To acquire wisdom, one must observe

Administration publishes report on 11/10 protest and university response

On April 9, Stew Uretsky, Executive Vice President for Administration and Finance and Carol Fierke, Provost, Executive Vice President for Academic Affairs sent out an email to the Brandeis community, announcing that “independent investigators from the law firm of Hirsch Roberts Weinstein” had finished a report on the events of Nov. 10, 2023. On that day, a protest held by the Brandeis Revolutionary Students Organization (RSO) against the derecognition of the Brandeis chapter of Students for Justice in Palestine (SJP) was violently dispersed by Waltham and campus police, along with a private security firm, and seven protesters were arrested. The email contained a link to the PDF of the report.


According to their website, Hirsch Roberts Weinstein (HRW) is a Boston-based “premier litigation, labor, and employment law firm” that “proudly serves clients throughout New England.” HRW represents “an array of respected businesses and institutions, including Fortune 500 companies, prominent colleges and universities, esteemed nonprofit institutions, and cutting-edge high-tech companies.


The report begins by offering some background about Brandeis University, the ongoing Israeli offensive in the Gaza Strip and SJP. The report claimed that after the Oct. 7 attack on Israel, “the National SJP released a ‘toolkit’ that refers to Operation Al-Aqsa Flood as ‘the resistance’ and states: ‘Palestinian students in exile are PART of this movement, not in solidarity with this movement.’” 


Following this, there is a summary of the derecognition of the Brandeis SJP “in response to the National SJP’s expressed support for Hamas and its October 7 attacks,” and of the events of the protest on Nov. 10. The report states that “Between November 6 and November 10, 2023, the University received information indicating that the Brandeis SJP chapter would lead a protest on November 10 on campus, and that it would be assisted by individuals with no Brandeis affiliation.” On Nov. 10, the university then sent out an email to students “specifying that third-party groups and non-University affiliates were not permitted to demonstrate on campus” and “warned that protest expressions deemed to constitute threats or intimidation would be prohibited, consistent with previously established University policy.”


The report states that the protest began on the Great Lawn “just after 3:30 p.m.” According to an interview The Hoot conducted with a student who was present, the protest was running behind schedule and didn’t truly begin until about 3:40. Waltham Police were called at 3:30, though, according to The Hoot’s coverage. After 30 minutes of peaceful protesting, “demonstrators, including individuals unaffiliated with Brandeis, began chanting the statement ‘from the river to the sea, Palestine will be free.’” This “had been identified as threatening and harassing speech in the administration’s Advisory sent earlier that day.” The report continues, “A University administrator spoke with one of the protest organizers to advise that those chants violated the University’s prohibition against calls for violence against others, and advised that if those statements continued, the protest would be required to end. The chants continued and escalated, and the University’s administrator on scene determined that the protest should be dispersed.”


The report further states that “Law enforcement present at the demonstration issued the crowd instructions to disperse four times, but demonstrators largely remained in place.” Then police officers began to disperse the crowd of protestors “from an observable distance” away from the lawn, when “a protest organizer repeatedly refused to disperse and repeatedly encouraged others to ignore law enforcement’s dispersal instructions.” Then “two other protestors were detained and arrested after one threw a liquid at police officers and the other threw punches at police officers”, and “additional protestors interfered with police efforts and/or, in the case of non- affiliates, refused to leave campus. Those individuals were advised several times to cease interfering with the arrest process and/or to cease trespassing, and, after refusing to comply, were ultimately arrested.” 


In Dec. 2023, the university hired Attorneys John Graff and Alicia Ward of HRW to conduct an investigation into the university and police department’s actions. The attorneys began to collect evidence in Feb. 2024 “with a focus on a fair, thorough, and impartial analysis of evidence collected, namely, applicable policies and procedures, police reports and digital video recordings, witness accounts, and other relevant documents.” They interviewed university Vice President of Student Affairs Andrea Dine and Assistant Vice President and Chief of University Police Matthew Rushton, and recived a redacted copy of a community listening session held on Feb. 2. Additionally, the attorneys reviewed police reports, CCTV footage and social media footage, among other sources of evidence.


