The War Against the Democratic Process

THE Atlantic

FOUNDED IN 1857

BY SIDNEY HOOK

IN THE past we used to believe that we could turn for intellectual guidance to our colleges and universities as relatively disinterested centers of inquiry in matters of law and liberty. But alas! Colleges and universities have themselves become embattled storm centers of controversy not only about the presuppositions of the democratic process but about the nature and goals of the university. A few years ago a movement in educational circles advocated that the study of communism, fascism, and other forms of totalitarianism be incorporated into the curriculum of our colleges, that we teach in a scholarly and objective fashion about the fightingfaiths and subversive stratagems of the enemies of a free society. Judging by the behavior of student bodies from one end of the country to the other in refusing to give a hearing to points of view which they do not share, and their resort to direct, often violent, action to impose their demands on the academic community, we have failed for the most part to teach students properly even about the meaning of democracy — its logic, ethics, and discipline.

What I wish to consider is some misconceptions both of the democratic process and of the educational process which have contributed to current confusions, darkened counsel, and lamed effective action. Indeed, there is a real danger that unless they are exposed, they may inflame disorders in both school and society. The disconcerting thing is that these misconceptions are being circulated not by demagogues and rabble-rousers, appealing to the vigilante spirit, but by members of the intellectual establishment, individuals in a position of influence and power both in the academy and judiciary. It was said of Florence Nightingale that she began her great reforms of the hospitals of her day with the maxim that whatever hospitals accomplish, they should at least not become centers for the spread of disease. Similarly, it is not too much to expect that one who professes to live by the word of reason should not encourage propaganda by the deed, that educators not apologize for or extenuate violence on the campus, and members of the judiciary not incite to lawlessness.

It is dismaying, for example, to hear Dr. Harvey Wheeler of the Center for the Study of Democratic Institutions characterize rioting as “an American way of life” and speak of its “creative uses.”

“Direct action,” he says in the Saturday Review (May 11, 1968), “the sort that now issues in violence too often [no objection is voiced to its often issuing in violence] — must be given fuller Constitutional protection.”

What does this talk about “direct action” mean for which constitutional protection is demanded? Mr. Wheeler is saying that if students, impatient with the refusal of the faculty and/or administration to grant their demands, seize a building and bar access to classes by other students and teachers, they should have legal protection for their action. “Violence” would be the attempt to prevent lawless students from preventing other students from carrying on their legitimate educational business. In Wheeler’s view, if the faculty or students invite a speaker of whom some other students disapprove, who bar his access to the campus or physically harass him until he leaves, the disrupters should have legal protection against any disciplinary measures.

“Direct action” clearly goes far beyond the expression of orderly dissent and protest. It may be too much to expect that dissent and protest be reasoned or reasonable. But is it too much to ask that it be orderly and peaceful? If so, it is as obvious as anything can be that this call for the constitutional protection of “direct action” is an invitation to chaos. Suppose one group of students resorted to “direct action" against the “direct action” of another group of students. Since the law must be equitably enforced, it could not prevent any group from preventing those who would prevent others from carrying on. What we would have is a kind of academic Hobbesian war of all against all, with the police standing idly by as those in pursuit of the good, the true, and the beautiful pursue and decimate each other.

In a democratic society in which the legal process has not broken down, to advise citizens to resort to “direct action” to get their way is to employ a calculatedly ambiguous expression. It is a covert appeal to the use of violence. When anyone urges “direct action” on students in a university, in which due process cannot be strictly legal but must be interpreted as the use of rational procedures, he is in effect urging the substitution of mob action for the rule of reason.

After all, what is “direct action” as distinct from “indirect action"? It is action which shortcuts deliberation and consultation in order to produce confrontation. Even when passive, its consequences may be harmful to person and property. Union picketing is a right under the First Amendment only when it is peaceful. But direct action is not necessarily peaceful any more than resistance is. That is why it is a clear evasion, and further evidence of confusion, when Mr. Wheeler equates his new constitutional right to direct action with the demand that “we must have a new Constitutional right to civil disobedience.” A constitutional right, like any legal right, is a claim made by an individual or group which the state must be ready to enforce. Would the state then protect the “direct action” of Southern racists standing in the doorway of integrated school buildings to prevent Negro children from entering? How then could the law enforce the constitutional rights of these children? The law itself would suffer a breakdown from a new disease — legal schizophrenia.

