When Should Protests Be Cleared From Campus?

>> Tom Church: This is the Libertarian podcast from the Hoover Institution. I'm your host Tom Church, and I'm joined, as always, by the libertarian professor Richard Epstein. Richard is the Peter and Kirsten Bedford senior fellow here at the Hoover Institution. He's the Lawrence Tisch professor of law at NYU, and he's also a senior lecturer at the University of Chicago.

Richard, how are you? I believe you're in Chicago now, aren't you?

>> Richard Epstein: I'm in Chicago now, and at least on my side of the midway to the south, it is peace and calm, and the law school operates like an academic institution, I'm happy to say.

>> Tom Church: I was gonna say, I think University of Chicago has had a more measured level of campus protest and perhaps response by the administration, unlike, say, Columbia, unlike UCLA.

Let's start there, shall we?

>> Richard Epstein: Yeah, this is a completely different environment.

>> Tom Church: Right, and I'm not saying it's perfect, a different environment though, because Columbia and UCLA, well, Columbia had students occupying their main quad for quite a while. The president of Columbia has not been able to get them to dispel, they took over one building that was cleared last night by NYPD.

It looks like right now everything has been completely cleared out. A couple 200 protesters, so arrested. UCLA a little bit worse last night, I wanna say, after news reports yesterday that a Jewish protester, and protester of the pro Palestinian protesters was knocked unconscious or beaten late last night.

I don't know, maybe 100 Jewish students or local Jews showed up to get into it, to basically have a riot on UCLA's campus against the pro Palestinian side. And I don't believe it's been cleared as of this moment. So I guess let's start here, why, Richard, has Chicago had a different experience, do you think, than these other schools?

>> Richard Epstein: I really don't know exactly, I think we have a stronger academic tradition in which discourse is highly prized, and the Bruce of brute force is not. It may well have something to do with the location of the campus being on the far south side of Chicago, whereas Columbia is right in the middle of an urban area, so it's much easier to get there than it is to get here.

And there are many more people who can do terrible things. I also think that the administration has not been as tough as I would like, but it's been tougher than it's been elsewhere. And in fact, just the other day, when this thing seems to be brewing, the president issued a fairly tough statement saying, in effect, that talk, yes, violence, no.

And he seems to have meant it, and people have seemed to take him at his word. It's also the question is, do you have any fire brands on the faculty to lead you? Columbia has a large number of people, it's further to the left faculty than it's Chicago, I suspect.

And so what happens is, if you're trying to figure out how you govern the place, you have to be looking at the way in which your marks play off not only the people who are on campus, students and others, but also against your faculty. And if you know your faculty is not going to back you up, then it's going to be a little bit more difficult for you to sort of take a tough position.

It may turn to some extent on the composition of the board of trustees. Years ago, I knew most of the trustees at Chicago because I was very active in the governance, but not so today, so I can't comment on that. But I can comment on two things. One is, the Harvard board led by Penny Pritzker, messed this thing up from start to finish when it appointed Claudine Gay.

And essentially, they had to backtrack furious, to get out of it. But bad leadership in the board is going to lead to bad selections of the president. I don't know who the Columbia board is, but I did notice that the Wall Street Journal lifted them in bright lights so as to say, here's part of the problem.

It's very clear to me that unless you have a board which is in harmony with its president, the divided sentiments are going to lead to indecision. Indecision is just going to embolden everybody on the other side. And so my guess is that the Columbia board probably did not step up the way it was, but that's speculation, not an observation.

I think at Penn, it was the same kind of situation, and I don't think they've improved things very much as an intellectual matter, but at least we haven't had a repetition of the violence. I think that it was important for the President Shafik to do what she did to get people off.

I know there are lots of people who don't like universities inviting police forces onto their campuses, but there was a crackpot suggestion in the paper today saying that the Columbia peace should have handed this. They don't have the capabilities of doing it, they don't have the equipment, they don't have the tactical knowledge.

What was so surprising to me is that, these guys who did it understood how you deal with this stuff. They had the right equipment, they could go in through windows as well as through doors, they had the buses waiting. They know how to tie people up and put handcuffs on them with ziplocs or whatever they use.

