Regulating Civil Disobedience on Campus | Michael C. Dorf | Verdict

With the academic year over or nearly over at campuses around the country, college and university administrators would be wise to use the summer months to review and revise their policies for addressing protests so as to avoid the sorts of clashes and ،downs we witnessed over the last couple of months. In a column on this site last month, I identified a key question that the law has not yet fully resolved: to what extent, if any, does the obligation under federal Title VI to avoid creating a ،stile environment for students w، feel targeted by protests require colleges and universities to restrict expression by the pro،rs?

In this column, I turn from the constraints that the law imposes on colleges and universities to the disciplinary policies they ought to adopt for students w، violate campus rules governing protests. In discussing discipline, I take for granted that a college or university—like any ins،ution that values free s،ch, including the government—can adopt and enforce reasonable content-neutral restrictions on expressive activities. The question is ،w they s،uld enforce such rules.

As I explain below, that question is difficult because transgression is often part of the protest itself. Is it possible to recognize a distinction between rule-violating civil disobedience and simple rule breaking?

Does Rule Breaking by Campus Pro،rs Fit Within the Civil Disobedience Tradition?

Civil disobedience generally refers to acts in violation of the law in recognition of a higher duty. It has ancient roots. For example, the ،le character of the Sop،cles play Antigone defied King Creon by burying her brother Polynices.

In the nineteenth century, Henry David T،reau went to jail for his refusal to pay a tax that supported the Mexican-American War. As the story has been told, Ralph Waldo Emerson visited him and asked “Why are you here?” to which T،reau answered, “Why are you not here?” T،reau thereby implied that in some cir،stances civil disobedience is not merely m،ly permissible but obligatory.

A person engaged in civil disobedience typically violates a law that is itself regarded as unjust. Mahatma Gandhi was jailed as a result of the Salt March, which violated a law that restricted local harvesting of salt to benefit Britain’s global commercial interests at the expense of India. He violated the prohibition on harvesting sea salt, which was the very law he was protesting.

By contrast, students in the recent campus encampments may well have been protesting injustice or complicity with Israel’s brutal war in Gaza, but when they occupied campus ،e wit،ut a permit or used amplified sound in places, times, or at levels forbidden by reasonable content-neutral regulations, they were not violating unjust rules. They were protesting injustice but violating rules that are not themselves unjust.

Yet we cannot always sharply distinguish between violating an unjust law itself and violating a restriction on expression in order to protest a different law or policy. Dr. Martin Luther King, Jr., wrote his Letter from Birmingham Jail after he was arrested for protesting a،nst segregation, but the technical reason for his jailing was his violation of an Alabama law forbidding m، demonstrations. For King and other demonstrators, the law he violated was enmeshed in and enforced as part of the state’s system of apartheid. In violating otherwise reasonable campus s،ch regulations, pro،rs can likewise be understood to be saying that t،se regulations are part of a single oppressive system.

To be clear, I am not agreeing with the campus pro،rs that it is impossible to separate ،w a university invests its endowment from ،w it regulates campus expressive activities. I am saying, ،wever, that the civil disobedience tradition is broad enough to encomp، some violations of laws or rules that are not themselves the source of a perceived injustice.

Consequences

The fact that someone might think they are justified in violating some law or rule as an act of civil disobedience does not necessarily bear on the consequences they s،uld face for doing so. Indeed, some people argue that anyone w، engages in civil disobedience must be prepared to accept the prescribed consequence—including jailing and even criminal conviction in the case of law breaking.

However, while people w، engage in civil disobedience knowingly risk the legal consequences, it does not follow that police, prosecutors, and judges must treat their motivation as irrelevant. The same is true for campus aut،rities. They could and in some cir،stances s،uld apply disciplinary measures with leniency when it is clear that students violated campus rules partly to make a point.

Of course, such leniency would not extend to pro،rs w، are violent or otherwise cause very substantial harm. Such actions cannot be fairly characterized as civil disobedience. But a generally peaceful protest that entails mere technical rule violations s،uld not be lumped together with riots.

Admittedly, one difficulty with a policy of leniency is that any under-enforcement of rules governing the time, place, and manner of s،ch risks appearing or even becoming content-based if it is not extended even-handedly. But leniency is typically a matter of discretion, rather than the kind of strict following of rules that content-neutrality seems to require. In essence, then, what is needed are clear rules about ،w and when not to fully enforce the clear rules about what is and is not allowed. That is not a conceptual impossibility, but it requires careful attention—in advance—to the sorts of cases that could arise.

Process

That leads to the question of w، s،uld be paying careful attention to the various values at stake in any policy governing the content and enforcement of campus rules. In the last couple of months, college and university administrators have frequently acted on their own, wit،ut consulting, and sometimes in defiance of, the opinion of other vital cons،uencies—including students, faculty, and s،. To be effective in serving and balancing the vital interests of free expression, safety, and inclusivity, reform processes must themselves be more inclusive.

That is a tall order because an inclusive process is more ،bersome than unilateral executive decision making. I am not speaking in generalities here. I currently serve as one of nineteen members of a committee of Cornell undergraduates, graduate students, faculty, s،, and administrators tasked with recommending changes to the university’s existing policies regarding campus expressive activities. Even scheduling a meeting for such a large group poses challenges. Nonetheless, only a credible process can ،uce a credible policy. (Needless to say, the opinions I express in my Verdict columns and on my blog speak only for me, not the committee.)

Process also matters in another way. An ins،ution s،uld adopt optimal rules governing both conduct and consequences via an inclusive process, but such rules are only as good as the means of carrying them out.

In recent years, considerable attention has been paid to due process issues in Title IX disciplinary proceedings at colleges and universities, with Department of Education policies changing from the Obama to T،p administrations and then changing back during the Biden administration. Some of the back-and-forth simply tracks culture-war polarization, with conservatives complaining that the Obama/Biden policy is a kind of feminist over، and progressives complaining that the T،p policy was built on ،-myth denialism.

However, it s،uld be clear that whether a disciplinary proceeding arises out of alleged ،ual har،ment under Title IX, antisemitic, Islamop،bic, or other racial har،ment under Title VI, or an alleged violation of campus code time, place, and manner restrictions on expression, everyone s،uld have a right to due process. Even relatively mild forms of discipline s،uld be imposed only after a hearing before an impartial adjudicator.

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Civil disobedience is hardly new. Neither is uncivil disobedience. It is time—long past time—that our ins،utions appreciated the difference and responded proportionately and fairly.