Meaningful Campus Engagement with Government Officials: A Response to UCLA’s Critics (Guest Post By UCLA Law Professor David Marcus)
On Tuesday, April 21, UCLA Law’s Federalist Society chapter hosted a lunchtime event with James Percival, general counsel at the U.S. Department of Homeland Security. Shortly after the event’s conclusion, carefully selected video clips of moments from the hour began to circulate online. These misleading clips have gone viral, fueled in part by Trump Administration social media accounts.
The event has become the latest skirmish in a relentless conservative campaign to discredit universities as bastions of illiberal wokeness. Critics of UCLA Law claim that our administration failed to protect a speaker from gross violations of free speech and civility, and that UCLA students are afraid to debate ideas.
I was there. What happened is not what you have heard.
What follows is a lengthy description of all I know about the April 21 event. I base the following on my observations as an attendee and on numerous conversations with colleagues and students over the ensuing days.
Some of what happened is open to interpretation. The audience struck me as raucous but nowhere near sufficiently disruptive to distract me from Mr. Percival’s presentation, one that enthralled me with its mendacity. I know others feel differently. These are matters of evaluation and ultimately opinion. I trust that those who perceived things differently can disagree with me in good faith.
But there are also facts that leave no room for disagreement. Two truths strike me as especially significant.
First, claims that UCLA Law’s administrators made no effort to enable Mr. Percival to appear and speak are simply false.
Second, claims that UCLA law students refused opportunities at the event to engage with Mr. Percival by asking him questions are simply false. Students were promised but ultimately denied a meaningful opportunity to pose questions to Mr. Percival.
UCLA’s critics have couched their critique in terms of free speech and civility. There is no little irony here. Comments on some critics’ social media posts have targeted my students with vile, racist insults – a deplorable result, and one predictable given today’s degraded politics.
But I accept that some of UCLA’s critics indeed care about free speech and civility as such, and not just as talking points in the service of a political cause. My account should prompt these critics to reconsider. The narrative should fit the facts, not the other way around.
The Background to the Event
I do not know when the Federalist Society decided to host the conversation with Mr. Percival. But word of the event, scheduled for April 21, apparently reached law school leadership on April 14 in the evening. They had less than a week to prepare.
Law school leadership had to ensure appropriate answers to a series of challenging questions on very short notice. Would Mr. Percival bring his own security? If so, would they be ICE agents? If ICE agents would accompany him, would they engage in immigration enforcement efforts while on campus? Or would Mr. Percival need UCLA to provide security? How long would Mr. Percival be on campus? Where would he visit? What sort of personnel would need to be on hand to manage dynamics in the room? And so on.
Administrators worked with students and campus officials over the next several days to get answers. Administrators confirmed that Mr. Percival would not be accompanied by ICE agents, and thus that his visit itself posed no immediate enforcement threat. Administrators consulted with the university on security arrangements. The university deemed Mr. Percival’s visit a “major event,” a classification that triggers resource-intensive management strategies devised explicitly to vindicate UCLA’s commitment to the free exchange of ideas amidst significant controversy.
UCLA’s major events policy requires an organization hosting a qualifying event to give the university a minimum of fifteen days’ notice. I do not know if the Federalist Society chapter provided this notice. The fact that law school leadership only learned of the event one week before suggests not. If that is right, the organization’s failure would have been reason, under content-neutral policies, to require the event’s cancellation. Several student organizations issued a joint statement requesting the event’s cancellation, albeit on other grounds.
Administrators declined to cancel Mr. Percival’s visit, consistent with UCLA policy committed to free speech and the robust exchange of ideas. Instead, they endeavored to ensure that his visit would proceed safely.
The Federalist Society’s Message to the Law School Before Mr. Percival’s Visit
On April 17, apparently in response to the student organizations’ advocacy, UCLA’s Federalist Society chapter released a statement framing Mr. Percival’s visit explicitly in terms of a principled commitment to free speech and government accountability. This statement is essential to a complete understanding of what eventually happened.
