Special of the week; Issue 35-69

NDE are the national educational radio network presents special of the week. We continue this week with the presentation of comments and panels from the symposium student protest and the law held in mid-May sponsored by the Institute of continuing legal education. A joint effort of the law schools of Wayne State and the University of Michigan attorneys college administrators and state officials from throughout the United States attended this today meeting and on the subject of the array of sanctions alternatives to expulsion. The group heard Tom Jay Furr assistant professor at the Columbia University's School of Law. This is the conclusion of Mr. Ferrers address that hearing is some of the other sanctions. The difficulty of course with expulsion as I point out. In subcategories is that this merely deprives disobedience of a formal status in the university community. But if we're going to physically expel him to prevent him from returning to the campus continue to

participate in dissident activity which is the cause of his expulsion then it means the imposition of controls over ingress and egress. That raises serious questions about the ability to carry on the university enterprise in the way which we've come across them. If we must impose these this kind of vigilance these kinds of controls over movement now is her probation. And the trouble is of course that the kinds of people who violate the rules of the university in the reason they violate them are wholly unrelated to the original function of probation when your principal disciplinary problem was a panty raid by members of the football to him. Probation was a serious sanction. You couldn't play next year. Most of those who engage in dissidents now are as far as I can tell are not concerned with being first man on the checker team and their first dispensing from the ability to just say in the traditional extracurricular activities through probation strikes me as not

terribly intimidating sanction. The only possibility of intimidation is that prevention becomes a precondition to automatic expulsion and that's that it seems to me is about its only significance today except to be extended is used to destroy the functioning of certain groups. That's why I tried to separate that out of the denial of facilities for group activities of all members of a group are placed on probation. That seems to me a comparable way of achieving the result. But this of course raises all kinds of First Amendment sensitivities which is made a difficult sanction to apply the sanction of denial of financial systems. Now the first problem is of course that it is grossly unfair. In large measure it is really a sanction of discriminatory expulsion. It involves an attack driving out of the university community.

The poorest members and the invidious nature of the sanction because it is defacto discriminatory expulsion has made it an unattractive kind of sanction to employ because of its impact on the on the larger university community. The next thing I've tried to do is to compare the stark functions of sanctioning processes with their possible application or utility within the university context. I have listed four and then describe the quickly run through them. One it seems to me was removing the immediate threat to the society. And that of course is comparable sanction his expulsion and the problems of those I've suggested a second his dark function was providing the occasion and a catalyst for rehabilitation. Well what kind of rehabilitation are we really talking about in the context of the university.

Seems to me that rehabilitation was premised on a sense of guilt. And on the need for guidance and training in some respectable profession the student protesters since they reject the authority of the university are normally not suffused with pangs of guilt because they've been sanctioned. Indeed the guilt was supposed to arise in the traditional case because the surreptitious crime was discovered in student the center to the extent it violates the law is usually open. The whole notion of the way in which rehabilitation occurs seems to me as wholly an operable and irrelevant. And since more of a protest is often an expression of indifference or even contempt for the respectable positions in society to which the students would have automatic access as university graduates. I think we have to rethink the whole notion of rehabilitation or perhaps concede that that is not really one of the functions of university sanctions.

Deterrence for well deterrence presumes a nice calculation of costs and benefits on the part of those who are contemplating violation of the law. This may or various kinds of sanctions may in fact Tarr significant numbers of students we don't really know. Certainly the principal student dissidents are unlikely to engage not appear to engage in the normal kind of cost accounting to which the sanctioning process has been addressed in the past. What about the function of providing an alternative to self-help by the injured party. The analogous case on campus is to prevent confrontation between left and right wing students. I'm not convinced that sanctions are in most cases necessary to achieve that objective. The truth is your

more conservative students tend to be those who are most concerned about obtaining a college education in order to enter one of the respectable professions and therefore they are most easily intimidated by sanctioning processes. Therefore the threat to apply sanctions to your more conservative students is much more likely to be intimidated than your threat to implies sanctions against your more radical students. It is rather simple it seems to me in most cases to control your right wing students and hence to prevent that kind of a confrontation. And I suggest it is fair to impose sanctions on one and not on the other. Merely the practicalities of the situation. And finally there is the task of what I call reducing social anxiety by confirming the strength of the public authorities. Sometimes this is simply put under the rubric of vengeance. But I think that

vengeance with all its baggage of connotations is not an accurate way of describing what this what the purpose of the sanction has been. And here the social anxiety is partially the anxiety of other members of the university community who are not involved in the violation of university rules and Partially of course the anxiety of the larger society in which the university is imbedded with legislators and alumni potential givers. And here the sanctioning process does I think still have a function. More with respect to the external constituency I think when most of your internal constituency because a ruthless application of sanctions in many contexts has simply tended to radicalize the larger body of your academic community. But on the other hand it has provided a good deal of psychic satisfaction to those who are not compelled to participate in the processes of the university. And finally I'd like to say

