Columbia’s Protest Crackdown Is Another Free Speech Blunder

There is a simple solution to the student protests at Columbia University and a growing number of other campuses over the Israel-Hamas war: universities should enforce their own student conduct codes and only ask for police help when a crime has been committed.

The botched response that saw Columbia simultaneously seeking the arrest of students as well as imposing suspensions and expulsions without going through their normal disciplinary process reflects an abandonment of principles, as well as common sense.

The situation started with the pressure applied by loudmouth billionaires like Bill Ackman, whose selective outrage over students expressing their First Amendment rights ignored his own expressions of support for the vigilante shooter Kyle Rittenhouse, who killed two unarmed people and maimed a third at a 2020 Black Lives Matter protest in Wisconsin.

Ackman allowed a peek into his real core beliefs when his support for the eventual ouster of Harvard President Claudine Gay–Harvard’s first Black president–morphed into vocal opposition to DEI policies.

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Rather than standing behind their students’ right to peaceful protest and supporting the educational principles of encouraging First Amendment-protected discourse, both Harvard and the University of Pennsylvania caved to pressure from wealthy donors and members of Congress in accepting resignations from Gay and Elizbeth Magill over their handling of student expressions of speech.

Large protests on college campuses over social issues are nothing new in America. In 1968 Columbia University students protesting the Vietnam War and the construction of a gym on public land adjacent to a historic working-class Black neighborhood seized five campus buildings and took a dean hostage. After a week of protests the then-Columbia president cracked down with the help of NYPD, who recorded the largest mass detention in New York City history by making 700 arrests after entering the campus through underground tunnels, kicking and punching protesters as well as beating them with nightsticks.

On May 4, 1970, National Guardsmen shot and killed four Kent State students as they protested the Vietnam War, and wounded nine others – all of them unarmed. In the 1970s students across the country protested, seeking their schools’ divestiture from South Africa over its ongoing policy of apartheid.

And in the early 2000s, campuses saw a movement asking for accountability over sexual assaults. Most of those protests saw ultimate success—the nationwide sentiment about the Vietnam War led to the U.S. withdrawal and many colleges did ultimately divest from apartheid-linked companies, although at schools like Vassar College it took nearly a decade.

Administrators, meanwhile, began addressing sexual assaults on campus through the use of Title IX (the latter coming primarily through the work of student activists featured in the documentary The Hunting Ground).

But the response of today’s universities seems to reflect little wisdom gleaned from the rich history of American student protests. See-sawed between donors and Congress, the universities trip over their own feet trying to appease all instead of taking a clear-eyed look at the tools they already have.

Let’s start with student conduct codes. In my law practice, I defend many students in cases involving conduct and academic code violations. Most schools—particularly private universities—have enormous freedom to enact student conduct codes mostly unfettered by the First Amendment. Schools can and have enacted regulations against “hate speech”—a category of speech hard to define but certainly protected by the First Amendment.

Nonetheless, most schools can ban hate speech, and that makes sense. Students essentially agree to live by a code of conduct when they enroll and it’s reasonable for that code of conduct to include how they may behave towards other students. Conduct codes also may overlap with criminal law when it comes to sanctions for sexual assaults, threats or any physical violence.

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The challenge lies in the details of investigation and enforcement, but the existing codes can easily handle instances of hate speech like the use of racist or antisemitic terms, or displaying hate symbols like Nazi swastikas.

For example, applying those codes would allow Columbia to discipline students who engaged in explicit antisemitic shouting or conduct and certainly also would allow the disciplining of students who threatened or harassed other students. But enforcing such codes demands that the schools follow their own processes, and in their current mindset of reactive panic they seem to be dispensing with that—given reports of summary suspensions and students being given 15 minutes to move out of their dormitories while under “escort” by campus authorities.

Police and criminal law can also be applied in the event of violence or trespass—meaning the unlawful occupation of buildings. Camping out on the main lawn of Columbia to protest hardly fits the bill for bringing in police to make mass arrests. In fact, a look at the choice of sites chosen by Columbia students also reveals that the so-called “tent cities” were put up in a section of campus that would not interfere with temporary facilities being erected in preparation for commencement ceremonies. Nor is the police crackdown justified by any loopholes in campus conduct codes, since even off-campus behavior can result in a student being disciplined.

Thus a student who goes outside the campus to engage in antisemitic or violent behavior can still be disciplined by their school.

Given this, one solution for Columbia and other institutions of higher learning would be to make sure that protests on campus do not include threats or harassment directed at any student. Such conduct should be punished through normal student discipline processes.

Police can also be used to ensure that protests outside the campus do not interfere with life inside the campus. For example, a buffer zone could be established around the entrances so that students can freely walk onto campus without enduring a gauntlet of protesters as some videos seem to show happening.

Universities already have the tools to address hateful, racist, sexist, antisemitic behavior that does not rise to the level of criminal conduct. They also have the tool of law enforcement in the event of any criminal conduct or threats of violence.

Teaching how to use the right tools for the right situation is a foundation of good education. It’s time for universities to have their own teaching moment.

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