Special of the week; Issue 38-69

NDE are the national educational radio network presents special of the week. We continue with the present ation of the remarks made during the symposium student protest and the law held in Ann Arbor in mid-May and sponsored by the Institute of continuing legal education of the law schools of Wayne State and the University of Michigan. The topic for this session is the constitutional protection of protest and the speaker William dental Stein. This sitting professor of law at Stanford and a professor of law at the Duke University School of Law. No mention has been made of an extra legal document which seems to me may be of considerable practical importance on the most captivating document I have in mind in a relatively brief joint statement on student rights and freedom. The statement already originated in a standing committee project of the American Association of University Professors back in 1960. And a final draft of the association satisfaction was finally to 565.

At that point it became a joint project and it is the joint nature of the enterprise. It's a gift that the that the statement may be extremely influential from campus to campus. It's not because of its reasoning at least because of its broad cross-section of report. The statement now you see it's a joint statement not merely of the professoriate or the AUP with its 90000 members representing roughly one third. Of all full time faculty and accredited institutions of higher learning in the United States it is also the policy position of the Association of American colleges and administrative organization explicitly representing more than 900 institutions. It's also the policy statement of the National Association of Student personnel administrator representing several thousand beings and the National Association of Women deans and counselors as well as the National Student Association which these days enjoys a far more savory reputation than when STDs was not in the field as a as a left rival. The cross-sectional report

therefore it seems to me suggests that the statement has considerable practical utility from place to place that even assuming that my remarks which attempt to convert the standards of the joint statement with those of the 14th Amendment as a matter of constitutional demand even if my reflections may turn out to be in error or I've incorrectly anticipated the flow of judicial decisions and misjudge they are degree of shared hostility to the student unrest. Even so it seems to me as a bargaining point the statement he's found to have considerable influence and as a practical reference it can be. Copies can be secured through any of those organizations and I know that it was published in the summer issue. 968 of the people. And most of my remarks dub tail with portions of that statement quite precisely. One further. Testy observation this respect some sections of the statement especially those with regard to the profit of its students to support political causes on campus by any

orderly means and their prerogative to be critical. Even of the university as well as general policy through the Student Press albeit a university financed press. Their prerogative to invite guest speakers without restriction in the nature of the content or the political affiliation of those parties. And some of the standards respecting procedures to be followed. The specificity of rules and so on have already been favorably adverted to buy at least three federal district courts and indeed in one case at least. Which responds to to a problem raised by the previous speaker and one case at least that a Federal Judge James Doyle of the. Wisconsin District Court. Adopted the AAUP position as essentially a correct statement. Fourteenth Amendment demands. The other part in this connection and this is becoming a terribly prolix thought isn't it. Is that the joint statement. Unlike the Constitution makes no distinction between the public and the private institution.

Indeed Miss Carrington's been handing me a few questions even before I've gotten to the podium. As though someone correctly divined that we're going to be in disagreement anyway and raise the question by way of anticipation. Trying to labor the distinction for legal purposes between the public and private institutions. The joint statement makes no distinction and I suppose the reason it's self-evident that as a matter of sound educational instinct it is difficult to rationalize. A distinction in terms of fundamentally fair standards as to a difference between a public and a private institution. If to take a particular point for instance. Legal Counsel ought to be admitted to a student disciplinary proceeding to assure some modicum of fairness though the extent of his participation may be subject to the discretion of the board that hears the case. If that is true as a general proposition it is hard to determine pieties less true

though the institution is not technically a public one and therefore not technically required as a matter of the Due Process Clause of the 14th Amendment to accept that proposition. Indeed the distinction between public and private institutions and matters of procedures seems to me seems ever so much more difficult to argue as an original proposition. Then for instance differences between public and private institutions for substantive purposes by substantive I mean of course simply a correlation in higher education so that one institution need not have precisely the same academic lifestyle as another. That you and I for instance might mutually agree. That as a rule at a given institution rigidly. Regulating style of dress or style of haircut or something of that sort is distasteful to us given the pluralism of higher education it is not likely we would say that such an institution ought not have any profit to exist at all. There's enough room in higher education for those standards of a subsonic kind within reasonable

degree to exist and I for one would be reluctant really to see it conform even even according to a libertarian commitment on the subject side so that argument is very difficult to carry is it not when one discusses procedural due process. If it is reasonable that those standards of an institution ought to be registered with sufficient clarity that students know well in advance of committing themself to a court a course of conduct as to whether or not what they propose to do is forbidden or is permitted. If specificity and clarity of rules seem to be a reasonable standard then it seems not to jar the notion of pluralism in higher education that the same standard would apply at the private institutions So again the statement makes no distinction I can make none on educational grounds. And finally I doubt whether in the long run the courts are going to make much of such a distinction. I understand the professor being addressed to you on the state action problem. Yesterday on the fading distinction between the public and the private institutions for 14th Amendment

