Commentary  

Campus Protests and Police Force: An Ethical Framework

In a new essay, Archon Fung looks at this current wave of campus protests and asks if civil disobedience is permissible, and how much disruption should be tolerated at universities today.

Protestors encamped at Columbia University. Photo credit ProudFarmerScholar via Wikimedia/Creative Commons.

I have been either a university student or professor for almost 40 years. Over that time, I’ve witnessed many waves of student protest and civil disobedience: against apartheid in South Africa in the 1980s, against “sweatshops” in the 1990s and 2000s, for living wages in the 2000s, the “#occupy” protests in the 2010s, climate change from the 2010s to the present, racial justice in the 2020s, the current protests against the war in Gaza, and others. This wave, across the country, has been met with a far higher level of forceful police response than I remember ever seeing before.

As a scholar of deliberative democracy, I cherish most of all universities’ core values of reason and dialogue. Those values are most important when they are under the strain of intense and passionate disagreement. That’s when we have to do our level best to keep talking and try even harder to listen to and understand one another. Massive police action is the end of that reason and dialogue.

There are two kinds of disagreement about the anti-war in Gaza campus protests right now. The first is deep substantive disagreement about the justice or injustice of the war. But the second is about how people on campuses should debate and argue about that substantive issue: is civil disobedience permissible, how much disruption should be tolerated, and when should the police come in? I won’t address the first substantive disagreement here, as important as it obviously is. Instead, I want to focus on how we should process these deep substantive disagreements on campuses — how we should handle this “difficult conversation.” Hopefully, these reflections will help reduce the second level of disagreement about the rules and guardrails for disagreement on campuses.

The deliberative value of civil disobedience

Some people say that it is the protesters who ended reason and dialogue by breaking the rules. Civil disobedience by definition breaks the rules — that’s the “disobedience” part. I follow Dr. Martin Luther King, Jr., philosophers John Rawls and Ronald Dworkin, and many others, in thinking of civil disobedience as a way to continue the big democratic conversation even though the law is broken, and in part by breaking the law.

When they break the law, peaceful protesters who engage in civil disobedience are trying to engage the rest of us in a conversation about justice.

Those who engage in civil disobedience think that our legal democracy has made decisions that are unjust. They would say that in the 1950s, democracy decided that racial segregation was OK; in the 1960s and 1970s, democracy waged an unjust war in Vietnam; in the 1980s, universities continued to invest in the racially unjust regime of South Africa; in the 2000s universities sold students and parents hoodies and other ‘merch’ made through sweated labor in Southeast Asia, and they refused to pay a decent wage to the people who serve students in the dining halls and keep campuses safe.

In each of these cases, and with fossil fuels now and the war in Gaza, students engaged in civil disobedience because they felt they could not get a fair hearing through legal channels. They felt that the legal channels of democratic deliberation and decision-making were blocked, in turns by prejudice, rigged rules, money, and raw power. They might say that they tried hard, but were told- in the 1950s that they should be patient, and in the 1960s that they were un-American, and in the 1980s that “constructive engagement” with South Africa was the pragmatic path to racial inclusion.

In each of these cases, they broke the law. But they broke the law in order to get the good people of this country to take another look and re-consider the policies they thought to be just. When protesters marched across the Edmund Pettus Bridge, they knew they wouldn’t change the minds of many segregationists in Alabama. But they hoped that some white liberals in the North, who had gone along with segregation, would see what was happening and persuade some to agree with the justice of their cause.

One great challenge of civil disobedience when it’s happening is that it’s difficult to tell which side has justice and morality with them. The protesters deeply believe in the justice of their cause, but many of their opponents in the democratically legitimated status quo believe that they are the just ones. With some humility, we should note that in most of the cases above, many people over time came to believe that the protesters’ positions were just. Those conversations took place in streets, town squares, op-ed pages, eventually legislatures and, yes, in campus protests. Those conversations also unfolded over many years, but, as Dr. King said, the moral arc of the universe is long but bends toward justice.

What if civil disobedience gets out of hand?

But there is no question that protest can rise to the point at which police action is warranted. At the terrible end of this spectrum, almost everyone would agree that police should protect people’s lives and safety when protests grow violent (as the “counter protest” did at UCLA recently).

