Protest and punishment

Next month, four University of Rochester students arrested for posting “Wanted” posters on campus are scheduled to appear in court again. The criminal charges they face, which have raised some concerns on campus and among legal experts, reflect a tactic being adopted by educational institutions nationwide.

The UR students—Jonathan Bermudez, Naomi Gutierrez, Samantha Escobar and Jefferson Turcios—have been charged by the Monroe County district attorney’s office with criminal mischief in the second degree, a class D felony. In New York, a person found guilty of criminal mischief in the second degree intentionally damaged another’s property without the right to do so, resulting in damages that total more than $1,500. It carries the penalty of up to seven years in state prison, along with the collateral consequences—potentially impacting student loans, housing, employment and other areas—that come with a felony conviction.

Each student has retained an attorney and has pleaded not guilty. (The Rochester Beacon contacted all four defense attorneys. One responded but was unwilling to comment on a pending case.)

UR is not alone in its decision to bring criminal charges against student protesters. After last year’s pro-Palestine protests following the Oct. 7 attacks on Israeli communities near Gaza, academic institutions have adopted a harsher stance.

After students returned home for the summer this year, universities took a closer look at existing codes of conduct. At the start of the academic year, the Foundation for Individual Rights and Expression alerted students that some of these changes might infringe on their rights, while also noting that not all protests are covered under the First Amendment. 

“A lot of the administrators took their summer break to go back to the drawing board and revise their policies, and in a lot of cases, they are being used to crack down harder on student protesters,” says Amanda Nordstrom, program officer of campus rights advocacy at FIRE. 

The posters incident

While there have been several protest-related cases across the nation, among them dozens of arrests at Columbia University and City College in New York City, vandalism at Case Western Reserve University last month bears closest resemblance to the Rochester case. Buildings and other CWRU property were sprayed with red paint and red handprints, and posters with symbols that were deemed antisemitic were glued at some sites. 

In Rochester, around the same time in early November, “Wanted” posters of UR leadership, faculty and employees were plastered across campus buildings on walls, floors, and chalkboards. 

The posters featured photos of university community members along with text criticizing either their handling of the school’s response to the Oct. 7 attacks against Israel and the ensuing war in Gaza and Lebanon or their alleged ties to the Israeli war effort and settlement movement. 

At first, the university’s Department of Public Safety, upon discovering the posters, issued a statement indicating an investigation into the vandalism was underway. On Nov. 12, UR President Sarah Mangelsdorf weighed in, saying, “I want to be as clear as I can that the University of Rochester strongly denounces the recent display of ‘Wanted’ posters targeting senior University leaders and members of our faculty, staff, and Board of Trustees. This act is disturbing, divisive and intimidating and runs counter to our values as a university.”

She brought attention to Jewish members of the UR community who were targeted in the posters. (The posters also criticized non-Jewish individuals.) 

“We view this as antisemitism, which will not be tolerated at our University. This isn’t who we are. This goes against everything we stand for and we have an obligation to reject it,” Mangelsdorf said.

More than a week later, after the incident made national and international news and was denounced on the Senate floor by Sen. Charles Schumer, the four students were arrested and charged with criminal mischief. 

Tough charges

The arrests were made by Joshua McCartan, investigator and peace officer with UR’s DPS. Since the charges are a Class D felony, UR spokesperson Sara Miller says there was no legal option for the university to recommend an appearance ticket be issued. 

The charge sheet notes that the four students were observed on CC TV “intentionally spraying chalkboards and whiteboards with an unknown substance in spray bottles, affixing these ‘Wanted’ posters to these boards, then spraying overtop of the posters with an unknown aerosolized substance.”

The boards and other classroom equipment, the charges claim, cannot be restored to their original condition. The use of adhesive on the walls will require resurfacing and repainting. The total cost to repair these damages tops $6,000 and is likely to be higher once bids from vendors are secured, the charges read.

Shay Herbert, organizer at the New York Civil Liberties Union, expresses concern over the charges in the UR case.

“The gravity of these charges raises concerns about the pursuit of disproportionate charges against certain students based on their viewpoint,” Herbert says. “Rochester residents deserve fair and equal treatment under the law.” 

Peter Pullano, a criminal defense attorney, also questions the felony criminal mischief charge with the possibility of up to seven years in state prison.

“If they were in my office asking, ‘What am I looking at?’ I’d have to give them that answer. That would be the maximum. And that it’s a felony,” says Peter Pullano, a criminal defense attorney. “I would hope (prosecutors) reduce this to something that they’re not ruining people’s records and lives over (it).”

In his practice, Pullano sees more misdemeanors than felony mischief charges.

