We Tried the Official Channels; Now to the Barricades

My post last Friday regarding the ill-fated and short-lived takeover of an NYU cafeteria led one of my current Cornell law students---who is a graduate of NYU---to comment that although "Take Back NYU" consists simply of kids play-acting as activists, if they had focused on just one demand they might have garnered widespread support among the student body. The demand? For a public accounting of NYU's finances. With NYU tuition having risen dramatically in recent years---even faster than at other major American universities, according to this alum---students want to know where their money is going.

Let's take all that as true, and let's also take as true the claim by TBNYU that they have tried, to no avail, to get a public accounting via official channels. Does it follow that (to borrow a concept from administrative law) having exhausted their official remedies, TBNYU was justified in moving on to a sit-in? Hardly. This sort of claim is at least sometimes persuasive, but it must depend on a number of factors.

Do the official procedures themselves provide a fair opportunity for voicing policy concerns? Even if the answer is no, direct activism may still be unwarranted, depending on the institution from which change is sought. We rightly expect more in the way of democratic organization from public institutions than from private ones, and (per Hirschman) the voluntary nature of attendance at NYU (i.e., the possibility of exit) can substitute to some extent for democracy (voice) at NYU.

Moreover, where official procedures are fair, given the nature of the institution, the fact that the outcome is "wrong" is not, by itself, a sufficient basis for civil disobedience. It must be something more like profoundly wrong or deeply unjust. And even then, because of the dangers to the whole social fabric when particular individuals decide what counts as profoundly wrong though democratically supported, people who engage in civil disobedience must be willing to pay a steep price---i.e., accept criminal responsibility---for their conduct.

Notwithstanding the conventionality of what I have just said, there is also a social and even quasi-legal norm under which non-violent but illegal protest is understood to be just another form of speech. Everyone knows that a legal march and rally for which the organizers have obtained permits in advance lacks the added "umph" one gets out of symbolic but illegal protests: volunteering to get arrested; chaining yourself to trees; taking over a building; etc. Even assuming that the kids participating in the TBNYU takeover were muddle-headed dolts, the genuine surprise some of them appeared to feel when they learned that they would be expelled and/or prosecuted for their conduct was reasonable. They had been led to believe by the slap on the wrists administered in other cases that what they were doing was only "technically" illegal.

Here I could make a broader point about the dangers of having an unofficial norm that is much more lenient than the official norm, but I'll save that point in my next post.

Posted by Mike Dorf