The University of California, as expected, has released a report that examines polices and practices related to UC responses to campus protests.
To read the draft report, click here. The report will be posted “for three weeks to give stakeholders and the public a chance to comment via email. The comments will be considered, and the final report will be submitted to President Yudof by late May. Recommendations requiring changes in UC policy will be handled through standard review processes.”
According to the Executive Summary, “This review was not intended as a fact-finding investigation into the November 2011 protests, or into any other particular incident. Other reviews have been tasked with that objective. Rather, this review was aimed at identifying best practices to inform the University’s response to future demonstrations.”
They write: “This Report is premised on the belief that free expression, robust discourse, and vigorous debate over ideas and principles are essential to the mission of our University. The goal of this Report is to identify practices that will facilitate such expression – while also protecting the health and safety of our students, faculty, staff, police and the general public.”
The authors argue that, for campus administrators and police, “this will require a substantial shift away from a mindset that has been focused primarily on the maintenance of order and adherence to rules and regulations.”
On the other hand, for protesters, this may “require taking more responsibility for their activities as well, including educating themselves about protest-related rules and considering the impact acts of civil disobedience can have on others in the campus community.”
In their report, Robinson and Edley provided 50 recommendations in nine categories, including:
- Defining and clearly communicating the free speech rights and responsibilities of the university community, while clarifying that civil disobedience by definition involves violating laws or regulations and generally will have consequences for those engaging in it.
- Establishing a system for coordination between police and campus administrators with well-defined roles, emphasizing that ultimate responsibility for the campus response rests with the chancellor.
- Improving communication with protestors before and during demonstrations.
- Establishing strategies for finding peaceful solutions to protests without using police force, while also providing guidance to law enforcement if administrators decide a police response is needed.
“These recommendations, and UC’s approach to peaceful protest on our campuses in the future, are guided by academic values that foster a diversity of ideas and encourage spirited debate,” said Edley. “It is through this lens that we must continue to examine these issues and adjust our course of action.”
According to the release, in writing this report, “Edley and Robinson met with students, faculty and staff in public forums at several UC campuses. “
They emphasized that their work was driven by the belief that free expression is essential to the mission of the University of California. The goal was to identify practices that facilitate such expression, while also protecting the health and safety of students, faculty, staff, police and the general public. Mr. Robinson and Mr. Edley noted that since they began work on this report, incidents elsewhere in the country have underscored the need for such analysis.
“This report highlights the responsibility, shared by all members of the university community, to ensure that the rights of free speech are respected – in fact honored – and that peaceful, lawful protests exist on our campuses.” Mr. Robinson said. “At the same time, it is important to recognize the role that civil disobedience may play in such demonstrations, and the attendant consequences.”
Civil Disobedience Challenges:
One of the biggest issues that campuses need to learn to deal with are what they have termed Civil Disobedience Challenges.
“The Report points out the need for the University to define and communicate more clearly the free speech rights and responsibilities of all members of the University community,” they write. “In particular, the University and individual campuses should amend their policies in order to recognize explicitly the historic role of civil disobedience as a protest tactic. Those policies should also make clear, however, that civil disobedience by definition involves violating laws or regulations, and that civil disobedience will generally have consequences for those engaging in it because of the impact it can have on the rest of the campus community.”
They add, “Although the University already has policies regarding free expression, we recommend that it amend those policies in order to recognize explicitly the important and historic role of civil disobedience as a protest tactic.”
Important administrators and police need to be reminded that civil obedience ought not be looked as something to be feared and therefore under normal conditions will not require force in response.
Their discussion gets into the issue of civil disobedience and makes distinctions between First Amendment-protected speech and civil disobedience.
They note: “The First Amendment protects the right to express one’s views, but it also allows the government to place reasonable time, place, and manner restrictions on that expression. The First Amendment does not guarantee any right to engage in civil disobedience – which, by its very definition, involves the violation of laws or regulations to communicate a political message – without incurring consequences.”
And they further note that part of the reason a protester engages in civil obedience is to in fact be arrested “as a sacrifice to the political cause in question.”
In their recommendation they note: “We were pleased to see that our systemwide and campus-specific policies all expressly recognize First Amendment rights and values. This express recognition helps ensure that all subsequent policies are viewed with core speech-endorsing values in mind.”
They add, “Given the University’s history of being at the cutting edge of the free speech movement, we also think it would be helpful for our campus and police policies to explicitly describe the important role protests and civil disobedience have played on our campuses and in bringing about social change.”
The key problem thus far is that everyone probably can agree with these core principles, the question is how does one strive to deal with civil disobedience in appropriate ways?
Here, as they note, “Once a protest is underway and individual protesters begin to engage in civil disobedience, the decisions made by administrators can directly affect whether the protest ends peacefully rather than with violence.”
They recommend strategies to reach peaceful accords with protesters without resorting to a use of force by police.
The report notes, “We did not find any written policies regarding how our campus administrators make decisions within their event response teams.”
However, many campuses have begun developing principles to guide their event response team’s deliberations.
They cite UC Davis which “has decided that, when faced with civil disobedience, it will consider into which of the following categories the disobedience falls: (1) tolerable, (2) not tolerable, and (3) life threatening. The notion is that police involvement would be avoided altogether for violations in the first category, though other types of response could be considered.”
Use of Force:
Following the November 9, Berkeley event, police officials were quick to argue that linking arms was an act of violence.
“The individuals who linked arms and actively resisted, that in itself is an act of violence,” UC police Capt. Margo Bennett said. “I understand that many students may not think that, but linking arms in a human chain when ordered to step aside is not a nonviolent protest.”
On the other hand, Michael Risher of the Northern California ACLU argued, “It has been clear … that using pepper spray on protesters who have merely linked arms and refused to move violates the Fourth Amendment to the United States Constitution.”
One question we clearly would like explored is a use of force continuum. The report notes that “A force continuum typically ranks different force options in terms of severity, with the explicit purpose of providing officers guidance on what force option to employ. Some force continua also match the force options to specific kinds of resistance, such as ‘passive resistance’ or ‘active aggression.’ “
Other UC police departments have decided not to adopt a formal “force continuum” approach.
One of the critical questions is whether linking arms is active or passive resistance.
For instance, UC San Diego defines it as “active resistance,” or “evasive physical movements to defeat an officer’s attempt at control, including bracing, tensing, linking arms or verbally signaling an intention to avoid or prevent being taken into or retained in custody.”
That would allow what they call the use of intermediate force: pepper spray, tasers and baton strikes.
As the Kroll report notes, “A key issue in evaluating whether the use of pepper spray was appropriate is the determination of what type of resistance the protesters seated on the ground with linked arms were presenting: was it passive resistance or active resistance?”
Under the UC San Diego use of force guidelines, it would be active resistance, but the UCDPD policies provide no guidance.
UCLA similarly “specifically defines the linking of arms by protesters as active resistance.” Moreover, so too does POST (California Commission on Police Officers Standards and Training).”
On the other hand, there is a school of thought that this labeling of linking arms is inappropriate. And that linking arms should be considered passive resistance and treated with a lower level of force, since it represents a lower level of threat to officers.
This 158-page report requires greater scrutiny than we can offer at this time. We hope to provide some more analysis and feedback in the near future.
—David M. Greenwald reporting