On October 29, New York City Police Commissioner Ray Kelly was scheduled to deliver prepared remarks during a public lecture at Brown University. Kelly’s presence attracted crowds of protestors who objected to various policing tactics of the NYPD, including the policy known as “stop-and-frisk,” as well as the wiretapping of New York City’s regional Muslim communities.

While taking the stage, Kelly was prevented from speaking when student and community members led a protest inside the auditorium that resulted in the cancellation of the event, generating a national controversy as well as an investigation from a campus disciplinary commission that is still underway. Brown Political Review has since obtained a copy of the prepared remarks that Commissioner Kelly was prepared to deliver on the afternoon of October 29.

Editor’s Note: BPR invites readers to share comments, opinions, experiences, letters and articles in response to our ongoing coverage of Commissioner Ray Kelly. Please send your response to comments@brownpoliticalreview.org, and place “Ray Kelly” in the subject line.

Late update: A previous leak of the speech included only excerpts for a total of 807 words, or two and a half pages. BPR’s full transcript is 3, 295 words, or eleven pages.

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For more information, see BPR’s coverage of the events below:

BPR’s Exclusive Video of the Protest from Inside.

BPR’s Liveblog of the President Paxson’s University Forum.

BPR’s Interview with Yale Law Professor James Forman, one of the foremost critics in the United States of “stop-and-frisk” and other NYPD policies.

BPR’s Interview with Brown Professor Ken Miller, whose Op-Ed criticized the Kelly protest.

Event Analysis from BPR:

“Who is Raymond Kelly?”

“Ray Kelly and the Need for Open Discourse”

“Brown’s Platform Legitimized Kelly”

“For the Ones in the Annex”

“Legalizing the Stop and Frisk Conversation”

It wouldn’t be surprising if, five years from now, Brown still looks back at 2013 as the year of the Ray Kelly Event. It’s rare for a single moment to affect an entire community, especially ours — spread out as we are across disciplines, nationalities, outlooks and College Hill itself — but this was one of them. Protesters, engaging in what they would have called “constructive irreverence” (a term brought to our campus by President Paxson herself) sparked an intense debate on the nature of free speech and on the University’s long legacy of student activism. The discussion soon expanded beyond Brown’s campus, as news outlets ranging from Huffington Post to Fox News commented on the events of October 29.

Months later, the dust has mostly settled and the heated emotions of those tense days have cooled. The dialogue goes on, though, and the results of an investigation into the protests by a university-appointed committee have yet to be announced. Many questions still remain, and now one of the most central can finally be answered: Had the speech gone on as originally planned, what would Ray Kelly have said?

This article is not another opinion on what happened on October 29, but rather an attempt to analyze and critique the arguments Kelly would have raised had he been permitted to speak. The most immediate (and least exciting) insight from the speech vindicates one of the protesters’ main points: Kelly’s speech reveals no information the commissioner hasn’t shared before. If anything, the defensive tone and predictability of his argument shines a light on the intellectual vacuity of many of NYPD’s so-called proactive policing policies.

The problem with Kelly’s emphasis on ‘Grandmother’s Love Over Violence’ is that it hardly has anything to do with the rest of the commissioner’s speech — or the reality faced by thousands of civilians every day on the streets of New York.

For starters, even the idea of “proactive policing” isn’t very consistent throughout Kelly’s speech. The commissioner would have started his presentation by giving an example of what this policy is meant to achieve: helping disadvantaged heads-of-household and community parishes keep their young people safe, educated and out of trouble. His story about Grandmother’s Love Over Violence and the NYPD-Brooklyn Clergy Coalition is indeed a great example of what proactive policing should look like, as it emphasizes peaceful interaction between police officers and civilian organizations based on reciprocity and mutual respect. These sorts of initiatives can and should provide underprivileged communities with much-needed tools of self-empowerment.

The problem with this example is that it hardly has anything to do with the rest of the commissioner’s speech — or the reality faced by thousands of civilians every day on the streets of New York. His later comments on proactive policing leave aside any talk of communities, especially minority ones, in favor of a polemical focus on trying to validate NYPD’s more controversial policies. In this context, the introductory story comes off as little more than a vain attempt to gather sympathy before diving into more divisive topics.

Mainly concerned with legitimizing the ramped-up NYPD operations of the last 12 years, Kelly wastes no time getting to the big statistics. He boasts of the 72% overall crime reduction rate over the last two decades. Homicide figures come next, as Kelly cites a decrease of more than 80% since 1990. Shooting incidents also went down by 74% since 1993; by his calculations, NYPD policies implemented since 2002 have saved 9,172 lives.

At first glance, this appears to be the story of one of the most successful law enforcement initiatives in recent history. However, these achievements are not demonstrably the result of better policing.

By the mid 1990’s, New York City was experiencing a major drop in crime rates. The NYPD at that time was under the leadership of Kelly’s predecessor, William Bratton, who also defended the use of stop-and-frisk and proactive policing as crime-prevention tools. Every bit the policy hardliner as Kelly, Bratton also developed the computerized crime-tracking program CompStat, and implemented the “broken windows approach,” which proposes that more stringent enforcement of lower-level crimes can have a deterrent effect on more serious ones. These developments laid much of the groundwork for Kelly’s post-9/11 enhanced law enforcement policies. But in fact, crime was already dropping in New York since before many proactive policing policies such as stop-and-frisk were expanded under Bratton, and later Kelly. The statistics presented in the speech don’t necessarily indicate that the NYPD has become more successful or even more efficient.

The graphs Kelly included in his presentation show how crime rates — particularly homicides — have also gone down since 2002, the year he became Police Commissioner. 2012 ended with just 419 homicides in NYC — a 50-year low — and Kelly states that at the current rate, 2013 will end with about 330. However, this drop coincides with a massive reduction of street stops-and-frisks. The number of stops by police officers decreased dramatically from an all-time high of 200,000 in the first quarter of 2012 to around 21,000 in the third quarter of 2013. In the words of the New York Times editorial board: “If stops alone were holding back a hidden tsunami of crime, the city would have been overwhelmed by now.”

Like much of the discourse in the stop-and-frisk debate, Kelly needs to be reminded that correlation is not causality. A study by sociologist and NYU professor David Greenberg analyzed Bratton’s policies and concluded that they didn’t necessarily lead to lower crime rates. According to Greenberg, a host of other factors could have all played a part in making New York safer, including a growing economy, job creation, minimum wage raises, fluctuations in the illegal drug market, and decreasing crime rates at the national level. Some theories even speculate that an increase in family planning methods could be linked to the drop in crime. Although, as Kelly observes, crime dropped faster in New York City than in other cities, there remains no conclusive proof that revamped law enforcement is the primary cause of the trends.

Kelly goes on to mention two of the operations at the heart of his proactive policing agenda: Operation Impact and Operation Crew Cut, which he points to as sources of the improvements in New York’s crime rates without addressing any of the factors mentioned above.

The first of these policies, Operation Impact, is based on “hot spot policing,” which consists of assigning newly minted cops, fresh out of the academy, to areas with a high incidence of dangerous crimes — areas Kelly calls “designated impact zones.” This sort of crime mapping is, of course, unavoidable for good policing work. Some areas are simply more crime-ridden than others. But Operation Impact’s focus on recruiting new officers has its drawbacks. Because the program places rookies in high-crime areas, mostly populated by minorities, those with little experience may confuse these geographic correlations between race and crime for causation. The misapprehension only reinforces the stereotype of minority communities as naturally more crime-stricken, and could subsequently increase the tendency towards racial profiling by police. Race influences more than just which communities are targeted, or who is profiled and stopped; a recent report by the Office of the Attorney General of New York shows that minorities who are stopped-and-frisked by police are more likely to be arrested and convicted for misdemeanors and non-violent crimes than white citizens. This can both artificially inflate crime rates in disadvantaged communities and lead to insufficient policing in whiter areas of the city.

Another of Kelly’s initiatives, Operation Crew Cut, is based on the premise that gangs, or “crews,” are the perpetrators of a high percentage of violent crimes and should be monitored more aggressively. Part of the operation, according to Kelly’s text, involves identifying gang members who may just be “wannabes” and can still be guided down the right track. In providing resources for families to help their children stay away from illicit activity, this initiative appears closer to the vision of community-engagement projects that Kelly begins his speech with. However, the creation of a “team of investigators dedicated to monitoring social media” to catch any suspicious gang activity seems to justify the worries about invasions of privacy and misinterpretation of messages. Police officers take on false identities online, often posing as young women in order to gain access to suspects’ accounts. The police look for photos, taunts, boasts, threats and gang-specific lexicon, but all of these things are easy to mistake. Idle fights, empty threats and even the wrong slang — or being invited to the wrong party — could cause mistaken arrests. Says Kelly: “Gang members have posted photographs of themselves in front of a rival’s apartment building and surveillance pictures of those who they threaten to kill next.” But who hasn’t posted a picture of themselves in front of a building? Even if mistaken arrests don’t result in conviction, an open arrest can take time and effort to dismiss, and in the meantime can have high costs — financial and otherwise — for the suspect. When violence does occur, the stakes are much higher because the surveillance information allows police to build conspiracy cases.