a few words about. The application of sanctions with respect to due process. I think there are two dimensions to the due process issue. One is involves rulemaking and the other adjudication. That is I think we must talk about due process both in terms of how one makes the rules of discipline and the related sanctions and how one imposes those sanctions and roles. Now turning to the first rule making problem as I've said earlier Ideally all den of viable groups and shades of opinion ought to be represented in the rule determining body. But at a minimum it seems to me there ought to be at least an opportunity for all sides to be heard and to participate to that degree in the shaping of the important rules of the university preferably orally at

least by some kind of reasoned and systematic written presentation. And indeed at a state school I can imagine the chords eventually moving to the position that hearings of some kind are mandatory are required by law. At least I would be prepared to argue that I feel that there is a respectable legal argument to be made. If the District of Columbia insurance commissioners cannot adopt rules governing the insurance companies located in District of Columbia without a hearing why should the administration of a state run educational institutions be able to adopt rules which will affect vital rights without some kind of a hearing. So I think there are legal as well as a credential a moral case to be made here. Now with respect to education one of the issues which is bothered us at Columbia and I'm sure other classes is whether all of the

old in formality must be jettisoned and have a quiet chat with the Dean. I think there's a good deal to be said for the old informality of that may surprise you. After all if the university is a community there is something inconsistent with a very formal kind of adjudicative process at all levels and the sense of a close knit community. Now this solution that we've adopted at Columbia is that the court of first resort or the place where you go for your preliminary hearing is the dean's office. Now the student doesn't appear because he feels that due process requires a more formal setting for the application of rules. I don't think he ought to be obligated to appear. Rather the failure to appear or to be regarded as a plea of not guilty. Nothing more. And then he can move up to the next

level which it seems to me ought to be some kind of a tribunal which operates under quasar quasar judicial trial like procedures. Now here one of the important issues has been who are one's peers. Should students only be tried by students faculty by faculty and I suppose ministers by administrators and the administrators are violating the rules. Assuming indeed there are any rules that are applicable to administrators. It got out of it exactly. I we wrestled with this problem. I personally favor mixed tribunals because I don't think students should be judged by tribunal is composed exclusively of students and nor do I think members of the faculty ought to be judged by a tribunal is composed exclusively of faculty members. Why. First of all because the entire university community must live with the result.

And the the method by which Or by which the can the tribunal applies the laws can affect the life of the entire university community if you all have an interest in the outcome. Then why aren't Shouldn't you all be participants in the process. The use of faculty and perhaps members of the administration in tribunal to judge students has a second merit I think and that is it tends to promote consistency in the application of sanctions. Now this of course can be achieved by having faculty members represented in the appeals tribunal but not necessarily in the trial tribunal because consistency could be imposed on appeal. Even if there is an initial inconsistency general consistency could be achieved at a later point. But I still think it is desirable for the first reason to even have faculty members to the extent they're willing to serve at least and perhaps and I personally think it should be an obligation

to serve on this tribunal. Participate at all levels. As for the faculty how they ought to be judged. I still favor mixed tribunals because here again in the first place students and faculty and administration must live with the outcome of a determination and to some members of the faculty and increasingly this is true are really much more participants in the values conscience and sensibilities of that generation to which the students belong than in the values and sensibilities of their older colleagues. And since the university is supposed to represent a complex as opposed to mediate between these different styles and values I think faculty as well as students ought to be judged at least with respect to the violation of the rules of discipline on the campus. And another possibility which I don't know of I don't know whether it has been considered or not and that perhaps

there should be appealed to a body which includes one or more distinguished members of the community. That is not the university community but the broader community who might be selected by a vote of the student and faculty members of the highest appeals body. And one of the virtues of that I think is to bring bring to bear a more neutral judgment. This might be I'm out of the sting which judge a distinguished educator from another institution but someone whose involvement with the particular conflicts on this university campus is not right in fact hopefully would have none at all so he can bring to bear a more objective kind of judgement. I think this is something worth considering. Well in conclusion I'd only like to say this. And although this is for all persons connected with the university at a time of great difficulty at least for me and I would hope for you as well.

It is a time of great hope as well. My own generation. I was in school in the fifties view of the world with a bovine indifference and regarded injustice with I think it only be described as monumental patients. This generation of students gives me hope that we will at last confront the gap between the promise and the reality of life in this country and begin really to bridge it. Perhaps it is inevitable that all powerful States should pursue imperial policy and perhaps it is inevitable that vulgar but rich man in the institutions they dominate should pollute our air and our water and our public life that this generation of students has rekindled my hope that these things are not inevitable and

that the chasm between promise and reality in our national life can be bridged and if we match their high dedication we can learn again the passion for justice and community in this time of troubles man retrospect seem a time where vast hopes began to stumble towards the beginning of their realization. Or to put it a little differently and perhaps a little too A served way should we as the representatives of the older generations not contemplate the possibility of the responsibility for our contemporary troubles lies not only in our students but in ourselves. Thank you. Mr Tom J Ferrer assistant professor at the Columbia University School of Law concluding his remarks on the array of sanctions alternatives to expulsion.