And so I think the really amazing feature about this is, not withstanding a very truculent and angry group, there doesn't seem to have been any casualties in the arrest process, which would have only inflamed sentiments further. So hats off to the New York PD. I also think in New York City and in Colombia, there is a revulsion to what has happened.

Colombia just elected a Jewish president, an Israeli student. This is not an accident, it's obviously assigned to the opposite direction. And my daughter who graduated from the college in 1998 and told me that there was a letter circulated demanding this kind of firm action, which had already attracted thousands of signatures before the actual peace invasion had taken place.

And so the larger community, which is normally relatively stoic and indifferent, seems to have gotten itself involved and changed the sentiment there as well. Whereas at UCLA, it's a radical campus to begin with, and I don't think there was any countervailing force that was available, which is why it turns out that it seems to now have the distinction of running the worst managed dealing with this particular situation.

And I might say, just to go back one step further, the most important thing in dealing with this is to say, even if we're supposed to be agnostic on substantive views, you cannot overlook evil, and you cannot basically denigrate good. And say that your job is to be a neutral arbitrator between two groups, one of which has murdered and oppressed another, and the other one who's been murdered and oppressed.

I mean, the Israelis take a self-defense stuff, it's very tough. But one knows that these urban environments are extremely dangerous. And all the objective reporting indicates that there is nothing remotely like deliberate slaughter of innocent individuals. And there was a very high level of expertise that was put into place, maybe not perfect, to minimize the number of civilian casualties.

And I might add that every civilian that you see in Hamas was celebrating the death of Jewish people on October 7. It's not as though this is a proposition which is oppressed, the great tragedy that you have in the situation in Gaza is that all the people who are public, invisible support Hamas.

It's not as though there's any kinda countermovement that's going on. Anybody who thinks the other way, keeps silent, lest he be killed or otherwise throttled. So it's the worst possible situation. And the next question is going to be, may they invade Rafa? I think Joe Biden's on the wrong side of this issue as he is on most things, Israelis have to invade.

You can never get a stable situation if there's a status quo ante in which Hamas still can teach its battalions alive and find some way to feed and to clothe them on, and so forth. You have to eliminate them. On these issues, I call myself a libertarian hawk.

That is, I'm generally willing to respect the freedom of action by all sorts of other people. But the moment they engage in forces, a threat of force, the only thing that you can do is to have a no-compromise solicitor. There should be no concessions to that kind of wrong.

It becomes a form of appeasement, not a form of negotiation.

>> Tom Church: That's a position I'm not sure a lot of these protesters would appreciate.

>> Richard Epstein: I'm sure you're right.

>> Tom Church: Here's what I'm trying to figure out, Richard. I wanna know, when should the university step in and actually clear these encampments or protests?

Here at Stanford, there is a group on campus that set up tents in a little area. It isn't really blocking anyone. It's not like UCLA, where there are literally videos of mass students who have put up barricades, who are basically checking and verifying whether you can pass or not, because if you're a Zionist or not, which is just an unbelievable thing, to see in 2024.

But students here have posted the actual letter from the president and the provost saying, you are in violation of the rules. They've got a big board that says, today's the 7th day of the occupation. They were cleared previously in the year, and they went back up seven days ago.

So it's not like you have to step around them so much. It's in the area that's generally the free speech zone of Stanford. When is it that universities should say, you're breaking the rules, even if you're not saying anything incendiary, even if you're not being violent or anything.

When should they clear them?

>> Richard Epstein: Well, I was on Stanford campus earlier this year, and I saw the same groups that you did. One of the telltale signs that this was under control was these two groups were very close to one another within feet in many cases, and there were no signs of physical abuse between them.

My view about it is that you give a little, so long as you don't give a lot. And so if that situation turns out to be unhappy but stable and not capable of growth with no use of force, I would do exactly what president Saller did, is I would just let it ride, because I think, in effect, that the cure would be worse than the disease.

Everything having to do with force and counterforce always involves very delicate principles of proportionality, there's no way to avoid it. But the moment you start putting tents down and keep them here at night and occupy and start to exclude, it's a very different situation. An encampment is an extremely dangerous situation.

