WashU's Protest Report

Some reflections on the factual findings and policy recommendations

April 27, 2024 protest at Washington University (author photo)

Last week, the Washington University Board of Trustees endorsed and released a report of its “Ad Hoc Committee on University Policies and Guidelines Governing On-Campus Protests and Demonstrations.” The report examines protests related to the Israeli-Palestinian conflict that occurred on the Washington University campus last spring, the most significant of which occurred on April 27 and resulted in nearly 100 arrests. The report indicates that its factual findings are undisputed unless otherwise indicated.

Although I had no involvement in the report, much of my research focuses on the right of assembly and protest. I also personally observed the April 27 protest for about an hour after it had moved from the main campus library to Tisch Park (an open area toward the east end of campus that is shown in the picture at the top of this post). During that time, I witnessed several dispersal orders but left (for reasons unrelated to the protest) before police began arresting protesters.

Here are my observations based on my expertise, my experience on April 27, and my review of the report:

1. The report indicates that the April 27 protest began on campus with about 300 protesters on the south side of the main campus library. That demonstration was loud and included “aggressive and derogatory” language directed at a university official after he issued a warning to protesters, but it was not violent. Following the warning, Washington University Police Department (WUPD) officer “declared the protest at Olin Library an unlawful assembly.”
   
   I was perplexed by this last factual detail in the report because I have never seen unlawful assembly defined in any Washington University policy or regulation. As I explain in my 2017 UCLA Law Review article “Unlawful Assembly as Social Control,” the offense of unlawful assembly typically contains multiple material elements, such as the number of people comprising the assembly, evidence of an agreement between two or more people, and an intent to commit some illegal action. For example, in the State of Missouri, a person commits the offense of unlawful assembly “if he knowingly assembles with six or more other persons and agrees . . . to violate . . . the criminal law . . . with force or violence.” (MO Rev. Stat. § 574.040 (2024)).
   
   Having previously served on a university-wide committee on policing and the campus community, I am aware that the legal jurisdiction over the Washington University campus is complicated and depends on a number of operating agreements between Washington University and surrounding jurisdictions and law enforcement agencies. It may be that WUPD is authorized to declare an unlawful assembly under some relevant jurisdictional authority. But if so, its leaders should ensure that officers are aware of what authority they are invoking and confident that the elements of the offense have been established. Alternatively, officers might be able to issue a warning for violating some other university regulation (such as trespassing) and subsequently issue a dispersal order or effectuate arrests. But simply having officers declare an unlawful assembly without any definitional context sounds more like Michael Scott declaring bankruptcy in The Office than a lawful order.

2. I observed the April 27 protests from several hundred feet away. At one point, an unidentified woman who appeared to be a university official instructed me and several other observers to move back at least 100 feet further. I politely asked whether this was a request or an order. As a university employee, I wanted to respect properly issued guidance. But as a First Amendment scholar and lawyer, I did not want to have the rights guaranteed to me by my employer improperly curtailed. The official told me it was only a request. I then asked her what would happen if I declined the request, and she said she would bring the St. Louis County police over to assist me in moving. This did not sound like a request. Out of caution, I complied with her directive.
   
   I would urge the university to clarify not only who in a given situation has the authority to issue orders limiting otherwise protected movement and expression, but also how those orders are implemented. Protesters, bystanders, and university employees have a right to know the difference between a polite request and a directive backed by the threat or use of coercive force.
   

3. As noted above, I began observing the April 27 protest after it had relocated to Tisch Park. The portion of the protest I observed included loud and ominous (though entirely legal) chants by protesters. From my vantage point, WUPD and supporting departments appeared to be doing what I would hope they would do in a large protest situation. Although I did not personally witness the arrests, the report notes:

   During the first wave of arrests, WUPD officers attempted to use bicycles to form a barrier to keep protestors away from spaces where individual arrests were occurring. However, as officers positioned the bikes in front of the crowd, protestors began grabbing the bikes thereby leading to a tug-of-war between protestors and police. WUPD abandoned the use of the bikes after the first arrests. WUPD officers did not use riot gear during the protests.

   This characterization is consistent with the demeanor and actions of law enforcement I observed before the arrests.
   
   There are separate but related issues as to whether Washington University should arm its officers or request armed reinforcement from neighboring law enforcement agencies. I have mixed views about these issues, and they are made even more difficult during the April 27 protest by the sizable number of protesters who were not part of the university community. I do think that university and law enforcement officials are put in near-impossible situations when they are essentially asked to be error-free in protecting their communities and error-free in allowing for robust protest and expression. That’s not to let university or law enforcement officials off the hook; this post, in fact, levels a number of critiques. But it is to acknowledge that these issues can be complex and dynamic.
   

4. The Committee’s report discusses the suspension of a number of students following the April 27 protests. Specifically, the report notes:

   According to Student Affairs, the arrested students were barred from campus because of a concern that they would disrupt the campus during final exams which began a few days later. Some of the students previously had been suspended because of their disruptive conduct. Some told Student Affairs during post-suspension conversations that they intended to continue disrupting the campus.

   The committee condoned that decision, writing that the school “acted in good faith in the decision that they made in barring the suspended students from campus.”
   
   I am concerned that the university appears to have suspended students based on a worry of future disruption, particularly in light of its commitment to honor “First Amendment principles regarding freedom of expression on its campus.” Longstanding First Amendment precedent makes clear that protesters cannot be punished for threats of future action unless those threats amount to imminent incitement to law breaking. Nothing in the facts of the Committee’s report suggests that the students suspended for potential future actions came close to this line. If the university were concerned that particular students were going to engage in activities prohibited under its policies and regulations, then it could have reminded those students of its rules and the consequences of breaking them. Then, if students actually engaged in restricted conduct, the university could have responded with punitive measures. But it’s not clear to me how the university could preemptively suspend students consistent with its commitment to honor First Amendment norms.
   
   A related point: The Committee’s report indicated that “[i]t is not for the Committee to comment on either the University’s suspension policies or the suspension of any particular student.” Given the First Amendment norms apparently implicated in the suspensions, I am unclear why the Committee views suspension policies as outside its purview.

I offer these observations in my individual capacity as a member of the Washington University faculty and based on my subject matter expertise on assembly and protest. Readers wishing to explore these issues further may be interested in a Zoom discussion I convened with three other leading scholars on assembly shortly after the April 2024 protests, during which we reflected on the events at Washington University and other campuses. I provided an overview and recording of that discussion in an earlier post.

Campuses are historically sites of protest and activism. I applaud Washington University for its commitment to improve its processes and procedures related to these activities, and I look forward to working with my university colleagues “to foster respectful, reasoned and collegial consideration of the April protests and of how we can continue to ensure that the University remains a bastion of open, robust inquiry in the pursuit of knowledge, discovery and learning.”