Special of the week; Issue 33-69

NBER the national educational radio network presents special of the week. Over the past eight weeks a special has brought you lectures from the first day of a symposium held in Ann Arbor in mid-May called student protest and the law held under the sponsorship of the Institute of continuing legal education of all schools of Wayne State and the University of Michigan. Attorneys college administrators and state officials from 38 states attended this timely two day symposium this week. The speakers from those earlier programs answer questions from the audience concerning the various aspects of student protest and the law. The panel members are William Binney professor of law at the University of Denver. John P. Holloway resident legal counsel for the University of Colorado Richard lippy attorney from his own firm in Mineola New York representing students. Richard Cates attorney from Madison long time counsel for the University of Wisconsin and Edward collegium an attorney from a

firm in New York City which has represented Columbia University. The moderator and reader of questions is Paul Carrington professor of law at the University of Michigan Law School. Yeah I think that perhaps the largest number of questions that we received this afternoon not surprisingly are directed to the problems about the use of injunctions. Several of these are fairly. Specific questions that I think we can get to. First one question that I think probably can be cleared up fairly quickly. What is the situation when what kind of position the university and or college when it is seeking an injunction against some kind of a trespass which has not yet occurred. For example we know I think this suggestion in one of the question do we know that we're going to have an ROTC parade next week and we know the students are going to show up try to bust up the parade. And we like to enjoin the

young join join the activity that will be disruptive of our parade is there any prospect of getting an injunction in that situation. As a matter of fact the courts have been rather a. Rather liberal. The Dartmouth suit they simply allege that these things were about to take place and they had reason to suspect that they would and they had reason to suspect that if they did this would happen. And in that connection I might say that sometimes the tables are turned the other words when the students bring a suit for such things is injunctive relief the institutions can turn around and counter claim as they did in that one song and everyone and songbirds on in that one case that I mentioned. And this apparently is being employed rather successfully we have with us here and we're fortunate to have him. Fred Gray Fred is Mr Dixon vs Alabama. Freddy you want to put your hand up over there and he's just where Izzy are and there he is in the back. He was counsel in the Dixon vs Alabama case

and he just handed me an opinion dated May 14 1969 talk about things changing in which there are goodies for everyone and goodies for the students and goodies for the for the institution it's untitled Scott vs Alabama State Board of Education. US District Court civil action number 2 8 6 5 dash N as in Nancy for this from the standpoint of the students they've specifically taken two or three charges that the university charge these students with and held them to be veg in order to student students reinstated. For example this was held to be vague willful refusal to obey a regulation or order of Alabama state such refusal being of a serious nature and contributed to a substantial disruption of the administration operation of the college. And then it gives the date that this may be some new law

and then subsequently some very interesting. Another vague one that they held vague unordered to students reinstated was a charge quote that the student threw verbal exportation ins and or threats and or intimidation prevented or discouraged other Alabama State students from attending classes during such and such a period unquote gourds is that charge is also ambiguous and vague exportation is normal usage in normal usage would be used to describe speech that might well be constitutionally protected. These three students will be ordered reinstated pending if the college desires a further specification of the charges in another hearing. But when the college in this case counterclaim for injunctive relief they got it and they got a very broad injunction against students who had been suspended. Do forthwith leave the premises and failed to do so I suppose will bring about contempt proceedings.

The next question I think I'll direct to Mr. Layton said that he seems to be especially rich in the problem of experience very trying to enforce an injunction and that now the question is what happens if the college university a little lax in the enforcement and any other public official come in and see and force an injunction. Well I think as a theoretical possibility the answer to that is yes. If a college or university having procured an injunction simply allowed it to be flaunted obviously this is a matter of the greatest concern to the court because a criminal contempt that is a willful violation of a court order is not an offense against the litigant it's an offense against the court. And in New York the New York judiciary law. There are certain

