Issue 3 (December 2010)


On the Rights of Protest (1)

Judith Butler



Judith Butler: I am here to remind us that disciplinary hearings such as these need to take into account the rights of protesters and the important academic freedoms that are honored by protecting protests. Last spring, many of us saw that rights of protest were granted on some occasions through some channels, and then rescinded through other channels. There was a lot of confusion about whether rights of protest were protected or unprotected, and under what conditions. I also want to point out that student protests on this campus served a very important function in marshaling public opinion, and in rallying forces in Sacramento to pay special attention to the crisis of public education here and throughout the UC system. I was surprised to learn, in my travels to England and to Greece last year, that the Berkeley protests were quite inspirational in galvanizing a movement to protect public education there. 

I do have some questions, as do my colleagues, about the consistency of these processes conducted by the Office of Student Conduct. It seems to many of us that charges have been formulated and communicated, then dropped or reformulated, and then new charges have been added in an arbitrary fashion with the result that the charges explicitly discussed in informal resolution hearings are not the same charges that are considered here and now. There is also some question about what the jurisdiction of this committee is, whether it is advisory or judicial. It comes up with a decision, but apparently its decisions are revocable at another level. It seems to me that this process has not been fully outlined or communicated. Because there is inconsistency over time about what precisely the charges are, as well as a lack of clear communication about what the decision-making process is, and where final authority resides, there are many faculty who believe that due process is not being afforded to the subjects here. I worry personally, and I know that at least three legal organizations have weighed in on this issue as well, that due process of law has not been afforded, and evidentiary standards have not been explicitly communicated in advance or adhered to in a consistent manner.

Last year there was confusion on the part of faculty and students concerning what was legally appropriate protest, what ought to be regarded as civil disobedience, and what would be treated as criminal action or contrary to university policy. Let us remember that civil disobedience has an important history in the Civil Rights Movement, that we would not have seen the elimination of segregation without it, and that it is considered nationally and internationally a moral right under conditions when legal and police regimes are used for arbitrary and illegitimate purposes. It seemed and seems to me and to many of my colleagues that these events emerged from a true frustration and a sense of injustice in the face of sudden and exorbitant fee hikes for students, the fact that we were and are losing affordable public education, and that the right to public education in this state was being vanquished before our eyes. Many people acted quickly and understandably, translating their sense of injustice into rights of protest under these conditions. We should indeed be thanking our students for bringing public attention to the radical changes in higher education and the differential burdens that are now put on students to try to find a way to pay for a public education that used to be both affordable and excellent. The loss of that ideal has been heartbreaking for many of us, and we should not blame students for protesting its demise.

Laura Zelko: How do you see the three-day strike of November 18-20 playing into this context, the rights of protest, and the frustration with the state of education?

Judith Butler: I see those events as an exercise of the rights of protest. The rights of protest are of course protected under US law, they are part of the freedom of expression, they also have a more provisional protection in the academy under academic freedom. It is important that students have a vehicle to express their point of view. This view needed to be heard, needed to be publicized, and needed to make its way into the media where public claims can be heard. It was successful at doing so, it drew attention to a situation that was disproportionately affecting staff and students in differential ways, producing extreme economic hardship and forcing students to leave the university, and forcing staff off the payroll. It seems to me that the protests had as their core a question of social and economic justice. I believe that protests of these kinds have actually changed policy, and very often allowed the public to wake up to issues of injustice that they otherwise cannot see or be made aware of.