No to the first part of an address offered by Edward collegian attorney from New York City. So I think I was outside counsel for Columbia University speaking on the campus and the community problems of dual jurisdiction. Mr Canadian I guess I'm here. Because my firm has attorneys park on the university has gotten. Some experience. And that. What the editors of spectator have begun to call crisis management. But let me assure you. That there is no surefooted experience in dealing with these situations. I am not at all certain that the problem. Has a vast number of common elements from campus to campus.

I get the impression. That the situation is somewhat more acute at some of the larger state universities such as Wisconsin and San Francisco State than it is at some of our large so-called private universities. My impression is that at Columbia it's a little more parochial than it is at San Francisco State. This past week I received from the attorneys from Samaras from a group handling litigation on behalf of some students and faculty members at San Francisco State a copy of the injunction papers. That they had. Prepared out there. And attached to their answer was a schedule of defendant's. Regular legal sized piece of paper with two columns of names of agitating organizations on the

campus. And named as defendants and included everything from the sounds of Irish revolution. To the Black Panthers STDs and a whole host of other organizations unknown to Columbia. As yet. Now. The Colombia situation is rendered unique for several reasons first Colombia is a large institution located in an urban center. Students are drawn from all classes. It's the location is on the edge of depending on your point of view. On the edge of or within the ghetto of Harlem. This is a mixed blessing of challenges as well as problems. It is

also located in what perhaps the world's principal communication center. So that if an administrator blower's out a student at Columbia he's liable to see himself on the 6 o'clock news. Something much more serious can take place in New Hampshire or Idaho. And may not be heard of. And if you read the last page of The Times. But having said that let me get around to my topic which is the campus and the community. And. There are ominous. Signs. I had in the relationships between the campus and the community. Those signs are already evident in the kind of legislation.

That is being considered in state and federal. Legislative hall. And indeed in legislation that has been enacted. And I propose to start by discussing. Some of these. Legislations proposed and enacted. I'm going to give particular reference at this point to what has been going on in the last session of the New York legislature. But I think the rest of you may find that there are similar developments in your own legislatures or may soon be. So I hope that it will prove of interest generally that they were the session just ended up The New York legislature. That was enacted in Article 29 A. The New York educational law. Which requires colleges.

To adopt rules and regulations. Quote for the maintenance of public order. On college campuses. The legislation also requires that the rules provide a program for their enforcement. The Act stipulates that the rules must be applicable to students faculty staff. And visitors. And they are the rules are to provide penalties including quote ejaculation of a violator close quotes from the campus. And in the case of faculty and students suspension expulsion and other disciplinary action. The rules are required to be filed with the regents and with the commissioner of education before any college or university.

May be eligible to participate in programs of state aid for colleges. Now. That in another itself may not sound too exciting although it presents a problem which I'll go into in a little while. But there. Is already a proposed amendment. To article one twenty nine a I should say that. Article 1 29 day was passed and became law in New York and there is now before the governor already a proposed amendment. Passed by both houses of the legislature which would require colleges to enforce their rules as a further condition of eligibility for state aid. Now. There are some problems with

this legislation. Many universities in New York I spoke with still don't have may not have rules. Many others including Columbia. Have rules which will not comply at the moment which do not comply with the requirements of this statute. But in formulating the rules I think it's necessary to give some consideration to what the legislature meant when they said that colleges must adopt rules and regulations quote for the maintenance of public order on college campuses. Because traditionally public order on college campuses has meant something broader In concept I believe than public water in the streets of New York or elsewhere. I suppose as a starting point.

There might be consensus that such rules should encompass the occupation of buildings or disruption of classes or other university functions. But query whether that the statue requires rules that would outlaw a kind of a raucous. Disorderly demonstration. Of the kind that most campuses generally permit for instance would rules. Would the rules have to say that it's illegal to burn the Dean's effigy Southfield in order for the institution to comply with the requirements of state aid. Another question arises as to the enforcement procedures. Since the rules must encompass the conduct of faculty students

employees and outsiders. Will the same enforcement procedures have to be a pleasurable to faculty tenured faculty for instance. As to students. I often wonder sometimes wonder how many professors at Columbia tenured professors are aware of what the procedures for. Punishment for admission for misconduct. Involving them harm. I it's a been it's been such a rare occurrence I think there is a musty statute. That deals with it and speaks of something about a committee on a conference. By I must confess that. I am not I cannot tell you at the moment what the provisions are in Colombia for

discipline of a tenured faculty member. How are these rules mesh with the union employees of a university or mine. In alliance with STDs. Participate in a sit in. If these union members have a grievance machinery in their bargaining contract. With lots of price for the university's rules to say that if a unionized employee is fair and participating in a sit in a chair be referred to the grievance machinery. And if the rules say that faculty members shall be disciplined according to the statutes of the university and student shall be disciplined by a panel of faculty and students are a panel of all facts of a as their on equal application of the law. Mr Edward collegian member of the New York law firm representing Columbia University

speaking at the UN Albert symposium. Student protest and the law held in mid May. Mystical legend will continue his remarks next week. This has been special of the week from Emmy O.R. of the national educational radio network.