Special of the week; Issue 32-69

NDE are the national educational radio network presents special of the week. We continue with the presentation of remarks made at the symposium 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 Wayne State and the University of Michigan this week. Protest and discipline in the private institution a comparative view discussed by William M. beenie professor of law at the University of Denver College of Law and formally professor of politics and chairman of the department of politics at Princeton. Mr. Binney I'm very happy that Mr. Libby touched on the common law a remedy is available to those who may challenge actions of the private institutions. I think that in our concern with constitutional law in these recent and

perhaps soon to pass hell Seon. Days of the Supreme Court that we have forgotten the common law provided a number of remedies for those who are disturbed by actions of other individuals groups associations or whatever. And so I just want to mention very briefly that through the law of contracts or that body of ever changing legal principles the law of torts a students may be able to found claims which will find recognition in our courts of law. For although both private and public institutions have a penchant for including in their regulations very sweeping assertions of their power to suspend or expel students on rather general grounds whatever

grounds they find convincing modern courts might well regard the contractual relationship between students and institutions as essential a contract of adhesion and might well read in reasonable rules limiting arbitrary dismissals or expulsions or other serious disciplinary acts. Similarly I think in the light of certain modern trends in tort law students might claim torturous injury whether education is interrupted and their reputation seriously damaged by allegedly unfair suspension or dismissal or they might bring suit on the basis of an invasion of their privacy as Mr Libby suggested or on grounds of trespass where officials of an institution impose themselves upon the rooms or the lockers or other places which a

student might well regard as private. Yet I think it's realistic to say that on the basis of the case law which we now have. In the light of the rather sparse record of court decisions upholding student claims against institutions that it would take a decisive change of mind of the courts in order for these common law avenues to become very fruitful sources for vindicating claims. Yet I think we should keep in mind the potentiality of these common law remedies which may be used against private institutions as the courts inevitably are called upon to adjudicate more and more claims especially if the courts refuse to treat private institutions as public with respect to

their treatment of students. The distinction between public and private institutions on the surface at least is that public educational institutions like all other governmental entities at the state level are bound by the guarantees of the 14th Amendment. And in our context especially the equal protection of the laws and the Due Process of Law clauses and individuals who suffer deprivation of rights under the Constitution are protected by various congressionally enacted statutes if the action is state action or has taken place under color of state law. Now ostensibly when we say that we are dealing with private persons or groups associations corporations or educational institutions we would not

therefore expect them to be bound by these constitutional limitations. Though it's true that the public policy of a community expressed through its statutory law may ban discriminatory acts and in various other ways protect individuals against undesirable B behavior by various private persons. But in the absence of such legislatively expressed policy. Does the Constitution of the United States impose any limitation on cry that acts ostensibly private acts that if deemed if deemed to be acts of the state would infringe one or more constitutional provisions or one or more acts of Congress designed to protect individuals against deprivation of their constitutional rights. Now the answer

most simply stated is that the courts have created the conduct of a private entity as though it were public when certain vital rights have been affected adversely by the conduct of that entity. And when there has been a nexus a relationship of a special kind between the state and the private actor or or where the private actor or performs a function that is essential to the public. Now let me briefly cite some of the non educational cases which deal with this almost magical way at least to a layman I would assume it would seem magical by which something called private becomes something called public in terms of legal consequences. In a

case that has been alluded to Marsh vs. Alabama in one thousand forty six case a town wholly own by a private corporation was viewed by the United States Supreme Court as though it were a typical municipality. Hence she hoped his witnesses could not be punished under a state trespass law for distributing literature contrary to the wishes of the town's management. Justice block for the majority rejected the contention that the town managers were in a position analogous to that of a homeowner. The more an owner said Justice Black for his advantage opens up his property for use by the public in general the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.

Another illustrative decision is the well-known case of Shelley vs. Kramer one thousand forty eight case where the Supreme Court held on in forcible by the courts a covenant in a property deed restricting use and occupancy of the property to the White race. Though the discriminatory action of the individual property holder was not in itself state action. The effort to enforce his discriminatory purpose through a court order. The only way in which such a publican would be truly effective involve the state in the discriminatory behavior and thus violated the equal protection of the laws clause. In Barrows vs. Jackson the same basic principle was invoked to prevent a suit by one covenant Torr against another

for damages for breach of covenant. I want to mention briefly just three more cases in the first. The Supreme Court held that the discriminatory policy of a private owner of a restaurant occupying leased space in a public authority Parking Authority violated equal protection of the laws that's Burton vs.. Wilmington one thousand nine hundred sixty one case. The court also invalidated on the same ground an effort to substitute private trustees for the city of Macon Georgia in order to continue what for years had been a city maintained and segregated park as provided in the will of the white. Don't know that's Evans vs. Newton. The nature of the function the part and the close identification of the