The report found that “university administrators typically learn about planned protests primarily through social media, rumors on campus, and individuals who object to a given protest.” After the derecognition of SJP, “the University received information regarding social media activity and other publicity surrounding what was being described as a large-scale protest on campus to be led by the de-recognized Brandeis SJP on Friday, November 10, 2023.” 


Furthermore, the report claimed that “the BUPD [Brandeis University Police Department] received information indicating that members of National SJP’s leadership were scheduled to fly from New York to Boston. At that time, neither the University, nor the BUPD specifically, were aware of any other National SJP events scheduled in the area, other than what appeared to be the large-scale protest at Brandeis … that information led the University to conclude that the on-campus protest scheduled for November 10 likely would include the presence of non-University affiliates, including National SJP members from other chapters.”


On Nov. 10, the university sent out an email warning that “The use of language that invokes violence, death or annihilation – including calling for Gaza to be bombed, chanting ‘from the river to the sea, Palestine will be free,’ or ‘intifada, intifada,’ or taunting that Gazan villages be burned to the ground” was “beyond our principles of free speech and expression.” 


The report claimed that “despite a growing administration concern about potential escalation in the event outside parties joined the Protest on campus, the Brandeis administration planned to take a largely passive role in observing the Protest. At the same time, the Protest was distinguishable from others in recent memory because: (i) the University had declared that specific statements likely to be made at the Protest constituted threatening or harassing speech; (ii) the University had credible information indicating the presence of outsiders, not only in response to the underlying Israel- Hamas Conflict, but also in response to the derecognition of the Brandeis SJP; and (iii) campuses across the country were seeing an increase in the number of protests resulting in physical hostility between demonstrators, counter-demonstrators, and others.”


However, “the University made the decision to arrange for members of the BUPD to be present at the demonstration, along with members of the Waltham Police Department (the “WPD”) and contract security personnel (i.e., non-sworn security).” This would appear to confirm Hoot investigations that suggested that a private security firm called “Provident Response” was present at the protest. Despite repeated attempts by The Hoot to reach out to Provident Response, they have been completely non-responsive. Provident Response, who are recorded as having participated in university rule enforcement activity on the protest on Nov. 10, have been present at nearly every large university-sponsored gathering this year.


The report continues, “The decision to request assistance from the WPD was based on the potential size of the demonstration, the likely presence of non-affiliates (including potential opportunists seeking to agitate or provoke events that draw media or social media attention), and the potential need for multi-jurisdictional resources. In addition, the BUPD arranged to have non-sworn, plain clothes security professionals present to assist with checking participants’ identifications to confirm that participants were University affiliates.”


Because the protest was initially planned to occur at the Bernstein-Marcus building, university administrators “believed that the flow of pedestrian traffic lent itself to the ability for the University to confirm affiliate status through checking of identification.” Security personnel were briefed that “Brandeis community members would be required to present their University issued identification to confirm affiliate status,” that non-affilates who refused to leave campus would be arrested, and that “In the event demonstrators were to engage in intimidating or threatening speech, or in the event of speech calling for violence, the demonstrators would be warned by a member of Brandeis University Student Affairs’ professional staff to cease immediately. If the threatening speech or calls for violence persisted, then the protestors would be dispersed or arrested if they refused to disperse.”


The protest began at 3:30 p.m., with approximately 150 students arriving. However, “rather than gathering at the Gryzmish Center patio as the University originally expected, protesters walked to the Great Lawn to assemble. The Great Lawn does not have any narrow entry points, so the identification protocol planned by the University and law enforcement was abandoned, and the crowd assembled without any request for identification.”


The protest continued peacefully for 30 minutes. But Vice President Dine, who was observing from the Gryzmish Center, belived that it was “readily apparent” that “there was a group of individuals unaffiliated with Brandeis in attendance”. During her interview, Dine claimed that she “is familiar with most students and faculty,” and claimed that these “unaffiliated individuals” were identified by wearing backpacks, coordinated attire and handing out leaflets which Dine did not believe originated from Brandeis.


