On the morning of May 4, 1970, the campus of Kent State University in Ohio was alive with the fury of students who had learned that the United States military had invaded Cambodia. The decision, announced by President Richard Nixon just days before, was an escalation that shattered the slowly weakening public support for the Vietnam War. On the Kent State campus, students had burned ROTC buildings, occupied the Commons, and gathered in the thousands to protest what they saw — correctly — as a widening of the war that had already killed fifty thousand Americans and countless Vietnamese civilians. Governor James Rhodes of Ohio, responding to reports of chaos on the campus, had ordered the Ohio National Guard to the university. On May 3, Rhodes had made a statement that entered the record, that entered the conscience of the nation, and that set the stage for what would happen the next day. The students gathered on campus, Rhodes said, were not merely protesters; they were brownshirts, they were the communist enemy, they were a threat to the republic that might require military suppression. The language was inflammatory. It was designed to be inflammatory. The guard was listening.
On the morning of May 4, under the command of Brigadier General Robert Canterbury, a force of guardsmen assembled on the Commons at Kent State, confronted a crowd of approximately three thousand students who had gathered to protest once more. The guard deployed tear gas. The students, coughing and stung, retreated across the Commons. Somewhere in that chaos, someone fired a shot — possibly a guardsman, possibly a protester; the historical record is not entirely clear. What is clear is that the National Guard, believing itself under fire or claiming it had been, wheeled to face the retreating students. Twenty-eight guardsmen raised their rifles. The next thirteen seconds of history were captured on film and in the testimony of witnesses: the guardsmen firing in volley, 67 shots, aimed into a crowd that now consisted not merely of active protesters but of students who had simply been on the Commons, who were caught between buildings and the guard, who were walking to class.
The Victims and the Moment of Shooting
Four students were killed. Allison Krause, nineteen years old, a political science major from suburban Cleveland, was shot multiple times. Jeffrey Miller, also nineteen, was shot in the mouth while standing in an access road, approximately 270 feet from the Guard — far enough away that he could not have posed an immediate physical threat, far enough away that when the guardsmen claimed they were acting in self-defense against a charging mob, the geometry of his position made the claim implausible. Sandra Scheuer, twenty, a junior, was shot while on her way to class; she had not been part of the protest, had not been throwing anything, had simply been walking across campus when the bullets found her. William Schroeder, twenty, a junior in geology, was also among those who had not been actively protesting. Four of the thirteen seconds' worth of fire had found four separate students, and four students were dead.
Nine others were wounded. One of them was Dean Kahler, a nineteen-year-old sophomore who was shot in the spine. The bullet severed his spinal cord. Dean Kahler would spend the rest of his life in a wheelchair — a permanent punishment, in the form of paralysis, inflicted by the Ohio National Guard for the crime of being on a college campus on a day when the National Guard was ordered to suppress a student protest about the war.
The guard's account was that it had been fired upon, that it had acted in self-defense, that the students had posed an imminent threat to the soldiers' lives. The eyewitness testimony, the photographic evidence, and the subsequent investigations all contradicted this. The students had been retreating. Those killed were not engaged in combat; they were being shot by soldiers who had already gained control of the Commons and against whom no effective return fire was coming. The notion that the guard faced a crisis that required killing four students and paralyzing a fifth was not supported by the evidence that emerged. But the notion did not have to be true. The notion merely had to be plausible enough that a court, reviewing the guard's actions, would be unwilling to second-guess military judgment in a moment of perceived danger.
The Scranton Commission and the Finding of Injustice
President Nixon, alarmed at the national outcry, appointed a presidential commission to investigate the shootings. The commission was chaired by William Scranton, a former governor of Pennsylvania and a Republican elder statesman. The commission heard testimony from the guardsmen, from the students who were present, from the university administration, from journalists and photographers. When it was finished, the Scranton Commission issued a verdict that was unambiguous: the shootings were unnecessary, unwarranted, and inexcusable. There was no ambiguity in those words. The commission was not saying that reasonable people might differ about the tactical judgment of the guardsmen; it was saying that the shootings could not be justified, that the guard had not acted appropriately, that what had happened was wrong.
And then the Scranton Commission's verdict became irrelevant. The legal system took over, and the law — the law of Ohio, the law of the United States, the Fourteenth Amendment's promise of due process, the Sixth Amendment's promise of jury trial — failed to provide any remedy for the injustice the commission had documented.
