Protest Prep
One of the most fascinating projects I ever worked on was Boston University’s Statement on Free Speech and Expression. I sat on one committee tasked with writing the statement and chaired by the then Provost and General Counsel, and, with the then Dean of Students, I co-chaired a second committee tasked with harmonizing university policies with the Statement. In the course of that work, we realized that a bunch of policies glancingly addressed campus events and demonstrations, but much was left up to individual administrators’ discretion. The Statement seemed to call for a different approach, so we set about writing the university’s first Events and Demonstrations Policy, keeping front of mind the Statement’s opening line: freedom of speech and expression are central to the university mission.
Why Have an Events and Demonstrations Policy?
An events and demonstrations policy protects the institution from the whims and biases of its current and future constituents. The principle that members of your community should be able to gather together to express themselves is easy to abide in the abstract. When faced with some of the things members of your community might actually want to gather together to express, it is quite a bit more difficult. A well-written events and demonstrations policy helps keep the focus on time, place, and manner of expression, as well as maintaining campus safety (of both the physical and psychological varieties) and good order. You, as a university lawyer or administrator, shouldn’t be the arbiter of what is ok to express on campus – and neither should your university’s president or provost, the alumni, the faculty, or the student body be, really. All of those people are important constituents, whose voices should add to the din, but their perspectives should not outweigh the university’s primary interest in free inquiry and expression.
How to Get Started on an Events and Demonstrations Policy
Before starting to draft an events and demonstrations policy, it is a good idea to survey your university’s existing policies concerning speech and expression. That will probably include your student code of conduct and employee handbook, as well as a surprising variety of other policies that deal with speech and expression in one way or another: policies relating to reserving space on campus, use of loudspeakers and bullhorns, posting and promotions, soliciting, political and religious organizations on campus, use of social media, and conduct at sporting events. It’s likely you will find that some of those policies conflict and are unevenly or rarely enforced.
Of course, reading those policies won’t be enough. You will need to connect with departments across campus as well: the provost, events and conferences, the dean of students, residence life, police, athletics, university chaplains, and more. Through those discussions, you may very well find you have certain departments or individual administrators with unwritten policies or practices – maybe they only make their spaces available to favored student groups or have asked students to take “objectionable” speech off of their dormitory doors. These conversations aren’t just an exercise in turning over rocks you wish you hadn’t, though; you will find people interested and invested in their corner of speech and expression, who can help you think through operational issues you might otherwise miss.
What Else to Think About
When you sit down to write the policy, those operational issues will run headlong into the philosophical issues, even if your starting point is that the university should encourage speech, not just suffer it. You will need guidance and/or buy-in from leadership on a number of things. Here are some questions that might arise:
1. Will you distinguish between pre-planned events and impromptu demonstrations? Will you require the same kind of approvals for both?
2. Who will be informed of and involved in safety planning around events? Who will have the last word on whether a safety plan is appropriate? Will the university provide funding for security at events and demonstrations and under what circumstances?
3. Will you let non-affiliates reserve space on campus? Will you let non-affiliates demonstrate on campus?
4. What time, place, and manner restrictions are important to the ensure the smooth functioning of your campus?
5. How will you provide space (physically and psychologically) for counterdemonstrations and other opportunities to respond to controversial speech?
6. Will you identify locations on campus as “free speech zones,” where demonstrations may be held without approval, subject to the same kind of time, place, and manner restrictions that apply to all events?
These are questions in which even your board of trustees may be interested, particularly if you have recently experienced on-campus protests. Frankly, these are questions that everyone will be interested in if you have recently experienced on-campus protests. The key to writing policy, I think, is to strike when the iron is not particularly hot. Trying to write a policy to address a crisis you are currently living through is a recipe for incorporating not just lessons learned, but anxieties compounded and fears exaggerated. Your vision will be clouded by the particulars of the current crisis.
So, I am not necessarily advocating that your institution should start working on an events and demonstrations policy right this second, but you may want to put it on the docket for the new year.
