Special of the week; Issue 31-69

NDE are the national educational radio network presents special of the week. We continue with the presentation of this symposium called student protest and the law held in Ann Arbor in mid-May sponsored by the Institute of continuing legal education of the law schools of the University of Michigan and Wayne State Attorneys school administrators and state officials from 38 states attended this timely symposium on this special from the section dealing with judicial remedies for campus problems. The school in CT discussed further 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. Once again Mr. Holloway. The role of the disciplined body where possible conflicts occur between commingling of of decision and prosecutorial functions. Three cases out on that now Watson rock Wright and Jones discussions

concerning appeal is or should there is or should there be an end of an appeal. But me and Sanders go into that questions about transcripts necessity of it was denied and in the Duke case. But my my question would be to the institutional lawyers present and if there isn't any kind of a transcript it is going to be a subsequent judicial proceeding how going to be reviewed and if you have some sort of a record the role of university counsel and I became keenly aware of this situation. We've got a whole bunch of cases out and I this is not on the outline by the way if you want to see an interesting cases just smack out on its Mac vs. Florida State Board of Dentistry. It's in 37 law a 37 LW 2 5 7 1. This was the lifting of the license of a dentist before the board of dental licensing authority or whatever it was and the council had

three hats on. He was a member of the committee member of the board. He was the prosecutor had he puts his pill in something else I forget what it was but I would suggest that even the most conservative of us would say that that probably violated some fundamental principle which is what the court held and sent it back. The role of the university counsel was as and a sorry lot because he gets called into these situations and really he finds himself coming around the other side of the table ruling out his own objections. You know I would also suggest to you that the we now have a significant body of law dealing with that dealing with self-incrimination. And you try to take the the last part of the word. It's easier to take the first one it's. And no it isn't a very you tiny F U R U T A N I N the site was given by somebody in the audience correctly it's 37 law a

25 91 gross or versus trustees of Columbia University also goes into self-incrimination question as as does Goldberg vs. the regents University of California. In short as far as procedural due process involving students who have been suspended or expelled the law is quite clear now procedural aspects have to be provided I think they should and I have no qualms with that and I don't think most towns over universities do. It's the extent to which they shall go from this point forward that I'm most concerned with. I would suggest that the biggest question now confronting institutions of higher education is not the individual's rights because of the the institutions but the root rights of group control. The rights of group control which I'll touch on shortly. They're going to discuss later questions of probation suspension expulsion. But I would I would suggest to to those present that probation suspension exposure

in the case of what I do it's going to its hard core militant activists are not going to do it. They're going to continue to remain about the grounds and they're going to continue to lead the marches and the demonstrations. We also found that they would find various and sundry ways to also having been kicked out of school either on a suspended or exposure basis to do find means to have the university support them while they're doing that including the passing of the hat among the faculty. This was this was particularly interesting when somebody's collecting for Mr. Button in his living fund entered the office of one of the professors who was on the university discipline committee that suspended him. And the guy collecting the money didn't realize that she had been on the committee. But I think we've got some some unwitting perhaps faculty involvement here which I'm not sure is entirely appropriate but nevertheless there I listed

three other ancillary sanctions denial of employment denial of financial aid. And if they are housed in university. Housing suggestion that provisions be inserted in the contract once again sticking with traditional concepts of violation of university rules and regulations leading to their suspension or expulsion just bring about a determination of their lease as a case. It usually turns out the leaders in the real act of relevance are not house and university housings on most cases I don't think that's a problem. But they do find themselves employed frequently by the institution and they do find themselves with grants of various scholarships and so forth. It would be my suggestion that in the drafting of university rules and regulations as has been done at the university we provided that that this sanction may be imposed provided it's imposed at the time sentences imposed and would you can't be sent something done later and that thereby these are these are imposed.

The BUT ME case also stands for the inherent power of institutions to discipline and there are other cases cited in but me referring to the inherent power. I would not however recommend. I would agree with Mr Libby that institutions rely on inherent power. I feel very strongly that institutions have an obligation to submit to the students in advance. Those rules and regulations which it expects them to do to fulfill and that they should be unequivocal Lay should be as specific as possible and we shouldn't any more be relying upon inherent rules to discipline because sooner or later I don't think there was. There was stand up if they're properly tested with reference to the university going in as a plaintiff. There are there are two or three things that that I would like to stress at this point. Is this a new tool. I'm talking now about equitable relief or the use of equitable remedies of temporary

