First, as both the Daily Cal and the SF Chronicle have reported, Chancellor Birgenau and Executive Vice-Chancellor Breslauer did in fact discuss the police's use of batons against protesters on November 9th, despite Birgenau's later statement that they had not. As emails obtained by the ACLU reveal, Breslauer informed Birgenau about the use of batons against protesters; Birgenau moved past the information to declare that the protesters "want exactly such a confrontation" and instructed Breslauer that it was "critical that [they] not back down on [their] no encampment policy."
Despite the insistence of University Berkeley spokeswoman Claire Holmes that she "doesn't think you can infer from the e-mails that [Bigenau was] authorized" it is clear that Birgenau considered sustaining the "no encampment" policy to be more important than stopping the use of batons on protesters. Indeed, while Birgenau did acknowledge that the situation was "really unfortunate" it is unclear what exactly he thought was unfortunate and indicates that the use of force against protesters was by no means at the top of his worries.
As the ACLU put it in their letter to Christopher Edley and Charles Robinson, "The University handled the students' peaceful protest as a threat to be eradicated, and not a form of debate and dialogue to be respected and fostered." It is hard to disagree with that conclusion.
The questions at Davis have not gone away either. Today nineteen of the protesters from November 18th (seventeen Davis students and two recent graduates) filed suit in US District Court against members of the Davis administration and police department. They are seeking damages for violations of their civil rights and for violations of the California Constitution. They are demanding a Jury Trial. The students and their attorneys are seeking (in the language of the complaint):
"a declaration from the Court that campus policies and practices that led to the abuse of the plaintiffs and others offend both the state and federal constitutional guarantees of the rights to free speech and assembly and that the pepper-spraying and arrests of plaintiffs violated their state and federal constitutional rights; an injunction to prevent repetition of such a response to a non-violent protest; and compensatory and punitive damages against the individual perpetrators of the illegal acts and their superiors who ordered, directed and/or condoned this outrageous conduct."
One striking characteristic of our contemporary political culture is the insistence by those in power that we should only look forward, not backward. But as Glenn Greenwald and others have repeatedly pointed out, this refusal to take responsibility for the past serves only to absolve the power of their accountability and destroys the notion of the rule of law. Universities should not be places of forced forgetting, but of open and democratic problem resolution. It is a sorry state when students and others feel compelled to turn to Federal Courts to ensure their right to safely protest on UC campuses.