Finally, more than halfway through the speech Kelly brings up the topic of the hour: the NYPD’s so-called policy of “engagement,” otherwise known as stop-and-frisk. He describes the program as an extension of the “long-established right of the police to stop and question individuals about whom we have reasonable suspicion” and calls the practice “as old as policing itself.” It begs an interpretation of what exactly suffices as “reasonable suspicion,” especially given the high correlation between race and the stops.

Kelly begins his defense of stop-and-frisk with one of the most publicly celebrated outcomes of the policy: the seizure of more than 7,000 illegal weapons in 2012. But let’s put this into perspective. According to an Attorney General’s report, only 6% of all stops between 2009 and 2012 resulted in an arrest. Only 2% of these arrests (0.1% of stops) were due to weapons possession. Likewise, crimes involving violence represented only 2% of all stop-and-frisk arrests. The 7,000 weapons seized in 2012 were the result of 533,042 stops that year. That’s one weapon found for every 76 people stopped-and-frisked.

Despite the low percentage of stops that produce arrests, let alone confiscated weapons, Kelly praises them as a life-saving strategy that has primarily benefitted the city’s black and Latino communities. He says in his speech that groups made up 87% of all murder victims and 96% of all shooting victims in 2012, so the logic follows that confiscated weapons — especially guns — statistically contribute more to these groups’ safety than that of white communities.

Of course, Kelly doesn’t pay as much attention to the fact that blacks and Latinos are also stopped-and-frisked more often as well, complicating Kelly’s perception of what it means to be safer. In 2012, African-Americans, who make up 23% of the city’s population, made up 55% of all stops. Latinos, who comprise 27.5% of the city population, were involved in 32% of stops. On the other hand, only 10% of stops in 2012 involved a white suspect. The Attorney General’s report argues that stops of blacks and Latinos are not only “the majority of stops each year, but also the majority of the increase of stops.” Every year that stop-and-frisk keeps operating as it is, the racial disparity between whites and minorities increases.

The case of marijuana arrests resulting from the stops illustrates another key flaw in Kelly’s reasoning. Whites stopped and arrested for marijuana possession are nearly 50% more likely to have their case dismissed and to avoid conviction than blacks and Latinos. Ironically, considering Commissioner Kelly’s comments about making the city safer for minorities, the most common reason for stop-and-frisk arrests isn’t illegal weapons but marijuana possession. This preferential treatment feeds back into the NYPD’s institutional bias. Conviction statistics for marijuana possession are artificially skewed towards minorities and consequently help justify further racial disparity in stops.

The number of stops by police officers decreased dramatically between 2012 and 2013. In the words of the New York Times editorial board: “If stops alone were holding back a hidden tsunami of crime, the city would have been overwhelmed by now.”

These racial disparities were the main reasons Judge Shira Scheindlin declared the current stop-and-frisk policy unconstitutional under the Fourth and Fourteenth Amendments in the federal class action lawsuit Floyd v. City of New York. In his speech, Kelly says he “disagree[s] strongly” with the ruling and responds to Scheindlin by arguing that minorities are more likely to commit a crime, and therefore more likely to be stopped than white people, much in the same way that men are more likely to be criminals than women. Kelly also argues that “the racial distribution of stops generally reflected the racial distribution of arrestees.” That’s called a tautology: If individuals stopped are also those who get disproportionately arrested, of course that argument is then narrowly true. He also cites a 2007 study by the Rand Corporation indicating that the racial distribution of stops generally reflects the racial distribution of crime suspect descriptions. However, the Attorney General’s report shows police data indicating that only about 15% of stops are made on the basis that an individual fits the description of a crime suspect. Despite the circuitous reasoning and grasping analogies, Kelly’s argument still comes down to this: because crime suspects are more likely to be black and Latino, it is apparently justifiable to disproportionately stop people of these groups, even though the great majority of them will not match a crime suspect description. Simply stopping individuals who do fit a crime suspect description would seem to be a preferable solution.

Kelly’s goes on to emphasize that Judge Scheindlin found only 6% of the stops between 2004 and 2012 to be “apparently unjustified.” Even if her judgment was sound, Kelly argues, there is no way that such a small percentage “shows a systematic practice of racialized profiling” or provides evidence of institutionalized racism. It makes one wonder about what Kelly considers a “justified” stop. After all, only 6% of stops lead to arrests. Furthermore, the Attorney General’s report indicates that the percentage of convictions resulting from those stops is half that of the arrests, or 3% of all stops. If the arrest and conviction rates are so low, how can this policy be justified against the other 94% of stop-and-frisk incidents at issue in Floyd?

The answer may just lie in the hands of the officers doing the stopping. According to New York’s Civilian Complaint Review Board, investigations of stop-and-frisk complaints revealed that some officers underreported their stops. In 2012, roughly a fifth of investigated complaints involved cases in which the officer in question had neglected to fill out a UF-250 form, required after every stop. An astonishing 33% of investigations dealt with officers who had not prepared a memo summarizing the details of the stop, also a vital part of the NYPD’s documentation process. Without this information — all of which is written out by the police officer conducting the stop — it is extremely difficult to prove that the stops were unconstitutional. Despite these findings, Commissioner Kelly states in his speech that NYPD has “become more careful about recording each [stop] in detail as required by law,” without elaboration.

Tellingly, one of the immediate reforms mandated in Judge Scheindlin’s ruling is meant to fix exactly this problem. Scheindlin proposed “revision of documentation” of stop-and frisk encounters, as well as a new UF-250 form that will include a detailed explanation as to why a search was performed. Another potential change might include a tear-off form stating the reason for the stop and explaining how to file a complaint, to be handed to the subject of the search afterwards.

Commissioner Kelly does not believe these measures are necessary. He cites a 1968 court decision, Terry v. Ohio, which upheld the use of stops by police departments. To use the commissioner’s phrasing, stops are “one of the tools of the job.” Limiting the efficiency of this tool would, in his opinion, have a negative impact on police officers’ work. But a closer reading of the Terry decision would show Commissioner Kelly that stops must be based on a “reasonable articulable suspicion” that a crime may occur. According to the Center for Constitutional Rights, an officer must be able to “articulate specific facts that give him or her a basis to reasonably suspect that criminal activity may be afoot.” These suspicions are meant to be specific to the individual being stopped, in order to avoid systematic, unjustified searches that could potentially infringe on civil rights. Judge Scheindlin’s ruling does not eliminate stops from the NYPD’s toolbox, but rather establishes accountable measures to ensure that the legal requirements established in Terry v. Ohio are actually followed.

But the NYPD’s active disregard for the “reasonable articulable suspicion” clause also affects NYPD’s counterterrorism and intelligence operations. As Kelly states in his speech, the department follows a set of rules called the Handschu guidelines to avoid violating the civil liberties of the individuals it investigates. The Handschu guidelines are the result of a 1985 case settlement between the NYPD and a group of leftists that sued for being spied upon for political purposes. Originally, the guidelines stipulated that detectives had to have “specific information” about a future crime to justify starting an investigation. Under the guidelines, no person can be subject to investigation because of their “political, religious, sexual or economic preference[s].” Like so many other guidelines, Handschu’s real message went out the window after the events of September 11. In 2003, a judge changed the Handschu rules to allow the NYPD intelligence chief to authorize investigations — both on book and undercover — with just a “reasonable indication” that a future crime was afoot. Kelly notes that the guidelines provide members of the police force the ability to attend public events, prepare reports of potential threats and view public online activities. But the public nature of much of the actions of the NYPD have been at best questionable, although Kelly promises that all operations are “in keeping with Handschu protocol.” The countervailing evidence is considerable: Operation Crew Cut and the attempt to befriend potential suspects online using fake personas, police attendance at “private event[s] organized by a student group,” and “undercover officers and confidential informants” entering mosques are just a few example of how NYPD’s intelligence operations have been increasingly relying on less than transparent methods.

Despite Kelly’s assurance that the department does not target Muslims or political dissidents, substantial complaints make a case for the contrary. From 2010 to 2012, the Associated Press published a Pulitzer Prize-winning series of articles on the NYPD’s secret monitoring of political dissidents and Muslim communities. One of the pieces tells the story of how the department’s intelligence unit went undercover to infiltrate the meetings of “liberal political organizations” in 2008 and kept files on activists and protesters from around the US — despite all of the monitored activities being completely legal.

Kelly also argues that “the racial distribution of stops generally reflected the racial distribution of arrestees.” That’s called a tautology: If individuals stopped are also those who get disproportionately arrested, of course that argument is then narrowly true.

