Special of the week; Issue 30-69

NDE are the national educational radio network presents special of the week. We continue with the presentation of the symposium called student protest and the law held in Ann Arbor in mid-May sponsored by the Institute of continuing legal education of all schools of the University of Michigan and Wayne State Attorneys school administrators and state officials from 38 states attended this timely symposium and on this special from the section dealing with judicial remedies for campus problems. The school in CT discussed by John P. Holloway active in legal political and academic affairs in the state of Colorado now the resident legal counsel of the University of Colorado. Mr. Holloway. Student unrest today is so prevalent that it doesn't really need any any introduction but I thought maybe it might be refreshing to some of you particularly the non-lawyers that don't deal with us on a day to day basis as I do to take a look at the good old days the good old days being in quotes and with reference to

good old days I was able to locate the University of Colorado's discipline Journal which covered a period of time from one thousand twenty one thousand nine hundred forty eight. It reflected an average of less than 10 cases of minor discipline per year and a similar number of major discipline cases per year. The entries are from four to ten lines long in the finest of Spencer in penmanship and I picked out just at random a few of these entries to illustrate. What I think were here is typical or was typical of punishments and attitudes of university officials as to procedural and as to procedural due process in particular. I when I give this talk or gave us talk in Colorado I was careful to lift the names out because some of our more prominent citizens were in there. But to give you a few data give you a few of them because I think it will give the flavor of the days gone past under minor discipline.

Dateline February eleven thousand nine hundred twenty five. Miss W copied from Miss X in a regular midterm examination in French one B she denied this to Mrs. Y but subsequently admitted it to Dean Z. She was suspended for the remainder of the winter quarter. Dateline February 27 one thousand twenty five Mr. Y admitted taking university property and Mr. Z his roommate and an older man very manfully insisted that he was more to blame than Mr Y. Both men behaved delightfully and the committee voted a minimum punishment which was suspension for one week in both cases. The moral of the story was it paid to confess. Dateline March 16 one thousand twenty eight on March 16th it was decided to suspend Mr. Y for one week because he had appropriated one half gallon bottle of rubbing alcohol off in the women's gymnasium. This was later returned and was found and when found in searching the room in connection with another discipline case search and seizure of

court. Now as far as the major discipline examples Dateline February sixteen thousand nine hundred twenty six. President on major discipline were Dean a dean B Dean C. Professor D and Deni Chairman. I would suggest in 1926 that practically exhausted the deans on the statement of both Mr F and Miss G that they were together in the sitting room of Mr H's boarding house from approximately 9:45 p.m. Sunday February 7th to 4 a.m. the next morning and that Mr G did not return to her own boarding house until about 6:30 a.m. and the committee decided to vote simply on the statement without any charge of sexual misconduct. It was vocal that they should be suspended indefinitely their readmission to depend on the recommendation of this committee if it had not been for the reluctance of the committee to inflict the final stigma of expulsion.

The members would have felt that such a punishment would not have been too severe. It is earnestly hoped that Mr G at least will never come up for readmission. Also I might add might be a pretty good example of a double standard at that time. Another one Dateline October thirty one thousand twenty eight. Miss A was before the discipline committee for attempting to use a book during a midterm quiz in history. The committee decided that Miss A is to receive zero in the course be placed on probation told June automatically removing her from student activities and that she would make a grade 3 points above the weighted average of her work to date or lose 25 percent of the credits earned as a note to his note committee doubtful about the legality of the last requirement. Also did not specify whether the 25 percent loss was to apply for the current quarter for the whole year.

Later saw Dean B who incidentally was dean of the law school about the legality of cutting credits and he's of the opinion that it can be done insofar as it's a legal question. Well these that these go on and on and the 1940s the nineteen forty nine these are the they ended in 48 I picked a number of them in the 40s to see if there was any different attitude expressed. And I would state to you that there was not. And in the words of one of my favorite professors Querrey If the faculty were then so willing. To administer discipline in this relatively unrelenting manner and perhaps totally without due process then why are they so reluctant to do so today. In November of nineteen sixty seven by way of comparison to this background the University of Colorado had occasion to discipline 22 students. Who blockaded the placement offices to protest the CIA recruiter.