restraining orders or injunctions. No it's not a new tool. It's been around for a long long time since early common law and the earlier courts of equity Chancery and so forth. Basically for the non lawyers present two things must be present before you're entitled to equitable relief. One is that you have an irreparable injury which can't be compensated for and in terms of dollars and cents i.e. damages and of course this is a natural for a university because you're talking about disruptive behavior directed against the university where it has books archives teaching functions and so forth. You make out a kind of face a case of irreparable without a great deal of of argument. Secondly that there is no adequate remedy at law to to compensate you and I would suggest that as far as university functions and so forth contra Mr. Libby's suggestion that there isn't any adequate remedy at law that the remedies of law what remedies there are are totally ineffective as far as redressing and the University Club is

concerned I would like to do if I may. This is more for the lawyers to refer to some of the fundamentals that are involved in equitable remedies when in going to a couple of cases I found that I thought were pertinent. The Rules of Civil Procedure which federal rules or procedure in many states have adopted similar ones provided that every order granting an injunction and every restraining order is binding only upon the parties to the action. Their officers agents servants employees and attorneys and upon those persons in active concert or participation with them who receive notice of the order by personal service or otherwise. The legal questions therefore seem to resolve themselves into five categories. Number one what is meant by persons in active concert or participation. Number two what is meant by notice number three what constitutional implications are their number four. What about jurisdiction. In other words venue. And lastly what is

the nature of contempt proceedings. I thought I would discuss these briefly in sequence with reference to persons in active concert or participation. The federal and most many to state rules adopted their thereupon provide for a binding injunction against unnamed persons who were acting in concert or participation with the named persons and joint. The question is how the courts have in fact treated this provision. We don't in Colorado have any specifics but there are some federal cases and the course we're all familiar with Baron hopes of. But generally speaking text wise the the text writers have said the court may not grant an injunction to be so broad as to make punishable the conduct of persons who act independently and whose rights have not been adjudged according to laws but one who knowingly aids abets sister acts and act in concert with the person who has been enjoying and violating the injunction can be held in contempt even though he was not himself named or served with process in

the suit in which the injunction was issued or even served with a copy there of or even served with a copy of the injunction. As may appear as now it should be obvious the person charged with contempt must have some definable relationship with the person named in the injunction before conviction will live as an example of this situation a federal case Chisholm vs canes which is the overall case. This is an example of one limit held that upheld an injunction against a trespass directed at the name defendant and all persons whomsoever. All persons who ever the Contemp defendants had not been parties to the injunction suit and not acted in concert with the injunction defendant but merely trespass on the plainest land with knowledge of the decree in pursuit of their own interests. This this was upheld at that time. However a subsequent case coming out of the Second Circuit 930 Alamut manufacturing company vs

stat. Wherein judge Learned Hand made some very learned observations concluded that the only person subject to contempt for those who abetted the injunction defendant in his violation of the decree and those who were illegally identified with him such as agents judge hands possession was subsequently incorporated into the 1934 famous United States Supreme Court case of Chase National City Bank and subsequently written into the federal rules themselves. The bus in in a recent one of most recent cases I picked up right vs. United States the defendant Reich was enjoined from introducing certain things into interstate commerce. The question came about it did he know about it and as it turned out they had subsequently sent him a copy of the thing by mail and the question as to his aiding and abetting was was resolved.

Another case that recently came out of the Fifth Circuit 965 Lance vs. plumber and nigger civil rights group obtained an injunction against certain businesses and organizations and saying York City in Florida in joining them from harassing and intimidating negro negroes seeking service lanced it was an unpaid deputy sheriff who was not a named defendant was found in contempt of court for using profanity towards and threatening and threateningly following certain negro seeking accommodations at a hotel. The circuit court in sustaining the contempt conviction found that there was adequate evidence to sustain a finding that Lance was in active participation even though not name and stated as follows. The court's order here complained the court's order here complained and sought to bind all persons receiving actual notice whether or not they felt within the class of parties to the actions of war. However the court's findings clearly show that its quarter adding Lance as a defendant was justified from the court's determination that his

can conduct. Was it active concert or participation with a named defendant that he was doing acts alleged in the complaint is being carried on by the name defendants and then the court went on to say that the admitted nexus between Lance and this other individual during the period when Lance committed the acts in question clearly warranted the trial court's determination that Lance was subject to the terms of the injunction as being an active participation with this other individual. Also another case that that I have found that I think is particularly worthy of comment is Evers versus Bird Song. B r d s o n g it's not in my outline if you don't use 287 federal sub 900 287 feds and hundreds in one thousand sixty eight case in this. Charles Evers was a Negro civil rights leader attempted to present certain grievances to the administration of al Coran and then college in his initial attempt to stage a march in the president's house. His marchers were