purposes. And if ah some of the recent physicians have surprised me and their relative conservatism a fading character the distinction is a trend I expect to see continue with the evolving heavy FEDERAL SUPPLEMENT to private institutions. It seems to me inevitable given they so-called place high public nature of education itself. Given the drift toward heavy federal financing. The constitutional distinction is almost certain to disappear for most significant purposes. Even as a pragmatic matter I think most private institutions which want to rest on the legal privacy of their corporate profit are resting on the proverbial very frail reed. Under the circumstances. All right. It's not so much of them for they for the overture and how for the brief remarks. On the America. I want to take this into parks run necessarily trespassing some remarks that have already been made

and I will provide it in its brief resume as I can and that has to do. With what I regard as constitutionally evolving minimum procedural guarantees. But this requires a degree of qualification one of which we've already observed that as a practical matter since we are speaking then of constitutional norms coming out of the Fifth Amendment and the 14th Amendment due process clauses alone these clauses by definition apply this far only to govern mentally assisted bodies. That's what I have to say is perhaps technically irrelevant to any university which is technically private for constitutional purposes. At the same time I do want to mention that even in the area of contracts there are a few court decisions respecting private institutions which have tried to and have begun to read in to the field of private university student contacts. A concept of unconscionable a concept which tends to set aside boilerplate clauses in student

handbooks reserving almost you know lateral total prerogative to modify rules or to compose on hoc grounds for expulsion and all the rest. Even in the private institution where the relationship is strictly speaking still contractual and not constitutional there's a very modest trend of even the common law courts to second guess the intrinsic rock bottom fairness of these boilerplate clauses. And I mention this in passing merely as an eminently practical matter because traditionally of course knowledgeable House counsel serving the interest of their college clients. Would almost conventionally put into the contract a matriculation or the handbook that is incorporated by reference into that contract. This large reservation of authority which could always be used to fall back upon in case of subsequent litigation and friction between the student and the university. But I'm trying to suggest to you is that in the field of private higher education. Rather than such boilerplate now being especially serviceable to the institution it may be positively destructive. That is to

say it may void the effort when something a little bit more specific a little less rugged would have been sustained by the courts. Additional qualification the concept of procedural due process as I'm sure you know. Is not a frozen thing it does not refer to a single fixed style of procedure. The Supreme Court's general observation has been and one which I share is that the quantity of procedure must be directly proportional to the gravity of the harm. Which may befall the individual who is guilty of ascertained pursuant to that procedure. So the degree of procedural due process and its a function of the seriousness of the offense. To put it in in a more direct manner. That's most of what I have to say has nothing to do with violations of rules which cannot result in penalties which no reasonable man would describe as being severe yet all that can happen at the terminus of a given dispute with a student with a counselor

or a Dean is an oral reprimand or the temporary suspension of some social privilege. For instance I have no doubt that not even in the foreseeable future the most ambitious intrusive federal court. Will require a judicial proceeding before allowing the dormitory manager or the dean of students or someone else with great informality to dispose of those disputes. My remarks on a stepped up concept of procedural due process apply only to those kinds of offenses which can result in a good degree of jeopardy to the student's academic career. Expulsion is the most obvious one suspension for more than a term I should think might well qualify. With regard to certain offenses however. Something less superficially than suspension may in the long term have much more invidious consequences and therefore require the kind of procedure that I mean to outline. Such an offense for instance might have great consequences not because it immediately results in the terminations of the student's academic career but because the published

determination of guilt carries with it a degree of stigma. That may be so disadvantaging in the ensuing career of the students that one must be quite careful that the statement was properly attached i.e. that the offense was in fact committed. An allegation that the student for instance had committed an act of homosexuality though the finding would not result in his expulsion but merely in the referral to a psychiatrist or something of that sort. Such a finding noted on the student's permanent record subsequently to be made available to inquiring third party prospected employed in the red. Overall at least as damaging as the suspension for term. Thus without belaboring this more than I already have it seems to me by merely mean to suggest that the degree of procedural due process which I mean to outline and which will doubtless strike some of you as it is unreasonably high and recently demanding and not even uniformly supported by current federal court decisions which in fact is true not all of it I have to say is uniformly so supportive. Nonetheless is meant to be applicable only

to the Only to the grave cases. Finally this as well because of what Professor Ferrer. Observed. Nothing in the system I mean so briefly to outline. At all. Need to displace in the first instance the effort by the university to dispose of alleged violation by a highly formal process. So long as there is an opportunity preserved to the student who is in disagreement with the integrity of the finding or the appropriateness of the discipline sought to be imposed in the very informal proceeding with the given dean of students for instance so long as there is reserved to him an opportunity to insist upon a de novo hearing of the type. I mean to outline and hearing the outcome of it used totally unprejudiced and uninfluenced. By whatever may have transpired between the student and the dean there is nothing in the system of due process that says that the university me dispense with

