Special of the week; Issue 27-69

NDE are the national educational radio network presents special of the week. We continue the presentation of the discussions in Ann Arbor which took place in mid-May at this symposium. Student protests to end the law sponsored by the Institute of continuing legal education of the law schools of Wayne State University and the University of Michigan attorneys law professors and administrators from throughout the country attended this most timely to day conference on this special. The address by Richard Kates trial attorney from Madison who for some years taught served as legal counsel for the University of Wisconsin. Mr Gates opened his remarks with a further review of his relationship with the University of Wisconsin. In October one thousand sixty seven we had what is known as the what we refer to as the Dow Chemical protest. The students went to the Commerce building have massed in front of the interview rooms and

refused to let anyone in. They stayed in that position for several hours the chancellor called the police. This was the first time the city police had been called to the campus. And after the city police were there in their riot years for several several hours they went in and removed the students and there was a lot of injury and a lot of To-Do came of that. I represented the university in federal court proceedings where which suits were instituted against the university board of regents and various administrators in order to stop the university from imposing discipline. And the questions in the cases involve the constitutionality of our regulation that went to the prohibited disruption was why our trial judge as you yourself later declared to be unconstitutional because it was vacant for abroad. In addition we litigated in that lawsuit our right to discipline students

based on the common law doctrine of misconduct. The attorneys. Problem mate most of whom were from New York argued that misconduct wasn't baking all the bill so we had that lawsuit in addition because following the alchemical incident there were expected to be interviews by the CIA interviews by the military and we knew at that time who the leadership was. So we brought an action in circuit court for Dean County for injunction against these individuals and STDs and we tried that for several days putting in for a temporary writ injunction which we got and we that was a matter that I was involved in. In addition I was responsible. And when I say I I mean my office our office was responsible for carrying out the discipline of the students and I told you that I

tried a lot of lawsuits but I've never tried any that came close to being like those disciplinary cases. I've run the gamut in criminal that as a prosecutor to have public offices invite squad chiefs but that's still a different thing than prosecuting students they were coming in the windows and ringing Cal Bell would say ah ah there was as I say it was a a. It was a very valuable experience and in addition we our office drafted rules at the request of the region in conjunction with faculty committee for new procedures for outlining in some a way what substantive rules they would the university would discipline the students. So this

is my background I I want to make it clear that the mere fact that I've had this type of experience I don't stand up you know with any idea that I have. An insight into how these problems are solved. I have opinions but I realize the limitations of my experience I realize my limitations in so far as my understanding of the university and how it functions off. The only area that I claim competence expertise soon is in. Insofar as these questions involve the proof of facts in the trial a case I honestly believe I can speak. Well in that area because that's the area I have devoted my entire work life to. But with respect to my assessment of the dimensions of the problems are and what the solutions are as they go beyond

my claim to fame so to speak. I express them only because I'm here and I'm expected to express them. I also express them because I I believe them and I formulated them from observation. Recently in Madison we've had a lot of disorder. We've had as many as four five six hundred students in Punkin teaching with our police in our city not at the not down at the university but up up on our square to two weeks ago for example there was four or five hundred students coming to our courthouse to try to jam the the Carters to stop the prosecution of their fellow students who were being charged with disorderly conduct arising out of. They wanted to have a street team and they were denied a permit. So there was a confrontation with police.

Windows were broken when the fights occurred and some of these people were arrested and I mean in some instances of improperly arrest in some instances I'm sure a problem in any event they were being tossed at the university students came up and attempted to stop the aunt to leave the proceedings of the arraignments and such and I said seen this just as a he. Resident of the city in Madison and as a ordinary citizen I think the problem that the university sees is is that it is a very it's vital one to are of concern. I think that it's a way beyond just the academic problem. I think it goes to the heart of offer free society. I look at the people watching those students the average person in the city of Madison

looking at those who I was within two feet up. I see these same people every noontime as I walk along the square I see him two three times a week. They don't see me. There are by themselves. And they're looking at what those students are doing with their red flags and their fists in the air and they're running up and down corridors and you can see in the faces of ordinary people. Anger fear. He and I walk into the crack room working men who are putting in the overhead of ducks for air conditioning who have fought their own problems come out and staying quiet and they look. And so I know that the feeling on the part of people in society using hints they want this problem's solved. I look at the people who are solving the problem and I

see a dire consequence I see how the police solve the problem and I don't like the way the police solve the problem I'm not critic criticizing the police but I don't like police solutions. We don't I don't like national God solutions and I don't like the legislature's solution in the joint Finance Committee. Notwithstanding an increase in in our enrollment in the coming year of some 12000 students throughout the state our budget was increased in a manner that doesn't even primitives to take care of the new students much less keep pace with all of the increments that have been required to be included in the budget. And so I see how the legislature does. And I was in the legislature and I was on the joint Finance Committee and I know these men and I go say to him oh what's the matter. Why can't you do better for the university. And they say we're not going to end. And they they they're they're not only here it isn't.