But above that threshold, university communities — students, faculties, administrators, alums, donors — and external stakeholders such as politicians in Congress and statehouses — are deeply divided about this question: what should we do about these campus protests, and when should the police come in?

As a step toward thinking more clearly, and hopefully getting closer to agreement, here are some thoughts about three important questions of campus protest:

  • First, how bad are different instances of civil disobedience? And, how bad does it have to be to warrant police action?
  • Second, if police action is warranted, how much force should police use?
  • Third, what are other, non-violent / non-police, resolutions to these campus protests?

For the philosophically minded, these three questions roughly follow the main questions in the theory of just war: when is the use of force justified? (jus ad bellum); what uses of force and violence are justified (jus in bello); and what resolutions to conflict are desirable (jus post bellum)?

A lot of my thinking builds upon a great report on campus civil disobedience, and how higher education leaders should deal with it, written for the University of California by Chris Edley (the former Dean of Berkeley School of Law) and Charles Robinson in 2012. That inquiry was triggered by police using pepper spray on seated protesters at UC Davis in 2011. It should be required reading for anyone who is thinking hard about these campus protests and what to do about them.

1) How bad is the civil disobedience?

The very first question goes to harm that some act of civil disobedience causes: how bad is it? By definition, civil disobedience breaks the rules. Is that the only distinction we should make – simply that the rules have been broken — or is there more to consider?

Edley and Robinson argue that there should be clear public lines about how “bad” civil disobedience is, what is tolerable at a university and what isn’t, and what a university will do when the disruption of civil disobedience becomes intolerable. This ladder builds on their thinking:

A ladder of harm for civil disobedience

Severity (low – high) Examples
1. Civil disobedience breaks the rules, but is not disruptive Encampments are orderly, but require extra physical plant, grounds, and security to monitor.
2. Civil disobedience is inconvenient, but tolerable Encampments are orderly and peaceful, but require minor relocation of classes, exams, or office work, extra security and grounds-keeping.
3. Civil disobedience disrupts important university business (not tolerable) Protest is so loud that interrupts teaching or studying. Protests block many students, faculty, or staff from going to class or offices. Graduation cannot occur.
4. Civil disobedience creates imminent threat to safety, especially life Melee between counter-protesters and protesters at UCLA. Staff, students, or faculty trapped in a building taken over by protesters.

First Community Question: How much disruption is a specific protest or encampment causing?

Even if everyone agrees to use a scale like that above, it is surprising that people disagree about what is actually happening in the current wave of protests. Even on Harvard’s campus, students and faculty disagree on what would seem like a straightforward factual question: what is the level of disruption that the current Harvard encampment is causing?

In a Boston Globe article, Jeff Flier and Steven Pinker seem to think that the Harvard encampment is at level (3) – intolerably disruptive. “They have set up 40 tents, draped the iconic John Harvard statue with a keffiyeh, pounded music through a loudspeaker, raised Palestinian flags over University Hall, and chanted over bullhorns, ‘Harvard University, we put you on notice. The student movement will never tire. We will never rest. We will never be silenced until Harvard fully divests,’” Flier and Pinker write.

Crimson interviews with students who live in dorm rooms around the encampment indicate that we are at level (1): “In more than 40 interviews and conversations with freshmen, nearly all said the encampment has not significantly changed their daily lives or prevented them from studying during reading period.” The Crimson reported that one student who “has a view of the encampment from her dorm in Matthews Hall” and “said the volume levels are not much different from typical Yard noise such as when tourists mill about the Yard or when the Harvard University Band decides to spontaneously perform.” Another said, “I feel like I’m more disrupted by the music festival that’s going on behind my dorm.”

In places where police have arrested people on campus, some faculty have markedly different assessments from administrators of the level of disruption. Following the arrests of students and faculty at Emory, President Fenves issued a letter which said that “we will not tolerate vandalism, violence, or any attempt to disrupt our campus through the construction of encampments.” Soon after, the faculty voted “no confidence” in Fenves by a margin of 358-119. Their motion claimed that “A peaceful demonstration was met by Emory Police (EPD) and a large contingent of heavily armed Atlanta Police and Georgia State Patrol officers who used chemical agents, electric shocks, and other measures and arrested multiple ECAS students, ECAS faculty, and others. There was no evidence of violence on the part of protesters, and no disruption of teaching and research activities” (emphasis mine).

