By Donald A. Downs
We now have a long and fascinating report by the campus police review board on last fall's disruptive protests at the University of California, Berkeley.
The 128-page document, entitled "November 20, 2009: Review,
Reflection, and Recommendations," released in mid-June, is the product of months of yeoman work garnering volumes of evidence. It chronicles and evaluates responses to the events sparked by resentment over tuition increases and cutbacks in the wake of California's financial debacle.
Berkeley deserves credit for thoroughly investigating the situation. And the report is worth reading for many reasons, one of which is because it casts light on a dilemma that Berkeley and many other schools have been unable to resolve since the famous Berkeley "Free Speech Movement" of 1964 launched decades of illegal student protest: how to balance students' passions for social justice (and sometimes other motives) with the rule of law.
November 20 capped three days of intense protests against the state of California's announcement of a 33% tuition hike and the university's implementation of cutbacks, which included the firing of number of staff. This action had been preceded by a mass rally of 5000 protestors in September. Whereas the September rally was well organized and controlled, the Report stressed that the actions of late November were profoundly "center-less" on both sides of the barricades.
The main event on November 20 was the day-long takeover and barricading of Wheeler Hall by 40 students. After somewhat confused reactions by overwhelmed police and administrators, police ultimately arrested the students around 5 p.m. During the day, campus and local police repeatedly clashed with groups of students among the 2000 or so assembled outside the hall. Students captured many skirmishes on cell phone cameras and circulated them throughout the campus and across the state, exacerbating confrontations. As the committee reported, a critical mass (though a clear minority) of students outside of Wheeler appeared to be devoted to confrontation and even violence for their own sakes.
Further protests have followed the November actions at Berkeley and other California campuses, calling for amnesty for the protesters and a reversal of university policy. The most disturbing action took place on December 11 at the Berkeley chancellor's home, shortly after another four day occupation of Wheeler. According to an L.A. Times story, "Eight people were under arrest today after several dozen protesters shouting 'no justice, no peace' attacked Chancellor Robert Birgeneau's home on the campus of UC Berkeley, smashing windows, lights and planters as well as throwing torches at the home and police vehicles, authorities said." Pronouncing the demonstrators "criminals, not activists," the chancellor said that he and his wife feared for their lives.
Last April, the Daily Californian, Berkeley's student newspaper, pointed with welcome student irony to the costs the demonstrations have exacted. "Student protests at UC Berkeley aiming to save public higher education may lead to further cuts to campus services, administrators say." Indeed, the estimated cost of the November protests alone was $50,541: $21,530 to repair damage inflicted on campus buildings and $29,011 to pay for the police response to the students outside of Wheeler. After further protests, the university has depleted its $211,000 "protest fund," and will have to draw additional money from regular campus funds and "any available reserves or through cuts to programs such as human resources, finance or police services."
The demonstrations unveil deep problems in higher education, ranging from legitimate student and societal concerns about the escalating costs of already over-priced universities in an era of economic woe and deflation, to equally legitimate distress at many students' self-righteous disregard of the rights of others and the rules of free speech. (Some critics have also pointed out that students are failing to target the real culprit: a state that has lost control of its finances, necessitating cuts in everything under the sun except its generous public pensions, the funds of which, in turn, have been harmed by the low interest rates mandated by the Federal Reserve Bank.) One insightful blogger contends that the situation has aroused revaluations of "what a university is for." Does it exist to serve the expensive careers of faculty and administration, or rather for the benefit of students and the public? Or, more plausibly, do we need to find a better way to rethink and balance these and other interests? Similar important concerns about the nature of the university inspired FSM and a good deal of the student protest of the '60s. Indeed, just how sustainable is the present model of higher education?
The Report devotes considerable space to discussing the pros and cons of the administrative and law enforcement responses. Police and the administration were dealt a bad hand, but their own actions and inactions sometimes poured fuel on the fire. But another issue unfortunately given less attention merits further consideration: how Berkeley's traditional way of dealing with illegal protest may have contributed to the problem of illegal behavior that now besets the university.
The crux of this matter boils down to the Report's discussion of "The Berkeley experience." The Report alludes to Berkeley's dedication to encouraging students to speak out with emotion and intensity. So far, so good, as this encouragement has contributed to a vibrant, challenging environment. "In the minds of some students and faculty, these facts are an essential component of what it means to attend Berkeley. As some students have told us, one reason they joined the rally outside Wheeler on the 20th was their desire to have what they considered 'the Berkeley experience.'"
Unfortunately, the Berkeley Experience also involves blurring the line between normal robust First Amendment conduct, which operates within the law, and lawless expressive conduct, which can range from respectful civil disobedience to forceful or even violent conduct that disrespects the rights of others. The Berkeley Experience "builds expectations about how demonstrators will be treated. It also tends to dilute, generally, attention to rules---and to obscure from the vision of some people how significantly some violations of some rules can affect the rights and the legitimate interests of other people."
