NCBL Letter to University Heads on Repression of Encampments

By National Conference of Black Lawyers

Dr. Kimberly Andrews Espy, President
Wayne State University
656 W. Kirby
4200 Faculty/Administration Building
Detroit, MI 48202

Dr. Santa J. Ono, President
University of Michigan
3190 Ruthven Building
1109 Geddes Ave.
Ann Arbor, MI 48109

Re: Response to Encampments

Dear President Ono and President Espy:

The Michigan Chapter of the National Conference of Black Lawyers (NCBL), observed with alarm the aggressive tactics employed by law enforcement officers against students and others last Spring as they protested the Israeli government’s campaign of genocide against Palestinians in Gaza. Specifically, the police efforts were focused on what were widely described as campus encampments.

NCBL is aware of attacks on encampments at the University of Michigan and Wayne State University. A media account of events at the University of Michigan reported:

Cora Galpern, a UM social work graduate student from Denver, was among the students who were dispersed by police. She criticized the police’s tactics and defended the pro-Palestinian encampment. Police gave protesters 10 minutes to disperse, then lined up in riot gear, with batons and pepper spray, pushing people to the ground, said Galpern, who is a member of Jewish Voice for Peace at UM. Nearly everyone got hit with pepper spray, she said, including her. “I couldn’t see or breathe,” said Galpern, who has been camping every night in the Diag area since it set up last month.¹

With respect to events at Wayne State University, a media account reported:

Democratic U.S. Rep. Rashida Tlaib, who represents Detroit, joined the protesters around 8:30 a.m., angrily confronting a police officer about ripping off one protester’s hijab, or head scarf. “You guys ripped a hijab off? They’re kids!” she told campus police. “… No amount of training is going to teach you guys not to take a scarf off. Know the diversity of your campus.” Luay Abuelenain, 55, of Dearborn said his niece, wife and daughter were all detained by Wayne State police after the encampment was removed. His niece is the one who had her hijab ripped off, he said. “No one is listening,” Abuelenain said. “When is it enough?”²

There are diverse, multiple grounds for our concerns and objections. Under the First Amendment students have the right to assemble and speak freely. This is particularly true for universities where it has long been acknowledged that these institutions are particularly suited for rough and tumble debate because of the educational value of such exchanges. But ideas are to be shared freely in any public space.

It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas. Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out. In light of the First Amendment’s purpose “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail,” FCC v. League of Women Voters of Cal., 468 U.S. 364, 377, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984) (internal quotation marks omitted), this aspect of traditional public fora is a virtue, not a vice.

McCullen v. Coakley, 573 U.S. 464, 476 (2014).

The protesters were understandably moved to act by the horrific, unconscionable violence perpetrated by the Israeli Defense Forces. In July, The Lancet reported:

…[T]he number of reported deaths is likely an underestimate. The non-governmental organization Airwars undertakes detailed assessments of incidents in the Gaza Strip and often finds that not all names of identifiable victims are included in the Ministry’s list. Furthermore, the UN estimates that, by Feb 29, 2024, 35% of buildings in the Gaza Strip had been destroyed, so the number of bodies still buried in the rubble is likely substantial, with estimates of more than 10,000. Armed conflicts have indirect health implications beyond the direct harm from violence. Even if the conflict ends immediately, there will continue to be many indirect deaths in the coming months and years from causes such as reproductive, communicable, and non-communicable diseases. The total death toll is expected to be large given the intensity of this conflict; destroyed health-care infrastructure; severe shortages of food, water, and shelter; the population’s inability to flee to safe places; and the loss of funding to UNRWA, one of the very few humanitarian organizations still active in the Gaza Strip. In recent conflicts, such indirect deaths range from three to 15 times the number of direct deaths. Applying a conservative estimate of four indirect deaths per one direct death to the 37,396 deaths reported, it is not implausible to estimate that up to 186,000 or even more deaths could be attributable to the current conflict in Gaza.³

Students have engaged in protest activities at universities for generations. In a sense, such activity might even be regarded as a rite of passage. Over the years, university administrators and campus security forces have become adept at managing protest activities, most with a commitment to avoiding a repetition of the violent, deadly confrontations that occurred at Kent State University and Jackson State University in 1970.

Because the encampment activities were staged near the end of the academic year, there were presumably various alternatives to forceful removal of the protesters, including simply allowing the demonstrations to dissolve on their own as participants concluded the semester and left the campuses. The decisions to use force begs the question of why. What was it about these demonstrations that distinguished them from many others in preceding years that were likely more disruptive in some ways, but were yet managed without force?

NCBL is concerned that the encampments were targeted for a forceful confrontation because of the substance of the protests. Rumors abound that this type of reaction nationwide to the encampments was prompted by, among other things, external pressure by influential donors and others who are advocates for Israeli interests. If this is true it is highly concerning both legally and ethically. Even if areas of the campus that were the sites of the encampments were to be regarded as non-public fora, singling out these protesters might well be unconstitutional viewpoint discrimination. “…[T]he government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.” Cornelius v. NAACP LDF, 473 U.S. 788, 806 (1985).

Additionally, it is ethically troubling that a university would render itself a toady to those who would attempt to force a single acceptable way of thinking at an institution with a mission to expose students to diverse thoughts and ideas as part of their intellectual development and maturation.

In the interest of transparency and accountability, NCBL respectfully requests, pursuant to the Freedom of Information Act, records (in the form of letters and emails) that were directed to your university’s administrators and governing bodies, that requested removal of the encampments and their occupants. We further request all responses to any such correspondence.

To pursue this matter further, NCBL will conduct a public hearing on October 24, 2024 at Detroit People’s Food Co-op, 8324 Woodward Avenue, Detroit, MI 48202 at 5 p.m. to receive the testimony of those with information about events related to the removal of the encampments. We cordially invite you or a representative to attend and provide responses to the many questions surrounding the events in question.

Thank you for your attention to this matter. We look forward to hearing from you.

Sincerely,
NCBL – Michigan Chapter, by:
/s/ Mark P. Fancher, Esq.
/s/ Jeffrey L. Edison, Esq.
/s/ Desiree M. Ferguson, Esq.
/s/ DeWayne Boyd, Esq.
/s/ Gerald Evelyn, Esq.
/s/ Zanita M. Clipper, Esq.

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¹ Police clear UM student group’s pro-Palestinian encampment. Several arrests made, Kim Kozlowski and Charles E. Ramirez, The Detroit News, May 21, 2024

² Wayne State activists vow to come back stronger after police clear pro-Palestinian camp, Kim Kozlowski, Marnie Muñoz, Charles E. Ramirez, The Detroit News, May 30, 2024

³ Counting the Dead in Gaza, Rasha Khatib, et al., The Lancet (July 20, 2024)