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Friday, April 12, 2024

This is Not a One-Free-Bite Case

I will add only one point to the conversation about the Chemerinsky fracas. Dean Chemerinsky's statement about the incident says:

The dinners will go forward on Wednesday and Thursday. I hope that there will be no disruptions; my home is not a forum for free speech. But we will have security present. Any student who disrupts will be reported to student conduct and a violation of the student conduct code is reported to the Bar.

This does not appear to rule out taking academic disciplinary measures against the student or students who participated in Tuesday's disruption. But it doesn't exactly rule them in either. It reads more as if Chemerinsky is warning students about what will happen going forward. I hope I'm reading it wrong, and that Berkeley will seek to impose disciplinary measures with respect to this incident.

I can well imagine cases where the rules are insufficiently clear, or the activists' actions insufficiently deliberate, or some other set of facts exists that counsels an added degree of patience and charity. This is not one of them. Unless the university and/or law school's rules are exceptionally laissez-faire, it is obvious that this constituted a violation, and it is equally obvious from the students' writings and less-than-delightful illustrations before the fact that they intended to disrupt the dinners hosted at the home of "Zionist Chem." This is not a "one free bite at the apple" case. There is no reasonable question that the students knew this would violate any basic conduct rules--even at Berkeley! There's no reasonable question that they had fair warning. Nor is there any question they did not stumble into the violation but walked deliberately into it.  

I could imagine Dean Chemerinsky wanting, as a matter of personal inclination or prudence, to let this one slide. He might want to do so not because it was not a clear violation, but because Prof. Fisk's actions might be treated as muddying the waters or giving rise to counter-complaints; or because he fears the blowback and thinks (as seems so far to have been the case) that a warning would be more effective; or out of a simple dislike for imposing discipline, especially on graduating students.* Certainly doing so would invite disruption and protest at the graduation ceremony itself, although I assume that's going to happen no matter what.

That would be a mistake. Free speech, and especially free speech on campus (although this event was not on campus), depends on a system that is, to paraphrase and correct Justice Brennan's words, "inhibited, robust, and wide-open." Free speech rules seek to guarantee the widest scope for expression within spaces that, at least in the physical realm, are shared and resource-constrained, and within institutions that, even when public, are often dedicated to particular speech-benefiting purposes. As such, some basic rules to govern the use of those shared spaces are required. Not every speech event is a New England town hall meeting or a gathering in a crowded theater. Roberts' Rules of Order don't always apply. But in many spaces, basic rules of conduct, volume, speakers' precedence, and so on are necessary for a system of free speech to function, thrive, and endure. Those rules are meaningless without both some degree of consensus and a willingness to actually enforce them.

This is one such case. Chemerinsky's statement didn't rule out retrospective action, and this is a case in which it's obviously called for and, indeed, necessary.

I'm not baying for anyone's head. Disciplinary proceedings should and will include due process. As such, I don't predict the outcome of such a process or suggest what would constitute a fair penalty if a violation were to be found.* All I'm saying is that for the sake of robust, wide-open speech, particularly within the purpose-driven campus context, disciplinary rules should be applied to Tuesday's actions, not set aside until the next occurrence. 

* I think these portions of the text are consistent with what Steve writes above. Especially given that pursuing disciplinary measures would invite more attention to the actions of his colleague and spouse, I could imagine Chemerinsky wanting to put the matter behind him. And I could imagine any nice person thinking that the fact that the student is graduating matters, or any strategic person thinking that penalizing a graduating student would give rise to bad publicity. I sympathize with the former considerations but think that the reasons and duty to press ahead disciplinarily outweigh those considerations. I think the latter consideration should be treated as irrelevant. It might of course affect the penalty, counseling lenience--or not. In this chess game, student activists might calculate that they can move forward with impunity, whatever the action, because universities won't do anything about it. Perhaps a recalculation is required. But penalties should be consistent with due process and fairness, and I am not counseling any particular penalty, whether harsh or lenient. That said, it is hardly respectful to these students, to their adulthood, agency, and commitment, to suggest that any disciplinary action should be utterly withheld as a matter of course because they're about to graduate and might suffer serious consequences to their ability to practice law. Depending on the nature of the action and the nature of the penalty, that's the point of disciplinary actions in the professional-school context.         

Posted by Paul Horwitz on April 12, 2024 at 08:38 AM in Paul Horwitz | Permalink


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