Suspending Student Protesters Would Be a Palestine Exception to Free Speech

Protests happen, from time to time, in all societies. They are, almost by definition, messy. They often disturb and inconvenience people. They make noise, block roads, shut down buildings, and force event cancellations. Some deface or destroy property. And nearly every protest violates some existing rules.

Protests thus force a choice between upholding rules and protecting freedom of expression. In authoritarian societies, the choice is simple. Governments often crack down on protest with severe punishments. They almost invariably justify these measures by appealing to the law: Rules are rules, and they must be enforced. Penalties are often vastly disproportionate to the offense (gathering without a permit, blocking traffic), but autocrats insist they are simply enforcing the law.

Democratic societies handle protests differently. When forced to choose between tolerating short periods of disorder and taking action that threatens the basic rights (or lives) of protesters, democratic governments usually opt for the former. They accept some degree of inconvenience and rule-breaking. Sometimes the best outcome is muddling through a period of discomfort and even distress in order to avoid greater damage to the community.

Since the 1969 police crackdown that left dozens of people hospitalized, Harvard has consistently handled such protests and rule violations with restraint. This commitment to administrative restraint — a willingness to tolerate modest disruption in the name of free speech — is codified in Harvard’s Free Speech Guidelines, which state, for example, that, in the face of inconvenient protest, “hard choices regarding appropriate time, place, and manner should have a presumption favoring free speech.” This makes yesterday’s announcement threatening mass suspensions for all students involved in the encampment in Harvard Yard all the more shocking.

How have these hard choices played out in the past? We sourced The Crimson for reporting on historical protest movements and have spoken with a number of alumni about their activism as students. Here’s what we found.

In April 1986, The South African Solidarity Committee erected an anti-Apartheid encampment called “Shantytown” that remained in the Yard through Commencement. Dean A. Michael Spence apologized to families for the disturbance, but didn’t forcibly remove the tents.

While the anti-Apartheid movement may seem uncontroversial today, it faced significant opposition at the time.

“This is not civil disobedience. This is disobeying the law to create a nuisance,” said Kris W. Kobach ’88, then-President of the Republican Club. When some faculty held classes in the Yard so that protesting students could attend, the FAS Faculty Council called the practice an “unacceptable” form of “coercion” for students who didn’t support the protest.

We don’t know for sure what the disciplinary consequences for the Shantytown protesters were because individual disciplinary outcomes are confidential. But alumni who participated in the encampment told us they couldn’t recall anyone being disciplined beyond “suspended suspensions” — discipline without any effect. In fact, the University allowed the shanties to remain in place, saying they were an expression of free speech.

In April 2001, dozens of members of the Progressive Student Labor Movement occupied Massachusetts Hall for weeks to demand a living wage for Harvard workers. Their action required a police presence both inside and outside the building. Staffers later testified that they were terrified by the students as they entered Massachusetts Hall waving flyers. A few days later, student protesters established a “tent city” in the Yard, which eventually grew to 100 tents.

At the time, then-College Dean Harry R. Lewis ’68 announced he would oppose suspending the students involved. In the end, the college students involved were only handed three weeks of disciplinary probation, and four participating law students received reprimands.

In 2011, hundreds of activists — including Harvard affiliates and external protesters — set up an encampment in Harvard Yard as part of the broader “Occupy” movement. The Yard was shut down, the gates closed, IDs checked. An alum told us that those employed in campus jobs — like resident tutors — were threatened with termination. But a participant in the protest told us she never heard of any actual discipline, and reporting from the time does not mention student suspensions.

In 2015, Divest Harvard organized a week-long occupation and blockade of Massachusetts Hall and also temporarily blocked University Hall and the Alumni Association on Mt. Auburn Street, to pressure the Administration to divest from fossil fuels. Top administrators, including former University President Drew Gilpin Faust, had to relocate, and protesters refused entry to all staff located in University Hall — everyone from deans Michael D. Smith and Rakesh Khurana to custodial staff.

Despite the disruption, the administration responded pragmatically.

“It’s an inconvenience, but it’s not stopping us from doing what we need to do,” said Stephen Lassonde, Dean of Student Life at the time. An alum who participated in the civil disobedience told us she wasn’t aware of Harvard disciplining any of the participants, and we could find no reporting on student discipline from the time.

In 2016, Harvard Law School students occupied a lounge in the Caspersen Student Center and renamed it “Belinda Hall” after a woman enslaved by the Royall family, whose crest was used as the Law School seal. The occupation lasted for weeks. Again, however, no public reports of disciplinary action exist, and one HLS alum who participated in that protest told us she was not aware of a single Ad Board case being filed.

Although the protesters we spoke to had (at best) mixed reviews of the administration’s response to their calls for change, they all agreed that the threats levied against them pale in comparison to what today’s protesters face. So what has changed?

It is not a matter of “time, place, and manner.” We find no evidence that the current encampment has been any more disruptive than earlier protests. Previous protests have gone on longer. They have been more disruptive. They have employed the same methods — loud chants, controversial signs, tents — in exactly the same places. Indeed, a good case can be made that the latest generation of student protesters have been unusually restrained. And yet only today’s student protesters face a mass suspension.

Such disproportionate penalties for relatively minor rule violations break sharply with more than 50 years of Harvard practice. It is hard to avoid the conclusion that this is an instance of “the Palestine exception”— a markedly lower tolerance for pro-Palestinian speech than for other speech.

The administration’s heavy-handed response also flies directly in the face of our core mission, which is to teach our students, not throw them out of school for speaking out on a matter they consider to be of great moral importance. We may legitimately — even strongly — disagree with the protesters, but we should do so using the tools we teach them to value: discussion over threat, reasoned discourse over coercive discipline. Any other course of action will not age well.

Alison Frank Johnson is a Professor of History. Steven Levitsky is the David Rockefeller Professor of Latin American Studies and a Professor of Government.