And, compounding this problem of factual disagreement on the ground, there are many people – politicians, advocates, even journalists trying to write gripping stories – who have little direct experience of these protests but often have motivations that lead them to cast levels of disruption as either lower or higher – unfortunately, usually higher – than they actually are. Students from Columbia University put it this way: “At this point, everything was orderly” and “In my mind, the problem isn’t the young people on the inside; it’s the adults on the outside who really escalated the situation because of their own preconceived notions of what’s going on.”

This disagreement about what the protests are actually like on campus has been scaled up to the national level.

President Biden, in a May 2nd speech, seems to feel that many of the protests are on the higher end of the disruption scale:

“Violent protest is not protected; peaceful protest is. It’s against the law when violence occurs. Destroying property is not a peaceful protest. It’s against the law. Vandalism, trespassing, breaking windows, shutting down campuses, forcing the cancellation of classes and graduations — none of this is a peaceful protest. Threatening people, intimidating people, instilling fear in people is not peaceful protest. … dissent must never lead to disorder or to denying the rights of others so students can finish the semester and their college education.”

But, a recent policy brief from the Armed Conflict Location Event Database (ACLED) suggests a low level of disruption overall:

“While some notable violent clashes have recently taken place, such as on the University of California, Los Angeles (UCLA) campus, where demonstrators and counter-demonstrators fought at a student encampment overnight on 30 April, the overwhelming majority of student protests since October — 99% — have remained peaceful.”

The Crowd Counting Consortium (a collaboration between Nonviolent Action Lab at the Ash Center — led by Professor Erica Chenoweth, Research Manager Jay Ulfelder, and Soha Hammam; and Jeremy Pressman at the University of Connecticut) yields a conclusion similar to the ACLED. Their database recorded 2,645 pro-Palestine protest events on US campuses between October 7 and May 5, 2024. Of those, only 25 events show property damage (0.9%) and only 33 show injured protesters (1.2%). Researchers note that some protester injuries were caused by police and some by counter-protester attacks (as at UCLA).

In 2001, Harvard students occupied the Massachusetts Hall, an important administrative building where the university President’s office is located, for 21 days to protest against low wages for some workers at the university. This occupation was probably level 3 or perhaps level 2. The President and staff simply moved to another administrative building across Harvard Yard. Protesters left voluntarily after striking an agreement with administrators, without police action. Reportedly, protesters vacuumed every night and insisted on a walk-through of Mass Hall with HUPD officers following the occupation to verify that they had caused no property damage (!).

During the Columbia University Hamilton Hall occupation, NPYD and President Minouche Shafik argued that because of external agitators, the situation was at (4) – an emergency. Public reporting has so far rebuffed the claim about such threatening external agitators; in time such people may come to light. But protesters counter that it was a non-violent occupation (3) or perhaps (2) (I do not know the Columbia campus so cannot judge how disruptive an occupation of part of Hamilton Hall would have been).

Second Community Question: What is the threshold of disruption beyond which police action is justified?

There doesn’t seem to be a community consensus about the second question about the threshold for police action. On one end of the spectrum, Harvard Police Chief Victor Clay stated in a Crimson interview that he believes that there is a high bar for justifying the use of police force: around level (4). Speaking to the Crimson, Chief Clay said he would only arrest protesters in the case of “significant property damage or physical violence at any level,” and not simply because he was directed to do so by university administrators. Harvard’s own police department seems to be taking the track that lower levels should be dealt with through administrative sanctions.

At the other end, some faculty and staff seem to have a much lower bar: perhaps mere rule violation (1) justifies police response. Many private sector organizations have a very low threshold for police action. If employees at Meta pitched protest tents on their campus, no one would be dismayed if the police immediately came and cleared them out.

At various points, members of the Harvard community have called on President Garber to end the encampment because its presence violates Harvard rules and policies. If the protesters are unwilling to voluntarily leave, then “ending the encampment” would require police action at this low threshold (1).