Several of the AP articles highlight NYPD’s intrusion into the lives of Muslims both within and outside New York. Mosques were monitored and infiltrated, Muslim-owned businesses were cataloged, and any Muslims in New York that had legally changed their name to an Americanized one were automatically investigated. But perhaps most importantly, the AP reports argue that the counterterrorism program has not been as effective as it’s often said to be. Despite its mixed results, Kelly writes about the program as the crowning achievement of his time in office. Citing 16 plots foiled since 9/11, the commissioner makes a strong case for the unit’s efficiency. The AP reports also cite a list of 14 alleged terrorist plots that Congressman Peter King (R-NY) believes were stopped thanks to the NYPD’s counterterrorism efforts under Commissioner Kelly. However, the articles state that the list “includes plans that may never have existed, as well as plots that the NYPD had little or no hand disrupting.” All of this leads to doubts about the purpose and efficiency of Kelly’s prized antiterrorism unit.

Beyond all of the quantitative data that’s left unaddressed, Kelly’s arguments completely ignore the physical, emotional and economic consequences that result from the NYPD’s flawed policies. African-Americans, Latinos, Muslims, and other discriminated groups are not receiving the essential social service of security from their state. Instead, they are constantly reminded of how intensely New York sees them as a threat. The alienating effects of this structural violence erode trust in state institutions and, ultimately, the rule of law. Kelly points out that a majority of NYPD officers are themselves minorities, apparently implying that somehow having a racially varied police force delegitimizes charges of racism. This point is one of the weakest in his speech, as it completely disregards the systematic, structural oppression that disadvantaged minorities face from many institutions of power — regardless of the races of their members. To put it bluntly, it doesn’t matter what background police officers come from if they’re required to follow a flawed protocol in order to do their job.

Despite all the criticism directed at policies like stop-and-frisk, Kelly still believes he has public opinion on his side, noting that his approval rating is 63%. However, the Quinnipiac University survey he cites showing 70% approval for the NYPD and an 83% approval rating for counterterrorism programs also contains some facts he neglected to mention. The same survey shows that 66% of those polled expressed support for creating a position of an inspector general to independently monitor the Police Department — one of the remedies proposed in the Floyd v. City of New York decision. More importantly, the survey shows that 51% of voters disapprove of the stop-and-frisk policy, with much wider margins of disapproval among the black and Latino communities.

Kelly holds on to the hope that an appeal against the Floyd decision will pull through and annul all the procedural alterations Judge Scheindlin ordered for the NYPD. He and his supporters — such as outgoing mayor Michael Bloomberg — celebrated when the U.S. Court of Appeals halted Scheindlin’s decision while it considered the city’s appeal. Explaining the decision, the three-judge panel that removed Scheindlin from the case said that they did so because Scheindlin had compromised “the appearance of impartiality,” by allegedly guiding the case to her courtroom in violation of judicial code and granting interviews while a decision was still pending.

While the outgoing commissioner might think that these developments will safeguard his legacy, he will likely be disappointed. The recent landslide victory of Democrat mayoral candidate Bill de Blasio spells certain change for the NYPD and its proactive policing policies. On the campaign trail, de Blasio condemned the current policies as racial profiling and pledged to support Judge Scheindlin’s ruling, as well as a commitment to apply the measures stated in her opinion. The city’s appeal of her decision will almost certainly be dropped as soon as he takes office. Though Kelly’s speech highlights his supposed concern for the wellbeing and rights of minorities, those same people will likely be the ones celebrating the end of his regime. Proactive policing’s greatest advocate will spend the coming years watching much of his policing framework being undone. If the facts are any indication, New York will be better off for it. Grandma’s love might be better directed at the next NYPD commissioner.

Editor’s Note: BPR invites readers to share comments, opinions, experiences, letters and articles in response to our ongoing coverage of Commissioner Ray Kelly. Please send your response to comments@brownpoliticalreview.org, and place “Ray Kelly” in the subject line.

In the last two months at Brown, it sometimes feels as though we’ve been witness not to a news-generating controversy but a campus-wide social experiment. Following the protests of Commissioner Ray Kelly’s Taubman lecture, it seemed like every student had to process the events, face the central issue and articulate a stance, summed up in the credos we heard thrown around for weeks. “I don’t agree with what you say, but I defend to the death your right to say it.” “Racism is not up for debate.” “The First Amendment guarantees many things, but not the right to never be offended.” “We don’t have to tolerate the intolerant.”

Throughout this rocky semester, we remembered a quotation, too. It was from Professor Francoise Hamlin’s course, “History of the 1960s,” in a letter from a journalist named William Bradford Huie. The letter was written after the death of fourteen-year-old Emmet Till, who was brutally slaughtered during a family visit to Mississippi by two southern white bigots in August, 1955. The picture of Till’s body became a mass media icon, the human wreckage of Jim Crow’s cruel and unbending hegemony, and a moment of reckoning for white America. It’s easy to forget that in the year Till was murdered, only 5% of Americans considered Civil Rights the most important national problem; even as late as 1966, Martin Luther King had a meager 33% approval rating. In a political environment where demanding justice was uncouth, the Till photograph at the time served as civil rights’ crucial emotional breakthrough.

“When I explain a murderer, I am not seeking forgiveness for him; I am seeking a cure, for him and for those who come after him,” Huie wrote after publishing his story about Till’s murder. “Will cancer be cured by making propaganda against it?”

When the two perpetrators were found not guilty after 67 minutes of deliberation by an all-white jury, Huie convinced the men, protected by double-jeopardy laws, to confess to murdering Till in a joint interview for Look Magazine. The story, published in January, 1956, solidified Till’s case as an undeniable atrocity, and spurred momentum among politicians for the passage of the 1957 Civil Rights Act. But the story also came with a cost. Not only did Huie pay a huge sum to the violent bigots for them to describe in bone chilling detail how they murdered Till ($4,000, or over $33,000 in 2012 dollars), but he also published insights that complicated the powerful narrative of Till’s death that had then begun to stir Americans’ conscience. In Look, Huie reported details about the perpetrators’ families and their heroic acts as war veterans, as well as Till’s various trysts in Chicago. In short, Huie published an astonishing conclusion: Till, as well as his perpetrators, were human.

The story didn’t fit neatly into the message of the moment, one that made Till out to be a martyr. Later, Huie would receive a letter from one civil rights activist, a woman of color. She wrote:

Your story is a disaster. The Till case has been of immense propaganda and fundraising value to Negroes and their white supporters in the race struggle … Now you have spoiled the image. Not only have you made Emmett Till into a less sympathetic character, but after I read your account I felt sorry for everybody: for the murderers as well as the brash young Negro. You knocked some of the crusading zeal out of me: I just wanted to sit down and weep for the whole human race. But that’s a luxury I can’t afford because I’m a Negro and I must fight. You can afford it: you can afford to understand the tragedy of both the executioner and the victim. But I can’t … The effect of your effort has been to discourage me and to neutralize a valuable propaganda weapon in the fight for racial justice.

Here is Huie’s reply, the letter read in Hamlin’s class:

“Humanity needs crusaders; Causes need partisans. Crusaders and partisans prefer propaganda as their weapon, not truth. But humanity also needs understanding. And truth, not propaganda, promotes understanding.

To me a brash young Negro preoccupied with sex is not an unsympathetic character. And when I explain a murderer, I am not seeking forgiveness for him; I am seeking a cure, for him and for those who come after him. Will cancer be cured by making propaganda against it?”

Racism, like cancer, doesn’t deserve respect, but it does deserve a cure. And like any human problem, that would seem to require our understanding. Most people agree this kind of understanding can’t be reached with pure logic, or a persuasive talking point, or after one night in Alumnae Hall. But it begins, at least according to Dr. Martin Luther King, Jr., with a key ingredient. “If you love your enemies,” he said in his seminal “Loving Your Enemies” speech in 1957, “you will discover that at the very root of love is the power of redemption.”

Do you like Ray Kelly? In a weeks-long spree of public forums — Wednesday’s assembly in Alumane Hall, the next day’s Teach-In in Salomon, the open dinners with President Paxson, the more recent Janus town hall — Brown students resoundingly said “no.” That’s fine. If your mission is to defeat policymakers like Kelly, you’re certainly not required to like him. But, regardless of your politics, we’d be better off taking King’s advice. King emphasizes that he doesn’t preach “Like Your Enemy.” “There are a lot of people that I find it difficult to like,” King said. “I don’t like what they do to me…and other people.” But the Greek principle of agape (ah-GAH-pay) — “a love that seeks nothing in return…an overflowing love”— informs a kind of love that “is greater than like.”