Laura Zelko: Can you expand upon the following quote from the faculty petition: "The university's discipline [...] is better described as inculcation, and does not respect [...] the fundaments of a liberal education."(2)

Judith Butler: I was aware, and some of my colleagues were aware, that some members of the Office of Student Conduct were meting out rehabilitative punishment, asking students to write essays or take certain political viewpoints about the right to free speech and the right to protest. Those forms of punishment, rehabilitative in nature, are generally discredited—and should be—since they serve no legitimate educational purpose and they are arbitrarily imposed forms of punishment that seek to regulate thought itself.  Indeed, these forms of punishment were effectively prescribing points of view, and this educational institution—which has a great tradition of freedom of speech—is committed to being a place where various points of view are entertained and debated openly. Even if those methods have ceased, as I believe they have, we continue to question what place such hearings have as part of an educational process. If harsh punishments are meted out, what is the point of such punishments? Are they supposed to set an example for other students and so to stand as a threat? Or are they increasing student skepticism about the arbitrary and harsh policies of the administration toward its own student body? Is there anything educational in their purpose, or is a message being communicated about what appropriate behavior is and how the rights of protest will be met on this campus? It would be better to have such policies formulated by students, faculty, staff, and administration, and for them to be clearly communicated in advance.  As it is, these hearings ought to be debated.  I am quite sure that educators do not agree that punitive mechanisms such as these are effectively educative.

I do think that, of course, it is understandable that a university has a policy about how protests can happen and how it can defend its property, how it can try to secure the rights of education for other students who are non-participating. But if so, such a policy needs to be clearly communicated, and it needs to be balanced against a policy that protects the right to peaceful protest. We cannot justify a policy that takes a punitive or restrictive attitude toward the expression of viewpoints, especially when those viewpoints pertain to the value of a public and affordable education. It has to be clear that the university defends peaceful protest, that is what it has always done and what it is required to do. It is a sad fact that many people no longer know whether the University of California stands for this most basic principle.

Laura Zelko: Was Wheeler Hall a peaceful protest?

Judith Butler: I understood that it was clearly designed to do harm to no human being, and to minimally affect the property of Wheeler Hall itself. I understood that the students were sequestering themselves in order to object, in graphic and clear ways, to the very harsh decisions that were being made to ask students and staff to suffer the consequences of the university’s fiscal crisis, and that this was done in a unilateral way. I understand what happened at Wheeler as part of the tradition of nonviolent protest. I know that there are debates that can be had about what is nonviolent, I am not naive about that. But the stated aim—to seize the building and to sequester themselves there—was a way to gain a platform.  Such actions do not take place when effective platforms are already available. They were acting on themselves, seizing this building to communicate that these buildings are part of public education, showing that they belong to the public. That doesn't mean that every time these buildings are seized it is OK, but let us be alert to what is at stake here: the symbolic meaning of seizing these buildings is that these buildings belong to the public, to public education; it is precisely the access to public education which is being undermined; we should not be surprised that the protest took the form of seizing the buildings, to make the point of guaranteeing access to public education.

Laura Zelko: No more questions.

Office of Student Conduct: No more questions.

Faculty Panel Member: I appreciate your description of views on the protest. Is your answer, "Yes it was a peaceful protest?"

Judith Butler: I was certainly there, and I saw much of what happened, and there were, as I am sure you know, some extraordinary provocations on the part of the police: the ways in which barriers were erected and the ways in which students were treated, struck by batons, and physically injured. If you want to say... if you are asking me, "was there no violent exchange during that period," the answer would be no, there was violent exchange. If you are asking me, "was the design and purpose of this protest to cause a violent set of clashes," I respond: no, I do not believe that was a part of the design. Let us remember that these students who took it upon themselves to enter the building were not the same as the students and others who were outside, engaging in other types of activities. We need to bear in mind the course of events, which included police provocations that I witnessed with my own eyes, indeed, which many of us witnessed. Where are the hearings for those police, we might ask.

Undergraduate Student Panel Member: Do you see the time, place, and manner regulations on campus as stifling free speech?

Judith Butler: No, but I do not believe that they have been clearly communicated, I do not believe that they were clearly communicated in advance of these events, and I do not believe that they have been consistently applied in the adjudication of these actions. As you know, there are several legal organizations that have made that very clear with extensive documentation and argument.

Panel Chair: You haven't said anything about the fact that classes were unable to be held during the occupation.

