Author Archives: Michael Froomkin

One of the hard lessons we all learn growing up is that people who have power often abuse it. The Framers well understood this problem and tried to separate power among three branches of government. They also understood the vulnerabilities of their Great Experiment: faction and popular passions. The existence of this tradition, its deeply ingrained roots in the American psyche, still provide the best hope for a reaction against the excesses of the Republican domination of all three branches of government: a Republican-appointed judiciary that awarded an election without allowing for an accurate count of the votes; a Republican-dominated Congress that refuses to call that Republican President to account.

But you don’t have to be a Republican to abuse your power. And you certainly don’t have to be in government. It may even be easier in the private sector. Consider the behavior of the University of Miami, led by Donna Shalala, no Republican she (although she is paid over half a million a year and lives like one): according to the Miami Herald, her university is manipulating the process in its academic disciplines case against students charged with misbehavior during a quite well-behaved protest in favor of the unionization effort.

And the terms on which the University is settling the cases seem harsh: several students — the exact number isn’t clear — are being kicked out of university housing, which means they’ll probably be paying more to live somewhere less convenient. Here’s how Herald columnist Ana Menendez characterized the state of play:

Faced with a rigged system — lawyers say administrators were to function as witness, prosecutor, judge and jury — students began settling their cases with the university at about the same time the union announced a majority of janitors had voted to join.

The settlements continue. Punishments have included academic probation, a 500-word essay and, most ironically of all, community service.

”Here we are being sentenced to community service when we’re being tried for a service we did to the community,” said Amy Sun, 21, a psychology major who pleaded no contest.

…

Far more troubling than anything the students did is the way UM administrators have chosen to deal with it, going after students with a zeal that seems to have more to do with retribution than justice.

First, administrators threatened students with major charges that could get them expelled or suspended. When a who’s-who of Miami’s legal talent stepped forward to defend the students, UM quickly retreated, downgrading the complaint to “university offenses.”

”Under their own rules, a student who is charged with a university offense is not entitled to right of counsel,” said attorney Lida Rodriguez, who is advising Jacob Coker-Dukowitz, one of the student leaders. “They did it not out of kindness but out of trying to deprive them of the assistance of an advisor.”

…

Late Tuesday, Coker-Dukowitz, who had been one of the hold-outs, joined the others in settling his case. He, too, loses his housing at the coveted University Village, punishment that also imposes a financial burden.

[UM attorney Eric ] Isicoff maintains that the case against the students is not about free speech. UM, he said, is simply “representing the right of a whole other group of people who do not wish to engage in this manner.”

To which I have only one — carefully considered — reply: bull.

The kindest take on the administration’s position that I can construct is this: it wanted to send students a message that if they make life hard for the administration, and disrupt its operations, they will pay. And to the extent that the administration is worried about the long-run consequences one can see why it might be afraid to look as if it were setting a precedent that administrative offices can be occupied with no penalty. In fact, I think I’d be worried about that issue in their shoes too.

So if we’re going to see it that way — and remember that is the kindest construction I can put on what the administration is up to — then we have to also admit that the actual proceedings, none of which involve the actual occupation, are a complete abuse of process. (Not to mention that it’s unclear to me to what extent the two groups of students overlap.) The ostensible charges, failing to disperse from a peaceful gathering and leafleting with non-commercial political tracts, are NOT the sort of things that universities should punish. They are the signs of engaged citizens in a community. We should value and celebrate them.

For if we don’t encourage the creation of engaged citizens, then the engine that would keep the Great Experiment from collapsing will lose an essential mainspring.

Fortunately, my sense is that the students involved have not been cowed. Instead, they’ve been radicalized. And we may well reap the harvest when they come back in the fall.

I said at the start of the strike that it presented a teaching moment. At the time, many law students who wanted more than anything just to get on with their lives hated this characterization (and some of their reactions taught me something). But I still think it was a good description. It just turns out that the lessons were a little different than I expected.