That notion was controversial, and still is. That Malcolm X thought of King as “a modern Uncle Tom” is a reminder that allies in the struggle for equality disagreed, sometimes viciously, over method and substance. “The goal of…King,” Malcolm continued, in a televised interview, “is to get Negroes to forgive the people who have brutalized them for 400 years.” In a fascinating moment, Malcolm turns the debate on the moderator, the psychologist and civil rights titan Kenneth C. Clark. Malcolm quotes Clark for his own purpose, citing an earlier article in which Clark characterized King’s brand of non-violent resistance as “psychologically burdensome.” Clark interrupts. “There is one correction, Mr. Malcolm,” he responds. “I said that his methods are effective. His philosophy, of love of the oppressor, I thought that was psychologically burdensome.”

Malcolm and Clark’s debate never went away. Those who preferred that Kelly remain silent might point Clark to another kind of love — a love they don’t want adulterated by someone whose policies have threatened the livelihoods of students, and caused pain to our family on campus, pain that those of us not subjected to systemic oppression can’t understand. They point out, correctly, that those of us born of privilege must acknowledge that divide before we can walk around preaching civility (or quoting King). “You can’t know what it’s like to be profiled,” one protestor in our BPR family told us late one night. “Just like I can’t know what it’s like to be white.” We agree. For many students that share our personal backgrounds of race and privilege, it’s increasingly difficult to acknowledge, let alone transcend, that difference in experience.

But what we haven’t heard, from anyone in the debate, is the idea that this acknowledgement alone is the only issue, or that it might preclude King’s description of agape.

As editors, we didn’t publish these remarks to make a point about being cordial, or some vain posturing statement about democracy or free speech, or even to take sides in this debate. We published Ray Kelly because we love him.

It’s not, and it doesn’t. We imagine this is why King said that, “In order to love your enemies, you must begin by analyzing self.” But he also said that the “weapon of love” was chosen because it was the most powerful, not because of the convenience of waiving carte blanche a half-millennia of cruelty. It’s just better than anything else at disturbing the “sense of contentment” that takes root and metastasizes in any community that enjoys a comfortable proximity from injustice. “You’ve just got to love the hell out of them,” Congressman John Lewis recalls in a conversation with King before the 1963 March on Washington. It’s tempting to confuse Lewis’ and King’s ideology for acquiescence, as some students have pointed out that we’re not required to tolerate the intolerant. And we agree with them, too. As editors, we didn’t publish these remarks to make a point about being cordial, or some vain posturing statement about democracy or free speech, or even to take sides in this debate. We published Ray Kelly because we love him.

We love Ray Kelly. We love him in King’s sense of agape —  and for us, agape stands for more than a philosophic novelty dug up from the past. It stands for a notion of recognition through understanding, without which politics isn’t possible. For his supporters, that could mean a kind of respect for a policymaker who truly believes he’s doing the right thing. For his opponents, it might mean loving one’s opponent enough to want to change his mind, and his heart. Ray Kelly is not Roy Bryant or J.W. Milam. But the moral momentum from the Till murder (the Montgomery Bus Boycott began three months later) gained considerable speed when a mild-mannered journalist engaged in a quiet question-and-answer, as two murderers described their crime like it were any other day. The perpetrators walked away with an enormous sum of money for their time. But without Huie’s interview, and Bryant and Milam’s published testimony, what some historians describe as “the catalyst of the civil rights movement” might have been permanently lost to history. Are we really to believe, then, that Milam and Bryant deserve better treatment than Kelly?

Not everyone agrees with this logic. “That’s absurd,” remarked one of our graduate student friends in the Blue Room, shortly after October’s events. “There’s nothing that can happen in some stupid Q&A that’s going to make Ray Kelly change his mind.” Besides overlooking the razor close margins of on-the-fence voters who might need their minds changed, it’s hard to imagine a prophecy more self-fulfilling: a man will simply never change his mind — so why bother? The same logic would dictate that what happened inside Alumnae Hall the next day must also somehow be impossible — when students, angry and confused and looking for explanations, tried for a moment to communicate.

If you believe Kelly is a lost cause, we would respectfully point to a historical record replete with many who were on the wrong side of history but came full circle. “I know now I was wrong. Intolerance had no place in America,” said former Senator Robert Byrd in 2005, on his early ties to the KKK, adding: “I apologized a thousand times…and I don’t mind apologizing over and over again.” Alabama Governor George Wallace (“Segregation now, segregation tomorrow, segregation forever!”) famously asked for, and received, forgiveness from some civil rights leaders. We don’t think the NYPD deserves to be compared to the KKK. Then again, some do. And some have plenty of other comparisons. Either way, these are victories that came about not because of shoutdowns and disinvitations (since it was often these men who were doing the shouting and disinviting), but instead a nation in conversation with itself and its conscience. For those who would have preferred to keep him silenced, then, the territory that inhabits Commissioner Kelly’s mind isn’t a lost cause so much as a lost opportunity.

Still, the arguments of some student protestors have complete merit. Plenty of students want to defend a community built on principles of justice, fairness and equality. They point to bigger ideas of free speech — the broader principle of honoring all democratic actors as equal, and the threat that comes from legitimizing a figure who doesn’t view their own voices as legitimate. It’s true: not everyone has equal access to the megaphone. That’s always our goal for BPR, a tiny additional drop in the dialogue that can come from passing the megaphone — as long as it’s in service of understanding, not propaganda. We think this qualifies. Commissioner Kelly’s speech represents a pressing judicial question currently being litigated in federal court. It also could have implications for questions still standing before a campus disciplinary committee. And it might answer the questions of students who would otherwise always wonder what they missed that day. But if, in spite of these things, it still strikes you as inconceivable that we would publish this speech on account of Commissioner Kelly’s politics, then this website is not for you. The goal of beating back racism is a fundamental principle that unites this campus. But agape is a principle that is also uniquely ours at Brown, and the confidence that opponents can be bested with ideas and compassion.

As the lawyer’s phrase goes, “When you have the facts, pound the facts. When you don’t have the facts, pound the table.” When it comes to this semester’s debate, this community has the facts. We hope that’s what you’ll see in BPR’s coverage this semester — whether it’s in Francis Torres’ fact-by-fact analysis of Kelly’s remarks, Henry Knight and Sabin Ray’s defense of free speech, Lewie Pollis’ appraisal of legitimate protest, our liveblog from Alumnae Hall, or Emily Kassie’s viral media production, bringing viewers inside the auditorium to experience firsthand the events of that day. In these features, the NYPD is afforded a measure of civility and respect matched only by the toughness of the questions it faced, questions that often come from a Brown community that demand an explanation for policies that are perhaps two court cases or less from standing permanently on the wrong side of history.

Throughout the semester on this issue, we preferred the facts over the table, the cure over propaganda. To the people who disagree, here is our response.

We love you, too.

Editor’s Note: BPR invites readers to share comments, opinions, experiences, letters and articles in response to our ongoing coverage of Commissioner Ray Kelly. Please send your response to comments@brownpoliticalreview.org, and place “Ray Kelly” in the subject line.

James Forman ’88, Clinical Professor of Law at Yale Law School, talks to Brown Political Review’s Annette Lopez. Professor Forman teaches and writes in the areas of criminal procedure and criminal law, constitutional law, juvenile justice and education law.

Brown Political Review: How did your time at Brown influence your decision to work in the law?

James Forman: At Brown, I became very interested in social change and in institutions of power, and how the government and the legal system impacted the lives of people. I did things like studying the history of the Civil Rights Movement, comparing race relations and civil rights movements around the world. One of the things that became clear was that the law was a very powerful force in American society for good or for ill, and courts could play a prominent role for good or for ill. So I became interested in law as a way of thinking about how could we make ours a more just society, a more fair society, a society that was more equal. Brown introduced me to those concepts.

BPR: What were the main issues on campus when you attended Yale Law in the 90s?

Forman: The main issue that affected us in law school was the whole question of police brutality. I was in law school when the Rodney King Riots happened (the initial beating and then the verdict and the riots). That was the event and the set of issues that were most on the minds of us as students, particularly students of color, or students who were interested in social justice issues, who really couldn’t get away from that issue.

BPR: Could you speak a little about your time at the DC Public Defenders?

Forman: I had originally gone to law school thinking I was going to be a civil rights lawyer, but when I was working for a law clerk I began to see the criminal justice system and the unfairness in the system as a civil rights issue. I decided to become a public defender because I felt that this was the civil rights issue of my generation, and everything at PDS made me glad that I had made that decision. It’s an office full of people who are completely passionate about their work, who are committed to their clients, who are committed to their cause, who are committed to one another.

I remember when my mom, who was in the civil rights movement in the 1960s, came and visited me at PDS at my first year. She walked around the building, and it was crumbling then, and everyone had revolutionary posters on the wall. And my mom said, “This reminds me of, it feels like a movement office, it feels like a 1960’s-style office.” So it did have that feeling of, “We’re representing people, we’re fighting for a cause that the larger system doesn’t see, doesn’t believe in, doesn’t understand, we’re fighting for those people that everyone else just wants to write off and in many cases, just wants to bury and remove far away from us.” There’s something that’s really inspiring about picking a fight that you care about, that you’re passionate about, with a group of people who feels the same way, and that’s why that was such an amazing job.