A reasonable response. It's an emotional response and they are reflecting their communities and what their people feel in those communities. And as I see the problem it's a problem of who is going to solve it. Are we going to create the need for some right wing fellow to come in and solve the problem because democracy has a difficult time as Mr. Fleming said dealing with four or five hundred people walking around in this community. But this is the fascist. He doesn't have difficulty. He can give the public the peace and quiet they want because I don't want that because I fear that the one place that I as a citizen turn in look is to the universities and I feel that the university should understand the measure and proportion of this problem. And it's not just disputes over a street thing or it's not just

you know let's you all give and take on Vietnam. I defend the students who for example a couple were charged with throwing Molotov cocktails. And the dimensions and proportions of the encounter that might have been that for the incompetence if you will is use its overpower its its fearsome students not because they are worried about the street dance but they go out and they see something that they consider an injustice whether it's injustice or not. Does it make any difference. It's they believe it to be and then their blood runs hot. And then the policeman on the other side who he sees profanity he sees speedy his blood runs hot. And pretty soon now that we have as a holocaust and I I believe that the solution

to this has to be with the university or at least some effort has to be made by the university whether you can do it or not I don't know. But I say it's a problem that has immense significance. And you people you people have a lot to do with why I listen to all of the reasons why you can't your academics and not. Used to dealing with this well I don't know that that's a good answer. I don't know for example that it's a good answer to say we have. We deal with teaching and we don't deal with condoms. I'm suing the manufacturer of cheese a milk producer and he's a cheese producer and I'm suing him because he pollutes a stream and drives the neighboring cannon away from his home because of the

smell in the not just fumes. And he says well I'm a cheese maker and I don't know how to deal with green pollution and all such things. Well society is starting to say you mister if you're going to manufacture cheese you've got to take care of the byproduct. And I'm telling you if you're going to have 33000 as we have in Madison 33000 students come down into the city of medicine. Then there is some responsibility on that university for the glass they break uptown for the people that they get involved with. When four or five hundred of these people go up and do these things society I believe looks to the university to try to do something and maybe you can maybe when all is said and done get him. That's as sure as the devil can trot and I believe your should try and I believe that there's certain

things that you're going to have to do to in order to take this problem on. I think that one you have to come to grips with. A student isn't a student and a citizen any more than an employee is an employee and a citizen. If an employee does something wrong in civilian life he suffers only his job he suffers in his home he suffers in his community. We are not divided if you don't divide us up. And as I say if a student just because he's in trouble uphill doesn't necessarily mean that he shouldn't be in trouble in the academic community. And I don't think it's a question of locusts parentless when we were handling these cases for the students of the happy university was going through all of frankly comes coming in that where we're performing the function of the parent and I say baloney. We're

trying to survive. We're trying to keep our doors open and that's what we're doing. And we have the right to do that. And so all I'm saying is that I don't think that that concept of splitting the student up isn't a concept that shouldn't be looked at long and Haun and it shouldn't be something that's just theoretically measured and walked away from. Just as a matter of reason I think you have to have thought to the other places you know in terms of in terms of solving the problem but you're not qualified. These same problems have gone on for example in labor and management labor and management. Awful lot of stress sit ins lock outs and in time solutions will happen in my business we represent the municipal employee groups the firemen the police all throughout the state of Wisconsin that work for cities or counties of the most. Most of we

represent the teachers and we're all fighting for changes in the relationship that we have between for example the teachers in the school boys school boys tell me the same thing. They say we're not we don't want to we're not set up to do this we can't do it. And therefore if nothing happens that they make decisions involving people lead and they don't try to assume a responsibility that is basically there. And I think that that universities must and should. I think that they've got to make use of. Outside agencies for example. Maybe maybe the solution is in discipline cases. The hands of a Wisconsin Employment Relations Commission or industrial commission agency handling I don't know but that's that's a possibility.

I think it's important to even for example the the prosecution or the handling of cases that in which discipline is involved I think it's important to use outside people. I honestly believe that that for example the the role that my firm was asked to play for the University of Wisconsin was already basically that only an outside firm could play. We were fighting with the regions the regions would want to throw the kids now and we'd say no because the federal court will put them back in. And if you are if you are counsel it's on the staff of that university you may bend. I don't know but we didn't feel we had to been we said no and we told them it was wrong in terms of I think the most the best the last race. Is the confusion

when it comes to the actual trial. Other words we're trying to discipline or decide whether or not a person should be disciplined. Well you have to know what the facts saw. You want to to make that determination. And everybody in the university community talks due process due process and the. End of the fair hearing. It is the end isn't due process. The end is fair hearing. And these procedural devices that go to notice opportunity to examine witnesses etc. procedural due process devices are designed to get and secure a fair hearing. And I say that's wrong for the way it's awfully important because that's the one area that I do know and I know how to get a fair hearing. And it isn't. For example you have the student as we had.