I find myself more in agreement with Chief Clay. I think the threshold for police action at universities should be relatively high – level (3) or perhaps even (4). That is because civil disobedience is in part persuasive and in part disruptive. But police action is only coercive and dialogue-ending. So, threshold of disruption should be high in order to warrant the coercive termination of deliberation. Reason and discussion as methods of resolving disagreement are central to the DNA of universities and colleges — and should remain so — in a way that is not true of other organizations such as companies, government agencies, or many other non-profit organizations.

Reportedly, some Columbia University trustees were surprised that so many faculty were upset at the initial police action to clear the student encampment there. In this framework, if that report is true, the trustees and faculty either had (i) different understandings of the level of disruption that the encampment was causing, (ii) different thresholds of disruption at which police action is justified, or (iii) both.

According to an astonishing report from the New York Times about protests on the UCLA campus on Tuesday, April 30th, police stood by while counter-protesters attacked the pro-Palestinian encampment, the counter-protesters dispersed, and then police arrested 200 or so protesters at the encampment and cleared it. If this report is accurate, following the schema above, police action was justified, but not the police action that occurred. They acted (i) at the wrong time and (ii) arrested the wrong people.

The attacks by counter-protesters and then responses by protesters – sometimes defensive and sometimes counter-attacking – clearly jeopardized safety (level 4 disruption). The Times reports that, “The videos showed counter-protesters attacking students in the pro-Palestinian encampment for several hours, including beating them with sticks, using chemical sprays and launching fireworks as weapons.” Notably, “none of the videos analyzed by theTimes show any clear instance of encampment protesters initiating confrontations with counter-protesters beyond defending the barricades.” So, if they could have done so successfully, the campus police and other security personnel should have intervened to quell the attacks and protect safety, primarily by subduing aggressive counter-protesters. But they did not, standing by for several hours. Furthermore, the Times reports that, “as of Friday, no arrests had been made in connection with the attack.” After these attacks, the counter-protesters dispersed, removing the imminent threat to safety and reducing the level of disruption (back down to level 3 or perhaps 2). Many hours later, the night after the attack, the police did act. But they acted against those occupying the encampment, arresting some 200 and clearing the encampment.

If police intervene, how much force should they use?

But say whatever your threshold for the use of force is has been crossed. How much force from police is justified to remove protesters? The Edley and Robinson report recommends, consistent with the guidelines of many police departments, that the level of force and, importantly, the means of force used, be proportionate to the level of resistance.

(e.g. San Diego police department guidelines below, as referenced by Edley and Robinson)

Protester
Disposition
Definition Limits on Force
Passive resistance Actions that do not prevent the officer’s attempt to control a subject. For example, a subject who remains in a sitting, standing, prone, or limp position with no physical contact (e.g. locked arms with other individuals) A subject involved in passive resistance shall not be subjected to the use of control devices including tasers, batons, or chemical agents including pepper spray.
Active resistance Evasive physical movements to defeat an officer’s attempt at control, including bracing, tensing, linking arms or verbally signaling an intention to avoid or prevent being taken into or retained in custody. The use of intermediate force (pepper spray, tasers, baton strikes) shall not be used against nonaggressive displays of active resistance during a peaceful protest, such as locking arms while sitting or standing.
Active Aggression A threat or overt act of an assault (through physical or verbal means), coupled with the present ability to carry out the threat or assault, which reasonably indicates that an assault or injury to a person appears imminent. Policy implies that police may use the range of approved force options so long as the use of force is reasonable under the circumstances

Police forces have developed guidelines such as the ones above because, in a democratic society, force should be used sparingly and respectfully. When it is used, it is important that the amount of force is justified and legitimate, and that it is seen to be legitimate by the broader community.

According to one report, the first round of arrests at Columbia tracked this scale of proportionality well: protesters were passively resisting, and police arrested them with minimal force:

“Arrested protesters told The Eye that the formation was intentionally stratified. Those sitting in the outer circle were mostly white or deemed themselves to have “greater privilege.” Protesters who opted for the inner circle considered themselves to be at greater risk—people of color, low-income students, and students with disabilities. Khanh, a Columbia student who spoke to The Eye on the condition of anonymity citing safety concerns, said that choosing to sit in either circle was a personal choice; no one wanted to ‘police anyone.’