BPR: A lot of legal scholarship focuses on abstract ideas and theories, but your work focuses on real problems. You’ve written a lot about prisons, mass incarceration, juvenile justice and education, and policing. Why did you take that particular approach to scholarship?

Forman: I’m interested in a group of people, a set of communities. In other words, I’m interested in people who are struggling, poor people, working class people, minorities: particularly in this post-civil rights movement era, in the parts of the African American community or the parts of minority communities, more generally, who haven’t benefited from the amazing doors that have opened. I was able to benefit from that: I went to Brown, I went to Yale, I worked on the Supreme Court. My father grew up poor, eating dirt in the Depression in Mississippi, because that actually filled his belly, and there’s a generation of black people who fought incredibly hard so that their children and their grandchildren wouldn’t have to live lives like that. And now there’s a whole group of people like me, those of us that now have walked through the doors that [the older generation] opened, who didn’t have to fight to break down the barriers of Jim Crow, who are able to live lives that were unimaginable to our parents and grandparents.

I look at that world and I think, what am I going to do to try and make it more just and more equal and more fair? I look at poverty. I look at a criminal justice system that’s completely over-involved in peoples’ lives, in a country that has 5% of the world’s population, and 25% of its prisoners. I look at that world and I think, what am I going to do to try and make it more just and more equal and more fair? So those are the issues that took me to the Public Defenders Office, those are the issues that make me want to start an alternative school for kids in the juvenile justice system. I didn’t stop being interested in those things once I become a law school professor. I would have to quit, or do something else, if I were not able to write about the relationship between legal structures and power and government policy and those communities. So I don’t really see any other choice. I cannot imagine writing about anything else.

BPR: Are there any new projects you’re working on?

Forman: I’m writing a book that looks at scholarship that impacts the enormous prison system, and this growing criminal justice system, but there actually hasn’t been very much that looks at the causes on how we got here. So I’m looking at the evolution of the criminal justice system in the United States starting in the 1960s, but my real focus is the 1970s, 80s, and early 90s, which is when we built this system that we have now. I’m writing about the causes of mass incarceration, and about African Americans as political agents. When we read about black people, especially in the criminal justice system, we see more generally, is people who are “acted upon,” as criminal defendants or victims of crime. But there’s very little out there that looks at black police officers, black corrections officials, black prosecutors, black voters, black mayors, black legislators.

Since the early 1960s, our prison system has grown by 700%. During that same period of time, the number of black elected officials in our country has grown 800%, so how is it that alongside this growing black political class, and black political empowerment on one hand, we have this ever increasing prison system? What’s the role that African Americans have played in developing this criminal justice system? So that’s the story that I’m telling in this book. It’s a historical book, but it’s also a book that makes an argument about law and the legal process.

BPR: What’s your take on Judge Scheindlin’s decision in Floyd v. City of New York on stop-and-frisk?

Forman: Stop-and-frisk is a complicated set of issues, but here are a few things we need to think about when we think about the practice, and when we think about the decision. The NYPD has prided itself on reducing crime in New York City. And so one question is, to what extent has stop-and-frisk contributed to the reduction of crime? The story is much more complicated than Ray Kelly or Michael Bloomberg would suggest. Some things that people need to keep in mind when they think about it are, first of all, the rapid explosion of this very aggressive use of stop-and-frisk, which of course is constitutionally approved tactic. The growth really started about 2003 and 2004, when we see this really almost exponential increase in its frequency in New York. The important thing to know is that crime had begun to decline in New York more than a decade before they began to implement this policy. And the other fact that’s important to keep in mind is that over the last year and a half, there’s been a dramatic decrease in the use of stop-and-frisk – in part because the law suit was filed, but here’s the other thing: crime has continued to decline, even as the policy has been curtailed. The other thing to know is that cities who don’t use this policy have seen crime decline. So it’s hard to make the case that the aggressive use of stop-and-frisk in the way that New York is practicing it is essential to driving down crime.

And we’ve just been talking about the benefits, how critical this policy is to public safety, but we also have the question of cost. The real problem I have with stop-and-frisk is that in essence, what Kelley and Bloomberg have done is say, “Look, black men commit a disproportionate amount of crime in New York, and therefore it makes sense for us to stop them at these disproportionate rates.” But when you think about costs, the real question isn’t what percentage of overall crime do blacks commit. The real question is, on any given day if you look at a particular African American man who’s standing out on the street, is that person more likely than not to be involved in criminal behavior? And the answer there is no, the overwhelming majority of black men walking around New York City on any given day are not breaking the law. They’re not carrying guns or drugs, and yet, they’re being stopped in these really disproportionate numbers. The toll that takes, and what they’re telling black New Yorkers, is that because your group is more likely than other groups to be involved in criminal activity, then each of you pays this tax. Because other people, who are also black men, commit crimes at higher numbers, we are going to subject you to this.

And here’s the thing, we can define groups otherwise. For example, let’s take race out of it. Men commit an overwhelming amount of crime in New York, and everywhere. And Kelly and Bloomberg could say, “We are going to stop all men, because all men commit crimes disproportionately.” Of course they don’t do that. But because of how crime has become so racialized in our consciousness, as soon as you say black men and crime, a lot of peoples’ analytical abilities just fail. And I think that’s part of what’s happened in New York.

The final thing I’ll say about stop-and-frisk, and this is what I wrote about in my op-ed in the New York Times, is that there are other alternatives to policing. It would be a hard question if it were the case that this was the only way to save black lives, and the cost of saving black lives was to lock up other black people. That would be a profoundly challenging moral question, and I don’t know where I would come down on it. But it’s not the only way. So one of the things that my student and I wrote about in the piece was this notion of focused deterrence, because stop-and-frisk is unfocused deterrence. It’s basically saying we’re going to keep black men from taking guns out on the street by letting any black people be stopped. Well, that’s very unfocused, because that means that you’re focusing your attention only on black men, of whom the overwhelming majority is innocent. But what focused deterrence says is, let’s actually try to identify the people based on real behavior that they’ve engaged in, not the color of their skin, their prior records, the fact that they’ve been arrested, that they’re a member of this particular gang or crew. And let’s target our attention on them. Let’s send them a moral message that says that they’re destroying their community, let’s send a law enforcement message that says we’re watching you, and let’s send them a social work message that says there are other programs available for them to choose another life. I think this idea has tremendous promise. My point on this is that given the cost of stop-and-frisk, we need to explore all these other options that are less costly, less painful, less racially damaging, less demoralizing to the minority community, before we choose this one, incredibly invasive, toxic method of policing.

BPR: What are the most important issues our criminal justice system is facing right now?  

Forman: The biggest issue we’re facing is that we have way too many in prison, and too many under criminal justice supervision. We are in a system at a breaking point. And we talked about this earlier, but the notion that the wealthiest country in the world, the most powerful, has 5% of the world’s population, and 25% of its prisoners, that right there tells you that something is wrong. And then we have to start figuring out what it is.

There are two or three big-picture criminal justice reform issues we have to think about. One is new approaches to enforcement of drug laws. For example, I run a clinic called Innovations in Policing, and one of the things we’ve done is look at models around the country that are trying to do things differently. One of the models, in terms of drug law reform, that we looked at is Seattle. There’s a program there called LEAD (Law Enforcement Assisted Diversion), which empowers police officers, when they are confronting somebody whom they otherwise would arrest for a low level drug offense, to refer that person directly to drug treatment as an alternative to processing them through the criminal justice system.

One of my other big areas of focus is that we can’t only talk about the drug laws. There’s that myth perpetuated by opponents of mass incarceration that somehow, if we just fix the war on drugs, that this whole problem will be taken care of. But the number just don’t support that. One of the areas we really have to focus on is violence, for two reasons: one, because it’s a real driver of this enormous prison system that we’ve had, and two, because it is doing incredible damage to the same communities that are being harmed by mass incarceration. So if you’re going to talk about mass incarceration, and you’re not going to really get down and dirty on dealing with issues of violence, then you’re not actually an authentic representative of the pain these communities are suffering.

That’s actually one of the reasons why I’m drawn to programs like the focus deterrence model that we just talked about, because you can use it for drug law enforcement, but it also can be used in certain communities on violent crime, specifically. So again, one of my big pushes in the criminal justice world is to say we need to have a progressive anti-violence agenda, and our whole agenda cannot only be about root causes. We need to talk about racism, and poverty, and having better health care, we can actually never stop talking about those topics. But we also have to have a criminal justice law enforcement agenda that’s infused with progressive values, and so that’s where focused deterrence is an example. I also think new approaches to policing, alternatives to stop-and-frisk that we’ve talked about, are big areas.