defined classes of criminal contempt and one of them is the willful violation of a mandate of the court so that it is very conceivable that if a litigant having procured an injunction failed to take any steps to enforce it when it was flouted that a court might feel obliged to take measures to see that the injunction was or was in force. There is such a case in the first circuit about 1959 MacNeil against the United States. It is I think the federal order but perhaps with a style when they do it. It can be located anywhere. Another question make deals with the problem of adequacy the remedy at law. Several people asked questions which suggested that they had some uncertainty about Mr. Holloway said lack of confidence in the action of the trespass for damages

and perhaps I might add another thrill to some of the questions by asking whether this wouldn't be worth considering with an added prayer for relief in a form of prayer for punitive damages. If you can show that there has been a willful trespass on a college or university property would that not entitle the plaintiffs to punitive damages as determined by a local jury. And is it not at least possible that you'd get a fairly substantial award. And that this might serve as some kind of deterrent of on future misconduct by the least of those members of the student community who have assets. I'd answer in the affirmative yes it could be a deterrent but most of the students that we're concerned with are engaging in this militant activity are what we call

judgment proof. I don't particularly I'm not anxious to go collect in judgment can somebody in those circles. Well I think it might have been implicit in one of the questions least that it may be that many of these students are less judgement proof than they might appear to be on the basis of their dress habits which it tends to make them appear to be judged by a group where they are not of the other suggestion that one of the questioners made maybe this doesn't require comment except to suggest the question and which really is an idea in itself and that is that maybe in some situations that the compensatory remedy might be improved by including in the admission program some kind of commitment on the part of the parents to respond in damages or whatever harm might be inflicted by the students I believe that I think to the audience or individual appraisal as to the America that I'm not quite sure what it would do to the admissions program and I

suppose that is something that the admissions officer might be interested in. But many event it is an idea. I think there were several civic questions about the problem of student organizations that ought to be addressed by Mr. Libby before we subside one questioner quickly or about several were puzzled to know how you go about incorporating in student organization what the consequences of that are. Can you do that. Well the answer is yes you can incorporate a student organization at least it will certainly in the Yorkie be able to do it probably and you would have two choices in New York I suppose you could either choose to incorporate it is a membership cooperation in which case you might require the consent of the Department of Education. Or you might request a try to from the regents and probably use a similar in many states where the overall authority for regulation of Education has the power to watch a wider row educationally

related operations. But as a practical matter as I mentioned earlier in my remarks I don't believe there's a state in the United States which permits corporate directors to be less than 21 years of age. And this means really that the incorporation procedure is not available in most situations because the students would not want to surrender control of the organization and that is what would be required in most situations because they would have to have people 21 years of age or older to be directors. And as you know under the corporate law except under unusual close cooperation situations which on a political here anyhow the full authority to run the corporation's affairs it vested in the board of directors in the situations in which your student organizations however organize seeks to bring suit.

What kind of banding problems are you encountering here. Particularly aid for example and so stop the building project. What kind of a class is it that is interested in that day the taxpayers. I think it is not that what is it. Well let let me say first that. We have not in yet initiated this it is one of the procedural problems presented in the litigation and that's why we're joining members excluded from the union. Among other things the students are going to be providing the funds I think in the state university construction situation. The standing argument is very tenuous. In other situations though where the student government has a more direct interest. For example where the school has policies which apply across the board to all students that if you are willing to accept the concept that the student government is an unincorporated association a much as a union then it would be governed by the standing was a pluggable to such

groups under New York in particular for those of you who are here in New York and you know there's a general associations law which specifically confers upon such associations the right to sue and be sued in the name of the president or treasurer of the organisation. But I think the answer really is that it depends on the nature of the claim that is being brought. In the situation for example with a parking suit. We got it. We we obtained a restraining order. The student government was one of the plaintiffs no issue was raised as to the standing I think that the court probably would have held that the student association did have standing since the school's policy of impounding automobiles affected all students. Similarly in our rock claim with respect to the info in validity of certain of the of the other regulations in the school our claim for funds for invalid parking fees I think you have a similar situation.