IT IS a striking phenomenon that more has been written about civil disobedience in the last few years than in the entire period of American history which preceded it. But the nature of civil disobedience in the political democratic process has been radically misunderstood by many, and when these misunderstandings are applied to the academic world, the results border on the grotesque.

There are two fundamental misapprehensions about civil disobedience in general which have seriously misled many. The first is the assumption that each law in a democratic community posits as a legitimate question to every citizen whether to obey that law or to disobey it.

What is overlooked is the fact that, except on rare occasions, the prior allegiance of the democrat is to the legitimacy of the process by which the law is adopted. There is always, to be sure, a moral right to reject the whole democratic process on revolutionary or counterrevolutionary grounds, but we are now speaking of civil disobedience in a democracy. The democrat cannot make an issue of obeying or not obeying every law without repudiating the principle of majority rule and the democratic process to which that rule is integral. It is only on a matter of the gravest moral importance that he will be civilly disobedient, and the limits of his civil disobedience, if he wishes to remain a democrat and operate within the democratic system, will be drawn at that point in which the consequences of civil disobedience threaten to destroy the democratic system. That is why there is a presumption that a good citizen will obey the law which passes by majority vote of his fellow citizens or their representatives, even if he happens to be on the losing side. Why else have a vote? The implicit obligation is that the decision, freely made, after discussion, is prima facie binding. It is also clear that despite this prima facie obligation, any democrat may find some decision so unjust that he publicly refuses to obey it, and confident that he is not destroying the democratic system, he accepts the legal consequences of his refusal. But he cannot make every law of which he disapproves, every vote which has gone against him, a matter of conscientious brooding, of potential commitment to civil disobedience or defiance.

An analogy may make this clear. In the ethical universe of discourse and behavior, we assume that the truth must be told. But only a fanatic will assume that we must tell the truth all the time; and we can all conceive of circumstances in which a moral man will tell a lie. Yet, if anyone therefore inferred that as a moral man he must always grapple with the option to speak the truth or not to speak the truth whenever a question is put to him, he would either be the victim of doubting mania or would be disclosing the fact that he was not a moral man, but a confidence man. There is a prima facie obligation to speak the truth, even if, in order to save a human life or a woman’s honor (to use an old-fashioned phrase), one must sometimes lie.

The trouble with much of the literature on civil disobedience is that in recognizing that it is sometimes justifiable, it does not recognize the presumptive validity (not wisdom) to a democrat of laws passed by means of the democratic process. (Whoever, like Thoreau, says that as an individual he will obey society’s laws when he can benefit by them but will not accept its laws when they limit his freedom of action or offend his conscience is a freeloader.)

The second misconception of civil disobedience has far more dangerous fruits. The civilly disobedient democrat violates the law and accepts punishment in order to bear witness, to re-educate the majority by provoking them to second thoughts. Having failed to persuade his fellow citizens about the wisdom or justice of some measure by using all the methods open to him through the democratic process, he cannot honestly use civil disobedience as a strategy to prevent the majority of his fellow citizens from achieving their ends. A citizen may refuse to pay a tax which he regards as morally objectionable and go to jail to bring about the repeal of the tax; he has no right to prevent others from paying it. A student may refuse to take a course required of him and may suffer the consequences; he has no right to prevent other students who wish to take it from doing so. He may even strike and urge other students to join him, but he has no right to prevent his fellow students from attending class if they so desire.

What I particularly wish to challenge is the application of the principles of civil disobedience to the university as fundamentally misconceived. The university is not a political community. Its business is not government but primarily the discovery, publication, and teaching of the truth. Its authority is based not on numbers or the rule of the majority, but on knowledge. Although it can function in a spirit of democracy, it cannot be organized on the principle of one man, one vote, or, if it takes its educational mission seriously, of equal vote for student and faculty in the affairs of the mind or even with respect to organizational and curricular continuity. The fact that a society is politically organized as a democracy does not entail that all its other institutions be so organized — its families, its orchestras, museums, theaters, churches, and professional guilds.

