News + Insights from the Legal Team at Zalkind Duncan & Bernstein

BPD Attempts to Intimidate College Students Ahead of Rally, But Students Should be Able to Peacefully Protest

Yesterday, Boston Police Commissioner William B. Evans sent a message of warning to Boston-area college students ahead of a planned “Free Speech” rally and numerous counter-protests. He told college students “please act in a way that would make your school, your family, and your city proud and please respect our neighborhoods. Student behavior off campus will be regarded the same as if it were on campus.”

College students are subject to the laws of Massachusetts just like any other person in the state. If college students engage in illegal behavior at Saturday’s rallies, they can be arrested and prosecuted. But college students are also subject to the student conduct rules of their respective universities. Under Massachusetts law, those handbooks form the basis of a contractual relationship between the student and the college. Both students and colleges must abide by the rules set forth in the handbook; schools cannot punish students for behavior that is not prohibited by their policies. While Commissioner Evans can encourage students to act responsibly, he cannot dictate that schools expand those rules to cover off-campus actions if they do not already do so.

Most colleges do have language in their handbook that apply the institution’s rules to off-campus conduct.  For example, Northeastern’s handbook explicitly states “[t]he Code of Student Conduct applies on campus as well as off campus.” Harvard’s regulations are less clear than other schools, stating: “It is the expectation of the College that all students, whether or not they are on campus or are currently enrolled as degree candidates, will behave in a mature and responsible manner,” but confines its specific regulations to “standards of conduct within the Harvard community” indicating that those regulations may apply only on campus. For example, one of the regulations within the Harvard community states “A student who commits an offense against law and order during a public disturbance or demonstration or who disregards the instructions of a proctor or other University officer at such a time is subject to disciplinary action and may be required to withdraw.” The wording of this regulation indicates it contemplates public disturbances or demonstrations on campus. Students at schools with vague or ill-defined policies should understand that the school may take a different reading of the policy than the student.

In general, then, colleges take the position that they can discipline students for any behavior that runs afoul of their rules, even if events take place off campus.  Students should keep codes of conduct in mind when making choices about how and when to demonstrate or engage in protest activity.  Thus, for example, most colleges prohibit students from committing acts of violence towards others, and if a student were to engage in assault during a demonstration, he or she could disciplinary proceedings at school in addition to any criminal charges that might arise from such actions.

Some schools’ prohibitions are even broader than prohibiting violence. Boston College, for example, imposes on its students an “obligation to refrain from behavior in the general community that adversely or negatively reflects on Boston College.” It also imposes “[t]he obligation to refrain from interfering with the freedom of expression of others. This includes such activities as newspaper thefts, attempting to shut down speakers, and intentional interruption of networks, servers, etc.” Suffolk University’s handbook largely tracks state and federal law in detailing what actions are prohibited. Relevant to the upcoming protests, Suffolk prohibits “[p]articipation in the disruption or obstruction of the free flow of pedestrian or vehicular traffic or participation in the disruption, obstruction, or interference with the duties of law enforcement, fire departments, or other public service agencies.” Broad provisions in local schools’ student handbooks could be read to cover many actions that students may choose to engage in on Saturday.

The Massachusetts Civil Right Act (MCRA) may provide a check on schools’ broad powers to punish off-campus action, particularly in the context of students attending peaceful protests. The First Amendment to the United States Constitution and Article 16 of the Massachusetts Constitution Declaration of Rights protect free speech. The MCRA protects the rights of anyone in Massachusetts to use public parks and walk on public streets. If a person or entity uses “threats, intimidation, or coercion” to interfere or try to interfere with a person’s ability to engage in a protected activity, they have violated the MCRA. The Massachusetts courts have long recognized that an entity interfering with a person’s right to free speech may form the basis for a claim under the MCRA.

Some colleges do explicitly protect the right of students to speak freely about their political views.  Boston University guarantees its students the “right to express opinion, which includes the right to state agreement or disagreement with the opinions of others and the right to an appropriate forum for the expression of opinion.”  Where such provisions exist in a handbook, private universities have a contractual obligation to abide by them.  And public universities—that is, institutions that are run by the state or a city—are governmental agencies, which means that both the United States and Massachusetts constitutions prohibit them from punishing students for engaging in protected speech.

If you are a college student who faces criminal or school disciplinary charges as a result of your participation in Saturday’s events, our students’ rights and criminal defense lawyers may be able to help you. Please call us at (617) 742-6020 if you need legal assistance.

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