city and the park for many years were cited as justifying this conclusion. Finally in the one thousand sixty eight decision in amalgamated food employees union vs. Logan Valley Plaza the court held a split vote 6 to 3 that the private owners of a shopping center could not prevent the exercise of First Amendment rights of picketing private stores located in the center based on the earlier decision of marsh vs. Alabama. The court stressed the public like May chair of modern shopping centers and a severe limitation of First Amendment rights that would result if they were declared off limits to those wishing to picket or to exercise their right of protest. In summing up

these non educational decisions. It seemed they seemed to turn on whether private individuals or groups are endowed by the state with powers or functions that are governmental in nature. As an Evans Marsh and Logan Valley. Or the state is to some significant extent a participant in or has a close relation to the private activity as a Burton. Shelley Burroughs and in Terry vs. Adams where the effort of the state to delegate its control over the elective process to a private political association was held to be a futile effort to carry on discrimination in voting rights. Now when we turn to the limited number of cases which

involve private colleges and universities and trying to determine under what circumstances they though private in origin and private in designation and private in the way they view their position in our society the weight of opinion if it can be called a weight of opinion seems to support the position that at least for some purposes the private notice of institutions certainly relieves them of constitutional obligations that do inhibit state supported institution. There seems to be no question about that. Under the existing law they are not equal and I would anticipate for at least several decades ahead that they will not be treated as though

they are identical or equivalent organisations. A very familiar form formulation is set forth in dictum in Sanders vs. Louisiana state board a case mentioned earlier when the court said that students in private schools do not have the same protected rights as those in public institutions concerning disciplinary proceedings because the constitutional reach of the 14th Amendment clearly extends to state action but not to private action yet for reasons that I will announce shortly. I have considerable difficulty in accepting this decision as reflecting the ultimate position of the courts. Turning to the specific cases we have as is so often the case when we're dealing with law in the process of development

many of the more interesting statements are really what the lawyers call a dictum for addicted judges. Frequently however forecast the nature of the law of the future through these gratuitous hearings which are essential to a disposition of the case they are actually deciding. But there is something in a judge just as there is something that moves inside of all of us. It as you have witnessed at this conference that we love to take positions if given an opportunity. In gallery vs. the administrators of Tulane University Judge J Skelly Wright he who authored the Hanson decision involving the schools in the District of Columbia which has caused so much attention made this comment follow its dictum and so the lawyers need pay no

attention to it. One may question said Judge Wright whether any school or college can ever be so private as to escape the reach of the Fourteenth Amendment. He went on to say the administrators of a private college do the work of the state. Often in the place of the state does it not follow he asks. And I'm sure his answer is suggested by the tenor of his opinion does it not follow that they stand in the shoes of the state. Yet Judge Wright was able to avoid the really tough question by an investigation of the history of Tulane University which showed involvement by the state in its original and later development and by finding certain continuing scraps of relationship which justified him in concluding this Tulane University which has

proclaimed itself a private institution is really not such an animal. It is really a public institution though admittedly a somewhat peculiar public institution. Now finally we come to the last case that I wish to mention a decision of the very prestigious 2nd Circuit Court of Appeals in Pollok p o w e versus miles 4 0 7 federal second 73. One thousand sixty eight. The facts are interesting and I think very important and I would give them somewhat more fully than I have in the case of the other citations. This involves a small quote private end quote. Institution in the state of New York.

Alfred University a small private liberal arts university incorporated in 1857 and 1948 as part of a massive effort by the state of New York to develop a more substantial and better coordinated statewide system of higher education. The state asks some of the private institutions of the state to accept on the basis of contracts certain responsibilities for some of its smaller state schools that previously had been on their own. As the result of a contract then signed subsequent to the 90 day passage of the 1940 Alfred assumed full control full responsibility for the New York State College of ceramics.

The State College of ceramics became one of the four colleges which together composed of Alfred University Bill Alfred and then assume the obligation to operate Ceramics which fortunately was physically contiguous to its own campus. With the state agreeing to contribute annually an amount sufficient to cover all of the direct costs of the ceramics college plus a portion of Alfred's overhead for running the entire operation. The contribution under the contract represented approximately 20 percent of the total income of Alfred University on an annual basis. Now the students of Alfred including the students of the

ceramics college were governed by the same President same team as dean of students had the same regulations of conduct and were all free to take classes throughout the institution and accept that ceramic students concentrated in ceramics taking a few courses in the liberal arts and I suppose the taste of better things was too strong. Well the remainder of Alfred students only occasionally took courses in ceramics. They were indistinguishable members of a single institution. But now events take an interesting turn the day of the ROTC review a day on which parents and friends of the graduates of ROTC are gathered in the stands to watch the presentation of awards in the typical review.