Police gave each of the sitting protesters a tap on the shoulder, signaling it was their time to stand up and put their hands behind their back. It was a strangely slow process, giving the protesters time to sing part of a song, barely audible amidst the yells and chants of spectators in protest of the arrests. Students in the inner circle told me they didn’t realize how many eyes were on them until they stood up.”

A framework such as this allows us to see why the use of force by the NYPD to arrest students in Hamilton Hall at Columbia is so disproportionate. From the news reports and videos, it seems that the protesters were passively resisting (more information may well come out to show that this was not the case), but the NYPD used a high level of force – well beyond the intermediate level of pepper spray, batons and tasers. In particular, they reportedly used at least eight flash-bang grenades. This weapon was designed for use by special operations soldiers in hostage rescue operations. According to a ProPublica report from 2015, flash-bang grenades “have… severed hands and fingers, induced heart attacks, burned down homes and killed pets… at least 50 Americans, including police officers, have been seriously injured, maimed or killed by flashbangs since 2000”). Furthermore, they approached with drawn weapons, and one officer discharged his sidearm. Fortunately no one was hit.

How should these conflicts be resolved?

The police raids on the Columbia University campus, the University of Virginia, Emory University, and other universities, are one heart-breaking way to try to resolve the current conflicts on campuses.

De-escalation is another path. Five universities so far — BrownNorthwesternRutgersUniversity of Minnesota, and UC Riverside — have resolved (at least for now) the student encampments peacefully, through negotiated settlements. After signing agreements with these administrations, the protesters voluntarily took the tents down and left to study for finals and prepare for graduation.

Here are some of the elements of those agreements:

  • Voice on investments. All five agreements provide for divestment advocates to present their case for divestment to high level university administrators, investment officials, and/or trustees.
  • Transparency. The Minnesota, Northwestern, and Riverside agreements commit to greater disclosure and transparency of investments.
  • Inclusion and support. Four of the agreements (Northwestern, Rutgers, Riverside, and Minnesota) commit the university to supporting Palestinian and Arab students and / or scholars.
  • Amnesty. The Rutgers and Minnesota agreements (but not Brown nor Northwestern) provides amnesty for protesters.

Some organizations such as the Anti-Defamation League Midwest have criticized such agreements for capitulating to rule breakers. The American Jewish Committee Chicago criticized the Northwestern for “kowtowing to mob rule” and acquiesce to threats of violence. Reportedly, some student protesters criticize the agreement for selling out the cause of divestment. But the actual provisions — extending fora for student activists and university officials to consider and criticize the case for divestment — seem to me a sensible way to continue dialogue and debate. Some partisans on either side of this debate consider the other to be ignorant, immoral, and sometimes hateful. For some, engaging with the immoral other amounts to moral compromise or appeasement. But the depth of animus makes dialogue more important even as it becomes more difficult. That is because dialogue, learning, and debate in the pursuit of truth and wisdom especially in the face of deep and painful disagreement are among the core values of a university. Flash-bang grenades and riot shields are the antithesis of those values.

Campus Protests: A Coda on Punishment

After the resolution protest through police action, negotiation, or some other path, how should students who engage in civil disobedience be punished? Hundreds of Harvard University affiliates signed a letter that included a call for “significant consequences for leaders of the encampment.” On the other hand, hundreds of other affiliates urged University leaders to allow protesters to graduate and be subjected to lenient sanctions in line with prior generations of student protest. A thousand people walked out during Harvard’s 2024 commencement exercises in order to protest sanctions against 13 protesters who were not allowed to graduate. This debate about appropriate punishment raises several component questions.

Question 1: Is it OK for protesters to wear kaffiyehs over their faces?

First, should the protesters willingly submit themselves to punishment? Many (but not all) accounts of civil disobedience require law breaking protesters to stand for punishment. In their willingness to be punished, protesters express respect for law and other social institutions even as they break the law as part of protesting injustice. Philosophers call this distinctive aspect of civil disobedience “fidelity to law.”