Simultaneously, Rushton noticed “there were what appeared to be about seven to eight ‘observers’ who were watching police. Those individuals were identifiable by their behavior – i.e., standing, facing away from the demonstrators, and watching officers and others walking past.” The report went on to claim that “Observers often initially present as individuals attending for the purpose of observing and documenting events unfolding at a demonstration, but then turn their purpose to crowd agitation or incitement.” The “observers” Rushton claimed to have seen “appeared to be college-age, young adults, all wore red or maroon-colored bandanas around their necks, and all carried large blue backpacks that appeared to be full”, and “appeared to be taking direction from one individual – a white male appearing to be in his mid-to-late sixties.” 


A command staff officer from the BUPD spoke to the man, who is referred to as “Non-Affiliate 1”. This person “described himself as the ‘marshall’ of the Protest but declined to elaborate on his role.” Following the instructions they had been given earlier, the officer asked the man to leave, as he was not affiliated with the university. The man complied and left via South Street, but was observed returning five minutes later. The report states, “police observed Non-Affiliate 1 walking near the Admissions building then sitting down on a bench. Two BUPD officers then approached Non-Affiliate 1 and placed him under arrest without incident.” This was the first arrest of the day.


Meanwhile, Vice President Dine “believed she heard ‘from the river to the sea, Palestine will be free’ chanted one time.” At first, Dine decided not to take action, as she claimed she “believed that it may have been a non-affiliate who uttered that statement.” The report states that the chanting increased in “vehemence.” Dine “checked in with her administrative staff on site, and she perceived some of them to be nervous about having to issue an administrative warning to the crowd in the event the use of language determined to be threatening or harassing persisted.” 


The chanting continued to “intensify” with what the report states were “references to Israelis as murderers, some suggesting that they should be killed, and repeated cries to ‘free Palestine from the river to the sea.’” In addition, “one police officer noted his observations of individuals exiting buildings near the Protest or walking past, appearing to be apprehensive and looking to avoid encountering the group due to its intensity.” This led Dine to conclude that “the chanting had turned to communicating a message advocating for the eradication of Israel.”


Following the guidelines established earlier, Dine “then approached a student who had been leading the chants with a bullhorn and who appeared to be a protest organizer.” Dine states that she “was familiar with the student from prior protest activity”. She told the student that “that the violent statements the crowd had begun making were in violation of the Protest Policy” and that “should those statements continue, the Protest would be disbanded.” She then returned to the Gryzmish building and spoke to Rushton about the situation. But Rushton stated that “Vice President Dine had barely returned from the Great Lawn to the Gryzmish Building when the threatening chants continued.”


Rushton claimed that “several males wearing backpacks appeared to be taking the lead in directing the crowd, replacing student leadership, and [Rushton] was concerned because law enforcement had no way of knowing what was inside the backpacks.” Based on “the increasing intensity of speech the University had determined to be threatening, the demeanors of the individuals who appeared to be leading the demonstration at that point, the demonstrators’ refusal to comply with Vice President Dine’s directive, the looks of apprehension on the faces of a number of individuals passing by, and law enforcement information regarding other protest activity in the area and nationally,” Rushton claimed he grew “increasingly concerned about the safety of the individuals in the crowd and in the area.”


The report states, “In light of his concern for safety juxtaposed with the crowd’s insistence on continuing to make statements the University had already advised would be deemed threatening and intimidating, Chief Rushton directed his officers to begin dispersing the crowd for the safety of all present and the Brandeis community as a whole.”


In the course of the next 15 minutes, a police cruiser was positioned near the protest and four announcements were given over a loudspeaker demanding the dispersal of the protest. At the first announcement, “a small group of under 20 participants” left, but the majority of the crowd did not. Only at the fourth and final announcement did “the crowd began to move as if they were leaving campus.” The Hoot had reported that “the majority of the protestors were unable to hear the police’s orders to disperse,” but the report did not acknowledge this.


At this time, the report states that “two individuals shouted through bullhorns, encouraging participants to remain in place. One of the two individuals shouted ‘get in tight, they cannot do anything.’” When Rushton noticed that the students were not intending to obey the order to disperse and were taking instructions from those two participants, he “instructed a group of six officers to begin to walk toward the crowd to clear the walkway immediately outside of the Shapiro Campus Center. Officers then began to move, arms outstretched from left to right in a formation commonly used to help guide and usher people in a desired direction.” The Hoot had previously reported that “police officers closed their formation, pushing protestors further back on the Great Lawn and up onto the steps of the Shapiro Campus Center.”  


