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Friday, May 03, 2024

Recruiting activists

Tyler Austin Harper, a professor of environmental studies at Bates College, argues that colleges promoted themselves to activist students as places that encouraged and celebrated activism and protest, making recent university actions a greater betrayal. Orin Kerr offers thoughts, grounded in his prior view that university views about protest changed when the topic of protest shifted to non-consensus issues (as Orin puts it, when "one person's protest for justice is another person's collective attack on their identity").

Harper assumes any commitment to activism and protest includes the right to civil disobedience without consequence--including occupying and camping in campus buildings and public spaces. There is no difference in permissibility between Columbia students barricading themselves in a campus building (without food) and UT students milling on the quad shouting stuff. By promoting their histories of activism and selling themselves as places students could engage in activism and protest ("trad[ing] on the legacy," Harper says), schools gave students permission to engage in all forms of protest--lawful and unlawful, including occupying buildings--when they believe the cause worthy. And schools reneged on their commitment by stopping the occupations and expelling or sanctioning students for conduct that violates otherwise-neutral school regulations.

I think this has two problems. It effectively means universities ceded control of campus spaces if and when students want to occupy them. By offering students the opportunity protest and engage in activism as the carrot to get them to enroll, they offered preferred access of campus spaces for their expressive use. And if the universities did not surrender all control, they limited their ability to regain control when activist students took over--no cops, no academic consequences, you can have it back if you put us on the committee that decides university investments. Second, it continues to treat civil disobedience as creating a free-speech immunity from sanction for violating content-neutral conduct regulations, rather than either: 1) a drag on how quickly or forcefully universities should act (urging some "leeway") or 2) students willing to risk sanction to highlight an injustice and effect change.

A possible response to what I just said: By celebrating past civil disobedience, universities confess error for cracking down on those protests. They thus promised to do better, to not repeat past administrations' mistakes, and to allow occupations because--as 1968 showed--they change history. I like Orin's reply: Administrators assumed "students hold the protest, break a rule here or there for a bit, and then go back to the status quo," whereas recent events appear more aggressive, more interfering, and more permanent--and schools did not know how to react. I think this jibes with my idea above--universities give students leeway to break small rules for a short time to shout themselves out, unless the occupation never stops.

Posted by Howard Wasserman on May 3, 2024 at 11:04 AM in Howard Wasserman, Life of Law Schools | Permalink


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