The statement proclaimed the Federalist Society’s intent to “stand by its decision to host General Counsel James Percival.” “The purpose of this event,” the statement continued, “is to provide our community with direct access to a senior federal official” (all bold is mine). “Legal questions surrounding DHS’s work . . . deserve serious engagement, not avoidance.” The event with Mr. Percival would not be a “rally or a political speech,” but a “moderated event,” with Mr. Percival “answering questions.” The statement continued: “the ability to engage directly with those in power, to ask hard questions, to challenge legal positions, and to hold officials accountable, is precisely what a legal education is for.”
The statement then made an important commitment to the UCLA Law community: “To those who disagree with Mr. Percival’s views, we extend a genuine invitation: come, ask your hardest questions, and make your case.”
Concerned students approached me before the event, seeking advice for how to engage with Mr. Percival. I offered guidance in line with the Federalist Society’s invitation, one whose statement of principle matches my own views on free speech on campus. I encouraged students to fill the hall and then, when given the chance, to pose hard, probing questions to Mr. Percival. I witnessed this sort of engagement at a campus gathering once before, and it proved very effective. A speaker with indefensible positions had crumbled in the face of respectful, but relentless, questioning by prepared and informed students. I described this episode and urged that students follow its example.
The Promise Rescinded
Those who had RSVPed to the event received an e-mail on April 21 at about 9:15 a.m., a time when many students were in class. It included the following line: “If you'd like to submit a question in advance, you can do so here.” (I had not RSVPed, so I did not receive the e-mail, but a colleague forwarded it to me.) This was the entirety of what the e-mail said about questions. The e-mail gave no hint that Mr. Percival would only answer pre-submitted questions, presumably ones he would screen and deem acceptable.
I arrived about ten minutes before the event’s scheduled start. The law school’s main hallway was jam-packed, with numerous security personnel, a long line of people waiting to get into the room, and many students who were evidently there to protest in one manner or another. Security personnel had informed students on the spot that they could not bring in posters, describing them as a security threat. After conversations with several law school faculty and staff, security personnel permitted students to bring in 8.5x11 inch pieces of paper.
The event proceeded in one of UCLA Law’s largest classrooms. I have taught there many times, and I do not use a microphone when I do so. But some of my colleagues do, as the hall is large. Speakers were amplified at an event for admitted students held in the same classroom a few days before Mr. Percival’s visit. But no microphones were available for Mr. Percival or any other participant.
The organizers announced at the start that there would be no question-and-answer session. Instead, the event’s interlocutor, a professor from Pepperdine, would pose only pre-submitted and pre-screened questions to Mr. Percival.
This change flatly contradicted the statement of principle – the “genuine invitation” to “ask your hardest questions” – that the Federalist Society had issued several days before. A student in attendance stood up and asked why the event would not proceed as advertised. The organizers reiterated the plan without further comment.
I do not know who made the change. Perhaps it was the Federalist Society chapter, on its own initiative, or perhaps Mr. Percival insisted upon it. Regardless, Mr. Percival deserves blame for the rescinded promise. He could have insisted anytime that the event proceed as advertised and planned. He could have said, “I am an open book. Ask me anything!” He could have reiterated the importance of official accountability in a democracy and honored that principle during the event. Mr. Percival did none of this. Reports claiming that “the event culminated in a question and answer session” are flatly wrong, unless one counts answering pre-submitted questions acceptable to Mr. Percival. I do not.
The Audience’s Reactions
Readers should watch the full video rather than curated clips posted by UCLA’s critics to draw their own conclusions about the degree of audience disruption. The beginning is rocky. But the Mr. Percival and the event’s interlocutor quickly settled into a long and substantive conversation. They even bantered about the student reactions.
Of course, no video can capture the experience of having been there live. Here is how I experienced the hour.
An audience primed by the Federalist Society’s statement of principle to “hold officials accountable” proved raucous throughout the event. Students in attendance laughed loudly and booed. Individual audience members shouted objections to Mr. Percival’s lengthy and tedious answers to the questions that the event’s interlocutor posed.