Almost as if for scene the potentialities of a future lawsuit and some old academician standing up and talking about the case. Three students from the ceramics college and four students from the liberal arts college marched out accompanied by a few faculty has huge room holding signs protesting ROTC activities. The war in Vietnam and making a number of claims and assertions about life in the round Alfred University. They managed by their activities to force the disruption of certain parts of the planned activities. An announcement was made by the ever present Dean who probably knew this was going to happen urging them to follow the regulations which had been adopted recently

governing such demonstrations asking them to retreat from the field and while others retreated the seven hearty people persisted. They had a hearing the next day rather full hearing and were suspended. At least it was called the suspension many people would regard it as an expulsion since they were not allowed to reapply for enrollment for approximately a year. Suit was brought against the president of Alfred Dr Miles and the university alleging denials of First Amendment rights and the Nile the Due Process of Law in the procedures actually followed. The distinguished 2nd Circuit Court of Appeals. Wielding what can only be called a very fine

legal scalpel determined that Alfred B's A V it's ceramics students was a public institution. Alfred However with respect to its nine ceramics students remained a private institution the Alfred nuns are emic students were not protected by the Fourteenth Amendment or the First Amendment. The students who were fortunately enrolled in the ceramics school were I should quickly add that quite fortunately the procedures applied by Alfred to its ceramics students were found adequate in the light of constitutional requirements. The court stressing that only the essential elements of due process and not the refinements associated with cases in courts of law. Were required of universities in imposing discipline on students.

Well what are we to make of this curious situation in the law. What if any practical lessons can be drawn from the present posture of legal doctrine. Arguably the courts can find a private institution to be public on the basis of benefits be stowed on an institution or on the basis of contractual or other ties or by virtue of the similarity of its functions to that of public institutions. If the courts choose to do so when will courts choose to do so then it is the crucial question that remains. I suggest and this is the most preliminary kind of conclusion. I'll have to think several more weeks about this. I suggest that courts will weigh the substantiality of the claim against the institution.

And the relevance and significance of the challenge to institutional policy or actions in the light of a private institutions announced purposes and educational philosophy and programme and decide which should prevail. It's a long sentence. Let me be more specific. A private institution with announced sectarian views and purposes I think clearly they continue to discriminate in admissions against those who possess other or anti-gay mystic views. But the private institution may not be permitted to discriminate on racial grounds. A private institution may be permitted to enforce a well advertised code of conduct for students. That is an institution might undertake as its purpose the preparation of a select group of young ladies or young men for a position in

society on the basis of their meeting. The classic traditions of being ladies or gentleman and may prescribe I suppose a code of conduct which if. Distributed to the students prospective students and their parents could be binding and if they were dismissed because their dresses were somewhat higher than the views of the lady Dean carrying out the policy of the institution I think it might be reasonable. And it certainly would not be reasonable in most public institutions. It may have private institutions on the other hand I think may not normally deprive students of their basic constitutional rights though again I think an exception may be recognized for sectarian institutions or for military institutions. I presume that one's willingness to conform with drill

dress and other regulations that a military military institution is absolutely essential to the nature and purpose of a military institution a private institution they discipline students who violate its rules. But I would argue that they are not free to have ambiguous or overly general rules nor I would argue are they free of requirements of fairness. And in due process or in procedures in other words I think they must meet due process requirements and I would expect future courts perhaps to say so. Concluding I would remind you that the justification for private institutions has been their ability to provide a valuable social institution that otherwise would have to be established and supported by the state and in addition they have provided various options and opportunities for experimentation that perhaps are desirable in a

free pluralistic society. Military religious and other special purpose institutions enrich in the eyes of many. The educational sector of our society. But I would also argue that racial discrimination the nihil of basic constitutional rights or expulsion or suspension without fair procedures are indefensible attributes of private or public institutions. And I would argue that increasingly courts will recognize that private institutions must be able to justify their claim to private notice on a rational basis and not regard it simply as a matter of invoking the term private as an excuse for behaving with less fairness and with less respect for the dignity of individuals than their brothers in the public sector.

Thank you have been listening to William M. Bean a professor of law at the University of Denver College of Law speaking at the end Albers symposium a student protest and the law held in mid-May on the sponsorship of the Institute of continuing legal education of the law schools of Wayne State and the University of Michigan. Next week on special of the week a panel discussion on the topics covered in the previous eight weeks in this series. This is NDE are the national educational radio network.