Thank you. The question I have for Mr. Beeny Well I may have another here I haven't finished reading but that one particular question suggests that I may be a little puzzling to make the kind of distinction you were suggesting with respect to the kind of special purposes for a private organization. And I guess the problem comes this way that if you try to invert that and apply it to public institutions you might come out with a solution that looks very similar so that the difference between private and public may disappear I guess the thought is this. Is it not possible at least conceivable that we could have a public institution which also has a special purpose somewhat like those you suggest. I suppose it's like they were a religious purpose that you would encounter difficulty with the constitutional proscriptions but could we have a public institution

which had a kind of special purpose which she. Had. For example let me suggest this is an example we have a kind of not really being facetious here either and we have a kind of dispute amongst law students as to what sort of benefits they seek to obtain from legal education. And there was a young student quoted in The Harvard Law School record a week or two ago who said something like this. I didn't really come to the Harvard Law School to be trained to be a a good lawyer. I came to become a fine person. Now if we could organize a school for his benefit that would confer upon him what he wants that might very well take on a kind of a special aspect to it under those circumstances. Could the public institution not also insist on some kinds of special regulations. Very much like those that you would suggest for a private school.

I don't know I'm so shaken by this comment of the last student that I won't recover before tomorrow morning I'm sure it's a wonderful thought and I'm sure there must be two or three other people who've had that view of law school. I think it's a it's it's very difficult to think of the public institution with such a special program that they could in any way violate Constitutional mandates now I suppose you can say that in any professional school it's perfectly rational and within the Constitution to set certain prerequisites for admission and then certain rules as to professional behavior while while a student if you're an

artist I suppose you can't stay in art school if it turns out you can't draw a crooked line and you need a ruler. But beyond that I just don't I don't say what what we're getting at here that is could there be a public military institution. This said to people abandon you know all right the UN are here. Well that I think is the idea yeah I think that's a really good model but I'd hate to have the case of defending the state on what it was but it was one situation I was thinking of viewer of your remarks earlier perhaps a West Point for example could set much more stringent regulations with respect to the dress. Of the students attending it then could another Pipelet another public institution which doesn't have that kind of special purpose. It wouldn't for that purpose they gave up or they would a public institution or private. But I think what I'm suggesting really is there would be a different balancing because of the

interest of the special interest of the public university devoted to that special purpose. I think there was a case in the 2nd Circuit United States Court of Appeals for the second circuit involving the United States Merchant Marine Academy Kings Point. And the question of whether a student there in a disciplinary proceeding was entitled to be represented by counsel. And my recollection of the decision which could be faulty is that the court held that due process did not include representation by counsel but the implication is that even the special purpose academy would be subject to these Constitutional mandates if it's operated as a public as a public institution. That's cited in this outline but a very significant point about that case and the court may have strained to come up with it but they know that the student had not received a fair hearing. This is a military type installation.

They held as I recall it that one of the reasons he didn't get a fair hearing was because one of the hearing officers was also in effect a prosecutor and the result was one of the cases standing for these commingling functions and and they and they held that the individual who assembled the data for the purpose of presenting the case to the discipline body could not also sit as a member of the discipline body and then then they could the court make sort of an apology while we realized this is a military installations of what I think a case goes pretty far to support some of the principles of Mr. Libby has been urging it with the specter of the right to counsel I think maybe I would that take a very slight issue with that Mr. case that nothing Mr. Cave with Mr. Holloway on the right to counsel case only to suggest that there are quite a few cases around me several of which do. Cast a doubting blanche in the direction of the right Council and suggest that there may not be such a right. At least in relatively minor types of

disciplinary proceedings. And it may be not not at all clear what the line is that distinguishes between major and minor. But if there is a relatively trivial sanction involved it may well be that there is no right to counsel at all only the rights of students which was adopted by the AUV in a number of other organisations makes that specific kind of the Kadhimiya depending upon the seriousness of the violation of profession of an Australian one of his articles deals extensively with this area and make suggestions along that line. That's what the National Students Association is another that's the door that the statement in the. Perhaps I might return to injunctions for a moment to ask a question of Mr Bates and Mr Blake in both I think might be useful ask them to comment on their experience and based their experience what

is the efficacy of the injunctions as a device for solving tough situations. Is it an effective means for clearing out a building or or is it likely to prove illusory What do you think. Well I think it's a tool it is something to be considered in the circumstances. We had Wisconsin sought injunctive relief following the demonstration against the Dow in abuse. We went in and made allegations and gave proof to the court that we expected similar conduct in the future when the CIA and the military came along and we took a lot of proof and we secured an injunction.