Hall of the college and entrance by security officers. The marchers surged through the officers and two hundred thirty five were arrested. Evers then filed a complaint in federal district court and obtained a temporary restraining order allowing two hundred persons to march on the campus this march was carried out without mishap and the president submitted the grievances presented to the trustees during his subsequent subsequent period Mr. Evers and certain other names point named plaintiffs continues conducting a continuous harassment of the college resulting in the destruction of several buildings and disruption of college activities including commencement the college filed an answer and counterclaim for an injunction and damages. Now this is interesting they filed the suit originally in the federal court that's how the federal court got jurisdiction. Colleges and came in with this counter-claim answering counterplay. The court dismissed the plaintiffs and the colleges claim for damages but stated with reference to the injunction quote This

authority is delegate billed to the school president as officials who must be given wide discretion in anticipating and preventing interruptions in the classroom and student activities for which the school is operated. School campuses are not public in the sense of streets courthouses and public parks open for expressions of free speech by the public. The right to free speech assembly or protest has never been so judicious judicially and large as to permit disruption in a school or and destruction of its property. It would seem more logical to assume that it is the duty of school officials to protect students from such disruptions related above and for law officials of the state to protect its property from destruction. The court fines a plaintiff's action should be dismissed and that upon defendant's counteraction plaintiffs and their class described above should be permanently enjoined in restrain from inciting leading participating in or counselling any marches demonstrations or disturbances on the campus of outworn college. As can be seen the class of persons who can be enjoined may be very broad indeed and of course all persons

against whom contempt for seatings can be successfully brought need not be named. As far as notice is concerned if a person has actual notice regardless of source that his conduct has been enjoined he can be held in contempt for violating the injunction. Constitutional implications are constantly raised by the student activists. The question is and thus presented as to as to what result will accrue if the university obtains an injunction against what is ultimately determined to be protected activity under the First Amendment. In other words is the unconstitutionality of the injunction a defense in the contempt proceedings. This is I think a very close question the leading cases. United States Supreme Court case Walker vs. city of Birmingham. Not going to go into it in great detail other than the point out that although it would appear that even though the trial court has enjoined to

protect its First Amendment rights its power to punish for contempt will still be upheld. This is where I think this particular tool and why this particular tool is so effective as a tool for the administration to use in court proceedings. And of course as you probably know. A review of a contempt proceedings is practically limited to whether or not the court had jurisdiction to enter in the first place. As I say the leading cases Walker vs. city of Birmingham it was a by believe a 5 to 4. The composition of the court has changed. But they did they did uphold the contempt provisions. Jurisdiction of course is the last point that I cover under this jurisdiction is if the universities are going to ask for is I my can conceive of no situation where the university can

go into into the federal court they'd have to resort to unless they can get a substitute plan of or something like that really and have diversity but then it would have to be in the state courts. Now there are two or three that have been employed very very recently the last few days and I've corresponded with counsel. One is American University and the other at Howard University in Washington DC. However although those were brought by the institutions they were the plaintiffs in other words you applied for and obtained the injunctive order. The District of Columbia doesn't have I mean those are the fees that is their only forum so that doesn't stand as any great precedents or institutions that are here and in the several states. So universities must apply to the state courts and they have started to do this and in the end some of the very recent cases that we have a gentleman here from Dartmouth. I obtained from the from their counselor a copy of their petition and the injunction that was issued they simply recited what they anticipated was to happen these recited actions taken by the fact that it's to do with the ROTC

and that the court entered the in the injunction. The effectiveness of it is extremely effective because of contemporary seedings can immediately be brought in they're not reviewable. Turning then to two Roman numeral two a two with reference to summary suspension as a as another weapon other words can you can the institutions summarily suspend. There are two cases one has been mentioned by Mr Libby is the Strickland case from from the student's friend Mr Judge Doyle in Wisconsin there is I think this can well be regarded as the student's friend throughout the United States. His decisions I know Mr. Libby would agree with this but his two or three decisions in this area stand out

almost alone by themselves. Judge Doyle said no you can't suspend I think there they impose a 13 day interim suspension. And in the second case Judge Doyle said nope can't do that to get a preliminary hearing. I would respectfully submit to you that that in the light of the Bluefield college case Baker versus Hardway that decision and by Doyle those is way beyond that which was allowed and eventually went up to the United States Supreme Court and in which. Where cert was denied where Judge Justice Fortas excuse expression made some remarks and in saying that there were some distinctions between disruptive harassing conduct and black armbands which in the Tinker case were protected free speech. I think that if one reads the barker vs. Hardway decision which incidentally are sidedness that that have now been approved certainly in a rather unique way of approving them but enumerated through