They need to bring in food, they're gonna have to bring in lavatory facilities of one kind or another. There's gonna be all sorts of waste on the place. It becomes not only a political hazard, but it also becomes a health hazard. And if they stay there for a permanent time, it's just looking for a fight.

And so I think what happened is they waited too long at Columbia rather than long enough. I think the first time when they told people to get off the campus, they had to make sure that they could use force again. But to the great credit of everybody, when they did use it, they followed the book, and they did not make any mistakes.

Between those two extremes, there are gonna be a lot of intermediate cases. I think generally, as a prudential matter, you do not want to start with force. You want to start with talk and negotiation. But the moment you start to see things starting to escalate with fisticuffs and violence and various kinds of abusive signs, with tent and communities being planted, then I think you move in and you just have to wipe them out.

And it's not only wiping them out, with respect to the people at Columbia. You looked at the videos of people breaking down the windows to get into Hamilton Hall, where I took many of my classes wall those many years ago. At that point, this is not just a question of political protests, it's a question of violent destruction of property.

And I think that not only should these people be expelled from the university, but they have to face criminal sanctions and just to encourage the others. Otherwise, it becomes a show of weakness. And as ever, politics no different from anything else. You can be too strong or you can be too weak, it's always hard to find the middle point.

But what happened is, when the Columbia students and the other people in those protests started to move, they made it an easy choice. That is, if president Shaflick had essentially decided to let them stay in Columbus Hamilton Hall and do nothing else to turn after resistance, I think she'd have been gone as president now.

At this point, I have no idea whether she will last or whether she wants to last. But the idea that there's an imminent resignation at hand is not supported, given what she has done. This is not to praise her earlier actions, but it is to say that the current situation is now stabilized and it would be foolish to do anything, in my view, with respect to her or the general command structure at Columbia before the end of the academic term.

And I thought she was quite wise to say to the police, we don't like you on campus. Please stay until May 17th, two days after our commencement ceremonies are over. You cannot allow people to filter back in and to restart this, which is what they did the last time.

And so given the fact that Columbia seems to be moving correctly at this particular point, keep the current team in place. I feel the same thing about Israel. There's a lot of difficult difficulties associated with Netanyahu, who flubbed up the security measures before October 7th and made another strategic decision.

But he's running a war council which seems to be operating well. This is the last time to change horses. When the conflict is over, then you could really start to think about what you want to do with some kind of inquiry position, some kind of an election. But in the middle of this, you don't do it.

Don't change horses in midstream, you know that, Tom, right?

>> Tom Church: No, I've heard it.

>> Richard Epstein: Yeah, well, it turns out I'm a very good equestrian these days.

>> Tom Church: Last really quick question on the campus protests. What am I to think of people who aren't students or affiliated with the university taking part in these protests?

The Washington University arrested 100 people, 23 were students, they said four might have been staff. University of Texas, similar ratios or so, maybe it was 40 of them weren't. I think something along those lines weren't students. Should they be allowed to be in there protesting?

>> Richard Epstein: Well, I think the university has the absolute right to say to anybody who's not a student, we keep you out.

And it's more difficult to do so with students, given that they have to go to class and things of that sort. But the one thing is that by virtue of the fact that you escape university discipline means that it's even more important that you have criminal sanctions brought against them without any form of release.

They don't have any stake in the institution. They can't complain about its governance the way in which the student can, so I think they're even worse. The other thing I think that is probably clear is that people who are unaffiliated are not of two emotions. They're probably gonna be more extreme in the way in which they place this thing.

And so again, I think that very harsh sanctions are going to be appropriate. One thinks of the word outside agitators, and you don't know whether to believe it or not to believe it, but in this case, it seems as though it's true. And if it's true, very stern actions have to be taken against it.

We do not want people in large numbers coming on a campus because they could overwhelm the local students by their sheer force of numbers. And if they do so, they make governance even more difficult to take place. So again, we're not out of the woods yet, but we will be, I think, pleased if we see that the criminal process is allowed to go forward.