He says the student wants to have his trial in a classroom setting. The student asked for it I objected. It was given to him and the theory basically was it was an articulated but the concern at the time was to give the student what he wanted because how can anybody say that you are not giving him due process. Well as the case evolves the the classroom setting is kind of a it's the forum is down here and the students sit up there. So what happens is every witness who takes the stand is on is on the stage and he's looking at 200 students who have beads on and long hair and who will pound and who shuffle their feet. And all I can say it's not conducive.

To producing proper responses to the questions it's going to affect the mentality of the witness. From there it's going to affect in a good effect the mentality of the individual student who is being tried. He said things to please his friend his attorney said things to please his friend. The upshot was that there was no litigation as to what the facts in the case were. It was it was a a circus and it well came out of goodness. It all came out of the desire to give due process. It gave all of the nomenclature is of due process. But it didn't give us a hearing. I won that and I didn't suffer. But the boy on trial suffered because he made he did things that were inappropriate and he wasn't heard on the facts. And so all I can say is that in these areas for example what sort of a fellow. When

you're when you're deciding what sort of a forum should these discipline cases come before. Well everybody says students should have a voice. It's a question of finding out what facts saw. And you make your decision as to what forum will be asked. This is it that needs sort of that purpose. The the. How many people should serve on what should be the procedures in my judgment. I think whether or not the university accept the advice and counsel of people such as myself. I think it's extremely important that they have the advice and counsel of people such as myself. Because this is a basic day to day job and as I kept continually all through the time when these students were being disciplined the concern was for this overriding educational

need and maybe that sounds swell but I deal with human beings and I worry about what happens to human beings. And if somebody tells me in a case that he's concerned about the overriding educational need of that institution if I'm representing that individual that leaves me cold. All I want is my fair trial my day in court. And it seems to me that. All I'm saying is that people from the outside. People such as myself who do this sort of thing can assist and I think it should be called on because you have a problem that requires the talents maybe that you haven't had to make use of in the past because your mission hasn't included the solution of this problem. My

yellow light is on and so I'll thank you very much for your kind attention and sit down. Thanks. For the offer. Richard Kates trial attorney in medicine former law professor at legal counsel for the University of Wisconsin. No remarks by a Michigan professor of law former executive vice president of the University of Michigan Marvin Nias speaking on whether and when the university should use its own power to expel or suspend. And as to whether outside arbitration would be possible or good. I'm not at all sure. That universities have used the resources which they have which they could use before arbitration whether and when the university should use its own power of suspension

or expulsion. Certainly today the use of that power is relatively slight. I'm not. I am of course assuming that when it's used did you choose was the fair hearing that Mr. Gates talked about the issues on the enforcement of appropriate rules. But there is then perhaps reasonably but there has been a great reluctance. It seems to me. On the part of faculty and administrators to use a power which 10 or 15 years ago they used I don't know a somewhat freely but certainly without to very much worry about due process that of course has changed. But I think one of the reasons as that there is a recognition that if the university severs the students relationship with the

institution he now is subject to the draft I'm simply speculating that. And so they feel that not only are they suspending or severing the student's relationship from the university but that they are exposing him to what. But to the dangers of the draft. Perhaps if President Nixon was a bozo for a draft lottery it comes through this might be removed. The fact that the institution itself has not been using their devices it seems to me poses a real possibility that outside forces will threaten the autonomy not only of the institution but also of the fact and of the student.

You speak of the arbitrator. I was there whether they whether they had good device. I am sure that if we come to the point where we say we have no power to control it through the more traditional procedures of the university it is a device worth trying. I find myself however raising the same question that you raised Paul about the delegation of the powers of the regions I've been very little discussion of the Regents of the governing board and very little discussion of this problem and recent legal cases are anywhere else for that matter. That is the extent to which a board which has been charged as the board of this institution has by and by the Constitution with the supervision and of the institution in the control of its funds are as

Wisconsin and others have been charged by statute as to whether they can in fact. Delegate important areas of the supervision the cases with which I'm familiar and I'm familiar with very few of the cases. The whole area had to do with cases involving questions of whether the trustees could adopt tenure plans which are so dear to the hearts of all of us faculty members. And if they did adopt a ten year plan let's say they a you and I and did that then bar the ends of the great tunes from discharging or the trustees from just charging for what appeared to be ordinarily adequate cause they thought. And there have been cases which have held that they may not delegate that even though they agree by contract.

It seems to me that it's certainly equally questionable whether they may delegate this power to decide the relationship of a particular student to the institution as it is whether they may delegate their power to decide the relationship of a faculty man to the institution and I believe if they enter into an arbitration agreement then this in effect would be delegating that. And I think also of course there are questions as to how far they may go and delegating their governing powers to students. I've talked too long on this I I you know I couldn't resist saying that I hope we don't come to arbitration. I still hope that the universities will find ways of governing themselves as they have done with varying degrees of success for a thousand years

and. I hope that we don't have to come to the arbitration Marva Neos a professor of law at Michigan speaking at the today's symposium in mid-May in Ann Arbor on student protest and the law sponsored by the Institute of continuing legal education of the law schools of Wayne State University and the University of Michigan. More next week on special of the week from E.R. the national educational radio network.