What are the rules governing protests on American campuses?

IF COLUMBIA UNIVERSITY’S president, Minouche Shafik, thought that pro-Palestinian demonstrations would subside after she called in New York City police on April 18th, she was wrong. The tents are back and protesters are emboldened: in the early hours of April 30th they occupied a university building, barred its doors and draped a flag reading “intifada” from its façade. Since the start of the war in Gaza there have been protests at universities across America and, at many of them, arrests. Students say, sometimes rightly and sometimes wrongly, that they are exercising their free-speech rights. What policies govern protest and speech on campus?

That depends on whether a university is public or private. Public ones are bound by the American constitution’s First Amendment, which protects most speech and “expressive” activity (flag-burning, say) no matter how abhorrent. There are narrow exceptions, including threats against individuals or small groups or incitement to imminent violence. Private universities are not bound by the First Amendment but their policies generally echo its principles. Still, all colleges impose limits on the “time, place and manner” of protests, to ensure that students can attend class; these apply regardless of protesters’ viewpoint. Blocking buildings, interrupting lectures, camping overnight and making a racket tend to be banned. Columbia forbids personal tents on its lawns.

Other limits stem from universities’ obligations under civil-rights law. To receive federal funds, they must adhere to Title VI of the Civil Rights Act, which guards against discrimination on the basis of race, colour or national origin. The government can withhold money from a university if students face discriminatory harassment so “severe, pervasive and objectively offensive” that it affects their studies. In recent months Jewish plaintiffs have sued Harvard, Columbia and several other universities on that basis. They cite incidents of antisemitic abuse and allege a hostile environment on campus. But the bar for plaintiffs to succeed in court is high: they must show that they became ill or suffered academically as a result of discrimination, and that administrators displayed “deliberate indifference”.

University administrators have enforced their rules unevenly. In recent years they have accommodated students who sought to curtail speech deemed racist, sexist or anti-trans; now, say critics, they appear unmoved by the distress of Jewish students. It’s probable that some of the anti-Israel protesters shouting antisemitic slogans might have, in other circumstances, demanded that administrators police microaggressions, notes Keith Whittington, a professor at Princeton.

When university administrators have taken action against demonstrations, for example by summoning the police, they have been accused of going too far. Heavy-handed policing can galvanise protesters and thus prove counter-productive—as Dr Shafik has learned. The decision to ban pre-emptively a pro-Palestinian walk-out at the University of Texas at Austin and send in riot police seemed to infringe students’ free-speech rights; it has also led to more clashes with law enforcement. It is better to de-escalate early by explaining that certain types of protest break the rules, allowing students to change their tactics and punishing  those who keep at it, says Mr Whittington. That is often enough to get all but the diehards to pack up, since most don’t want an infraction on their records.

Columbia has started suspending protesters. Still, it is hard to see how some of the protests—occupations of buildings, for example—will dissipate without more police intervention. Commencement ceremonies are fast approaching; many encampments obstruct the spaces where they are due to take place. Students should remember an important tenet of civil disobedience. Law-breakers, wrote Martin Luther King junior, the most skilled practitioner of civil disobedience in America, “must do so openly, lovingly, and with a willingness to accept the penalty”. ■