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Cabining the campus chaos

A few steps that universities can take to respond to campus anarchy while still respecting speech

Protesters at the University of Texas at Dallas set up an encampment on campus on May 1. Associated Press/Photo by Juan Figueroa/The Dallas Morning News

Cabining the campus chaos
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Since the Hamas attacks against Israel on Oct. 7, American college campuses have been split by often angry and vituperative denunciations—not of the terrorists who attacked Israel—but of Israel itself. Antisemitic, anti-Israel, and anti-Zionist messages have become all too common on campus. Jewish students have been harassed. And leaders in American higher education have proven woefully unprepared to deal with it. This toppled university presidents at Harvard and the University of Pennsylvania. In all likelihood, more will follow. So what should campus leaders be doing? There’s no easy fix. But there are some fairly obvious steps that schools could take—steps that are not new revelations, but already-tried best practices from universities that have sought to protect both free speech and education.

My alma mater, the University of Chicago, has implemented many of these practices over the last few years. While not perfect by any means, it has historically been a leader in formulating principles to guide its policies, and has had a better-than average track record of protecting free speech without descending into chaos. (University of Chicago students recently set up their own pro-Palestine encampment; how the University will handle it, and whether it will stick to the best of its own professed principles, remains to be seen.)

Four points stand out as relevant for the current moment.

No threats or harassment

First and most obviously, don’t let the campus become a place where people are actually threatened or harassed. The First Amendment doesn’t protect true threats or advocacy to incite imminent lawbreaking. Many of these university campuses are private and so the First Amendment doesn’t apply there, but the acceptance of federal funding complicates that picture as well. Existing lessons can provide a starting point. (Schools could take some tips from the influential statement on campus free expression adopted by the University of Chicago.)

No one—students and activists included—has the right to threaten harm to others. While in theory this is a point of agreement among campus administrators everywhere, it’s a surprisingly tough line to police. It appears that many protestors have been savvy about going right up to this line while leaving themselves just enough ambiguity to be able to deny that they were actually threatening anyone in particular. Crowds of protestors chant shocking messages: “Hamas make us proud, kill another soldier now.” “Hamas, we love you! We support your rockets, too!” The students (assuming these are students, though it’s hard to know from press coverage when outside protestors may have joined in too) are gambling that this is not quite direct advocacy of violence.

That’s debatable. But even if we accept this point, we have to recognize that there’s a fine line from this appalling support for violence against Israel to a direct threat to Jewish or Israeli students—which by any measure can be prohibited. There are many debates online about exactly what is happening where as the campus protests spread, about how many individual students have been harassed and how. From afar, it’s hard not to suspect that at least some of this shrill praise for a terrorist campaign spills over into harassment against students who support Israel’s right to exist.

There’s also no right to camp out on campus.

No disrupting the educational environment

Second, don’t let protestors disrupt the educational environment. This comes in many forms. Protestors and their speech can’t be broadcast so as to disrupt classes. They can’t be allowed to blockade buildings and obstruct others coming or going from legitimate educational activities. They can’t be allowed to interrupt, heckle, or harass other speakers on campus.

In order to prevent disruption, universities can and should establish clear rules on the time, place, and manner for speech. It’s fine to permit student political speeches on campus, or for student organizations to host controversial speakers, or for students who dislike the controversial speaker across campus to criticize that message and even that speaker—so long as the critics don’t start shouting down the other side, obstructing access, and the like. There’s also no right to camp out on campus. Even state schools subject to the First Amendment are perfectly free to prohibit protestors from occupying university buildings, camping on campus, or claiming common areas to the exclusion of students of other viewpoints.

Clear and enforced disciplinary standards

Third, have clear disciplinary standards and actually enforce them. Students who expect no consequences for violating rules can be expected to continue violating them. Universities should earn respect by conducting disciplinary proceedings with due process and then enforcing genuine sanctions when wrongdoing has been identified and proven.

Equal application of discipline

Fourth, treat speech fairly. Whatever policy a school adopts, it must apply it even-handedly. A good rule of thumb: Take the most provocative statements coming from campus and try to imagine an equivalent from other points of the political spectrum. If students at Columbia are free to shout praise for Hamas, on the theory that they aren’t quite advocating for immediate violence themselves, just supporting an anticolonial group—can we imagine that a similarly repugnant group would be free to wave Confederate flags while praising the Ku Klux Klan on campus?

The deeper problems behind these protests can’t be fixed with any simple policy on speech and protest. There are deep moral conflicts at issue here—about Israel’s right to exist, about appropriate methods of resistance to perceived injustice. University leadership at the diverse, pluralistic campuses of America’s major universities don’t have the ability, or the moral tools, to solve these problems. But as students and faculty debate the issues, perhaps university leaders can use the current moment to take stock and take a few steps for a fairer—and more sane—campus speech culture.

Lael Weinberger

Lael Weinberger is a lawyer and historian. He is a fellow of the Constitutional Law Center at Stanford Law School.

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