Civil Disobedience and Due Process at NYU
February 26, 2009
Last week, approximately 60 student activists at New York University staged an occupation of a cafeteria in the university's student center. Although their numbers dwindled as the protest wore on, the student activists—members of Take Back NYU!, a coalition of student groups on campus—held the cafeteria for approximately 40 hours until NYU security guards cleared barricades and physically removed the remaining students Friday afternoon. During the occupation, a security guard was injured and NYU property was damaged. A usefully thorough timeline of the occupation is available here.
According to reports, the occupation ended when some students left the cafeteria, believing they had been invited to enter face-to-face negotiations with NYU administrators, only to be detained; simultaneously, those students who had stayed behind were forcibly removed.
News reports indicate that the last 18 students have been summarily suspended. On Friday, The New York Times reported:
About two dozen students were still involved in the protest when security guards removed barricades made of tables and chairs in the late morning and swept into a third-floor dining room inside the Kimmel student center, said Banu Quadir, 21, a senior who participated in the demonstration.
Ms. Quadir said that those inside the room were photographed and asked to present identification and that school officials distributed letters to N.Y.U. students that stated, "You are suspended from, and classified as a persona non grata at New York University."
Further, these students have also been evicted from their student housing, according to The Chronicle of Higher Education's Marc Bousquet. He writes:
NYU ordered suspension of 18 student activists, including barring them from their campus residences. They were photographed and handed previously-prepared letters declaring them persona non grata and immediately evicted from their rooms but, according to an NYU spokesman "offered another spot elsewhere in the housing system" until the appeals of their suspension and eviction were exhausted.
In the wake of the occupation, questions have arisen about whether the summary suspension and eviction of these students is consistent with NYU's promises of procedural due process and basic principles of fairness. Take Back NYU! has posted a list of over 170 faculty members who have signed a petition protesting the administration's response. The petition reads in part:
As NYU faculty, we call on the Administration to reinstate those students who have been summarily suspended for their recent protest at Kimmel, pending proper hearings by NYU's disciplinary board. If there is disciplinary action, it should follow—not precede—fair hearings, in which both sides are represented and the faculty consulted.
FIRE takes no position on the substance of Take Back NYU!'s demands. But allegations of the denial of due process are certainly within our purview and worthy of comment.
First, let's refer to Part III ("Procedural Fairness at Private Universities") of FIRE's Guide to Due Process and Fair Procedure on Campus (pdf) to ascertain what level of due process NYU, a private university, owes the suspended students. In our Guide, we write:
Private colleges or universities are free, by contrast, within very wide guidelines and boundaries established by state laws, to set their own rules and to formulate their own disciplinary procedures. A student is free to take or not to take such procedures into account when deciding to attend such an institution. Once private institutions establish and publish disciplinary rules, however, they are then obliged, by principles of contract law, to follow them in good faith, even if not always to the strict letter.
And as we write in Part IV ("The Elements of Due Process") of FIRE's Guide to Due Process and Fair Procedure on Campus (pdf):
Temporary suspensions are allowed only when a student poses an immediate danger to persons or property. A hearing regarding the temporary suspension must be held as soon as practicable.
So the question then becomes: By summarily suspending and evicting the occupying students, has NYU violated its own procedural protocol?
NYU's policy (pdf; p. 3) on summary or "interim" suspensions reads as follows:
A student should not be summarily suspended either completely or for certain purposes, except for reasons relating to his/her physical or emotional safety and well-being, the safety and well-being of students, faculty, staff, or University property, the maintenance of public order, or the effective continuation of the education process.
As provided in Bylaw 62, the President or the Dean of a school, or their respective representatives, depending on the nature of the infraction, may suspend a student pending consideration of his/her case. When this occurs, the student shall be afforded the opportunity to expedite disciplinary proceedings so as to enable the determination of the appropriate sanction, if any, at the earliest possible time, preferably within 48 hours. Any period of interim suspension shall be deducted from any ultimate sanction involving suspension.
Objectively speaking—and again, without reference to the merits or content of the protest, or the wisdom of NYU's response—NYU's decision to summarily suspend the students seems defensible under the language contained herein. The policy specifically reserves the right to summarily suspend students for "reasons relating to ... [the] well-being of ... University property" and "the maintenance of public order." Insofar as the students were physically occupying University property in an action that was presumably designed precisely to disrupt "public order," this seems like a reasonable application, and it is difficult for the occupying students to argue that such a punishment isn't authorized by NYU's code. Again, this is not to say that NYU should have summarily suspended the students, or that such an action was just or advisable. Rather, it is only to point out that NYU is not violating its own stated policies by summarily suspending the students, pending further hearings. As far as the evictions are concerned, it is fair to assume that this harsh sanction is part of suspension—i.e., that a "complete" suspension includes eviction, because enrollment at the university is a condition of residence in the university's dorms.
So what's next? It's important to note that official disciplinary charges were issued yesterday, according to the Washington Square News, NYU's student newspaper:
Today the university will give the Kimmel 18 official charges for their participation in the 40-hour occupation of the Kimmel Center.
According to the students under judicial review, they will all receive a letter detailing the specific charges and punishments they will face.
A preliminary disciplinary meeting was held with the students on Monday, where "students were given a three-page packet outlining all Kimmel Center rules they had violated." Even more importantly, it seems that students will be able to appeal their charges:
The students have the option to either accept or reject the charges. If they choose to reject the offer, the students will have further judicial hearings.
The fact that accused students will be afforded hearings and the opportunity to appeal the charges against them is encouraging and appropriate. NYU policy allows students to bring counsel or advisors to the proceeding, to cross-examine witnesses, to record the proceeding, and to receive a final written report of the findings. If these procedural protections are followed as outlined by the university's policy in as timely a manner as practicable, it seems reasonable to conclude that the suspended students have received adequate procedural due process protections.
Finally, perhaps the most important overarching point to make here is that civil disobedience and "direct action" protests like building occupations are considered to be powerful statements of moral outrage and protest precisely because they violate existing law or policy. We often receive inquiries from students planning protests about whether or not they can expect to be punished for their act of civil disobedience on campus. Perhaps unsurprisingly, the answer is typically yes. As Robert wrote several years ago in another context:
[Y]ou have to be prepared to endure the punishment prescribed by the law—simply because you are engaged in "civil disobedience" does not make unlawful behavior any more lawful... Indeed, enduring the punishment for civil disobedience is an integral part of the protest. Part of the reason for the power of Martin Luther King's "Letter from Birmingham Jail" is that it is written from a jail cell that he was put in for practicing civil disobedience. A hypothetical "Letter from Birmingham Country Club," even if written in identical words, would obviously have less effect.
By occupying the student center cafeteria, the members of Take Back NYU! knew they would be in violation of NYU's policies. (Indeed, the first demand listed by the group was "Amnesty for all parties involved.") It is this violation that gave the protest its power—and generated the national media coverage that ensued. And because NYU's policies provide for summary suspension of students engaged in such activities, it is difficult to argue that they have been mistreated by NYU.
Nevertheless, FIRE knows better than to trust NYU to follow its own policies. In March of 2006, NYU violated its own event policies in refusing to allow a student group to display the infamous "Mohammed cartoons" at a campus event. In light of this shameful history, FIRE will watch NYU's treatment of the student protesters carefully, to ensure that any punishment they receive comports with NYU's own policies and basic principles of fairness.