It has been over a week since the UW community was torn by the debate over affirmative action on Sept.13. As is well known, the conflict was precipitated by the presentation of a study conducted by the Center for Equal Opportunity, which alleges reverse discrimination in UW admissions policies.

Neither I nor the academic freedom groups with which I am associated entertain an official or definitive position on affirmative action, deeming the issue to lie outside the domain of academic freedom. Indeed, our personal views lie across the policy spectrum, including the agnostic. We do not have a horse in this race. Perhaps such diversity of viewpoints is appropriate for members of a university.

But we do have a horse in a race regarding the marketplace of ideas at this institution, which has a historic commitment to the “fearless sifting and winnowing by which alone truth can be found.” It is here that I am both encouraged and discouraged by how the recent confrontation has been handled.

Let me address the encouraging part first. In my view, the university’s commitment to robust sifting and winnowing was honored by both the CEO and the large majority of student protesters. Roger Clegg of the center presented his group’s controversial and highly disfavored ideas with skill and the requisite courage, and protesters responded with the clarity of their own ideas and the courage of their convictions. Counter-speech and protest are honored free speech traditions deserving great respect and full First Amendment protection. Though very tense, the debate on affirmative action at Union South was carried forth in this spirit. I came away from it having learned new arguments on each side of the dispute.

Unfortunately, some aspects of the morning press conference at the DoubleTree Hotel appear to have been a different matter, crossing an important line. There is a key First Amendment distinction between protest and disruption. Some public commentary on the press conference protests has portrayed the protesters as completely orderly and lawful. But other witnesses with whom I have spoken have been considerably less sanguine.

One reason for the difference of opinion is that the protests there were not limited to one area, but took place at several areas throughout the hotel. What some observers saw, others did not. According to witnesses who have spoken to the police, some protesters forced their way into the hotel, while some others pushed hotel employees to the ground and made threats, causing injury in at least one case.

Such conduct is not the kind of counter-speech countenanced and protected by the First Amendment – to say nothing about appropriate behavior. For starters, the hotel is not a public forum, but rather private property. While public and protester access to a public forum is mandatory, private property owners have a right to control access within legal limits. Protesters had a right to engage outside the hotel, and witnesses told me that this demonstration was orderly and effective. But no First Amendment theory maintains that the other incidents of physical force and physical intimidation that transpired are properly rights of free speech. Awareness of this fact is perhaps one reason that several peaceful protesters apologized to hotel employees and others after the event for the conduct of a disruptive few.

Disruption is a problem for at least two reasons. First, it violates the rights of speakers and listeners. Second, it sends a message that the topic under discussion is taboo, and, therefore, not a proper subject for public discussion. Perhaps there are such topics, even at a university, but affirmative action is not one of them. There are reasonable arguments on all sides of this question, as the debate at Union South demonstrated; and it is a topic of widespread debate in the public sphere, including many college textbooks that deal with controversial issues.

Given these points, some poignant questions need to be addressed. What do University of Wisconsin leaders have to say about what happened at the press conference? Are they prepared to support and espouse the rules that make free speech possible? Did some administrators play a role in encouraging protests? If so, were they acting consistently with their professional responsibilities?

Only by seriously addressing these and related questions can we proceed together as a community bound by a common commitment to legal speech, counter-speech and protest.

Donald Downs (, Alexander Meiklejohn Professor of Political Science