“There is a question of value with the felonies, so I just don’t think they come up as much,” he observes.

Pullano expects defense counsel to first investigate if the costs cross the threshold established by the law. He is curious whether, given the number of posters, the charges will be aggregated—is it one count or several counts of criminal mischief and does it include four students under the same charge?

“Does it really aggregate that way?” Pullano wonders. “That’s certainly an issue that the court would have to determine as to whether or not (it does). They’ve almost charged it like a conspiracy. They certainly are alleging that they’re all accomplices, even though they didn’t cite the accomplice section of the statute.”

Defense lawyers might be able to plead charges down to a misdemeanor. Pullano recalls one of his cases many years ago—a group of young people shot traffic lights in a suburban town. They ultimately pled to misdemeanors.

Resolving the case through mediation or restorative justice methods is a distant possibility, say attorneys who spoke on background. The tool hasn’t been used frequently in Monroe County.

The students’ ages (19 to 22) and clean records could work in their favor. 

Pullano also observed that the students don’t face any charges for the opinions they were expressing. “That would be First Amendment protected, so it’s a little unique that way,” he says. “It does seem to me to be an end around restricting their free speech rights by focusing on the damages.

“Taking the complaint at its value, if there truly was that kind of damage caused, then I can see where they would charge it as criminal mischief,” Pullano adds. “But I also certainly think that it may be necessary to do some sort of a hearing on the value and see where things are.”

Monroe County did not respond to questions about the district attorney’s pursuit of the charges.

Campus response

The postering, arrests and felony charges all quickly became the subject of discourse on campus, particularly within the school’s faculty and student governments—the Faculty Senate and Students’ Association.

The Faculty Senate’s regular meeting on Nov. 19 came shortly after the students were arrested and the charges were announced. Toward the end, Interim Provost Nicole Sampson spoke about the response and fielded some questions from faculty before the discussion shifted to a closed, unrecorded session.

On the choice to push criminal charges against the students, Sampson emphasized the importance of state and federal education laws.

“Enforcement of the law is done for the protection of the community and in compliance with our obligations of the institution,” she said. “There are New York State statutes in education law, including rules for maintenance of public order on university campuses, that the university is committed to properly addressing and to reporting any action or situation which recklessly or intentionally endangers mental or physical health of members of our university community, and that includes coordinating with the investigation of such crimes with local law enforcement agencies.

“These statutes obligate us to follow the rules of law. Because individuals were targeted, this obligation is very clear,” she continued.

Sampson noted that “there may be an interest” in altering the level of the conduct proceedings against the students, both internally and in the courts. “However, we cannot undertake an arbitrary and inconsistent application of conduct rules or criminal laws depending on what the situation is at hand.”

Most of the faculty members who voiced their opinions during the open session were critical of the administration. Thomas Gibson, a professor of anthropology, said that immediately linking law enforcement seemed unprecedented in his 40 years of teaching at the university. 

He said other incidents, like sex crimes or occupations of Wallis Hall (the school’s admissions building, which houses many senior administrative offices) have been met with “every effort” to resolve things internally before going to law enforcement.

“We are going with criminal mischief as a felony. This is being attributed to the damage to the university property, but I don’t know, (it) seems to me more than a slippery slope for us to abandon our emphasis on restorative justice and turn in this criminal direction,” he said.

Miller, UR’s spokesperson, could not say how the school is disciplining the students internally because of confidentiality, but she notes it is standard practice to refer “such matters” to the conduct process for further review. In a resolution last month, UR’s student government said the four students were suspended indefinitely.

Responding to Gibson, Sampson said she was sure that there have been many conversations with law enforcement on cases, even if it wasn’t apparent. Responding to another question about whether the property damage or the content of the posters was driving the university’s response, she said it was both.

“The level of damage done, the number of hours spent, clearly criminal mischief, just from that point of view. And the level of intimidation and the safety precautions that that has created has led to the need to investigate,” she said before the closed session kicked off.

UR’s Students’ Association, the school’s undergraduate student government elected by the student body, held an unusual Wednesday meeting of its senators the next day, Nov. 20, to consider a resolution harshly condemning the administration. 

The resolution, which passed with just one “no” vote and one abstention, criticized the decision by UR administration and DPS to treat the posters as a criminal matter and declare them antisemitic without consulting with the university’s Task Force on Antisemitism or experts in Jewish studies. It also criticized DPS for seeking out the aid of the FBI and state law enforcement agencies.

The resolution called the response a move to “preserve the University’s reputation and avoid embarrassment on a national stage” rather than to ensure the safety of university community members, and it added that the immediate consultation of law enforcement is indicative of an expansion of the role of policing on campus.