BPR: What’s your take on the Department of Justice mandating changes that would eradicate mandatory minimum sentences for some drug-related crimes?

Forman: I got the impression that whomever was likely to be affected by these proposed reforms was a relatively small number of people. So if we imagine the whole universe of people that are facing the mandatory minimum for drug offenses, and then assume they’re talking about taking the most sympathetic 5 or 10% of that group, then that makes sense. In fact, I think there’s a larger group who are facing mandatory minimums and shouldn’t be, and that’s mainly because I just am not a fan of mandatory minimums. The judges in our federal system, or in our state systems, have the ability to take into consideration the totality of the circumstances in individual cases. I think people are often going to get pretty long sentences even without a mandatory minimum underneath it, and really what the mandatory minimum does is take power and discretion that judges used to have and transfers it to the prosecutors office. Between prosecutors and judges, I would rather have judges have that discretion, that authority to make the decision in the individual case. I think that judges are institutionally more used to looking at the whole picture, whereas the prosecutors in our current system overwhelmingly think about things from the perspective of law enforcement: the victim, the rights of the victim. And so they just generally tend to push towards greater harshness, on average. So in general, it’s a good first step, but I’d want it to go further.

When the wealthiest country in the world has the most prisoners in the world, everybody in the system needs to be thinking about what can we do to reduce the size of our prison population. I would want probation officers, judges, prosecutors, defenders, parole, and further down the line to be thinking about this question. I don’t want to say that prosecutors shouldn’t be thinking about it, but that what a mandatory minimum does, is say that the judge no longer has the discretion to give a sentence below that number. So when a prosecutor files those charges, if the person is convicted of pleads guilty to an offense that has that mandatory, then it’s game over –it doesn’t matter how sympathetic you are, it doesn’t matter if it was a big conspiracy that had a lot of people involved, but you were a tiny little player that did the smallest thing: you can be liable for the whole conspiracy. That’s where we are now in our legal system, with the interplay of conspiracy laws and these mandatory minimums. So as a result, there’s case after case after case where it gets to the judge.

BPR: Why are juvenile justice and education all of a sudden in the news?

Forman: Crime started going up in the United States in the late 1960s, and it went up in the ‘70s, ‘80s, and early ‘90s. And in the late ‘80s and early ‘90s, we had the crack cocaine era, with incredibly high rates of violence and disorder. And so that 25 year period of crime increase traumatized people. And there was a total unwillingness, in the context of that kind of fear and anger, to consider alternatives to incarceration, treating juveniles as kids instead of putting them in the adult system. Then you have another 10-15 years where crime starts to decline, starting in the mid-‘90s, but people were still traumatized from those earlier years. And it’s not like crime goes away, it’s just declining. And people are suffering that trauma every time you put forward some more progressive approach, they say, “Don’t you remember the bad old days?” And all you can do is double down on this policy. Now, crime has been declining, and consistently, for long enough that people can begin to pay attention to the consequences of what we’ve done in the past 30 or 40 years in response to what was a very real problem. That has opened up a little bit of space for people to ask some hard questions, like, “Has the pendulum swung too far?”

BPR: Recently, Virginia implemented a new system to restore voting rights automatically to nonviolent ex-felons who have paid their debt to society. However, in most states, the restoration of voting rights are highly circumstantial. For example, in Kentucky, only the governor can reinstate such civil rights.

Where do you stand on restoring voting rights to ex-felons who have paid their debt to society? Do you think all states should follow in the footsteps of Virginia and restore voting rights automatically to nonviolent ex-felons?

Forman: This notion of removing people permanently and forever from the political community strikes me as deeply counterproductive, and bizarre on some level. People get convicted, they serve their sentence, and then they come back to communities. And what we say to them is, “Now it’s your time to go back to society and to reintegrate yourself into society, and you need to live by the rules and you need to get a job.” And the statement we should be making is, “You are one of us, you’re not an alien, you’re not from another planet, you’re not even from another country. You are a citizen, you never lost your citizenship, and now you’re coming back to the community. And we want you to be fully invested in every way – but you can’t do this thing that is fundamental to American citizenship.”

That sends a message to people that they are forever an outsider, and that’s not a message we want to send: not for their benefit, and not for our benefit. If we don’t think they can be part of the nation, then they should remain incarcerated. Of course there are some restrictions, like they may have to report to a parole officer, or they may have to take drug tests. But I don’t think it’s plausible that we need to deny them access to the ballot.

It is good to be back after last week’s live-blogging interlude. Only later did I come to know the real reason I was tasked for the assignment: the now infamous and then-still-plausible Commissioner Kelly event was scheduled to take place at the same time. This event and its aftermath have dominated campus discourse in a manner I have yet witnessed at Brown. But through all the fallout, I have heard little conversation about either stop-and-frisk or its uncertain future. So beyond adding two thoughts to the broader campus discussion, I think it would be instructive to supplement Ben’s valuable synopsis and discuss the litigation related to the policy more robustly.

1. I never read President Paxson’s missives to the community. Her e-mail following the Commissioner Kelly event, however, seemed an extenuating circumstance. I further confess my concurrence with her opinion that, above all, the academy generally and Brown in particular are devoted to the free exchange of ideas. No words express this sentiment more aptly than Justice Holmes’s in Abrams v. United States, a notorious case in which the Court held the First Amendment did not protect anti-war leaflets because they advocated a strike in munitions production and the violent overthrow of the government. “[T]he ultimate good desired is better reached by free trade in ideas,” Holmes writes in his famed dissent. “[T]he best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which…wishes safely can be carried out.” Just as market forces can suppress malevolent thoughts or ideologies better than any act of state censorship, so too could an open, informed, and respectful discussion have condemned the policy of stop-and-frisk more effectively than any shouting match or demonstration of defiance.

2. Constitutional scholar John Hart Ely articulates an interpretive theory known as proceduralism in his seminal work, Democracy and Distrust. In part, this theory posits that judicial review – and the subordination of the (at least theoretically) more democratic judgments of the political branches which invariably accompanies it – is justified when “the opportunity to participate in the political processes by which [substantive] values are appropriately identified and accommodated…has been unduly constricted.” To Ely, for example, the Supreme Court’s establishment of the “one person, one vote” principle in Reynolds v. Sims was a legitimate instance of judicial review, even if arguably extreme (since it explicitly overturned the Court’s determination just two years prior in Baker v. Carr that state legislature redistricting constituted a political question). Because malapportionment fractured the political process by which minorities could combat the social, political, legal, and institutional forces of discrimination, privileging the judgment of the more insular judiciary was not only appropriate, but in fact more democratic. This detour into constitutional theory provides the basis for a somewhat attenuated analogy: because normal political processes are and have been functioning properly – with an electorate clearly motivated by opposition to stop-and-frisk and a federal court granting declaratory and injunctive relief against the city (venues where policy value and legality are appropriately identified and accommodated) – by this logic, resorting to disruptive protest was unjustified.

Just as market forces can suppress malevolent thoughts or ideologies better than any act of state censorship, so too could an open, informed, and respectful discussion have condemned the policy of stop-and-frisk more effectively than any shouting match or demonstration of defiance.

The lead stop-and-frisk case, Floyd et al. v. City of New York, challenged the policy’s constitutionality under the Fourth Amendment’s prohibition on unreasonable searches and seizures and the Fourteenth Amendment’s guarantee of equal protection. Having been certified as a class, plaintiffs were required to establish Monell liability in order to challenge the constitutionality of a municipal policy thus. This species of tort liability extends to the violation of certain constitutional rights on the basis of a municipality’s official policies, customs, or usages. To satisfy this causal requirement, plaintiffs were further compelled to show either that the municipality acted with deliberate indifference towards such violations or that the policies or practices in question were “so persistent and widespread as to practically have the force of law.” Concluding both of these requirements met, Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York (whom President Clinton appointed in 1994 and whose willingness to make bold and oft-overturned rulings has engendered criticisms of judicial activism) held the city liable for both Fourth and Fourteenth Amendment violations under Monell.

Of these, an analysis of the former takes place in the context of Terry stops. In the eponymous landmark case Terry v. Ohio, the Court held that neither temporary stops nor frisks for weapons – when based upon reasonable, articulable suspicion (RAS) that the person is involved in criminal activity or armed, respectively – were unreasonable for Fourth Amendment purposes. Consequently, Judge Scheindlin’s Fourth Amendment rulings hinged on the individual circumstances surrounding each of the Floyd plaintiffs. For some, the stops were unconstitutional because they were based not on a RAS of involvement in criminal activity, but rather on vague justifications such as “furtive movements” or “high-crime area.” Other cases satisfied the RAS of involvement in criminal activity but violated that standard with respect to the ensuing frisk. Because frisks must be limited to the purpose of protecting officers against armed suspects, the warrantless seizure of contraband is only permissible when a lawful pat down reveals an object “whose contour or mass makes its identity immediately apparent.” Violations on either level are sufficient to establish unconstitutionality, and Judge Scheindlin’s reasoning on the presence of such violations was sound.

