Special of the week; Issue 25-69

An e e r. The national educational radio network presents special of the week the Institute of continuing legal education jointly operated by the law schools of Wayne State University Detroit and the University of Michigan at Ann Arbor in mid-May held a two day seminar on student protest and the law. A prime topic of these times over the coming weeks on special of the week. Many of the addresses delivered at that lawless summit are on free speech versus police power bans on speakers right to privacy right to counsel notice and a fair hearing. Double jeopardy. Faculty Tenure control of student press and supplying information to government agencies discussed by top attorneys from throughout the United States. The Institute for continuing legal education opened the conference by hearing from an attorney who was also a professor of law at the University of Michigan and is also president of that university. He was Robin Fleming former

chancellor of the University of Wisconsin-Madison campus and well-known in labor and industrial relations. President Fleming delivered his views to the assembled attorneys in an upper. I do feel that this whole area of the law and the university is terribly important today and it's terribly important for a great many reasons not just for the tactical maneuvering that's now going on in this whole area which in and of itself is very interesting as a matter of fact if one is just interested in the legal tactics that can be employed on any side of these various controversies that maneuvering in and out of it sounds a very interesting chapter it seems to me in our legal history. And someday people are going to write interesting theses about this. But it's important not just for that reason it is important because for those of us who really are devoted to the law as a great many of us are. We have got to be able to persuade people that the

law is an effective and a fair instrument for dealing with these kinds of problems. And part of our difficulty it seems to me to day is that many of our young people don't feel that the law in its applications is a fair instrument of dealing with it. And so that's always on my mind of how power run effectively utilizes the laws I think we must. But at the same time convinces the various constituencies that it's a fair use of the law and that's terribly difficult to do when you're in a controversial area like this. I am divide in my own mind and these overall problems into three general categories but you know if I hadn't been thinking about it at 11 o'clock at night it might have been 4 or 2 or 6. But as I thought about it last night it seemed to me that the problems that have concerned me fall into three general categories. One is there is a category of student

rights and under that I would subcategory he has rights as a citizen because that's in a sense a whole new area. It's exemplified by the kind of dispute which we had here last fall for instance in which some 200 of our students were arrested. Because they participated in a local controversy between the ADC mothers and the county with respect to the proper clothing allowance for those mothers and their families. And when our students did that it was an off campus affair in which they were arrested for continuing to end the occupation of a building voluntarily peaceful after the closing hours and they were of course tried for a violation of the civil law they were ultimately convicted they were ultimately fined and suffer. But there was a day as we all recognize when a university student if

engaged in a controversy which brought him into violation of the law would be expected to be disciplined or have some action taken against him by the university. And today it's quite clear that students are claiming their rights as citizens which are entirely separate from the fact that they happen to be students. And that has as we all know some tendency to exacerbate local community relations because many of the older generation particularly think of an incident like our ADC incident as one in which the university ought to do something about that. The students of course hold a wholly different view and feel that where they are in conflict with the civil law at least when it does not affect university premises that they should be treated just like any other citizen. So there's a whole area that's emerging there of what I would call as the student as a citizen. And it relates to the university and

of course it may have any of a variety of permutations which brings it near or further from the university's immediate orbit and our case was a relatively clear cut one where it had no immediate University impact but it could and so one has to examine that whole relationship. The other student rights category problem as I see it is what one would call his internal rights within the university and as most of us have looked at our disciplinary procedures for instance. It is quite clear that we have not really over the years have followed the dictates of the concept to due process. Most of us would of course say well yes broad. On the other hand neither have we been arbitrary and discriminatory and so forth. Well that depends somewhat on the eyes of the beholder. But it is quite clear now that we must accord and we should accord most of

us of it as lawyers I'm sure it would have no difficulty with this. Any student must be accorded hees appropriate rights of due process. And when one does that of course it does give us difficulties within the university framework because we're not really prepared to conduct a long try hours in adversary procedures in the way that our tech other courts typically have. So another whole area that we're struggling with today is how do you accord a student the to be expected rights of due process with out as so involving and bagging down your whole procedure that you're unable to get anywhere with it. And because we're not really experienced in that we haven't done it very well and you see that emerging all over the country. Second category of problems as I see it is the question of violence and coersion. How do you deal with those kinds of problems.