The report states that “Some students began moving in an apparent effort to leave the area. However, one of the males using a bullhorn continued shouting for participants to ‘stand their ground’ and remain in place.” The BUPD identified one student (it is unclear whether this is the same student described above) was “shouting directions at the crowd to remain in place.” A police commander determined that this person, referred to as Student 1 in the report, “was intentionally obstructing police in their ability to disperse the crowd” and “not only was Student 1 refusing to comply with their orders, but Student 1’s incitement of the crowd to remain in place was putting the safety of the crowd at risk through efforts to intentionally escalate the situation.” Therefore, the law enforcement officers decided to arrest “Student 1.”


As this command was given, “two officers closed a short distance between themselves and Student 1, at which point each officer took hold of one of Student 1’s arms as they identified themselves as police officers and advised Student 1 that he was under arrest. Student 1 dropped his bullhorn and actively resisted the officer’s effort to arrest him by attempting to pull free from their grasp. In an effort to contain the student and effectuate the arrest amidst Student 1’s resistance, the officers directed Student 1 to the ground for the purpose of placing hand restraints on him and with the objective of immediately removing him from the area for transport to the police station and processing of his arrest. Student 1 continued to resist on the ground, at which time his hands were secured, and he was removed for transporting to the police station.”


At the same time, another student, referred to as Student 2 “yelled something at him and threw a cup of cold liquid in the officer’s face.” The report states that “The officer who had been assaulted turned his face away briefly while attempting to identify the substance that had been thrown on him. At the same time, officers attempted to restrain Student 2. Student 2 actively resisted by attempting to run away, at which time officers caught Student 2 and directed him to the ground for the purpose of placing hand restraints on him.” 


Then, “a person unaffiliated with the University (“Non-Affiliate 2”) ran up to the officers arresting Student 2 and threw several punches at the officers in an apparent attempt to impede the officer’s arrest of Student 2. An officer observing this ran toward Non-Affiliate 2 from a distance of approximately 10-15 yards. Non-Affiliate 2 fled, but the officer caught him and directed him to the ground. Non-Affiliate 2 struggled by tensing his arms and clenching his fists in an effort to resist arrest. Two other officers joined in the effort to place Non-Affiliate 2 into custody.”


Additionally, “an individual unaffiliated with Brandeis (“Non-Affiliate 3”) continued to remain on scene. An officer approached the individual, who made eye contact with the officer, turned, and quickly walked away. The officer directed the person to stop, calling out, ‘Police stop.’ The officer took custody of the individual and directed another officer to handcuff him. The individual was advised he was being placed under arrest after repeated warnings that he had been trespassing. The individual resisted arrest but was placed under control quickly.” The report furthermore claims that “Prior to his arrest, this same individual was overheard by police attempting to further escalate tensions between demonstrators and police” and that “The Reviewers’ research indicates that this same individual was involved in Boston-area protests that disrupted traffic flow during high volume motor vehicle traffic times.”


Lastly, “While police were attempting to process individuals detained for transportation, Non- Affiliate 4 and Student 3 were advised several times to step away from police and to refrain from interfering with the police in the fulfilment of their duties. Non-Affiliate 4 and Student 3 ignored multiple directives from law enforcement, and Non-Affiliate 4 ignored directives to leave campus due to his non-affiliate status. Non-Affiliate 4 and Student 3 were ultimately arrested for their persistence in interfering with law enforcement’s processing of arrested individuals, refusal to disperse, and in the case of Non-Affiliate 4, for trespassing.”


The police officer’s actions while arresting these individuals correspond to what the Hoot’s reporters witnessed during the protest. Previously, The Hoot reported thatpolice officers … rushed through the crowd and violently tackled protestors”, that police “threw several protestors to the ground for arrest” and that “The Hoot also saw some arrestees with multiple police officers on top of them.” All of these line up with the report’s descriptions of police “directing students to the ground” and multiple police officers “joining in” to arrest students.