that stricken I think is tacitly overruled as far as this and they uphold the right to summarily suspend and then give the hearing later. And another thing about the the the case of Barker vs. Hardway the district court opinion I thought was particularly interesting. It's a new type of student behavior. It's it's harassment behavior although there was a little violence later. The thing that they were really charged with was was just plain out and out intimidation and harassment which started a football game by putting a sign up a placard in front of the president's party so we couldn't see the game. And then when he moves over to the other side they come over put the placard up again in front of him and then they surround him. I constantly surround him and harass him and when he started to leave the football game he parked the car in front of me so he had to back out of the football game I don't know how far he had to back out but. That the case is very interesting because he summarily suspended them in and

subsequently had a hearing and they say this was hell as far as effectiveness to deal with with the difficult problems that some of the institutions have been confronted with several trespass I've got it listed there under to be Roman too and then Capital be common law actions are totally ineffective and I don't even think we have to spend the time discussing it it's obvious whether whether an effective I was was amazed at how difficult trespass actions. I went and found a few were really Karrada cases were to maintain the criminal let alone civil. I mean you had you have to show that persons enter upon the property with an intent to steal it or do damage to it and that in malice and you have to the elements of establishing some of these are really quite significant. I'd like to turn next to number three the university role appearing in his other capacity namely as a complaining witness dealing with criminal

trespass. Very So from state to state it isn't in where it wasn't worth my time to even try to assemble these. I notice that Cornell has just used criminal trespass proceedings against these St.. All or whatever it's called a sit in people. It would simply depend on what you have in your state as far as whether it's effective or not. The ones that we have in Colorado would be totally ineffective. We have something about about taking one's orchard past your mines and something like that but it's not very effective as far as higher education is concerned. In fact as far as one's orchard range grass mines I think that's the way it reads. The head of an early Donnybrook and somebody cut the fence and but the sheep and they do all the guys past here and then whip the sheep out and put the fence back up and the court held that that wasn't criminal trespass they'd have to show that the sheep and the sheep herder knowingly went in there and you know after he cut the fence I was one of the right help you need.

Not very effective I might add other criminal actions that are in existence in many states are such things a breach of the peace and unlawful assembly. These may or may not be effective depending on your individual your individual states. But I I do have what I think are some novel material here and my time is running out but if you will turn to the to the in the outline. I've handed Colorado's new campus disorder bill to my knowledge this is the first one that's been enacted. I'll be very brief when this was introduced or something that didn't look anything like this except for the House bill 10:16. It was a very it was a very vindictive piece of legislation and I happened to know a great many people legislature and asked me to come down and say what what could we pass that

might be of assistance recognizing that Colorado has very weak trespass and I serve as sort of an advisor to a subcommittee of the House Judiciary Committee. And this is what we came up with. Every one of these acts declared to be unlawful have been sustained by the courts as being sufficient grounds for expulsion or suspension of students from the institutions. And based on my knowledge of criminal law the legislature is in a position to make criminal that conduct which it feels to be criminal. And I thought that by tying these together we would have a reasonable piece of legislation not a vindictive piece of legislation that in effect would would help our state lawful freedom of movement on the campus lawful use of facilities property or pars the right of lawful ingress and egress. I don't think that that anybody can find a great deal of. Criticism about this sort of thing. The other point I'd like to make for your benefit is it was also attached to

this is another bill which was has been upheld in the state of California. It's a part of the California penal code. It deals with nine students coming on campuses. How the nine students can be removed. And it's been up Helvellyn Agnello a GNT EL AL Oh I don't have this in the report 66 Cal reporter 66 Cao a reporter 571 in conclusion. It's my feeling that the ultimate confrontation student wise is going to be with the faculty I think with the de-emphasis on teaching the publish or perish and so forth. The faculty of the ones who are going to have to assume more responsibility than the beautiful Orban assume in the final analysis we can say what we want we can have laws we can have cases we can have tools of all kinds but disruptive violent behavior is going to come to an end when here

censorship is imposed. In other words when the great body of students becomes sick and tired of it and I think we're seeing some of this throughout the country activism and concern is yes but conduct disruptive of persons rights and freedoms and liberties No I think that that. Many of these things are useful but in the final analysis it's going to be it's going to be the students themselves in the great body of students the great silent majority like the great senate majority of voters who are going to we're going to turn tail for thank you very much. Thank you. Mr. John P. Holloway resident legal counsel for the University of Colorado speaking on the school in court delivered in mid-May at the Albert symposium. Student protest and the law sponsored by the Institute of continuing legal education of the law schools of the University of Michigan and Wayne State. Listen next week for protest on discipline in the private institution.

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