And in that I think we have to be careful not to lose our perspective afterall and violence and coersion in our society are not novel. And they are and it is true on a campus quite new in the sense that we're now having to deal with them. But in our society we've always had these problems of how you handle numbers of people. Any of us for instance who are familiar with the labor field know of course the problems of strikes of violence and so forth in that connection as those of you who have interest been interested in fire movements have seen this over the years in terms of a farmer a farmer boy cat problems particularly the sound of us remember the days of the Depression when the homes were being foreclosed and people were resisting with arms for closure of of their farms and so forth. The whole civil rights movement in the last few years. Has involved the

doctrine of civil disobedience. And any time you're dealing with civil disobedience you're writing that very fine line between CAN YOU KEEP but within an acceptable kind of conduct or will it slip over. And since you're dealing with people who the emotions are heavily involved very difficult to keep it from slipping over. But the point I would make is that the violence in korean are terribly difficult for us to deal with on campuses. They are not novel. And in a democratic society we do not deal well with numbers of people who are resisting whatever it is you're doing. If you take a campus for instance where we have 30000 plus students here in Ann Arbor if we have 1 percent of our students. Resisting something we got 300 people missing and 300 people are very difficult to handle with any kind of the process particularly if they're determined to resist. And then of course we all know that

you've got this terribly delicate problem of how do you keep the great mass who is not participating from joining the others out of sympathy even though they don't agree with their tactics. So we've got that whole area of violence and correlation and we do have to recognize that in part that is so difficult to handle because it is what one might describe as a political question. That is the resistance is coming because of differences over political objectives national priorities and so forth. And when people are disagreeing in terms of political objectives it's an especially difficult one for us to handle. It is aggravated at this point in time by the fact that both in Congress and in the state legislatures there are just a tremendous number of bills being introduced these days for our kinds of controls upon campuses many of these are very badly thought out pieces of legislation. And on the other hand those of us who are opposed to it and who are saying before Congress and elsewhere that

you ought to let the universities handle this problem we must not be blinded to the fact that representatives both at the state level and in Congress do truly represent their constituencies and saying something must be done. No doubt about I've never seen the public so hostile to student activities as they are today. And therefore when you talk privately with legislate or as whether there are congressmen or state legislators and even if they understand that many pieces of proposed legislation will either be totally an effective or harmful they nevertheless come back to saying my constituents de main that we do something and I don't. I don't disagree with that I think they do demand it. I think they're wrong but they do demand it and it's going to be very difficult to deal with. There's going to be all kinds of legislation this time. Finally I would in my third category I would put the civil liberties aspects of these whole problems. For instance you've got of course the First

Amendment aspects of many of these to what extent May 1 under the guarantees of the First Amendment express these in such things for instance as underground newspapers that appear upon campuses. And to what extent are such publications entitled to the protections of the First Amendment and where does that leave us. There's the whole problem of the dedication. One of the reasons we have so much trouble dealing with these problems either on a relatively small campus or one this size is that we can identify students readily just by looking at them. And of course from the Civil Rights Movement students have learned that if they declined to identify themselves we have no way of readily doing that unless you arrest them. Now if you arrest them then you're into the syndrome of

problems that that that that causes. And if you don't arrest them you've got the problem of taking of pictures and trying to identify them for pictures and so forth. And so it seems to me a First Amendment problem is that many of us in universities have got to address ourselves too. Or perhaps beyond the ramifications of the First Amendment is what legitimate means of identification. Which do not violate a person's civil liberties. Could be employee aid which would. We would all regard as satisfactory and acceptable to get around this difficult problem of identification and finally of course there is the the problem of what I call repressive legislation. We're faced with the with a difficult problem right now that we receive communications for instance from the secretary of health education welfare and others

saying you should make clear that all of your students understand the provisions which may withdraw federal financial benefits from them in the event that they are convicted of engaging in certain kinds of activities or if they're disciplined on campus. Now you do have a civil liberties problem there because if you say to all of your students note these provisions and be careful you don't violate them. You may very well be said to have exerted upon them any influence against participation in anything that might be labeled dissent. And therefore infringed upon our constitutionally protected rights of dissent. On the other hand if you don't say anything to them and you don't call this to their attention you are then exposed to the charge afterwards that you did