To my mind, these reactions hardly merit a national social media dustup. Surely the U.S. Department of Justice has better things to do than concern itself with some booing, laughing, and interjections from audience members. Nothing like what has happened on other campuses, where speakers could not continue, happened at UCLA. Whatever one’s impression of the audience’s behavior, an insistence that Mr. Percival was “effectively silence[d]” is false. Nothing any audience member did or said kept me from hearing Mr. Percival –
● Misdescribe basic commandeering doctrine;
● Provide a lengthy and wholly inaccurate description of sanctuary jurisdictions and ICE’s attempt to disrupt them;
● Discuss the Trump Administration’s deportation “numbers” as if he were dissecting basketball players’ career statistics;
● Minimize due process;
● Blame “the Left” for the Trump Administration’s enforcement priorities and particularly its relentless pursuit of noncriminal targets; and
● Mischaracterize administrative warrants issued by field agents about to knock down someone’s door.
In short, I heard every word Mr. Percival uttered.
I appreciate that others in attendance had a different experience and that the audience’s behavior kept them from concentrating on Mr. Percival’s presentation. But it is simply true that Mr. Percival spoke, at length, and that only in brief instances did he have to pause to let the audience settle down. The claim that “chaos erupt[ed]” is only plausible if one’s bar for what counts as “chaos” is quite low.
The most objectionable behavior from the audience involved an effort to disrupt using cell phones. Phones kept pinging with the sort of sound that alerts or text messages make. For a while a cell phone alarm went off about every sixty seconds. I had never experienced this sort of tactic before, so I am not sure why UCLA law administrators should have anticipated it. Regardless, organizers did not ask audience members to silence their cell phones until about a half-hour into the event. Throughout Mr. Percival calmly pontificated, in an ordinary speaking voice.
UCLA Law has suffered relentless criticism for “utterly fail[ing]” to take action against disruptive students. This criticism entails two errors, one of fact and one regarding lines of responsibility. First, personnel in the room did act throughout the hour to quiet and even remove students. Security in the room was ample and included uniformed campus police officers. Campus personnel trained in and charged with administering UCLA’s time, place, and manner (“TPM”) rules were also present. The Dean of Students spent the hour in the back of the classroom, consulting with campus personnel as they intervened with students whose behavior was disruptive. I witnessed numerous quiet conversations with students in attendance. About a half-dozen students were either removed or left in anticipation of being asked to do so.
Second, critics misunderstand lines of responsibility for the management of major events. As mentioned, campus personnel administer TPM rules. In other words, these personnel, not UCLA law school staff or administrators, assess student behavior and determine when to intervene. Mr. Percival has praised the security personnel in the room, while excoriating “the administration” for failing to “maintain decorum.” This criticism is incoherent. Either campus personnel performed adequately or they should be blamed for their failures.
The Event’s Conclusion
About forty-five minutes into the event, the same student who had earlier asked about the promise to allow students to question Mr. Percival rose again, to ask again when students could act on the Federalist Society’s invitation. When the event’s interlocutor confirmed that Mr. Percival would answer no question other than the pre-screened ones, about 75% of the attendees got up and left. This process took about ninety seconds. As students left some shouted at Mr. Percival. The event paused, then resumed.
The event concluded with no questions posed by any audience member in attendance, false reports to the contrary notwithstanding. This turn of events was deeply disappointing. Following the Federalist Society’s invitation, I came prepared to ask “hard questions,” to try “to hold” Mr. Percival “accountable” for DHS’s record of lawbreaking. I had hoped to ask –
● What steps, specifically, Mr. Percival had taken to discipline the many DHS lawyers who had ignored court orders and had been threatened with contempt?
● What steps, specifically, he had taken to address the record number of deaths in ICE custody, to remediate any unconstitutional conditions of confinement?
● What steps, specifically, he had taken to ensure that ICE agents did not terminate people’s immigration protections unlawfully, in violation of the Constitution, the Administrative Procedure Act, and the Immigration and Nationality Act? And,
● What steps, if any, he had taken in response to the many statements by federal judges expressing outrage for his agency’s lawlessness?
Many of us at UCLA are horrified by DHS policy and conduct. We had hoped to hold Mr. Percival and his agency accountable in precisely the manner promised to us and in the manner that critics would seem to prefer. We had no genuine chance to do so.
