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Tackling illegal campus protests requires officials to use a lot of politics

For decades teaching and writing about First Amendment law, I have come to view free speech issues on college campuses primarily as legal questions about what is allowed, when, and where. Still, the events of the past few weeks on campuses, including mine at Berkeley, have made me realize something new. The choices for campus administrators are less about the law and more about what is pragmatic and politically desirable.

The problem campuses have faced over the past month is how to deal with speech that undoubtedly violates clear constitutional rules. The encampments at each school violate longstanding, essential campus rules that meet the requirements for a constitutionally permissible restriction of time, place, and manner. Campuses may lawfully order the end of encampments, use law enforcement to accomplish this, and arrest and discipline those who defy the orders.

The question for campus administrators, therefore, is not what the First Amendment permits, but what is pragmatically desirable. The same applies to commencements interrupted by protests.

I have repeatedly heard students say that because their cause is justified, it is permissible for them to engage in disruptive behavior and that they should not be punished for engaging in civil disobedience. It is frightening to hear students embrace the idea that the end justifies the means and that they have the right to break the law and the rules because they feel morally justified. And somehow they missed that civil disobedience means accepting the consequences of breaking the law.

The events of the past month have made me realize that in focusing so much on the law, there has not been enough attention on the pragmatic considerations that should guide decisions. College administrators are faced with a number of important questions.

To what extent does the activity disrupt the campus and its educational and research mission? Some encampments are small or located in parts of the campus that do not disrupt its operations. But others were big and very disruptive. For example, commencement ceremonies were planned in some encampments and had to be cleared before commencement could take place.

What is the risk of violence and destruction of property? Campuses have a duty to protect the safety of people in the community. The First Amendment never includes the right to endanger others or destroy property. There are situations in which the presence of protests and counter-protests poses too great a risk of escalation into violence. A campus cannot wait until violence occurs to take action.

Is the activity a violation of the law or a violation of campus rules? There is a difference between criminal behavior, such as threatening or destroying property, and violating campus rules. Campuses will generally want their response to take into account the seriousness of the actions.

To what extent is there intimidation? Schools also have a legal and moral obligation to prevent students from being harassed on the basis of their race, religion, ethnicity, gender and sexual orientation. At some schools, the encampments have harassed Jewish students who passed by or refused to allow them access to certain parts of campus. That cannot be tolerated. But on other campuses, encampments in this way have caused few problems.

These considerations often point in conflicting directions about what to do. Campus officials must make these judgments knowing that everything they do will be criticized for not doing enough or too much. And the criticism will often come from both sides simultaneously.

Of course, First Amendment law must be the guiding principle and must be adhered to, for public universities and for private schools that choose to follow it. But we also need to realize that this is often just the starting point and think more carefully about how to apply it and what to do in these extremely difficult circumstances.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law.

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