The Hoot reported thatpolice officers [moved] through the crowd to tackle specific protestors, indicating that these arrests may have been targeted,” and that “protestors heard police radio chatter that appeared to be singling out certain students as targets for arrest.” The report confirms that at least two individuals (“Student 1” and “Non-Affliate 3”) were specifically singled out to be targeted by police.


Ultimately, the reviewers found that “the University was within its rights to declare” phrases such as “from the river to the sea, Palestine will be free”, “intifada, intifada” or “taunting that Gazan villages be burned to the ground” was not protected speech. The attorneys specified they made “no judgment regarding whether the statements referenced in the Advisory do or do not threaten, harass, or intimidate – that is for the University to decide.” However, they stated that the advisory the university sent out before the protest was “resonable” because “the Advisory’s general reminder that speech may not threaten, harass, or intimidate, is consistent with University policy”, “the Advisory was distributed in the context of escalating tension surrounding expression related to the [Gaza] Conflict” and “the administration knew that there would be a police presence at the Protest – a necessity from the administration’s and law enforcement’s perspectives to enhance safety for all involved.”


However, the reviewers also criticized “the potential negative impact of Chief Rushton’s co-authoring the Advisory.” Rushton was not involved in deciding which kinds of speech were protected, but “his co-authoring (or co-signing) the message could result in the incorrect impression that law enforcement is involved in determining prohibited speech when, in fact, it is not and should not be.” They also noted that “the Advisory was sent only hours before the Protest, was sent only via email, and was sent only to students. The timing of the Advisory did not permit much opportunity for the intended recipients to absorb the message.” Therefore, they concluded that “it is possible that the University missed an opportunity to begin de-escalation efforts in advance of the Protest as a result of the timing of the Advisory.”


The reviewers stated that Dine’s actions on the day of the protest were “consistent with University policy and practice,” and commended her for not immediately speaking with protestors once the “from the river to the sea” chants began.


Regarding the community listening session, the report claimed that “there is a misunderstanding regarding why law enforcement was present on November 10.” During the community listening session, “One commenter noted that nothing problematic had occurred until around 4:00 p.m., but that law enforcement had already “completely surrounded the area.” Another commenter stated that students felt that they could not risk walking alone to their dorms due to the presence of law enforcement. A third commenter stated that police are always present at any pro-Palestinian event.” 


The report addressed these claims by defending police presense “slightly removed from the protest activity” on the grounds of safety. “If police wait until something bad happens before appearing at a protest, people can be hurt very quickly, very seriously, and in large numbers. It is axiomatic that police cannot wait to arrive at a protest involving volatile issues until something dangerous begins to evolve.” They stated that CCTV and social media footage showed that “protestors were not encircled or forced closely together when police were staged.”


Ultimately, the report found that the police department’s actions “were procedurally and tactically appropriate.” The report even claimed that the initial tackling of “Student 1” was “consistent with best practice and BUPD policy. Law enforcement’s use of this procedure ensured minimal physical harm both to Student 1 and officers through a controlled, coordinated, and swift restraint once the determination to arrest was made,” and that “The two arrests that immediately followed Student 1’s detention were the result of those individuals escalating the situation into physical action against police.”


The attorneys noted “some community members’ objections to the presence of contract security”—i.e. Provident Response— “at the demonstration.” They found that “the BUPD arranged for the presence of contract security for two primary reasons: (i) to preserve sworn law enforcement resources for incidents requiring an emergency response; and (ii) to employ an arguably less intimidating means of confirming affiliate status at the beginning of the Protest.” The report noted that contract security “assisted in ushering demonstrators away from the area” but that no arrests or acts of violence were performed by the contract officers on duty.


Addressing the various allegations of inappropriate use of force against protestors, which The Hoot has reported on, the report claimed that “the Reviewers note the absence of video footage confirming the various allegations of police activity circulated on social media and, to some extent, during the community listening session. The Reviewers conclude that if the police had engaged in excessive force, given the large number of people who observed the incident, it is likely that such conduct would have been documented on video, and that if such video existed, it likely would have surfaced by now, but has not.”


The attorneys concluded that “the issues discussed in this Report evoke a number of philosophical and emotional responses” and “The Reviewers thank all involved for their thoughtful input and shared desire to see the Brandeis community learn and move forward together.” To this end, they made several recommendations to university administrators.