I don't know whether or not the injunction the injunction proceeding brought about the desired effect but we were able to conduct those interviews. We were not those interviews were not interfered with the protest at the interviewer's was lawful and did not obstruct or interfere with the rights of others at all. To say that the proceeding itself did it. I don't know but I do believe this very sincerely and that is that the hawg of the mass action of students separates them from individual responsibility

which is what this one off system of justice and laws are based upon. We have dignity we give dignity and value to the individual we expect the individual assume responsibility. This injunction. Where you name the individual. In my judgment puts a spotlight on those people and they can't hide behind the group any longer. Another thing I believe I believe that litigation is a tool to combat this type of activity. I think that maybe it's a device and on society office by which we can fight out. I think I have found that people involved in litigation namely the litigants are affected by that litigation regardless of whether the outside can say it doesn't mean anything. I represent a policeman who was sued for large

amounts too. We can say you want to go on a lose but it bothers them if it affects them. Now if they're put into a setting and a scene which they're not used to. In other words it makes the man pay the price if he wants to run around with a group of other people and try to break the law. Then he's got to go through this proceeding and I. Observe for example when we took proof in this case it takes its toll on those people. And when the man gets up for example and asked to tell about STDs and who's involved in SPSS they don't like to answer those questions and so I I feel that this is in effect give tools. Given the circumstance I mean given the proper circus like.

I think that it must be realized that. The injunction is not the cure. Of all of everybody's academic problems that the injunction must be approached very carefully at Columbia this year early in the academic year we made it a policy decision that we would not seek recourse to an injunction for frivolous reasons but would reserve it for. Some activity observation of severity to create an imminent peril of widespread disruption or interference with university activities. And having made that decision we also decided that we would not seek even when such conduct was imminent that we would not seek an injunction until there had been an occurrence

that it was that we would not get anticipatory and injunction and for that reason we prepared standby papers and based on our experience you could almost predict what you have to say and who you'd have to name as defendants. But all you have to do is leave a blank before the date of the occurrence and the name of the building where it would happen and the result was that. When the when we were when the school was put to the test this spring that is when various groups sought. To probe to see whether they could repeat last year's riots. We we were ready. And the first instance occurred on April 14

when a group of. Black students and non-students conducted a sit in Indian missions office having judiciously selected their timing to coincide with the last few working days before notices of admission and rejection were to be mailed out by the university on a specified date and agreed upon with the other Ivy League schools. Well it took us about five hours from the time the sit in started to the time to the time we had the signature of a judge on the temporary restraining order and the world will not fall apart inside of five hours. And also I think there is an advantage in that the campus you know if you have not gone anticipatory way that you have all you have done is because it's necessary not because you want to be menacing or restrictive.

That injunction was delivered by me to the two three Harlem Corps attorneys who had appeared on the campus. While they said it was in progress. And at an odd hour of the night or early morning. And they asked for some time to go in. This was in the dean's office and the student was in progress in the next room. I asked her some time to talk with their clients which we gave them and time droned on an hour an hour and a quarter an hour and a half and finally they came in and said I'm sorry but we're going to be unable to serve the injunction and I said why they said because there's no one in the admissions office. The the the existence of the injunction that sufficed to induce these 14 or 15 and I Cubans to leave on the advice of their counsel and of course we were very pleased about that the injunction wasn't obtained for the purpose of getting contempt charges but had been obtained for the purpose of

vacating admissions office and restarting its function immediately and it worked part of a panel discussion following the first day of the Ann Arbor symposium. Student protest and the law held in mid May. The panelists were the main speakers of the day answering questions from the audience. Listen next week to a special of the week when the problem the array of sanctions alternatives to expulsion will be discussed. This is Emily our of the national educational radio network.