“We demand that the University of Rochester acknowledge that they have failed to protect the University community,” the resolution says. “We call upon the University of Rochester to address how their actions have utterly failed to quell fears within parts of the Jewish community and have caused further undue harm to other minority populations, especially students of color, and take the active steps necessary to repair those relationships.”

It concludes: “We view the felony charges as a disproportionate, extreme, and gross execution of justice, and we demand that the University of Rochester drop the charges against the students.”

A chill on campus

Soon after the arrests were made, there were protests against UR’s actions. At the same time, students witnessed a mobile billboard truck with tinted windows making rounds on campus. The captions “Antisemitism+Vandalism = Expulsion” and “Expel Them Now” were painted on the sides of the truck in the school’s colors. Targeted local ads on social media calling for expulsion also appeared.

“(Students) are so scared. One wrong word or hot take and you’d be canceled immediately. I’m scared to speak on it because I don’t want to offend anyone or say something wrong,” says a student who spoke on the condition of anonymity.

The student voices concern about fellow students and wonders about her place in the conversation. 

“I have lots of mixed feelings, and I wonder how entitled I am to have an opinion as a white American. … All I know is I was absolutely shocked by the school’s reactions to the posters,” the student says. “I don’t understand a world in which people can support genocide. And I also feel bad that a lot of my Jewish friends, many who aren’t pro-Israel, feel unsafe.”

Other students, who also fear retaliation, shared their trepidation with the Beacon as well. Some spoke of the day of the incident and their concern that if studying in the library and walking near the scenes of the posters, it would be interpreted as support for the protest.

FIRE’s Nordstrom points to the academic setting’s power imbalance—students are likely to be intimidated by administration, security and faculty.

“I want to see campuses go back to being the center of free dialogue, and where we learn to stretch our brains and we bounce ideas off each other,” she says. “It’s supposed to be a safe place for people that are learning and younger people to kind of form their idea of the world. But if everyone’s afraid to talk because they’re afraid of being shut down, then we’re not going to have these new, budding ideas opening minds.

Incidents like the one at UR tend to cast a chill across a university campus where word travels fast, Nordstrom adds.

“We talk a lot here at FIRE (about) the chill from censorship,” she says. “Sometimes it’ll just take one instance, like people will hear about a professor being fired because they said something, and that’ll just send a ripple across campus. And people know, ‘Hey, I can get into trouble for something I say. Maybe I need to be on guard now.’ They’ll start censoring themselves, or maybe they won’t talk about a certain issue or maybe a professor won’t teach an issue in class. And these are all little ways that censorship starts to creep down that add up to a lot more.”

History of protests

Protests against Israel’s actions in the Middle East have some echoes of the past. UR students not only staged a sit-in against the war in Vietnam in the mid-1960s and early 1970s, they used their voices again in the 1980s against apartheid in South Africa. With Vietnam, UR students demanded the university issue a statement against the war and end its relationship with the Center for Naval Analysis, a think tank, which protesters viewed as a political statement.

At the time, a trial decided the fate of the 100 Vietnam War protesters. Attorney Thomas Fink of law firm Davidson & Fink, who was counsel for some of the defendants, in a 2013 article in the student newspaper Campus Times said he was concerned about their rights and believed there was no indication that the occupiers were violent or intended to cause damage to UR property. Seven of the students, who stopped the sit-in after 22 hours and pleaded guilty to occupying the administration building, were fined $300. Four who pleaded not guilty also had to pay. There were no academic penalties.

More than a decade later, those involved in the anti-apartheid movement demanded that UR divest its interest in companies with investments or agreements in South Africa. Black Student Union members and other students constructed a shantytown on River Campus. Eventually, UR decided to liquidate South African business interests in its investment portfolio.

What stands out locally in the “Wanted” posters case is the severity of the charges. But UR is just one of several higher education institutions that have come down hard on protests over the Israeli-Palestinian conflict. In September, eight City College of New York student protesters pleaded not guilty to burglary felony charges. They had allegedly attempted to occupy a building on campus. These students were part of a group of 28 CUNY students who were arrested on felony charges and a class A misdemeanor; some of the charges were later dismissed. At Columbia, some students were charged with misdemeanor criminal trespassing, while UMass at Amherst sought to bring felony riot charges against campus protesters.

“That’s what we’re seeing at more and more schools,” Nordstrom says, “these outside criminal charges coming into play.” 

Smriti Jacob is Rochester Beacon managing editor and Justin O’Connor is a contributing writer.  Narm Nathan, a former Rochester Beacon intern, contributed to this article.

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