First, they recommended that “The University should consider requiring more direct communication with protest organizers in advance of a protest.” They suggested that “The University should consider requiring that protest organizers, whether individual students or student groups, meet with Student Affairs prior to a protest, even though there is no requirement that a student or group obtain preauthorization to hold a protest.” They continued, “To the extent that the organization or group protesting is unaffiliated with the University, the administration should carefully consider the benefits and disadvantages of engaging with organizers prior to a demonstration. Such engagement may aid the University in directly discussing University policy with organizers, including any prohibition against the presence of non-affiliates and other concerns related to the safety of the Brandeis community.”


Second, the report recommended that “The University should direct communications regarding protest concerns in a more timely and widespread manner,” noting that “the Advisory was sent to all-students only, and was sent hours before the Protest.” They continued, “the University should consider sending messages under similar circumstances directly to the group most likely to be involved in organizing the demonstration (even if the group has been de-recognized and even if the group members were recipients of an all-students email). The University should also consider sending a communication at least 24 hours in advance of a demonstration, if possible, to allow the message more time to circulate.”


Third, the report recommended that “The University should consider assigning an administrator who is not the Vice President of Student Affairs to assist with protests.” They noted that “The mission of an effective student affairs leader is an incredibly complex one that requires distance between the leader and the facts that give rise to a conflict, which that leader must then resolve (or at least oversee resolution efforts)” and that “Dine’s presence at the Protest placed her squarely in the center of the controversy, essentially converting her role from that of post-incident mediator to incident participant and fact witness.”


Fourth, the report recommended that “The BUPD should not co-author messages articulating speech policy to avoid creating the impression that the contours of free speech are established by law enforcement.” They noted that “the potential resulting optic – i.e., that the police are determining speech policy – does not help calm concerns about the role of law enforcement on campus.”


Fifth, the report recommended that “The University should communicate with the community regarding the rationale underlying police presence on campus, specifically with respect to demonstrations.” The report claimed, “it is clear that some in the community view the BUPD as a menacing presence that was staged in the area to suppress freedom of expression … the perception remains, and that is a challenge the University must address.” Acknowledging that “this Report is not enough to repair the rapport between the BUPD and those skeptical of it”, the report recommended that “Maintenance of a healthy bond between police and community is heavily dependent on communication when there is no crisis situation – through social media, website activity, presentations, and daily one-on-one encounters.”


Sixth, the report recommended that “The BUPD should work to better leverage its website and social media in the effort to build its police-community bond.” The attorneys found that “The BUPD has social media capability, but it is underutilized due to limited department resources,” and recommended that “The University should consider ways to better utilize the BUPD’s website and social media presence for the purpose of building a stronger rapport with the community and to enable more timely communication with the community about important matters.”


Seventh, the report recommended that “The University should explore methods to enhance its ability to screen for non-affiliates at future protests.” They found that “The University had a plan to screen for non-affiliates by using a specific routing path intended to direct protestors to one area,” which would allow for administrators to screen out non-affilates. But “that plan was rendered ineffective when protestors began congregating in another area,” allowing several non-affilates to join in the protest.


The report went on to recommend that “The University should consider posting signage advising non-affiliates that their presence on campus will be deemed trespassing”, that “The University should ensure that all BUPD officers receive biennial crowd control response training”, that “The University should provide coordinated interdepartmental training on responding to incidents occurring during a campus protest” and that “The University should consider adopting procedural guidelines for responses to campus disturbances that reflect operations during the Protest.” 


Notably, it recommended that Brandeis “should consider discontinuing use of contract security to assist in crowd dispersal.” The report found that “there is no cross-training between police and contract security regarding procedures to apply in the event of sudden physical conflict within the crowd … the responses of both elements to contain a physical conflict may be uncoordinated and lead to additional problems,” and that “there is an unappealing optic that derives from the appearance of non-uniformed individuals physically dispersing a crowd.”

In addition to this report, Fierke and Uretsky announced that the “recently convened Presidential Task Force on Free Expression” will be meeting at some point during the next year to make additional recommendations.

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