Hal Draper


Berkeley: The New Student Revolt


13. Whose Law and Order?

That day, the argumentation swirling in knots around the car and the campus had naturally tended to shift away from the “free speech” issues to the derivative issue of “Law and Order.” Assuming that the administration was wrong in imposing the new restrictions, as an overwhelming majority of the campus agreed, was this the way to fight it? asked anxious students, turning over the crisis in their minds.

There were undigested rhetorical platitudes on both sides. On the one hand, what would society be without Law and Order? On the other hand, one could read, in a local guidebook to the East Bay area, that President Kerr was a great civil-libertarian who had loftily proclaimed:

I would urge each individual ... to teach children, in the home and in the school, “To be laws to themselves and to depend on themselves,” as Walt Whitman urged us ... for that is the well-source of the independent spirit.

”Laws to themselves!” This Whitmanesque anarchism went far beyond what the students were demanding. It appeared that, in his character as a Liberal Philosopher, Kerr called on students to be Independent Spirits, but in his character as Responsible Administrator he had to punish them if they took him seriously.

Although “Law and Order” seemed to be an indivisible phrase like “hue and cry,” the events of this day and subsequent days suggested a cleavage. Whatever indignities the law was suffering, the mass of students went through the entire three months of sharp conflict with a regard for order, orderliness and individual self-discipline that was phenomenal. The scuffle that day around the Sproul Hall doors was a minor exception, but even such an incident did not recur. On the night of October 1, it had been the touters of Law who were the flouters of Order.

The CIO sitdown strikes of the thirties had been clear violations of law too. As a result they had brought a measure of democracy and human dignity to the shops and assembly lines. Many who denounced the students’ sit-ins seemed to think the students had invented the tactic. Nor did they ask themselves how “criminal” it could be if the Berkeley halls of learning suddenly produced such a multitude of criminals. If several thousands of the brightest scholars in California had been driven to measures so heinous, didn’t this suggest there might be something dreadfully wrong with what the administration was doing, that it had pushed them to desperate recourses? [1*]

The students that day heard many abstract appeals to the sanctity of law, but the “law” itself did not seem to behave so abstractly. It was certainly not blind. Instead of impartially punishing all “lawbreakers,” the administration was openly and “gratuitously” singling out leaders for punishment (“almost as hostages,” as the Heyman Committee put it.) It was acting as if interested not in enforcing blind law but rather in beheading a mass protest.

The issue was put most provocatively from the top of the police car as dusk was falling. We have mentioned that a number of professors had been trying to act as mediators between the demonstrators and President Kerr. One of them climbed on top of the car to tell the crowd of students not only that it was useless to expect concessions from Kerr but also that the police-car blockade was antidemocratic and immoral.

This was Seymour Martin Lipset, one of the most upwardly mobile of the sociology professors, who had recently been honored by Kerr with the directorship of the Institute of International Studies, an academic entrepreneur of notable talent in channeling government and foundation grant money, who was himself then engaged in research on foreign student movements for the Air Force (which was presumably interested in a bird’s-eye view of the question).

Lipset charged that the students were acting “like the Ku Klux Klan,” for did not the Southern segregationists also believe in violating the law when they didn’t like it, instead of obeying decisions adopted in a democracy? (Kerr was going to echo this line later.)

An impromptu debate broke out as students called out rebuttals. The most obvious answer was that the university community was not even theoretically a democracy, even though it existed within a democracy (just as any factory is an authoritarian regime within the larger society). Kerr openly wrote of the Multiversity’s government as a “benevolent bureaucracy.” Although one of the easy platitudes of the day was the advice that the students should “exhaust all channels” before resorting to drastic protest, there were in fact no “channels” open to the students that had not been available to the sans-culottes under Louis XVI, such as the right of petition. Precisely when the students had sought to appeal to the larger democracy in which the university was embedded – “to precipitate a test of the [constitutional] validity of the regulations in some arena outside the university,” as the Heyman Committee said – the Benevolent Bureaucracy inside the university had reacted violently with the coup de force of the summary suspensions.

Others stressed that “democracy” in the situation meant acting only through the so-called student government, ASUC. [2*] This argument assumed that ASUC was indeed “student government.” But as we have mentioned, the most advanced one-third of the students were excluded from it, and the simulacrum of government which did exist was firmly circumscribed by the administration itself. No one, including the administration, took ASUC seriously as a government, especially since the 1959 disfranchisement of the graduate students. “Acting through ASUC” usually had the operational meaning of waiting while Charles Powell and his “sandbox” colleagues sparred with the administration, or else of waiting for the next election – but in any case doing nothing now. (But when the next election took place, the rebel students did “act through ASUC” to the extent of winning the most smashing group victory in the history of the student government.) [3*]

But fundamentally the students’ demands did not merely depend on proving that a majority supported them. The number of students themselves interested in “mounting social and political action” was admittedly a minority, but the majority (it was contended) does not have the right to exclude this minority from the possibility of acting. Democracy, of course, does not mean “majority decision” without the main-, tenance of the rights of minorities. If a majority passes a law to gag you, you have the moral and political duty of fighting back with every means left. Thus went the students’ case.