attempts at informal reconciliation. The single cautionary note that need be sounded here however is that the desire of the university to economize or to preserve its style of intimacy with the student in a more affirmative sense by trying even grave offenses by mere informal interview with the dean of students at the first step is a sustainable enterprise. If but only if nothing that transpires there carries over. To a subsequent hearing in the event the student is dissatisfied with the result. Otherwise of course if it were otherwise the formal hearing serves no protective function to the extent that the student for instance. But he may have disclosed to the dean in the counseling situation may then be used against him in the formal situation by then the formal hearing itself becomes quite a useless enterprise he's induced on the notion that this is an intimate community. This is an effort to help him not punish him. You can do to make certain statements and then find the times that those are being used in the other context.

That's what I mean that in order to preserve the legitimacy of the informal hearing at least there must be the ensuing opportunity for a more formal hearing. That is literally de novo without any reference to what may have transpired previously. Well with all of those carving out to them. An essential outline I think of the evolving standards. It's fairly simple to provide and am indeed. I've tried to do so. One of the pieces that's within the Denver law journal that you have. I might suggest also that the companion issue of the far left Florida law review contains an outline on the same subject in 1968. And I've tried to say more about this in the 1063 volume of the UCLA Law Review. The first step in due process I suppose has to do with a necessity for a degree of clarity rules does it not. And I understand that you have already heard remarks respecting the authority of the university to discipline students based upon no rule whatever.

Based upon rather a claim of an inherent authority to maintain order or to police minimum conditions of civilized conduct on campus. Civil society of course. Action by the state of a prosecutive nature in the absence of any law forbidding conduct with sufficient clarity that reasonable men may know in advance. That what what is forbidden would be held flatly to deny due process. Indeed it involves the concept of an ex-post facto law but to the extent that there is no rule published in advance and available to one announcing to the satisfaction of court he is forbidden to do. And he discovered only after he's committed himself to a course of action that it is now declared to have been wrong. The procedure has the unsavory flavor of an ex-post facto law. It is true that several of the courts however have nonetheless sustained expulsion proceedings based upon a claim of inherent authority. This has occurred to the best of my knowledge only in those

cases. However only in those cases. Where the nature of the student conduct established in a reasonable hearing actually to have occurred was of such a character that no reason most students could have imagined from the beginning that it would not be punishable or that it was permitted. We are talking about cases where the degree of misconduct has involved arson or the physical and long term occupation of buildings and the willful destruction of property. This is a situation where in a kind of commonsense style I suppose. A claim that there was no rule that warned me in advance that what I do might be subject to discipline. Sounds entirely enfeebled. It sounds quite dishonest and in fact it is. There is in this regard I mean to suggest and would run a very large area of exception for the demand for a specific rule made very clear from the decisions of the federal court. Still some sense in the old lawyers distinction the professors of criminal law denigrate very much of these days between a kind of malum in se and malum prohibitum.

To the extent we are talking about conduct which no one is even a stranger to Colombian is not grown up in New York. We'll suppose that some of the university cannot look upon with with favor burning its buildings. One cannot get terribly exercised on a claim of surprise. Of the expo's fact a claim but the malum prohibitum concept it seems to me ought to ought to advice you. Then there are a great number of areas given the heterogeneity and any of our faculty and student bodies were people may reasonably doubt as to whether something is permitted or forbidden. We mentioned control of dress styles. For instance it seems to me given again the the nature of a university that draws from any substantial geographic area. There's no reason for student to suppose that that may be forbidden if it is meant to be so there must be a crisp and specific rule. And accessible to students on point even such things as class attendance which now is sometimes sought to be used as a kind of a lever against students whom they think were

involved in a demonstration but could not be identified that they are getting on and attendance record attendance insufficiently treated in sufficiently different ways from place to place a bit too it seems to me would have to be clearly spelled out. Almost all matters of social regulation. Even drinking in the apartments and that sort of thing. We'll have to find some reference in a preexisting rule. To make that appropriately subject to discipline. Finally there is this exception and they make the growing magnitude of this exception almost swallows up in my judgment the claim that the university can act on the basis of its inherent authority. The exception seems to exist in the field of First Amendment freedoms freedom of speech freedom of peaceable assembly freedom to petition government including the public institution of government of a public university for redress of grievances. There is a very large pattern of Supreme Court decision in this area.

Requiring a spectacular degree of precision and narrowness and specificity in rule making a rule which is even marginally broader. Then it constitutionally may be in view of the First Amendment demands used in peril of being held void on its face even though the conduct involved in the case where the challenge to the rule arises. Is conduct which the institution clearly could have proscribed had the rule been drawn with a becoming specificity and clarity. The reason for this amazing result that even the very guilty man who has misbehaved he has taken the building and not merely submitted the petition for redress or participated in a in a reasonably calm outdoor assembly. The reason why even guilty those who have gone way beyond protected First Amendment rights may sometimes get free under this doctrine that the rule of the statute is void on its face for vagueness or overbred.