In public debates about the current protests against the war in Gaza, many protesters have worn masks — often kaffiyehs — and their faces could not be seen, perhaps to conceal their identities. But such efforts do not necessarily betray fidelity to law. Anti-war protesters have been subjected to a wide range of extra-judicial punishments such as doxxing (widely publicizing personal information such as names and home addresses of protesters, perhaps facilitating personal attacks). Job offers and internships have been rescinded and wealthy individuals have pledged, and urged others, not to hire protesters. However one regards these extra-judicial sanctions, they lack any features of a due process of justice. Protesters have no obligation to subject themselves to vigilante justice and it is not wrong for them to conceal their identities from vigilantes.

On the other hand, by virtue of attending and benefitting from a college or university, students do have an obligation to follow its regulatory processes. If they aim to conceal their identities from campus officials, they violate a core tenet of civil disobedience. It is wrong for them to conceal their identities from campus administrators to avoid sanction.

Question 2: Should administrators punish with lenience or severity?

Those who engage in civil disobedience may violate various rules and regulations such as trespass, interfering with student or staff activities, and property destruction. Should the punishment for protesters be more or less severe than those who break these same rules and regulations for non-political reasons, such as theft or fraternity pranks?

Some argue that protesters should be punished more severely because they openly flaunt the law – whereas ordinary criminals act covertly. More severe punishment may deter further civil disobedience. But most scholars of civil disobedience argue that punishment for protesters should be more lenient than for ordinary crime. Ronald Dworkin, for example, writes that authorities have a “special responsibility to try to protect [the civilly disobedient protester], and soften his predicament, whenever it can do so without great damage to other policies.”

Several reasons weigh in favor of lenience. Unlike ordinary criminals, those who engage in civil disobedience are not narrowly selfish, but act out of a publicly-spirited motive to oppose injustice. Second, prospectively and retrospectively, civil disobedience is a kind of democratic public good – though governments, public majorities, and administrators often don’t view it that way when it’s happening. As we can see from history, majority and status quo views have often proven to be incorrect and civil disobedience has often functioned as a corrective mechanism to failures of the formal democratic process.

The special context of higher education — college and university campuses — adds two additional reasons for leniency. First — compared to private spaces such as shopping malls or corporate grounds, and perhaps even to public spaces such as city halls or town squares — higher education campuses should be places of free exchange of ideas, heterodoxy, and dissent. Civil disobedience is the edge of that dissent. Second, the central purpose of higher education is to educate. Civil disobedience often has powerful educative effects especially for those who participate in protests (they are powerful “schools of democracy” in the senses of John Stuart Mill and Alexis de Tocqueville). Civil disobedience on campuses also create “teachable moments” and crucibles of learning for others on campus and for society more generally.

These considerations are consistent with the relatively lenient treatment of student protestersby college and university administrators in prior rounds of civil disobedience.

Question 3: What is the goal of punishment?

Many university and college administrative codes operate on a logic of retributive justice. Punishments are meant to be proportional to the severity of violations. Minor infractions might warrant a grade reduction, elevating up to probation, suspension, up to expulsion for extreme violations.

As a response to various failures of the retributive justice paradigm, criminal justice reformers have argued for an alternative approach called restorative justice in communities and, more recently, on college campuses. The aim of restorative justice is to engage wrong-doers and those they have harmed or wronged in processes to acknowledge wrongs, repair harms, and restore harmonious relationships. Some campuses have shifted student discipline toward restorative justice.

Instead of probation, suspension, or expulsion, the restorative justice approach would bring protesters together with those whom they have harmed or wronged in the course of protesting: perhaps other students who activities were obstructed, staff who were mistreated in the course of protests, and faculty whose classes or other activities were targets of disruption. And, importantly, in the current anti-war protests, protesters might engage Jewish students who felt marginalized or intimated by protest activities. (On some campuses, there are reports of students and others doxxing protesters, and this too might be an occasion for restorative justice activity.)

The restorative justice approach aims to achieve two goals, especially important on campuses, that are unavailable to retributive justice. The first is education. Engagement between protesters and others on campus enables everyone to learn about the motives and consequences of the actions that have transpired and gain more nuanced understandings of different perspectives and a deeper appreciation of the challenges of managing divisive disagreements and identity injuries. The second is inclusion and belonging. Restorative justice processes aim to reweave the bonds between students on campuses that have been broken by political and ethical disagreement without the expectation that students will, or should, erase their principled differences.

(Note: The coda on punishment was added on May 24, 2024)

 

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