not make clear to students without the possible repercussions of their activities were. And so you are hung Either way you turn. And therefore I would hope that somewhere in the course of these discussions that kind of a point might come in for discussion in terms of how one reconciles the need to properly inform students of the problems they face with out on duly repressing their constitutionally protected right of dissent. Robin Fleming president of the University of Michigan himself an attorney. Then the conference on student protest on the law turned to the dimensions of legitimate student dissent for speakers talked on this subject. The first was Paul Carrington a professor of law at the University of Michigan and vice

chairman of the American Bar Associations Committee on civil rights and the responsibilities. It's I think safe to say that in addition to our uncertainty about what the causes of our unrest are the extent that we understand them it's clear that some of those causes are simply beyond the reach of educate Tories or lawyers who represent and advise educate origin. And much of it is simply not amenable to any kind of change that we might be able to accomplish. So much as we would like to avoid disarm of these circumstances it's simply not going to be possible for us to do so I. I suggest that the black students for example who may be so justly offended by the subtle forms of racism which abound in our society and about which they complain are not likely to be calmed in any very lasting way by anything that a school administrator can do for them. I

suppose it's also fair to say that to much of the armrest which is expressed in its most virulent form by the New Left is directed at the will or at the military and it's pretty clear that a school administrator or university officials are not very well equipped to alleviate that distress either even if they were inclined to do so. I think it's fair to say that students who protest for example recruiting activities by certain companies or the Defense Department are much less concerned with any alleged a impropriety in the hospitality that the university gives to such organizations and they are simply attracted to the opportunity to express an attitude toward the war in the military. Such matters as classified research or course credits for the ROTC are really occasions and not causes for protests. The animosity is not directed toward the educational institution itself but the institution is simply made to stand as a sort of surrogate park

for protest which might be more directly expressed on the steps of the Pentagon. It's vain to suppose that an institution can respond in some way to provide durable relief from that kind of affliction as as Bob Fleming has been quoted recently. For the most part the ills are those of society and unless that we find some way of creating a social order that is more agreeable to the protestors of the management of the problem is to some extent out of the hands of a school and university officials. So the best in some ways the best we can hope for from the perspective of the lawyers and educational institutions involved is a kind of papering over and avoidance of occasions of protest to try to keep the ferment at some tolerable level so that matters that do not get entirely out of hand. In considering the ways in which we might attempt to alleviate the pressure from the perspective of an

education and when it's greater I think it is appropriate and indeed even necessary for education official to give some hard thought to the essential gos of their particular institutions and to try to think through exactly what it is they are trying to preserve. I suggest that this is an appropriate concern for lawyers as well and that indeed as counselors we have a kind of professional responsibility to assure ourselves that our institutions have given careful thought to what it is they are trying to preserve in the heat of this kind of conflict. It is certainly tempting to education educate tours as well as other kinds of clients to take rationalizations to take stands on issues that may be. Some extent indefensible or at least not worth defending. And in this way to expand their influence and their power to

exercise dominion or control over other constituents on their relatively meaningless and trivial types of issues. If it is true that we've been dealing with a whole generation that is restless and that all of the students are a little feisty and then we have therefore impaired capacity to influence their actions. It seems to me to make sense to try to retrench the institution and to focus its its influence and its capacity to control in directions that are most central to its mission and that it not to expand at whatever power or influence it may have in directions which are not central to the main purpose of the institution. And I the principal the thrust of my remarks is to emphasize that and to encourage you as lawyers in counseling in situations of this crime to try to

assist the party in avoiding confrontations on what are essentially spurious issues. And it seems to me that this more than AB or at least as much as in any other way may be a useful device useful approach for trying to avoid the harmful consequences of having to resort to the machinery of law and its more. Damaging form. Let me offer a few examples before. Subsiding. One kind of that a function that I should suppose most educational institutions could regard as dispensable is that the function of moral discipline area to some extent of course educational institutions cannot avoid the role of moralising for the community and indeed of course some discipline is essential to other functions of education. This is especially so for primary and secondary schools.