The transcript of testimony before the discipline committee consists of two hundred twenty seven pages and the record itself exclusive of the transcript carefully indexed with exhibits a fruity is about two inches thick. It was this material that was subsequently presented to the United States District Court and but may be smiling to anyone Feds up to 80 and the citations incidentally are in this. All of these citations will be in this footnote sheet that you get tomorrow. As far as due process is concerned we did it to a fare thee well in but Navy smiling. They not only had a hearing before the committee they had an open hearing they had a public hearing they had a joint hearing. They had full rights of confrontation and they were represented by counsel. It's been a fact the court Well let me go on further. Furthermore it was submitted internally for review before a subcommittee of the administrative council consisting of three senior

academic gains was upheld by them and was also taken to the governing board i.e. the board of regents who operate very similar as they do in Michigan here is Matter fact identically under under a constitutional mandate of power and the board upheld. So they had the hearing to review one before the governing board and then the United States District Court and the court concluded that they had been afforded due process and the court discusses it in great detail which of when the later its benefactor went on to say that they had more than due process and sort of indicates not only between the lines but on the lines themselves. If the institution had made somewhat of a production out of this all at the request of the students and if this wasn't really necessary to fulfill the requirements of procedural due process. A number of the students were suspended two in particular but me and McQueary were suspended for a year along with others and were given an opportunity to apply for

readmission after the year. This they did and they were readmitted they were re-admitted under strict and specific terms of probation. But Nene McQuery along with others subsequently saw fit to participate in the high collar disruption which occurred at the university and but me McQuery were again called up on the carpet as counsel for the university I was asked what sort of a hearing must we now have. I said that under the decided cases I felt that it's simply a probation revocation type of hearing and an administrative type of hearing would be all that would be necessary. But I was overruled by the administration. I say this with some tongue in cheek because I think Mr. Case's point should be elaborated upon. By the time we were through with the second hearing we had two students represented by nine law trained people for graduate lawyers two of whom were law professors. A political

science man who was a law graduate and somebody from the Lawyers Guild. In addition they brought in five law students. By the time when we had what amounted to a preliminary hearing on a preliminary hearing and a preliminary hearing it was apparent that we were going to become engaged in this and if the administration was unwilling to follow my recommendation for a simple administrative hearing we went. I went to the governing board with a recommendation that if this committee of five laymen were going to have to face nine lawyers then we'd better do something in-house to do sort of give them the guidance that they needed to make a long story short we ended up with a retired Supreme Court chief justice as presiding officer. We had two weeks or something of this nature on and off of hearing instead of two hundred twenty seven pages of testimony. We had seven volumes containing roughly a hundred or a hundred pages each

and we had 22 exhibits. All with reference to probation revocation I would suggest to you and agree 100 percent with Mr case that the institutions have while they have a sincere obligation to provide due process. Due process does not involve Carnival does not involve something of this nature and we can't we've had very much the same situation that he had balloons eating candy. One girl nursing a baby. It was held in the inn in the Glen Miller memorial ball room. Now if this has anything to do with providing due process. I'm sorry I can't concur. I think I hope that this won't happen again because a number of suggestions that have been made have been accepted I think the institution realized that it allowed itself to be placed in a constant confrontation situation where it was moved first from a small room to a large room to a

larger room and the demand ultimately was it to be held in Maquis auditorium which is roughly twice the size of this. I submit to you that the discipline hearings involve the students and the student and the institution and it is not to be conducted and should not be conducted as some sort of educational or recreational exercise for the student body. These changes for the benefit of those who are non-lawyers these changes that happened really happened almost overnight as far as student discipline is concerned because as late as 1960 that's only nine years ago the university had a select committee of faculty mistrusts faculty again which made a report to the Board of Regions which contained these statements. The courts of law have steadfastly declined to specify details concerning the general requirements of fair play. They have taken the position that if certain requirements are met the university may suspend expel or otherwise discipline its students with its

exercise of disciplinary discretion being non reviewable by the courts and few if any university in the United States patterned disciplinary procedures after judicial procedures unquote. These observations in 1960 were correct and law review articles by that score will attest that these statements generally represented the law as of that time. Courts were loath to interfere with university and college discipline under a broad application of the principle of in loco correctness which simply means that the university steps into the shoes of the parent except as noted here after which I will go into. I only could find two cases one was a 17 23 King's Bench case which I use re scratch around we have to. Which held that it was contrary to natural justice to deprive a master of his academic degrees without notice or hearing.