So too was her rejection of the city’s argument that targeting people for stops based on racial classification supposedly did not violate the Equal Protection Clause because such policies were based on crime suspect data. While Judge Scheindlin accepted two claims that were independently sufficient to establish an equal protection violation – an express classification on the basis of race that does not survive strict scrutiny and the application of a facially neutral policy in an intentionally discriminatory manner – I am inclined to accept only the latter. Nevertheless, the overall disposition of the merits in Floyd seems proper. However, last week the U.S. Court of Appeals for the Second Circuit issued a stay, halting the remedies ordered – which included immediate policy changes, the appointment of an independent monitor to oversee compliance, and a remedial process to consider further reforms – and assigning a new judge to the case. The three-judge panel determined that Judge Scheindlin’s invocation of S.D.N.Y’s related case rule ran afoul of the Code of Conduct for federal judges, which provides that they should “avoid impropriety and the appearance of impropriety” and recuse themselves in cases where “[their] impartiality might reasonably be questioned.”

Specifically, Judge Scheindlin encouraged Floyd’s designation as related to another case involving stop-and-frisk that, when filed in 1999, was randomly assigned to her. Though she rejected the attempts of the plaintiffs in that case, Daniels et al. v. City of New York, to revive litigation in 2007, she suggested an alternative path. “[I]f you’ve got proof of inappropriate racial profiling in a good constitutional case,” she remarked, “why don’t you bring a lawsuit? You can certainly mark it as related.” Indeed, when lawyers filed Floyd the next month – two of whom had worked for the Daniels plaintiffs and, apparently, taken the judge’s advice – they did just that. Accepting the designation, Judge Scheindlin received the case without it being subject to random assignment. Beyond this, her opinion does not avoid the appearance of impartiality, going so far as to conclude with a quote from a New York Times editorial on Trayvon Martin. While it is tempting to chide the Second Circuit by focusing merely on the result of the stay – a halt to the measures designed to remedy stop-and-frisk’s constitutional violations – let us instead close with one more analogy. Just as last week’s events undermined legitimate opposition to stop-and-frisk, so too did Judge Scheindlin’s excessively editorialized opinion betray the merits of her underlying legal arguments, adding to the already frustrating but enduringly preferable pace of weighing and accommodating values through normal political processes.

On October 29th there were two events.

At one, a New York City police commissioner was shouted down. The lecture hall in which he had been invited to speak and the street outside were crowded with angry, offended, frustrated people who did not share his views and were there to let him know it. Their story has been told, and they’ve been criticized and defended plenty already, but theirs wasn’t the only story in the room.

In the annex outside the lecture hall were other people who did not share the police commissioner’s views, but who wanted to hear what he had to say and how he would respond to their questions. As the shouting in the lecture hall continued, the organizers of the event asked the audience to vote on whether Kelly should be allowed to speak. The shouting did not subside, but in the seats beside the shouting people, and in the annex, hands quietly went up.

Across campus was another event, and hands were also going up. Another room was filled with disagreeing people, but after two hours of intense debate those same people reached a consensus. They voted unanimously, from all points on the political spectrum, to ask UCS to speak out against the influence of money in politics.

Brown is an angry place right now. Students are angry with President Paxson for ignoring their voice on coal divestment, and they are angry at an administration that seems to be rubbing salt in that fresh wound by giving a microphone to a man whose views they detest. President Paxson is angry that a vocal minority would have the gall to shut down what could have been an intense but informative discussion. Some are just angry because it’s been a hard couple of weeks. Every person at Brown right now seems to have an extremely good reason for their frustration. And many have taken the effort to express it, with extreme eloquence in a lot of cases.

To want to hear a dissenting voice is not the same as agreeing with it.

But the fact is that a lot of people don’t align themselves totally with the protestors. The people in the annex raised their hands to hear Kelly speak, and it’s important for them—and everyone else—to know that the alternative to anger, anger so strong that it turns people out in droves, isn’t just compliance. There is room for discussion and debate even in circumstances as polarizing as this, maybe not to resolve differences between factions, but at the very least to give those who are still undecided the chance to form their own conclusions. They deserve that right. To want to hear a dissenting voice is not the same as agreeing with it.

Those who protested feel alienated and ignored by the administration, and in their response they have alienated and ignored others. But that is not the only way this story has to go; an alternative was presenting itself at the same time that things on campus came to a head. Even on the angriest day in a long time on campus, members of a small group of people were listening to each other. And they’re going to keep going to, in meetings and personal conversations. Those shouted down in the annex, and all those on campus who feel perpetually ignored by the administration or by their peers, should take heart in that.

Most everyone seems to agree that Tuesday was not our university’s finest hour. I’ve heard many of my friends express some sort of embarrassment for being affiliated with Brown after the Ray Kelly event was shut down because of unruly protestors. But my shame stems not from the fact that a bunch of Ivy League liberals shouted down an authority figure with whom they disagreed, but from the fact that the university invited Kelly to speak at all.

Allow me first to say that I am not speaking on behalf of any of the protestors. I was unable to attend the Kelly event and know of what happened only from others’ stories. Further, I admit that I am skeptical about whether shutting down the event by shouting down the speakers was the most effective means of making the point. That said, it is important to distinguish between objecting to the university’s legitimizing racism and infringing upon the sacred freedoms of speech and thought — and judging by the reactions I’ve seen and heard from my peers, most of those who were offended by the protest are failing to understand the difference.

It is easy to cast the protestors as stubborn illiberal liberals who seek to stifle the opinions of those with whom they disagree. Perhaps for a minority of them that is true. But Kelly, best known for his association with the New York City Police Department’s “stop-and-frisk” racial profiling practices, does not just represent a competing ideology. It’s not just that his views and policies are wrong, it’s that they are based on fundamental racial prejudices that have no place in intellectual discourse.

By doing so for Ray Kelly, Brown University offered this legitimacy to a man who is best known for judging people by the color of their skin.

It is an honor to be invited to speak at an Ivy League university. Just by association, the scholars and luminaries who are chosen to be our guests of honor are lent a unique ethos. For an outsider, to be honored with prestige in academia is a privilege that (in theory) only the most intellectual, inspirational, and truly exceptional enjoy. When Brown University invites someone to speak on campus, we are endorsing him or her as someone whose views are worthy of intellectual discussion and debate at the highest level. By doing so for Ray Kelly, Brown University offered this legitimacy to a man who is best known for judging people by the color of their skin.

You have a right to be racist in this country. If you think certain groups of people are better or more righteous than others, that’s your prerogative. But let’s call it what it is. And bigotry has no place in the most inclusive, open, and accepting community of people I have ever been a part of. “Racism is not up for debate,” one protestor shouted. But according to Brown University, it is.

Ron Paul wasn’t treated this way when he came to campus a few months ago. If Ted Cruz or Paul Ryan came to Brown there might be controversy, but surely each would be allowed to have his say. Why? Because, for whatever objections our students might have to their ideas, there is room for debate. They are thoughtful people who (when they’re not speaking in sound-bites) have interesting and substantive things to contribute to discussions of the biggest issues we face today. Say what you want about their approaches to policy, but their views are not fundamentally based on a distrust of people who are different from themselves.

Would it be appropriate for Brown to pay and give an official platform to Fred Phelps, the head of the Westboro Baptist Church? What about Thomas Robb, National Director of the Ku Klux Klan? Or Jeff Schoep, Commander of the National Socialist Movement? Each of these men has the unalienable right to speak out about what he believes in — including on the street corner across from Faunce, where in my time at Brown several intolerant groups have come to tell us that we’re all going to Hell — but because their views are all based on bigotry and hatred they have no place in the world of intellectual debate.

I realize the potential danger in dismissing some opinions as illegitimate (as a member of the Green Party I am no stranger to the feeling of having my views tossed aside as irrelevant). But when it comes to inviting public figures to speak at campus events, it is fair to expect a certain standard of sensibleness from our honored guests. And saying that the people who whom our university lends legitimacy must have their opinions based in something other than bigotry is not an unreasonable demand.

If I had attended the Kelly event, I don’t know whether or not I would have joined the shouting. On the one hand, it worked, it became a national story (Brown might not come out looking very good, but neither does Kelly) and I am proud to have seen civil disobedience in action on campus. On the other hand, even if it was justified I think it is fair to question the protestors’ methods. Mahatma Gandhi’s doctrine of satyagraha, which also inspired Martin Luther King and Nelson Mandela, was based not in anger but in love — these great leaders knew that only compassion could ease the hatred in their oppressors’ hearts. Regrettably, it seems that lesson has been lost on the Brown community.

