyone could have predicted).

And for all the grousing about "only the Jews don't get ..." X Y or Z protections on campus, it's worth noting that no other campus minority currently has a monitoring program like this. A good rule of thumb for whether one is advisable here is if one also would support a similarly empowered and emboldened "anti-racism" or "anti-Islamophobia" monitoring program. If your answer is something along the lines of "while racism and Islamophobia are serious problems, I don't trust the implementation adn I'm worried about the possibility of abuse and/or chilling free speech" -- congratulations! You've identified the exact reasons why such a program is inadvisable for antisemitism as well.