I think that we may expect that all the institutions in a political democracy function in a democratic spirit, and by that I mean that all participants of any institution should be regarded as persons, should be heard, listened to, consulted with. But the responsibility for decision cannot be shared equally without equating inexperience with experience, ignorance with expertness, childishness with maturity. The assumption of a political democracy is that there are no experts in wisdom, that each citizen’s vote is as good as any other’s. If we make the same assumption about universities, and define a citizen of that community as anyone who functions in any capacity on the campus, we may as well shut up educational shop.

ALL this is denied, directly or indirectly, by the president since 1966 of the State University of New York New College at Old Westbury, Mr. Harris Wofford, Jr., who in a recent address to the American Bar Association maintained that our chief danger in college and country is not civil disobedience, but “undue obedience to law.”

Why does Mr. Wofford believe that our students suffer from undue obedience and that they should be encouraged to accept “the theory and practice of civil disobedience”? He admits that “speech, lawful assembly or peaceful petition for the redress of grievances . . . [is] permitted in most of our colleges and universities.” He asserts that “the right of students or faculties or visitors to advocate anything on our campuses — Nazism, Communism, sexual freedom, the legalization of marijuana, black supremacy, the war in Viet Nam, the victory of the Viet Cong . . . is generally accepted by academic administrators.”

Surely this takes in a lot of ground. Why isn’t this enough? Why, if students have the right to speech — which, in effect, means they can talk to faculty and administration about anything — and can make a reasonable case, do they need to be encouraged to resort to direct action? Speech means the possibility of communication. Reasonable speech means the likelihood that procedures can be established in which grievances can be heard and settled. What academic rules exist, and where, comparable with the Nazi laws against Jews and Alabama laws against Negroes, which, as Mr, Wofford claims, an “increasing number of our students feel a basic need to destroy”? Certainly not at Berkeley or Columbia.

Mr. Wofford fails to cite any. But with respect to both the community and the academy, he does say, “We need to develop a different and stronger dialectic than mere words and periodic elections.” What can this mean except, when a thorny issue arises, a resort to direct action that corrupts words by making them merely “mere” and by defeating the popular will? What can this mean except a resort to violence in order to get one’s way after mere words have proved unavailing? Mr. Wofford wants “to encourage civil disobedience and discourage violence.” But having justified civil disobedience as a method of resisting or preventing the occurrence of what is regarded as evil, rather than as a selfsacrificial educational act of teaching what is evil, he is in effect countenancing student violence, although he claims he is not.

There are some ritualistic liberals, Mr. Wofford among them, who make a sharp distinction between human rights and property rights, and profess relative unconcern about illegal interference with property rights, especially the lawless occupation of public premises. In some contexts this distinction may be illuminating, particularly in legislative decisions where the public interest sometimes conflicts with large vested interests in corporate property. But in the educational context it is misleading and specious. Is the right to learn a human right or a property right? When a handful of students seize buildings at Berkeley or Columbia and prevent the great mass of other students from learning, is a property right or a human right being violated? When a teacher’s or administrator’s office is being occupied and vandalized, is not this a grave violation of his human right to exercise his profession, an arrogant abridgment of his freedom of movement? When his files are rifled and his letters are destroyed or published, is not this the gravest violation of the personal right of privacy?

The democratic spirit in institutions of higher education has its locus not in any specific mechanisms of voicing ideas, opinions, judgments, or requests on any relevant matter of educational concern, but in the realities of participation. I know of few institutions in which participation of students in the discussion of issues is not welcomed — and where it is not, it seems to me to be elementary educational wisdom as well as discretion on the part of the faculty to see that the situation is remedied as soon as possible. But once it is present, there is no place for the violence and lawlessness which paralyzed Columbia University last spring and which are currently being prepared for other universities.

