Following the arrest of around 3,000 protestors during anti-Gaza demonstrations at 57 US colleges and universities, hundreds of students faced the prospect of being suspended or even expelled, as well as possible criminal prosecution.
Student protestors have persisted in staging demonstrations during graduation ceremonies as the school year draws to a close. Students at Arizona State University have sued the institution, arguing that their suspensions were an infringement on their right to free speech.
According to the nonprofit news group The Appeal, “Students across the country still face severe consequences, including potential suspensions, evictions, expulsions, and criminal prosecutions.” The group inquired as to whether criminal charges would be brought against protestors by contacting hundreds of prosecutors and city attorneys.
Only four city attorney offices—in Bernalillo County, New Mexico, home of the University of New Mexico’s Albuquerque campus; Cook County, Illinois, home of the Art Institute of Chicago; Ithaca, New York, home of Cornell University; and Ulster County, New York, home of the State University of New York—confirmed they would not press charges for peaceful protestors out of the more than forty that responded to the Appeal.
Protesters continue to face serious criminal accusations in other places. Three people were accused of violence, “hate crimes” against police, and physically resisting an officer in New Orleans. A prison sentence of one to three years may be imposed on the third charge.
Regarding academic sanctions, the Los Angeles Times reports that a few Californian universities, including the University of Southern California and Cal Poly, Humboldt, have instituted interim suspensions, a measure often saved for “serious and imminently dangerous misconduct.” Since some universities, including the University of California, San Diego, allow students to appeal and have their suspensions revoked, it is unclear how many students have received formal suspensions for taking part in protests.
After the college protests, do students have a claim to the First Amendment? To break down students’ rights, Yahoo News spoke with legal experts.
The First Amendment protects public school campuses as public spaces.
According to Yahoo News, Lee Rowland, the executive director of the National Coalition Against Censorship (NCAC), an activist organization devoted to defending free expression, people are shielded from government censorship under the First Amendment.
When speaking of public areas, Rowland stated, “You have a right to engage in protected speech there.” The First Amendment offers complete protection against governmental censorship, encompassing public schools – be they high schools, colleges, or universities.
Senior counsel Robert Kleinfeldt of the New York City-based legal firm Romano Law stressed that these rights are “strongest” in “traditional public forums,” which include sidewalks, parks, and streets.
Any participant in a public campus protest is covered by the protection, not only students.
Campuses of private schools are subject to distinct regulations.
Conversely, Rowland noted that private schools, such as Columbia, have greater “ability to control” over who is on their grounds and can charge trespassing offenders for anyone who disobeys the regulations.
She clarified, “A private property owner can set [rules] and say, ‘Everyone here is trespassing,’ and they have the right to call in the police or file a legal complaint about trespassing.” “The school could disband an encampment without violating the First Amendment; that doesn’t mean it’s the right or sensible thing to do for free expression in general, though.”
What kind of protest is not First Amendment protected?
The First Amendment does not protect against violence. Certain acts of civil disobedience, like taking over a building or spending the night somewhere with a closing time, are also not protected.
According to Kleinfeldt, “unless there is… [an] immediate threat to public safety, police generally cannot break up a demonstration or gathering.”
Additionally, there are rules known as “time, place, and manner” restrictions that permit institutions of any kind to impose broad restrictions, such regulating the number of protestors permitted in a given area or establishing start and end hours for protests.
According to Rowland, if demonstrators break these regulations, it is constitutional for a school to call the police. If the school summons the police in response to the protesters’ message, it becomes unconstitutional.
If a protester is detained, they should have been aware that they were breaking the law in the first place.
According to Rowland, private schools are free to create new regulations that allow them to constitutionally punish protestors who break them.
For instance, a school has the authority to impose consequences on any student who takes part in a walkout. According to the American Civil Liberties Union, schools are free to implement additional regulations regarding absences from class, but they are not permitted to penalize students more severely due to the protest’s intended message.
Rowland underlines that a person must have known they were breaking the law in order to be accused or arrested.
Rowland stated, “We frequently witness police telling [protesters] that this has been declared an unlawful assembly and that you have 20 minutes to disperse.” “That warning is typically given to make sure that there is some proof that the people arrested knew that they were breaking some rule or law, in the event that police decide to make an arrest.”