I don’t know that I agree with the protestors’ actions on Tuesday. But I am far, far more upset by the fact that our university has implicitly legitimized racism as an intellectually defensible point of view. And it is as unfair as it is incorrect to describe the protestors’ frustration with this endorsement of bigotry as a desire to censor free speech.

While the anger that charged the events leading to the premature end of Ray Kelly’s lecture yesterday was justified, holding the intellectual rights of fellow students hostage was not. Wrestling Commissioner Kelly from the stage stripped other attendees of their right to listen and moreover, undermined the goals outlined by the protestors themselves. The demonstration was a profound misunderstanding of the lecture’s purpose, and by extension, an oversight of more powerful alternative responses to racial profiling. It puts thousands of Brown students in a box without their consent. A coalition largely outnumbered by the student population – bolstered by activists completely unaffiliated with Brown – should not be able to limit the right of everyone else to hear political viewpoints, even problematic ones. To do so is to cast doubt on the intellectual capability of one’s peers to further understand the reasoning behind these policing strategies, and then to decry their injustice.

The disruption empowered a few voices at the expense of silencing many, and unnecessarily so, because the voices of the protestors certainly could have been heard on terms respectful to the free speech of other students attending the lecture. Such an outcome is unacceptable in any intellectual ecosystem that values collective growth. The school’s reputation as a bastion for open-mindedness now appears sullied, but it’s important to recognize that this action is by no means indicative of the university as a whole.

Marian Orr, the director of the Taubman Center for Public Policy, has devoted the entirety of his twenty-year academic career to researching the plight of marginalized communities in urban politics. According to Jamelle Watson-Daniels ’16, who spoke to Professor Orr shortly after the lecture was cancelled, “As a black man, and also as an intellectual specifically studying strategies of political change, his hope was that Commissioner Kelly would be challenged by the intellectual capacity of individuals who are at this school.”

Though the Taubman Center framed the event poorly and failed to explain in concrete terms their motives for bringing Kelly to Campus, it was clearly not Orr’s intention to offer the Commissioner a one-sided platform to condone systemic racism.

The director’s introductory words alluded to the philosophy of Alexander Meiklejohn, an alumnus, former dean, and the namesake for Brown’s first-year advising program. Meiklejohn espoused the right of everyone to hear all viewpoints, believing that change arises through informed intellectual discourse, not through stifling offensive or ignorant opinions. Even if Commissioner Kelly’s “proactive” policing strategies are implicitly racist, outwardly suppressing bigotry breeds the most inwardly stubborn form of obstinacy. When racism is not publicly confronted, it doesn’t disappear, it festers within. Therefore, to compel change requires adopting the bigot’s terms for debate: listening to his logic, even if it may be perverse. Without that understanding, both parties harden in their respective corners, looking down on one another, refusing to search for common ground. Discourse with Commissioner Kelly does not lend legitimacy to his racism; it’s the only tool that can aptly fight it. Democratic mayoral candidate Bill de Blasio cannot simply refuse to engage his opponents on stop and frisk, however unreasonable their stance. His campaign staff knows that without dialogue, a more humane policing policy will never come to fruition.

While challenging Ray Kelly in a Brown lecture hall is unlikely to engender change in the NYPD’s policing strategies, silencing his side of the story nonetheless impedes the evolution of public discourse.

While challenging Ray Kelly in a Brown lecture hall is unlikely to engender change in the NYPD’s policing strategies, silencing his side of the story nonetheless impedes the evolution of public discourse. Offering Commissioner Kelly a public forum with a designated space for questions would have assured the audience exposure to the best arguments for his policies, and just as importantly, the best refutations thereof. The demonstrators directly hindered their own cause by robbing attendees of the opportunity to fully inform their opinions and thus become better advocates for minorities oppressed by systemic targeting. Instead, driving him out of town empowered Ray Kelly with further ammunition to label the community ignorant.

Protesting racially motivated policing strategies deserves admiration. So does a candlelight vigil expressing solidarity with minorities victimized by discrimination. But infringing upon the intellectual rights of others by drowning out a speaker in the midst of expressing gratitude to the family of a deceased alumnus is unacceptable. Of equal concern, the protestors’ incendiary chant branding the entire NYPD as racist, sexist, and anti-gay verged on slander, and conflated the police force’s orders with their personal morality. For the same reasons that we reject Kelly’s policy of generalizing people of color, we should not generalize the work his staff does for the city of New York. This is not a black and white issue, and the police force is not black and white either. Not long ago officers wearing that uniform plunged into the smoke of burning towers felled by terrorists to save the lives of helpless New Yorkers – men and women, white and of color, gay and straight alike.

Demonstrators justified their behavior on the premise that Ray Kelly’s policing practices don’t even merit debate. Why is that value judgment theirs to make on behalf of Brown as a whole? How is it remotely possible to draw a clear standard for when it is or is not legitimate to suppress speech, if indeed some viewpoints are offensive enough to warrant such extreme retaliation? And what exactly did shouting down Ray Kelly accomplish, beyond fostering a widespread discussion of this community’s values?

During the anti-apartheid movement, beloved former president Ruth Simmons faced a comparable predicament. As the fiercest of advocates for marginalized communities, she initially refused to listen to a fellow student’s argument for apartheid. Her 2001 inaugural speech expressed remorse: “I have never forgotten these simple words spoken in opposition to my own. They taught me more about the need for discourse in the learning process than all the books I subsequently read. And I have regretted for 30 years that I did not engage this woman’s assertions instead of dismissing her as racist.”

Brunonians, we can do better.

A new BPR media video captures the moment that protestors shouted down NYPD Police Commissioner Ray Kelly, inside the amphitheater at Brown University where Kelly had taken the stage to speak. Hundreds turned out to protest Kelly for what many view as racially charged police tactics. University officials have not yet released the official video of the public event, titled “Proactive Policing In America’s Biggest City.”

Forgetting the Orwellian aspects of the NSA surveillance program (and you shouldn’t), this story has been pretty fun. Some have labeled NSA leaker Edward Snowden a hero, while House Speaker John Boehner called him a traitor. Rand Paul announced he is suing the federal government. Times columnist David Brooks, after applying some pop psychology to Snowden, concluded that this incident exemplifies how young people don’t trust institutions anymore. People like New Yorker contributor Jeffrey Toobin and Wire creator David Simon, not your usual supporters of the surveillance state, have defended the NSA and criticized Snowden.

Simon’s piece is especially interesting, and he lays out a good case why this program is not a big deal. The NSA is only capturing information about who calls whom and when, not recording the calls themselves. As Simon notes, this is an accepted police tactic. This program is allowed under current law. There was oversight of the program by Congress and the secret Foreign Intelligence Surveillance (FISA) Court.

But concerns over the NSA’s activities cannot be brushed aside so easily. Some Congresspeople have said they were unaware of the program’s existence. The FISA court has only denied warrants sought by the government a minuscule 0.03% of the time. This lack of meaningful oversight is one of the main problems with the current NSA surveillance program, and with many current national security policies. As any middle school social studies student will tell you, checks and balances are a hallmark of American democracy.

The other issue with the NSA’s actions is the level of secrecy. There are legitimate government secrets, and you can argue that this program should be one of them. But the lack of oversight, combined with the massive scale of this program and the amount of data collected from American citizens, means it’s important to have a conversation about it.

It’s worth looking at a domestic security program when thinking about how to handle the NSA program. New York City police use a tactic called “stop and frisk” to question people on the street that they have  a reasonable suspicion may have committed a crime. Opponents have criticized the program because it overwhelming targets black and Latino citizens. Proponents note the dramatic fall in New York’s crime rate over the last decade. The tactic has been subject to legal action that has forced the police to clarify and restrict their procedures. The current mayoral election in New York has included debates about stop and frisk, with most Democratic candidates opposed.

The NSA program and stop and frisk are not entirely comparable. It’s hard for the New York police to hide a program happening on the city streets. There is a legitimate case that antiterrorism activities need a greater level of secrecy to succeed. But both programs involve a trade-off between liberty and security. Like with stop and frisk, NSA proponents argue that the program has been successful and stopped dozens of attacks. But stop and frisk is being overseen by the courts and debated in the political process. The NSA’s activities have not been, until now.

Making such programs public will decrease their effectiveness. But isn’t it reasonable to assume that terrorists – or at least the most skilled and dangerous ones – already assume they’re under surveillance? Will this disclosure change their behavior that much?

In his speech responding to the NSA leak, President Obama said:

But I think it’s important to recognize that you can’t have a hundred percent security and also then have a hundred percent privacy and zero inconvenience. You know, we’re going to have to make some choices as a society.

This is exactly right. But by classifying these programs and denying their existence, the only people that get to make those choices are some White House staff and a handful of Congresspeople. Our society hasn’t been able to have that debate. Sometimes security does mean sacrificing liberty. But sometimes our commitment to liberty means that the national security apparatus must work harder to find ways of protecting us that don’t infringe on our privacy.