WE HAVE noted an understandable uneasiness about the presence of violence on university campuses on the part of Mr. Wheeler and Mr. Wofford, betrayed by their ambiguous and inconsistent remarks about direct action. We must, however, consider finally a more forthright defense of violence in the academy, recently presented by, of all people, a leading figure in the federal judiciary, Judge Charles Wyzanski, Jr., apropos of his discussion of the Columbia imbroglio in the Saturday Review (July 20, 1968). Judge Wyzanski begins his discussion by expressing agreement with Harold Howe II, former U.S. Commissioner of Education, that “the colleges were to blame, not the students, for what has been going on at Ohio State, Columbia, Boston University, in Paris and Italy.” This is not an auspicious beginning, for to couple such disparate events and to imply that colleges at home and abroad are equally to blame, or are blameworthy in the same way, is to overlook the fact that European students revolted against conditions of squalor and material scarcities not found anywhere in the United States except perhaps in small denominational colleges in the South. On no important American college campus that has spawned violence have students suffered the material deprivations and the rigid authoritarian rules of the French and Italian university systems.

Justice Wyzanski in his specific reference to Columbia University asserts that the students were right in resenting the proposed gymnasium in Harlem. Let us grant arguendo that students were justified in feeling resentment, although no poll was taken at the time to determine whether they wanted a new gymnasium; nor was a poll of Harlem residents taken to determine whether they preferred the existence of the stone outcropping in its barren uselessness to the presence of the gymnasium with its impressive, even if limited, facilities. The pertinent question is not whether the students were justified in feeling resentment, but whether they were justified in expressing their resentment as they did. To mention just a few things, were they justified in (1) invading and seizing five university buildings, (2) holding an assistant dean captive and threatening him with violence, (3) pillaging the personal files of the president, (4) committing acts of arson, (5) carrying out widespread vandalism costing in the neighborhood of $350,000, (6) destroying records as well as valuable research papers, (7) publicly denouncing the dean of Columbia College before the assembled students with some of the choicest gutter obscenities, and (8) to cite only one action symbolic of the practices of the gutter as well as its languages, spitting in the face of Vice President David Truman, who, as dean of the college the previous year, had received a standing ovation from both students and faculty for opening up new lines of communication between the administration and the student body?

Suppose for a moment that Judge Wyzanski were to make an important legal decision that some citizens of the community resented. This is not an unusual occurrence. What would we normally say if they expressed their resentment at Judge Wyzanski’s decision in a manner comparable with the behavior of the resentful students toward the Columbia administrators? Would we content ourselves in saying that these citizens were justified in feeling resentment — as well they may! — and remain silent, as Judge Wyzanski has, about the horrendous method of expressing it? Grant that the dignity of the academic process cannot be compared with the awful majesty of the judicial process. But in either case, is not the basic or paramount issue not the fact of the resentment, however justified, but the violent disruption of the educational or legal process? Whatever the alleged grievances of the small group of students at Columbia, did they warrant the flagrant violence and other forms of lawlessness of which Judge Wyzanski seemingly approved? This is the issue of transcendent educational, political, and moral importance. It is disregarded when he asks about violence not whether it was morally justified or historically necessary but merely whether it was futile or successful. The student violence was obviously successful at Columbia. Is this all we need to know to judge it?

One final word about responsibility. There are those who dismiss the entire concept of responsibility as meaningless on the ground that all causation is ultimately reducible to the influence of objective conditions on human behavior. I know of no one who can consistently exclude reference to responsibility from his talk and thought. At the time of Little Rock, Arkansas, had someone blamed the riotous behavior of the white racists against Negro women and children on the conditions in which they were nurtured, we would have dismissed such an explanation as evasive apologetics. Not all brought up under the same conditions rioted. Sometimes conditions reduce men to a state of being which makes moral judgment on human behavior irrelevant. But whoever would explain away the assaults against academic due process as the result not of deliberate action, but merely of the state of the world or the nation, of the Vietnam War or the draft, has barred his own way to understanding the problems we face in attempting to extend human freedom under law both in schools and in society. Whatever the conditions are, so long as we are recognizably human we are all responsible for our actions; and sometimes for the conditions under which we act, too, but, of course, not in the same way, and not to the same degree.

One sign of responsibility is the making of an intelligent response not only to events that have occurred but to the possibilities of what might occur. The faculties and student bodies of this country can measure up to their responsibilities only by addressing themselves now, separately and cooperatively, not so much to the conquest of power in the academy or general community but primarily to the problems of achieving the best liberal education possible under the imperfect conditions of American society.