And if the university holds true on its promises to expel students who were in the building and to give sanctions against those who were not, which may be less. If they do that, then at least you're on the right course, and hopefully it will set an example for everything else.

And remember, we live in tricky times, right now, Harvard is going to search for a new president. Yale is surely in the midst of a search of one kind or another, I think. Princeton is probably gonna be one fairly soon. Penn, God knows if they appointed a permanent president yet, I don't think they have.

But there's gonna be a lot of change in leadership in a lot of universities. The good news is with the Stanford appointment of Mr. Levin, who's the son of a very successful Yale president. It seems to me that Stanford has made the right move on that question, which means they're two for two.

They picked Saller as the interim, and they picked out Levin as the permanent. So maybe they can organize this thing on a better situation. I cannot stress how important it is to have solid leadership, because the importance of a leader is not only what he does or she does.

What's important about a leader is who they pick in the second and third tiers of the administration to carry out their policies. And if you get weak people down the chain, it puts an impossible burden on the president and leads to all sorts of gaps in error. That's why it's so critical that the top person be put in the right place.

Because if it's not, nothing down below can correct for it. If it is in the correct place, then you can correct errors later on if it turns out you make some mistakes in your initial set of appointments. So I think these are all encouraging signs. I also think it's an encouraging sign that if you look at the support of Israel in the national polls, it's over 80%.

And I think that number is gonna only increase when you see the way in which things are taking place both in Israel and most importantly on the American campuses. And there should be a hats off to the speaker of the house, Johnson, I think that's his name, who actually did the right thing and pushed all these things through.

So this is not a landscape which is dreary in every point. In fact, I would think I'm slightly more upbeat about the state of the world and the state of the United States than I was a week ago when both the aid package on the one hand and the situation on campus were in very great doubt.

So let us look forward with more optimism so that when we meet to talk again next week or the week after, we will have something else to celebrate.

>> Tom Church: Well, here's something to celebrate, Richard. Coming as I'm talking to the hawkish libertarian, here's some brand new news for you.

It seems that Mr. Donald Trump has accepted an invitation to speak at the Libertarian National Convention at the end of May. When it comes to libertarian candidates, Donald Trump doesn't really-

>> Richard Epstein: Resonate.

>> Tom Church: Fit in my notes, right, so this was just announced. It looks like Libertarian Party will forward a list of their top ten issues to Mr. Trump before he speaks, as probably as a hope that he'll change his policy agenda a little bit.

I want to know, coming from you, Richard the libertarian, what would you say to Mr. Trump to become a more pro Liberty candidate?

>> Richard Epstein: Well, it's very tricky, I'm much more of a classical liberal than a hard line libertarian. And so the Libertarian Party has always been divided between those who are strongly anarcho, on the one hand, and those who tend to be more classic liberal.

Somebody said, well, can you make that a little bit more concrete for me, professor? And I said, sure, the first thing to understand about all of this is there's a deep tension inside the Libertarian Party between the anarcho-libertarians on the one hand, and the classical liberals like myself on the other.

And people ask, exactly what do you mean by that? Well, an anarcho-libertarian thinks that taxation is a coercive action by the state and therefore should not in principle, be permitted. As a classical liberal says, we have to have taxations to fund functions and then tries to make sure that we have the proper form of taxation, which generally regards flat taxes for public expenditures from general revenues and special taxes for people who get special benefits or inflict extra harms.

One could elaborate that, but that's the basic notion. And what one wants to do with Trump is to say, are you prepared to kinda adhere to that situation? And make sure that you reduce the level of steepness of progressivity with respect to tax. And don't give any special preferences to groups by exempting it from taxes they ought to pay, or by imposing special taxes on them that they don't?

And I don't think there'd be a lot of resistance to that. The other point, of course, though, is Trump is a populist in some sense, and he constantly caters support from groups like unions and so forth. And that's generally speaking, a mistake. And so on labor relationships at home, what you should be is an effort to cut down the power on unions in order to unleash competitive markets.