But then there has been a tradition which has caused many institutions to go farther in the direction of parental type control to pursue moral discipline as a kind of goal in itself. I suppose they'll always be a place for some institutions that are primarily devoted to this kind of concern. There may be some boarding schools for the young particularly which may well regard discipline as their primary reason for being. But by and large most educational institutions particularly those dealing with relatively mature young people would do well to minimize the number of instances in which they find it necessary to apply disciplinary Contro. And I'm thing is that education is going to have to adapt to what has simply become a permissive world and to expect the schools to be otherwise. Is that asking to repeal some kind of a law gravity about a social institution is another function of educational institutions which I think many might regard as dispensable is the

function of creating status. I think we it's fair to say that we are still in the process of emerging from a period in which learning was a luxury. The credentials of learning however have now become for many a kind of necessity. This is a source of distraction to many students many of whom now seem to be more interested in the effect than the substance. Of Education. And it's also a cause for resentment and occasion for more student protest. It is difficult for me to imagine any kind of educational system which fails to recognize and reward excellence. But I think it does behoove us all to recognize that the conferring of honor is not the essence of the process and is a tradition that now serves some undesirable results. What was intended as a system of incentives has become a system for relieving diverse employers and admissions officers of the necessity for exercising independent judgment. It has become a means for training young people to the expectations of those who have

gone before educational institutions. In this respect are now being called upon to exercise greater power over individuals as they confer or withhold honors. And they are really equipped to exercise. And it may well be wise and even necessary for many of us to make changes that will prevent the over use or misuse of the power of granting or withholding rewards as a kind of mindless means of coercing the behavior of restless young people. These may be examples of what might be regarded as a as a broader principle which is that educational institutions because they are very much a part of the society generally are very limited and are instruments of very limited utility in accomplishing social change in times of stress and awareness of the need for social change it's tempting to try to use every possible tool at hand and the urge to use go schools and universities is fortified by a long tradition of claims which have been made by educators for at least a century

are growing budgets have long been been justified by assertions that education was the magic instrument for the improvement of society. And I recently seen a public opinion poll which indicates that the American public assumes that the education far far ahead of religion or business or government or any other form of social organization is responsible for the changes that we have witnessed in American society over the last half century or century. Perhaps the public is right in that assessment and I'm certainly not one to say that legislators have been misappropriating funds for education but I think some of our present troubles may be traceable to a kind of inflated view of the possibility of an excess of promise. Part of what our students are telling us is that we have not delivered and they are insisting to some extent on putting the vaunted capacities of education to work on what they perceive to be new and better and bigger causes. And I think it's time to confess not only to the fault of over promise of under-performance but also

that of over promising to try to persuade those who want to set out to perform new miracles that our educational institutions simply cannot bear the strain. All the universities in America could not sit together I think bring peace and prosperity to Asia or even to Detroit. But they could. Can I think damage their own small capability as contributors to such causes. If they are overextended and if they fail to respect the natural limitations of such educational institutions. When I was taught to educate to the natural limitations I'm speaking primarily of the need of educational institutions for a measure of autonomy which I think must necessarily be impaired by involvement in controversial social matters. I think it's it's fairly clear that effective creative teaching cannot exist in a closely supervised circumstance that the changing winds of politics there are a substantial threat to the teaching function and Jack. That we simply can't

expect our schools to operate with the same degree of effectiveness if they are to continue in the trend of being further and further politicized and to have more and more political judgments being exercised inside the educational institution and that this is one form of retrenchment which seems to be in order. The. Point I mean to urge is that analysis and understanding of one's goals is an important first step in trying to make an intelligent decision about how to handle these problems. And yeah I simply want to say that in a threatening situation the instantaneous response may of the administrator may very well be unsound and unwise. He may very well be tempted to take a stand on a position which is either on we're unworthy of defense or perhaps even at worst indefensible University of Michigan law professor Paul Carrington talking on the dimensions

of legitimate student dissent. Most speakers on this subject next week on special of the week. As we continue this series called student protest and the law originally held in Ann Arbor in mid-May four attorneys from throughout the United States sponsored by the Institute of continuing legal education operated by the law schools of Wayne State University and the University of Michigan. This has been the special of the week from the E.R. the national educational radio network.