It's not hard to discern but I do mean to reassure you that there are no less than six district court decisions so holding indeed one from South Carolina applied precisely to this case where a demonstration could not be held on campus without the prior consent of the president of the institution and that was the rule. Though the particular demonstration was highly disruptive. This was one on Orangeburg. State college campus shortly before the so-called R and Berg massacre. The students suspended were reinstated by federal court for simply held a rule void on its face depreciates only interesting arbitrary discretion to the president giving him freedom to pick and choose among demonstrations without any listing of criteria asked to it that would control his judgment. The reason for this amazing rule at least amazing to laymen. It simply that freedom of speech and freedom of peaceable assembly are regarded by the Supreme Court not merely as constitutionally protected but constitutionally precious constitutionally important things that society

encourage and not discourage the presence of the vague the end going to Tory. The standard less for the overly extensive rule. The presence of the published rule by itself so it is felt tends to produce a chilling effect even with regard to the protected areas of speech to the extent for instance that that. The rule seems to forbit even those demonstrations which would be constitutionally protected. The students are discouraged by the presence of the rule from conducting even the legitimate form of protest. That's one who has conducted the illegitimate protest. Can utilize the objection that the rule is void on its face and it comes crashing down. The suggestion that I'm trying to make at this step is that to the extent the institution relies on a rule. Certainly in the First Amendment area certainly in the protest area. It must not rely on a boilerplate provision it must have very narrow very specific very precise rules that go no further. In the control of demonstrations on

campus. Than the substantive law of First Amendment entitles the university to reach under those circumstances. Assuming that the requisite specificity of the rule the rest I believe follows very much in line with remarks of previous speakers except my own view is slightly more aggressive I suppose. And that is among the other things I believe now to be required in any grave offense if one does not want it. Probably chance of success to to be reviewed by the federal district courts are the following items. That a student must not only be charged pursuant to a rule but be charged with some kind of specific notice of the alleged misconduct. Alleged to violate the rule itself. That charge must be placed in ample time for the conduct of any hearing of course so to ensure he has a reasonable opportunity to prepare for the hearing itself. While it

is true that a majority of the court so far examining the question have held that even the public institution need not permit a student to be represented by a retained counsel even as an advisor at least two courts have held to the contrary. And this is as I say an evolving area indeed. Need I remind you that until 1961 there was no federal decision that held that the quality of procedural due process applied to public university students at all. That's the confident Council reading precedents in 1060 that say there are no demands here. Now confident counsel reading them today and say well a majority still think counsel isn't required. That's right. One is not reading trends it seems to me. The presence of counsel. In an advisory role is an emerging trend in my view. And so the best of my knowledge those universities that have permitted counsel to participate have not found it unduly awkward time consuming or expensive. It will ordinarily mean of course as a practical matter that the

university will have to put counsel on the other side as well. The informality of the proceeding for the commission both here is both adjudicate and really informally prosecute by asking the questions and bringing in the witnesses. Probably cannot long endure want to retain counsel does represent the student an intermediate position at those universities having law school which I believe will continue to be acceptable to the federal courts. It would be to supply students retained counsel from senior law students who are sufficiently along in their professional education that the quality of their advice it would probably be regarded as substantial enough by the courts to assure the minimum rights of the students. Certainly the opportunity to testify. The opportunity to hear witnesses demand that the hearing committee decide these matters exclusively on the basis of what it presented in the hearing and not on things outside the hearing itself a kind of standard administrative law requirement to be sure. And probably an opportunity to cross-examine. Again I know.

That there are attorneys in the audience who can cite a case or two for a court if that cross-examination is not itself indispensable either to the contrary. A circuit court for the Fifth Circuit took the position that in the absence of an opportunity to cross-examine Nonetheless the student at least would have to be given the names of all witnesses to appear against him. Plus a resume of all things to which they testified in order to put him in a suitable position to respond. With regard to the question of trial by one's peers I do not doubt that the Sixth Amendment notion of trial by jury in that sense is very unlikely to be important. I think the students have a calm and rational policy claim. For some representation of their own peers on these hearing boards I do not anticipate a federal court decision to that effect. You have been listening to William Van Alstyne visiting law professor at Stanford University and a professor of law at Duke University speaking last May in Ann

Arbor. During the symposium student protest and the law sponsored by the law schools of Wayne State University and the University of Michigan. His general topic was constitutional protection of protest. We will conclude this series next week. Listen to a special of the week next week prepared for broadcast by member stations of NBER the national educational radio network.