And then there was an eight thousand eighty seven Pennsylvania county court case where they were reported at that time which indicated that in dismissal cases they had to give the student some type of a rather full full trial type or adversary hearing. But but other than these two exceptions the law had to be straight across the board where they just simply were not going to get into the US because of this in loco. Well as is often the case in American jurisprudence a law review articles comments and so forth may be totally ignored at the time but they will be on Earth or on earth or exhumed later and I think probably the one one single law review article or one single statement in in in legal literature that brought about this change as far as universities disciplining students was worn see these comment in and seven the Harvard Law Review 14 0 6 in one thousand fifty six wherein he commented on the blue it vs. Board of Trustees the

University of Illinois case wherein the court upheld the dismissal of a student for cheating. Without any hearing without any opportunity to afford her are afforded her to speak in her own behalf and CD made a number of comments and I think a couple of them are now legendary. And I'd like to quote them. He says it is shocking that the officials of a state educational institution which can function properly only if our freedoms are preserved should not understand the elementary principles of fair play. It is equally shocking that a court supports them in denying to a student the protection given to a pickpocket. On the other hand if a professor is dropped under similar circumstances not only has he given protection by the courts but the associations of professors apply all their effective extra legal pressures against the offending institutions even though the latter may not have violated their contracts. These same professors so careful in protecting the interests of their fellows are in fact fiduciary for their students and should

be the first to afford to their students every protection there is authority for your state fiduciary unquote. I think that pretty well set the scene because this article was picked up in the Dixon case and it's been picked up and referred to rather consistently throughout the literature. The other second item. The other second when I say item I'm judicial attitude that that persisted along with the local Apprentice which I won't go into in detail because it in itself is a very involved situation and there are a number of cases several of which I have in this outline that you will get subsequently is that higher education was was that the courts held a privilege and not a right. Other words they may have had a right students may have had a right in quotes using word right in quotes to elementary education and through age 18 or whatever it is but they had no right to higher education and therefore they could either accept it or like it or lump it as

the case may be. The Pioneer and I think probably is still the leading case today that changed all of this was Dixon versus Alabama State Board of Education which involved the summary dismissal of students who participated in the civil rights demonstration. It contains the most current I think traditional thinking on the requirements for due process in student disciplinary proceedings which involve either expulsion or dismissal. And it's a very long and very leading case and cited in this footnote material which you get later and you can read it for or it's its content but it was the first one. And in order to reach the conclusion that it did it had to hold and did so whole that that it was no longer a question a higher education for an individual who had matriculated and had been accepted was no longer a question of privilege but a question of right and that he could be separated from the institution for disciplinary reasons for disciplinary only if

he were afforded the fundamentals of due process. As you know the 14th Amendment says that no state shall deprive any person of life liberty or property. Well it certainly isn't my friend it isn't liberty. So this case held in effect that this right to a higher education and the right to due process and so forth was property. And other cases of you have commented on it basically in discussing what should be done or what should be provided by the institutions they said. And I'm just going to paraphrase all of this they said. The students you have notice that the nature of the hearing would vary depending upon the circumstances of the case. They said that he should have a hearing which could be either to an administrative authority or to a board or something again depending on the circumstances of the case and then added a caveat that this was not to imply that a full dress judicial hearing with the right to cross-examine witnesses and so forth was

acquired acquired. They said that nevertheless the regiment's of an adversary proceeding. Maybe preserve without encroaching upon the interests of the college and they proceed to bind them further. And they talk about the names of the witnesses if the students were not going to testify against this. These students directly were going to do so by affidavit and they all should have should have some sort of a of a of a statement of what the students are going to say and then of course the opportunity to present their own defense in rebuttal. And they said if this if these right of entry elements of fair play are followed in a case of misconduct we feel that the requirements of due process of law will have been fulfilled. The only the only observation I would make here and I have no quarrel with with the court's decision is that they completely changed the concept of discipline in institutions of higher education with one fell swoop.

Discipline in institutions of higher education had been inquisitorial as contrasted with adversary. And it was the dean of men the dean of women and you came in the office sort of thing and they acted. Indeed they acted as judge jury and prosecutor it was an inquisitorial type of of of system. But there was one person or a committee averse. To change this terrain from an inquisitorial to an adversary is a big step for an institution. It's a big step because it's a highly structured sort of an animal. I'm constantly amazed that it moves at all. But and it's so committee eyes that it's a wonder that that anything is accomplished but this is and was a big step and the institution started to get into line some of them reluctantly dragging their heels out of the south as the cases will all reflect and they were courts were ordering the students reinstated until life fulfilled these fundamental aspects.

