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Why Colleges Don’t Know What to Do About Campus Protests

Despite frequent litigation, U.S. courts have created a blurry line that puts administrators in an impossible situation.

On April 23, 1968, for example, a protest against racist policies at Columbia University led to students occupying five buildings and briefly taking three school officials hostage. A photo of student David Shapiro sitting behind President Grayson Kirk’s desk while holding one of his cigars became a Rorschach test: for some it was an iconic image of student rebellion, while to others it was an egregious example of a lack of discipline and respect. When police officers cleared the occupied buildings, they arrested 700 protestors, injuring around 100.

The injuries reflected how, in response to protestors’ more extreme tactics, universities and law enforcement began employing more severe tactics of their own. Most infamously in May 1970, Ohio Governor Jim Rhodes sent the National Guard to Kent State University to crush student protests. On May 4, guardsmen fatally shot four students during a peaceful rally opposing the expansion of the Vietnam War into Laos and Cambodia. John Filo won a Pulitzer Prize for his photograph of 14-year-old Mary Ann Vecchio kneeling over the body of the fatally shot Jeffrey Miller.

Four days later, events at a solidarity protest at the University of New Mexico underscored that Kent State was part of a broad pattern after police arrested 131 students, with 11 wounded after the New Mexico National Guard charged at them with bayonets. 

Universities struggled to respond to student protests because courts provided confusing guidance on what type of student speech was protected and when administrators could intervene. Many of the most important cases actually stemmed from incidents in which K-12 schools disciplined children and teenagers.

Crucially, in 1969, the Supreme Court decided Tinker v. Des Moines. School officials had suspended a small group of students including Mary Beth and John Tinker for wearing black armbands to protest the Vietnam War. Writing for the Court, Justice Abe Fortas famously explained that neither pupils nor faculty “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Even so, the Court permitted school officials to take action when they deemed protests disruptive.   

This highly subjective standard produced a steady stream of litigation in the years that followed. In Healy v. James (1972), the Supreme Court sided with Central Connecticut State College students who sued after their university refused to recognize their chapter of Students for a Democratic Society as an official student organization. The Court held that administrators “may not restrict speech or association simply because it finds the views expressed by any group to be abhorrent.”