Table of Contents Introduction I. Background II. Facts A. The Yard B. The Classroom Building 1. Noise in the hallway 2. Class interruption C. The University Administration Building D. The Library III. Policies A. Academic Freedom and Free Speech 1. Statement on Rights and Responsibilities 2. Free Speech Guidelines B. Discrimination, Harassment, and Bullying 1. Non-Discrimination Policy 2. Anti-Bullying Policy C. Non-Retaliation IV. Determination A. Complaints B. Applying the Policies to the Facts 1. The Yard a. Chants b. Content of slogans c. Factual context of chants 2. The classroom building a. Noise outside meetings b. Noise outside classes c. Interruption inside the classroom 3. The University administration building 4. The library C. Conclusions V. Concurring & Dissenting Opinions A. Free Speech Absolutist B. Speech Versus Incitement to Violence C. Formalist D. Neutral E. Complicit F. Role Determinist G. Particularist H. Undecided I. Listener J. Free Speech Versus Academic Freedom K. Bureaucrat Conclusion
Introduction
Seventy-five years ago, Lon Fuller's The Case of the Speluncean Explorers presented a fictitious legal dispute in a far-off jurisdiction at a different time. (1) The fictional case, inspired by actual legal controversies, involved cave explorers who were trapped underground for weeks, able to communicate with the surface world and aware of their likely eventual rescue but lacking adequate food. (2) To survive until their rescue, the spelunkers deliberately killed one of their own and ate him. (3) The question for the fictitious court in the jurisdiction of Newgarth was whether the surviving individuals ought to be convicted of murder upon their rescue. (4) The fictitious judges' opinions typified different jurisprudential approaches--for example, formalism, functionalism, legal process, legal realism, popular constitutionalism, consequentialism, and so on. Part of the Essay's genius was that the abstraction away from "our time" and "our place" allowed ideal types of legal reasoning to be more clearly presented. (5)
Soon after Hamas's attacks on Israel on October 7, 2023, and Israel's military response in Gaza, a global spotlight focused on university members' and leaders' conduct and statements regarding those events. (6) Intense debate ensued about what academic freedom means when university members' political protest and speech are alleged to constitute forms of discrimination, harassment, and bullying of other affiliates. (7) The debate revealed widespread uncertainty about the relationship between universities' policies and attitudes on academic freedom on the one hand and universities' disciplinary rules on discrimination, harassment, and bullying on the other hand. (8) The aftermath of October 7th also raised questions about the role of universities in speaking about world events. (9) All of these thorny issues implicate the core purpose and mission of a university.
Universities often receive complaints from their members about other members' violations of university policies. (10) Those complaints are investigated and adjudicated within a university's disciplinary system, (11) the proceedings and decisions of which are generally confidential. (12) While a university's website may publicize its disciplinary policies and procedures, the confidentiality of cases means the public has no way to examine the workings, reasoning, or results of complaints, investigations, and adjudicative decisions, except in the unusual case in which a party aggrieved by the process or the result takes the step of filing a lawsuit alleging that the university acted unlawfully. (13)
This Essay presents a fictitious case that takes place in the world of university discipline and explores a hypothetical university's adjudication process. We present a written adjudicative determination by members of a fictitious school, Newgarth University, who must decide whether to discipline students accused of policy violations arguably relating to political protest. Rather than abstract away from the current political moment as Fuller did in 1949, we draw from real events that occurred on university campuses after October 7, 2023, and use them to fashion a stylized fact pattern to which our fictitious panel of adjudicators must apply Newgarth University's policies.
Followers of events on campuses will recognize similarities to actual controversies. But this Essay does not aspire to produce an accurate record of what actually happened on campuses; the reported facts have been contested and various. Instead, we intentionally alter the reported facts to craft a composite set of facts that do not correspond precisely to actual incidents. For the policies of Newgarth University, we draw liberally from Harvard University's policies and procedures because they are ones with which we have greatest familiarity. Other campuses likely have similar policies and procedures. Our goal is to provide an illustrative analysis of university policies applied to a set of stylized facts. Like some actual adjudicative decisions within universities, the text that follows consists of a description of facts, an overview of the applicable rules, a determination that applies the rules to the facts, and a set of concurring and dissenting opinions.
Our goal is to present examples of common intellectual positions in the terrain of academic freedom, discrimination, and university discipline. We hope that by making visible the most common perspectives on the most relevant cluster of questions, readers may better understand their difficulties, tensions, and potential resolutions, as well as the quandaries that universities face.
I. Background
As the political conflict over Israel, Hamas, and the war in Gaza has reverberated across colleges and universities, acute tensions have arisen on campuses and in public discourse. Public letters, petitions, statements, calls for universities themselves to speak, awareness campaigns, and protests have roiled campuses. (14) Some of these events constitute intellectual exchange, political discourse, and protected protest. (15) As tensions have run high, other incidents have given rise to unlawful conduct including physical violence and property destruction, to which law enforcement has responded. (16) While many events on our campus unquestionably involved protected speech and exercises of academic freedom, others are alleged to have crossed the line to impermissible conduct in violation of University policies. (17)
The current matter comes before us as members of Newgarth University's Determination Panel of adjudicators. It requires us to decide whether the University will discipline students who are accused of the conduct outlined below in Part II, including chanting slogans that some understand as calls for genocide even as others dispute that understanding. As adjudicators charged with addressing alleged violations of the University's disciplinary policies, it is our responsibility to clarify the line between permissible and impermissible conduct; here, the line between free speech-including academic discourse and political protest-and discrimination, harassment, or bullying.
On October 7, 2023, Hamas killed about 1,200 and kidnapped around 240 Israelis and others in the area. (18) That day, several dozen student groups at Newgarth University issued a joint public statement holding "the Israeli regime entirely responsible for all unfolding violence." The backlash against the statement included public calls for individual students involved in the statement to face University discipline such as suspension or expulsion and for the student groups to be suspended or banned from campus. Alumni of the University called for employers not to hire the students and for students' visa statuses to be revoked.
For better or worse, Newgarth University operates in the glare of the public spotlight. Teaching, learning, developing intellectually, and maturing emotionally under constant scrutiny from print, television, online, and social media sources is not ideal, but it is part of the burden of the University and its members, some of whom are teenagers. Public figures have accused our students of antisemitism and the University's administration of failing to protect Jewish students. Others have decried the University for its complicity in the oppression of Palestinians, for enabling the intimidation of Palestinian and Muslim students, and for not protecting their speech and equality. The University has been urged by both internal and external parties to punish alleged "calls for the genocide of Jews" and, by others, to punish alleged "calls for the genocide of Palestinians in Gaza."
II. Facts
The Investigator appointed by the University found the following facts.
A. The Yard
On Friday, November 3, a group of approximately thirty students (Protesters), who were diverse in race, religion, and ethnicity and led by Muslim and Jewish students, gathered on the main Yard of our campus to protest in support of a "Free Palestine." Some wore hijabs or keffiyehs. A handful covered their faces. The Protesters held up Palestinian flags, marched, and chanted, "From the River to the Sea, Palestine will be free," "Globalize the intifada," and "Stop the genocide in Gaza."
The protest in the Yard was held in accordance with the University's rules governing the reasonable time, place, and manner for protests and in a space where political protests had traditionally and permissibly occurred. A second group of students walked past the protest on a public walkway on their way to the Hillel building as it was approaching the time for candle-lighting before Shabbat services. The walkway is used for pedestrian traffic, as it connects the main student dormitories, the main library, classrooms, and other University buildings. Some students in this second group were wearing items that suggested they were Jewish...
