The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A Test University Officials Should Use in Enforcing Conduct Rules for Protests
Would a white supremacist group be allowed to engage in this conduct? If not, no group should be allowed.
As a VC commenter points out, universities in the past have often been tolerant of illicit behavior by student protestors, at least so long as they were protesting for lefty causes like Black Lives Matter or action on climate change. So why should David L. Bernstein and I insist that anti-encampment and anti-disruption rules be strictly enforced for anti-Israel demonstrators?
The answer is that universities have not been ideologically neutral in what behaviors they allow. Universities back in the day allowed anti-apartheid encampments to persist, despite the encampments violating school rules. Is there any reasonable possibility they would have similarly permitted pro-apartheid encampments? Universities have been loathe to even permit satirical affirmative action bake sales, even when the organizers did not violate any university rules and were engaged in First Amendment-protected activity.
So here's what David L. and I conclude: The basic question university officials should ask themselves is this: if a group of student white supremacists was engaging in this behavior, are there existing rules that could be enforced and therefore would be enforced to stop them? If the answer is yes, then the exact same level of enforcement should be brought to bear against anti-Israel (or any other) protestors. This is not because such protestors are necessarily akin to white supremacists, but because a university should not be enforcing (or not enforcing) its rules based on the ideological proclivities of the students breaking the rules.