And that means that the federal government is, you're gonna be very reluctant, for example, to support programs that restrict the people who could receive gifts from the government or grants from the government to those who accept unions. If you look at the whole system that has taken place under some of the statutes designed to improve affordability and computer expertise, what they do is they say, well, you'll get this money from us, but you have to agree to accept labor unions.

You have to find child support and all the rest of that. And what he has to do for the libertarians and for people like me is to say, I'm not gonna impose those collateral conditions on these kinds of grants. Because I think what they do is they just divert money from essential purposes and defeat the gangs that we want.

He also, I think for a libertarian point of view, has to become much more free trade in terms of what's going on. Cannot claim national security when national security is not something that's really an interest like the importation of steel. And so if you have situations where in order to protect domestic competition, you're gonna prevent the takeover of us steel by a Japanese company, you have to be very confident that there's a strong, strong national security interest.

Otherwise, it just becomes a form of naked protectionism. The areas where the libertarians sometimes I think are terrible and I would not want them to join, is too many of them are pacifists with respect to the international scene. I have no doubt that libertarians are right, that if we enter into stupid foreign adventures, it can cost us a huge amount of stuff.

One illustration of that was in 1979 and so forth, when Jimmy Carter helped get rid of the shah and brought into place the current regime. It was a kind of meddling that was crazy and so forth. But I would think it would be very remiss for somebody to use the same argument with respect to Israel, Taiwan or Ukraine under the set of circumstances.

And I think he has to be pretty strong, there. I don't know what libertarian hawks would say, I'm a libertarian hawk. But what I would wanna do is to say that, we give you equipment and it turns out that Russia is firing from you from Russian territory. You can fire at them from Ukraine territory and hit Russian targets, for example.

I think the stop go policies led to a prolongation of the war. And I'm never in favor of being caught in the middle where you put enough on the table that you have something to lose, but you don't have enough on the table, so you can actually win.

And I think also, there'll be other things I would do certainly, would change the energy policies from top to bottom on things like automobiles. I'd get rid of all of the mandates that you have to have electronic vehicles, I think libertarians would agree with that. I'm certainly in favor of having people who use fossil fuels pay for the negative externalities that they impose.

But these are trivial compared to externalities that are imposed by so called clean sources. The huge implicit subsidy that's given to wind and to solar energy, which don't work nearly as well, I think they have to be really rethought. And then you go through the regulatory initiatives, the libertarians would frown, I think, very much on virtually everything that somebody like Lena Khan does.

The quicker she goes, the better. The same thing with respect to the FCC, the environmental protection. You have to clean up all of the agencies, most of which are highly meddlesome. And I think that's something which Trump is really quite willing to do. In fact, I think it's the source of his greatest appeal.

So if you put this whole thing together, my view is it's not that the libertarians are always right. I think that in many cases, they are too restrictive on government forces. But in those cases where we have protectionism, market liberalization is, I think, the first thing that we hope to achieve, and I think that it's really possible for us to achieve it.

And so in doing this my hope is, that Trump will not only project an image which is more thoughtful than what he takes in many cases. But will only change his views because the key to this election in many cases may be whether or not Republicans who are Nikki Haley type supporters, and she's a very credible candidate.

Will basically say, I can't vote for Trump because he's such a fool in the way in which he conducts himself. And if he can persuade people that he's a bit more thoughtful, I think we'll go a long way, even at this very late stage in the entire proceedings, will go a very long way to make things better than they've previously been.

So I regard this in general as a positive move, and I hope he takes it as a serious occasion not only to address the libertarian party, but to address the rest of the nation in his speeches, too.

>> Tom Church: You've been listening to the Libertarian podcast with Richard Epstein.

As always, you can learn more if you head over to Richard's column, The Libertarian, which we publish on definingideas@hoover.org. If you found our conversation thought provoking, please share it with your friends and rate this show on Apple Podcasts or wherever you're tuning in. For Richard Epstein, I'm Tom Church, we'll talk to you next time.

>> Speaker 3: This podcast is a production of the Hoover Institution, where we advance ideas that define a free society and improve the human condition. For more information about our work, or to listen to more of our podcasts or watch our videos, please visit hoover.org.