So much for the context of democracy. The Lipset analogy with the KKK went further. The Klan do not like the Supreme Court’s directives and wish to violate them; and so, skulking in the dead of night with hooded visages, they terrorize – not the Supreme Court itself (which would take some courage) – but defenseless Negroes, by beating them, burning churches, murdering civil-rights workers. And this even though as citizens they have full rights (denied to their victims) in helping to determine the law.

The case of the students was just the reverse. In the microcosm of the university community, the students were informed – by an administration in which they had no say, by a Power Structure in which they had no vote – that they (not their “victims”) were being deprived of some basic freedoms of campus life. They were also informed that the issue was “not negotiable,” that they had no further recourse. They responded, in the open light of day, with civil disobedience. They did not beat up their “victims,” the administration; on the contrary, it is they who were eventually roughed up. Yet they were told that they were “just like the Ku Klux Klan.”

What is the meaning of civil disobedience? It deliberately violates a law, with as great an insistence on open publicity as the Ku Klux Klan and other criminals insist on clandestine evasion, because the act has meaning only as an appeal to the public conscience. Its aim is to put the authorities on the spot. It says: We hereby put our bodies on the line publicly and openly, and challenge you to enforce your Law and Order. We wish to compel you to take the consequences of arresting us ...

All this is the exact opposite of criminal violations of law, even if these are politically motivated violations like the Klan’s. “The consequences of arresting us” concentrate public attention on the concrete evil which is under attack. “We” do not meekly collapse under arrest; we vigorously protest the step. A strange argument is frequently made: if you challenge arrest and do in fact get arrested, “you have no right to complain.” On the contrary: “complaining” (protest) is the whole point of civil disobedience.

Lipset was finally pushed by the give-and-take to admit that civil disobedience might be all right in the South because of the lack of democracy there; yet, in terms of his own analogy, he did not conclude that Ku Klux Klan lynchings were all right in the South (or anywhere else) because of the special circumstances. The new Berkeley chancellor, Martin Meyerson, was later to concede, also, that civil disobedience might be legitimate “as a last resort”; but presumably Lipset would not agree that Ku Klux Klanism could be legitimate in any resort. By fathering the “Ku Klux Klan” charge against the student protest, Lipset became known as one of the prominent adversaries of the movement among the faculty.



1*. The same point has been made about the American colonists of 1776. In this connection, interestingly enough, Governor Brown has revealed that he isn’t at all sure but that Sam Adams & Co. were a bunch of troublemakers like the FSM. Here is his discussion of civil disobedience in a radio interview (KPFA, March 28, 1965): “I spoke to Mario Savio on the telephone and he said, ‘Would you have opposed the Boston Tea Party?’ and I said, ‘Well, I don’t know whether I’d have opposed the Boston Tea Party or not. But I do know that the colonial government sent representatives to the court of King James in order to achieve – or King George – I forget who it was – King George, that’s right – to achieve their proper objective, and they only resorted to that as a last resort. Now I wouldn’t be prepared to say that under certain circumstances where rights are denied an individual that he might not feel he can achieve it is by revolt [sic], but if he does revolt then he’d better be prepared to either win or suffer the civil consequences of what he does.” – Or in better-known terms: the Patriots are the side that wins.

2*. Cf. Lewis Feuer, Rebellion at Berkeley – II, New Leader, January 4, 1965.

3*. Later, the ASUC vice-president, not an FSM’er, “explained the actions of the [ASUC] Senate are frequently ignored by the faculty and administration on the grounds the government is not respected by the students. The students, he stated, do not respect the government because its actions are not honored by the faculty and administration.” (Daily Cal, Feb. 4, 1965.) The usual number of students voting in an ASUC election was less than one of the smaller FSM demonstrations. On October 1, ASUC President Powell issued a formal statement jettisoning the ASUC position of September 22. He now informed the students that nothing could be done about the ban on recruitment and fund-raising because “the prohibition ... is not a ruling of the chancellor or of President Clark Kerr. It is, in fact, a State law.” (This, of course, was untrue.) “I ask,” he concluded, “that you not oppose the administration – the administration can do nothing to meet the demands being made.”


Last updated on 27.8.2006