Universities often strive to tailor rules, procedures, and expectations to their distinctive institutional missions, which are educational. They operate as semi-autonomous realms entitled by constitutional law to define their own destinies, within fairly broad limits. But there are normative and legal limits to this leeway, as exemplified by the recent events at Berkeley and its sister California schools. By failing to respect and enforce these limits, Berkeley---however well intentioned---appears to have failed in its educational mission in the realm of free speech; for a truly free system of speech cannot exist unless the rights of all citizens---demonstrators, those opposed to the demonstrators, and those who simply don't care---are respected and protected. In the absence of such universal protection and respect, political bullies can run roughshod over the rights of others, making a mockery of the free flow of ideas.
First Amendment law protects the most controversial and provocative forms of speech, as the Supreme Court has reiterated in a long line of famous cases. It is also bound by laws that prohibit trespass, destruction of property, obstruction of the liberty of others, and the silencing of other voices. Legal scholar Alexander Bickel once wrote that modern First Amendment protections, in effect, legalize some forms of speech that were once considered illegally provocative, thereby placing a higher, though not insurmountable, burden on those engaged in unlawful civil disobedience to morally justify their conduct. In other words, First Amendment law provides ample room for powerful displays of viewpoints and emotions, while simultaneously requiring passionate demonstrators to respect the rights of others.
To be sure, history has presented times when a moral cause calls for violence, as in situations of true tyranny or just war. (I write this essay over the Fourth of July weekend.) But even war is bounded by rules, however much its impulses push against them. And who with even a modicum of judgment would place the University of California's financial predicament in these exceptional categories?
The limits on free speech predicated on rule of law (which exist in the very name of free speech) serve three important purposes. First, such limits establish relatively clear guidelines as to what is permitted and what is not. By blurring the line between law and disobedience, the Berkeley Experience opens the door to uncertainty and unprincipled administrative discretion, which can readily leak into unethical and unedifying permissiveness and political favoritism. Second, in the university context, these limits assume that students should possess the same rights as adults, which also means that they bear the same responsibilities. They are free to make their own decisions, but they are also responsible for the consequences of their actions. We tend to forget that the student revolts of the '60s were first preoccupied with the elimination of in loco parentis, which treated students as pre-adults, not the young adults that they are. Did it occur to the advocates of the Berkeley Experience that its policy of partial tolerance toward lawlessness might amount to treating its students like children?
Third, these limits require protesters to restrain their moral passions out of respect for two things: for the rights of those outside of their cause; and for the fallibility principle, which anchors the pursuit of truth in liberal democracy: the protesters, themselves, might be wrong. (Moral passions and moral certitudes are among our fiercest passions, as Reinhold Niebuhr, Sigmund Freud, and others have taught us so tellingly.) This restraint is among the most important lessons a citizen can learn in a liberal democracy, for it is what makes living together in a regime of equal rights possible. Tocqueville called these restraints on passion and self-interest the "forms of liberty," and maintained that these manners are necessary preconditions for the mental health of democratic orders. Such conscientious practitioners of civil disobedience as Martin Luther King and Gandhi paid tribute to the forms of liberty by accepting their punishments and by breaking particular laws in a way that nonetheless showed due respect for others and the rule of law in general. Education in the forms of liberty is especially appropriate at universities, whose moral charters are premised on the dedication to reason; but have Berkeley students been so educated?
The confusions epitomized by the Berkeley Experience have had consequences at Berkeley and elsewhere. In the decades following FSM, Berkeley has witnessed numerous cases of speakers being shouted down or stifled in the public forum who did not conform to the progressive ideology that dominates student life there. (Ask the Daily Californian how many times entire runs of its paper have been stolen from stands because of articles or editorials deemed politically incorrect.) Equally importantly, failure to respect the legal obligations implicit in the systemic exercise of free speech no doubt contributed to the widespread violations of free thought and due process that have accompanied the imposition of speech codes, overly-broad harassment codes, and related policies in higher education in recent decades. What Alan Kors and Harvey Silverglate called the "betrayal of liberty on America's campuses" in The Shadow University (1998) was, at least in part, the consequence of the misunderstanding lying at the heart of the Berkeley Experience and its adherents nation-wide. Why worry about the rights of others when an important political cause is at stake?
Donald A. Downs is the Meiklejohn Professor of Political Science, Law, and Journalism at the University of Wisconsin-Madison. He earned a Ph.D. in Political Science from the University of California-Berkeley in 1983. His book, Restoring Free Speech and Liberty on Campus includes a chapter on free speech problems at Berkeley.