But basically since 1961 there have been a whole series of cases that that can be found in the federal reporter. I think one of the. Interesting cases that discuss this question of right versus privilege. I'm not going to in great detail was 961 also Knight vs. state Board of Education. They discussed whether or not and they the parent of the university raised it. This whole privilege and right routine again in the court is set as follows. The court cannot resist the conclusion in the present case that to describe the interest of the plaintiffs that's the student's in continuing their educations of Tennessee as a privilege rather than a right although perhaps accurate for some purposes is a mere play upon words insofar as the present case is concerned. Following these cases in the federal judiciary a number of cases have

started to appear in these courts starting with Goldberg vs. Regents the University of California which was this Brawl Hall four letter word Free Speech Movement. This particular decision is also cited in the citations given this is an of equal opinion and or equal weight in my opinion with with the Dixon case. However notwithstanding all of the cases that started to come down in this area and notwithstanding the concern of Cornell University's president James a Perkins that the courts were moving in an academic decision making which was partially answered I believe by Harvard Law School's court by CNN. And you know responding article in The Chronicle of Higher Education. I don't see any indication in the reported cases. I don't see any indication the reported cases and I think I've read I hope I read them all. That indicates any intent by the court to get in

academic decision making i.e. deciding matters of academic natures. As a matter of fact they bow out every time they have an opportunity and they throw dicta and all sorts of statements at about one hour. This is not to say that we're going to concern ourselves with with matters of academic judgment. As far as the specifics of procedural due process is concerned I would commend to you not because I have a thing to do with it but because the judge chose to comment on several areas of procedural due process. The but maybe Smiley case. It has the probably the greatest number of comments on individual aspects of procedural due process in any of the cases it discusses For example the rules and regulations and a federal district judge that wrote the opinion observed that the university's rules did you know maybe could be made a little bit more specific and they sense

have been made specific. As a matter of fact I was concerned myself personally because I felt that the rule that we were relying on i.e. interfering with the rights of others was was tucked in with a rule on the hazing and the hazing the hazing was the title of the thing. And I was a little concerned personally as a practitioner that this argument would be made that it was obscure and I didn't know about it didn't have noticed as many other things. He cites other in this opinion he cites other rules. Some of them very vague very vague guys such as a conductor. People still conduct student shop and duct themselves as ladies and gentleman. And you know things that I think we should do as counsel for universities stay away from and give better notice to students than that. But he points out that that these that these would would stand. He discusses the specificity of charges involving violations there of

written versus or O with approval as to given an oral argument given a a written notification. I would go into these in great detail if you had the footnotes but without them I'll just go over them very briefly. He discusses discovery by the students in charge. He he. The discovery was requested in that case and was granted it was given to them. It was a reasonable request and just like a bill of particulars I felt it should be answered I. I was applying as Mr. Libby suggested to conventional traditional concepts in the practice of law so were tried exactly on that basis. Discovery however has been limited in some of the cases namely the Wason case where faculty evaluations of students performance and so forth and behavior have been excluded another is a having promoted this debate. The courts have gone into questions of how much time must be afforded between the receipt of the charge and the hearing.

And in the Jones case they say two days and they ask them in case they say 10 days. A great deal of emphasis has been given in the cases of collective versus individual charges can you collectively charge people. Can you can you charge a single versus multiple defendants. And but the case goes into that in great detail. Likewise with respect to advice as to the. Or do you need to advise them as to their right to counsel. When the but in cases they don't have to advise them. But I would say as a caveat I commend Madeira versus Board of Education or the right to counsel was denied by a Board of Education and reversed by the court. The right to testify on their own behalf of course has been upheld. This is again bought me the right to cross-examine but any punishment differential. All versus a few based on degree of involvement versus the status in the university and the use of prior disciplinary records these were all upheld and in Butner they punished the

graduate students and they got a stiffer punishment than the other ones. And of course the argument made by the students was what we all did the same thing i.e. we all locked arms and so forth therefore we should all get the same punishment. And the court pointed out that that the age distinction being made i.e. the class and school as well as age physical age was a logical breaking point in that indeed the criminal law and treated juveniles in a much different sense than and as they saw no reason why that same analogy was in that group here. Likewise. There's another case but you'll have a citation of Sanders whose E N D E R S which discusses this in great detail and then they open vs. closed hearing and I have my blood runs hot when I hear about this because this has been the big scene of the of the SDF militant movement. If they're going to have a hearing they want to they want a carnival they don't want a hearing. And the bigger the room and so forth the better. There are two or three cases where open vs. close has been discussed but me

and do among others and the criminal analogy of a speedy public trial language such as that from the Constitution just simply has no application to university disciplinary proceedings. Institutions are confronted with that with a practical political problem within the institution as to whether they're conducting star chamber proceedings. And I submit to you that a room appropriately designed for a hearing to provide a fair and impartial hearing which would admit say 20 30 people or something of that nature will fulfill and meet not only the legal requirements but all practical considerations. John Holloway resident legal counsel for the University of Colorado will continue his remarks next week on the school in court delivered in mid-May at the Albert symposium. Student protest the law sponsored by the law schools of the University of Michigan and Wayne State. Listen

next week. This has been special of the week from M E R the national educational radio network.