Reflections
I struggle to understand what, exactly, UCLA’s critics would have had the administration do beyond the extensive efforts it and campus officials made, consistent with UCLA policy, to ensure that Mr. Percival had his platform. Surely a public event with a powerful government official can endure boos, cackles, laughs, and even shouted insults without being “hijacked.” Regardless, UCLA law administrators honored major events policy by requesting considerable security and other campus resources. These personnel were in the room in full force, and they had responsibility for ensuring appropriate decorum.
Is it critics’ demand that students who booed, cackled, laughed, or shouted the occasional insult be disciplined? On what grounds? I have yet to see a critic invoke a UCLA policy or California or federal law that would impose discipline for booing a lunchtime speaker.
On what basis should UCLA law discipline a student who held up a sign that said “Nazi,” or one that referred to ICE with an expletive? I have yet to see a critic invoke a UCLA policy or California or federal law that would impose discipline for these messages.
If a sign or any other conduct did violate campus policy or state or federal law, anyone in the room could have reported that violation to appropriate campus authorities. (Under UCLA policy, student discipline at UCLA is handled centrally, not by the law school.) I didn’t see every sign, so I have no idea whether any crossed boundaries. Nor do I know whether UCLA law administrators have taken any steps to engage campus disciplinary processes. But if administrators have reported disciplinary infractions, public disclosure of that fact would be entirely inappropriate. At a minimum, critics’ blithe confidence that the event has triggered no disciplinary investigation or process assumes facts not in evidence.
I do believe the use of cell phones to make noise during an event merits a response. The constant pinging of alerts was an effort at disruption, not expression. But no critic of whom I am aware has explained why law school administrators should have anticipated this strategy. I expect the law school to consider possible policy interventions going forward. But blame assigned to the law school for cell phone sounds demands powers of foresight that are unreasonable to expect.
I understand that some criticism of UCLA Law sounds more in concerns about civility, not enforceable policy. I very much agree that norms about speakers and engagement with them merit discussion at universities. The part of the event that saddens me was the students’ booing when a faculty colleague introduced the proceedings. I understood my colleague’s participation in the spirit in which he framed it, as embodying a commitment to the free exchange of ideas, however controversial and challenging, on a university campus. I do not believe that Mr. Percival, as an agent of a lawless, rights-violating government agency, deserved an entirely boo-free, cackle-free, and laugh-free hour. I do believe the audience should have extended my colleague more grace.
UCLA should have a conversation about appropriate civility norms. Norms, of course, would not trigger discipline when violated. Administrators could urge and admonish but not otherwise punish absent a policy violation. But perhaps norms, thoughtfully inculcated, could be powerful. In these polarized times, norms of engagement deserve discussion, debate, and ultimately elaboration.
Perhaps one such norm would indeed insist upon a quiet audience for certain types of speakers. I am not confident this norm would be right when the speaker is a powerful government official. In such instances, an expectation of quiet acquiescence strikes me as farfetched and possibly unwise. Must the audience sit silently when a powerful government official repeatedly misrepresents his agency’s conduct? Surely the right answer, as a matter of norms, is at least open to debate.
Regardless, civility is a two-way street. Mr. Percival’s refusal to answer audience questions gave students no meaningful opportunity to engage, period. If I or other law school personnel attempt to inculcate expectations of civility in the future, what credibility will we have? I did encourage students to pose probing and challenging questions in respectful but firm ways. But the last-minute switch to only those pre-submitted questions that Mr. Percival wanted to answer pulled the rug out from under the invitation to “ask your hardest questions” and hold him accountable. I wouldn’t blame students if they laugh when I offer similar guidance in the future.
Mr. Percival dishonored a democracy’s commitment to government accountability. He took advantage of extensive efforts by UCLA administrators, working under considerable pressure and time constraints, to protect his right to speak. He rewarded these efforts by playing the victim. So did his agency. Fair-minded critics genuinely concerned with the free exchange of ideas should leave my students and colleagues alone and turn their attention where it is due.