The Trial and the Acquittal
Eight National Guard members were charged with manslaughter in state court. The trial was a brief proceeding in which the defense strategy was simple: to argue that the guardsmen had acted reasonably in a moment of perceived danger, that they had believed themselves under fire, and that the law permits soldiers to use force when they reasonably believe their lives are in danger. The jury acquitted all eight. No guardsman was convicted of any crime related to the killing of four students and the paralysis of a fifth.
The federal government also brought charges — conspiracy to deprive the students of their civil rights under color of law. But in 1974, the federal judge dismissed the case, ruling that the evidence did not support a finding that the guardsmen had acted with the specific intent to violate the students' civil rights, rather than out of a mistaken belief that they were acting lawfully. The standard was impossibly high: not whether the killings were lawful, but whether the guardsmen had acted with the specific intent to violate law, not whether they had killed students, but whether they had killed students knowing that the killing was wrong. Few law enforcement actions fail that standard, because few law enforcement actions involve an explicit acknowledgment that the law is being violated.
The Civil Settlement and the Absence of Accountability
The students' families filed a civil lawsuit in federal court, claiming that the guardsmen had violated their constitutional rights. The case dragged through years of discovery and motion practice. Eventually, the city and the guard settled: $675,000 total compensation to the families of the dead and the permanently injured. The settlement also included a statement of regret by the defendants — not an admission of wrongdoing, not a statement that the law had been violated, but a statement that the defendants regretted the loss of life and the injuries sustained.
That settlement became the final chapter. No criminal conviction. No civil judgment on the merits. No appellate court ruling that the guard had violated the Constitution. The law had done what the law is often designed to do: it had transformed a question of justice into a question of cost-benefit analysis, and concluded that the cheapest remedy was cash.
The Constitutional Promise Versus the Law's Performance
The Fourteenth Amendment, ratified after the Civil War, provides that no state shall deprive any person of life, liberty, or property without due process of law. The Sixth Amendment provides that in criminal prosecutions the accused shall enjoy the right to trial by jury. The Fourth Amendment protects against unreasonable seizures. The Fifth Amendment protects against self-incrimination. These are the textual protections that the Founders designed to prevent the state from using force against its own citizens without accountability.
On May 4, 1970, the state, in the form of the Ohio National Guard, used force against students on a college campus. The force resulted in four deaths and one permanent paralysis. The Scranton Commission found that this use of force was unjustifiable. And yet, the law provided no criminal remedy, no civil judgment on the merits, no appellate review of whether the Constitution had been violated. The shield of the uniform, the claim of reasonable mistake, the lack of a specific intent to violate law — these procedural barriers rose up to protect the state from accountability, and the courts reinforced them.
The Lesson and the Ongoing Failure
Fifty-six years have passed since May 4, 1970. The law has not changed in its essentials. National Guard soldiers and police officers today operate under the same qualified immunity doctrine that protected the Kent State guardsmen — a doctrine that shields them from civil liability unless they violate a clearly established constitutional right. The definition of what is clearly established is narrow and judge-made; it shifts with each case; and it provides a nearly insurmountable barrier to holding uniformed officers accountable for deaths that occur in moments of perceived danger. The criminal standard — that an officer acted knowingly in violation of law — is so restrictive that it requires not merely a killing that was unjustified, but a killing that the officer knew was unjustified at the moment it occurred. Few officers think in those terms in the moment; few will admit such knowledge afterward.
The students at Kent State were unarmed. They were students, not soldiers. They were exercising what the First Amendment guarantees: the right to assemble and to petition the government. The National Guard was dispatched to suppress that exercise. When it did so by opening fire, thirteen seconds of shooting was enough to take four lives and permanently disable a fifth. The law found no criminal accountability for any guardsman. The law found no civil judgment against the state for violating the Constitution. The law found only that the state would compensate the families in cash — and that that compensation would be treatment and closure and final answer to the question of what had been done to them.
In a republic that respects the rule of law, the moment when uniformed agents of the state kill unarmed students exercising their constitutional rights is the moment when the law must draw its sharpest line — when it must say, unambiguously, that the Constitution has been violated, that accountability is mandatory, and that such action cannot be permitted again. The law did not draw that line on May 4, 1970, and it has not drawn it since. The Scranton Commission said what had happened was inexcusable. The law said that it was, in the end, excusable — if you wore the right uniform, if you could claim you believed yourself in danger, if you had enough lawyers and enough procedural shields to prevent a jury from ever being asked whether you had acted lawfully. The gap between what justice demanded and what the law provided is the gap that still yawns open in America today, every time a student, a protester, a civilian faces the force of the state and the state's courts.