Judith Butler: It's a problem. Those students and faculty who wanted to get on with their education clearly have a right to do so. But sometimes, you know, seizure or strike is a way of stopping ordinary life so that we might reflect for a moment on what the conditions are that make education possible, what makes the classroom possible. Among the conditions that make education possible are salaried professors and salaried staff and fee-paying students who are given the educational and economic opportunity to pursue their education. These seizures were meant to draw attention to the fact that we can no longer take for granted that all the students who go to classes here and now are going to be able to continue to afford to go to classes here. We can't continue to rely on the staffing and maintenance of buildings. When essential staff are cut back and the infrastructure of the university can no longer operate, the quality and efficacy of education is compromised. These are long-term ways of undermining the classroom, so to undermine for a day in order to call attention to this long-term devastation has a significance that we are called upon to understand.

Yes, of course, there are rights of faculty and staff to convene classes—just today, I had a threat to my own class by a rogue individual; I had to call around, figure out how I was going to teach my class—I understand that, and I was justifiably concerned. But with mass, collective actions such as these, it is not a matter of individual pathology or idiosyncratic behavior—and it is not motivated by criminal aims. It is a way to try and stop business as usual, so we can reflect on what makes education possible, who does the work that keeps the departments and the buildings running, who can afford to pay the tuition and get into the building, and who cannot. When those questions are so dire, and those issues are so fundamental, we do stop. We go on strike. We call a halt to business as usual, because the conditions under which education is made possible are being threatened by policies that we object to. There are longstanding traditions of civil disobedience such as these. We might think back to the early twentieth century. Why did railway workers stop working? Because they were not being paid a wage, and people said, "I have a right to take this train and go where I am going." Yes, but that right can only be exercised when the material, institutional, and economic conditions to make that train ride possible are there, secured by contracts that respect and sustain workers. If education is made financially inaccessible to students who have dreamt of going into that classroom their whole lives, and that dream is suddenly extinguished, what response do we expect? Do we go on with business as usual, or do we call attention to an emergency situation? I think we all understand this.

Laura Zelko: There's been a lot of emphasis on the negative community impact of November 20. Do you believe that there was a positive community impact?

Judith Butler: I will say this: Those protests were part of a series of events that have formed very extraordinary alliances among students, faculty, and staff who are now actively involved in trying to think about the fiscal crisis at the university, and to participate in how best to address this, and how to include students, staff, and faculty in the decision-making processes. In that sense, I think these events were extremely important. And I would also say that in addition to producing new forms of alliance and communication between groups that are generally very separate, it brought the attention of the state government to the problem of public education, and even Governor Schwarzenegger, who is no great idol of mine, commended the exercise of free speech and the enormous power of the social movement on campus. So, we can talk about the events of November and the particulars of what happened, but what we really saw was the beginnings of a strong social movement which ended up on the steps of Sacramento and which is now linked with the movement for public education throughout Europe, North Africa, and throughout South America. Not everything happened in the most ideal ways, but let's not forget that this is now part of a large international network to save public education, which is clearly a worthy value and goal. None of us would be here if it weren't a value for which we live and work. It is important to keep that goal in perspective. 



Judith Butler is the Maxine Elliot Professor of Rhetoric and Comparative Literature at UC Berkeley.



1. This is the full transcript of Judith Butler's testimony for Laura Zelko's public hearing from November 9, 2010 at UC Berkeley. Together with more than seventy other students, Zelko faced disciplinary charges for engaging in building takeovers on campus in Fall 2009. R e c l a m a t i o n s would like to thank Neil Satterlund for his accurate transcription of the testimony.

2. See "Faculty Petition on Student Protestors: An Open Letter to Chancellor Birgeneau" from 10 April 2010, In the Spring of 2010, OSC’s procedural violations sparked widespread outrage at UC Berkeley, as evidenced, in part, by the release of an open letter, written by Judith Butler, that was signed by approximately 150 members of the faculty, as well as by AFSCME's adoption of students' demand that all charges against student protesters be dropped. The campaign against the OSC helped forge limited cross-sectoral bonds, which have been at least partially maintained through the present and which were made manifest in the first public conduct hearing, held in the fall of 2010, as both Judith Butler and Liz Perlman, an organizer with AFSCME, testified in defense of Laura Zelko.