Special of the week; Issue 29-69

NBER the national educational radio network presents special of the week. We continue with the symposium called student protest and the law held in Ann Arbor in mid-May sponsored by the Institute of continuing legal education of the law schools of Wayne State University and the University of Michigan. Attorneys college administrators and state officials from 36 states attended this timely conference on this special. A continuation of the section of the symposium titled judicial remedies for campus problems. The student in court this was discussed last week and on this program by Mr. Richard lippy attorney with his own firm in Mineola New York. Mr. Libby represents students and most recently he has represented students at the Stony Brook campus of the State University of New York. Mr. Libby speaks on what is going on in the courts today. Many of you are probably familiar with. We see a couple of these cases because they did receive the

blessing. One is a case of Brooke's view Robert which was decided in February 68 involving Reverend William Sloane Coffin of Yale. Situation where the university attempted to bar him from speaking on the campus on the grounds that he was going to emerge on the whole protest and unlawful lacks and the quote held for a lower federal district court held that this was a prior restraint on freedom of speech and the freedom of hearing of students on the First Amendment. Well series of cases in this area now and I think that the it's going to be pretty clear reference that this kind of thing the school just cannot do with your Remember there was a case of Pete Seeger involving a school district and that's what count us out with this kind of question came up and I think it's a guy I consider to us at all the area although it hasn't officially been decided by the Supreme Court yet

a case which may be of substantial interest to you is a case that was rich I recently decided in Strickland v. University of Wisconsin decided to watch a 16 online. How this relates to a very important problem particular in terms of the climate of protest today on the university campuses. It relates to the question of whether a student can be suspended temporarily prior to affording him a hearing. The court in this case held. That's such a hearing must be held. If it is possible to be held prior to taking any kind of remedial suspension action against the student they do suggest that if it's a situation where there's clearly a danger of physical harm or property damage the school's to Solti then enact a sieve it is not possible to hold here for some reason. Then perhaps it could be done for a very short period of time but even then they qualify that by saying that some procedures must be taken perhaps even

corresponding by writing correspondence by writing. Now this particular problem didn't come up at Stony Brook when the riots first started the president took the position that he want to engage in such in an incident was going to be immediately suspended prior to any hearings being held and I suspect that the early going in in this particular case is a sound one makes a good deal of sense. I would add the qualification not the qualification but the observation that even in the situation where there's a good deal of property damage or irrepairable loss in an injury examine the school does have an alternative and that is the normal civil and criminal laws to abide by or to use. I'm not even sure that for that reason it's ever necessary really to have a temporary suspension. A third case which I think will have be of some interest you relates to the

problem of the relationship between disciplinary hearings on one hand the criminal convictions on the other and all of one of the arguments being raised today relates to the problems presented to the student who has a disciplinary hearing facing him and at the same time a criminal trial. And the argument is made that there should be no disciplinary hearing held at least until the criminal trial is disposed of. As a recent case the side of the wombs 11 case I think that's how you pronounce it. March of 69 which held that you could not enjoying the disciplinary hearing until the criminal trial took place because under Supreme Court cases you have written that such as cases that it was clear that if the student did testify at the disciplinary hearing none of his statements couldn't be introduced as evidence against him in the subsequent criminal proceeding.

And I think that sound Murat The only difficulty that it may present in certain limited situations is that the individual's testimony may give rise to information which in an indirect fashion can lead to other evidence which might be used against the student. Now it's true that you have the silver Silverstone or so was my forgotten a medication out of the whole series of our federal cases holding the fruits of the poisonous tree etc. etc. that will also be excluded. And that's fine as a practical legal matter but in a very broad as I practice. The problem is that many times you really can't trace that indirect relationship without a good deal of criminals without hiring an investigator and doing a good deal of on the hour of work yourself so that I suspect that there may be some fish and see in terms of the protection for the students.

Now one of the questions that's come up at Stony Brook is how the school can attempt to deal with this problem itself because I think it's fair to say that many administrators are sympathetic to this problem and they don't want the kids prejudiced by what they're going to testify to. When the idea came up it's only cookies is that you want to have your disciplinary hearings on you know out of the country and keep your records overseas I suppose the students and faculty would really go for that. But absent that kind of. A difficulty I mean absent that kind of extreme situation I don't know that there's really too much that the school can do. One of the problems we may be discussing later is this whole problem of public records access to the records of the school things of that nature. But I think that this does present perhaps a little bit of a problem on a practical basis in certain kinds of situations where students will because of the following. And what I can give it to you tomorrow. I don't have it with me. It's a it's spelled The Last

night the last name in a case is ead WSG al-Libi Ieng. You can do as well as I can in that pronunciation I suppose. I don't recall I don't recall it sorry but I will have a citation for you tomorrow. Yeah. I would now like God to turn my attention to what I consider to be. So called the merging problem areas that I feel really have not been sufficiently explored to discuss in terms of the rights of students. The first area that I think you can provide a general characterization to is a right of privacy. More specifically the question of the use of undercover agents on campuses. I think it's fair to say at least within my framework and my experience that

this presents the single most serious danger in the schools today in terms of the traditional concepts of academic freedom and the whole nature of the relationship the student is going to have to the teachers faculty and one another to be any. Henry who are you I suppose that many of you are probably familiar with what's been going on it's not only book when you're when you're not I will tell you for the last year I have been constantly stationed on the Stony Brook campus on the cover agents who pose a studious and constantly you're in Cannes contact with them. Many times there are problems of the real like the entrapment and things of that nature running about there's this constant problem that arise and danced in Stony Brook. It's gotten to the point where individuals at the school core me off on payphones they feel that they can't work on their own phones

they have to be secluded. Faculty members at the school itself stated publicly that they feel restrained in the kind of things they will say and the kind of attitude is they were expressing their classes as a matter of public record. What of course happens is that after a certain period of time the undercover agents develop an evidence as to my conduct you to something else just happened we had a bunch that Stony Brook in the past week indictments were returned against the students and the students were then confronted with pleasant circumstance of having a situation which is their credibility you can see on the cover agents. And many times may create serious problems I'm going to discuss the legal considerations in a moment or but I fresh I'd like perhaps to just trace out for you a little bit

where on this day are you or at least what rather as I'm presently writing an article in this area that I hope will make a contribution to a crystallizing that's a little bit more Messiah versus the Unites States 377 us to well what was the first case that really indicated that there might be some newer coming in the area of undercover agents. This was a situation in which two individuals were arrested and then went out on bail one of the parties chose to cooperate with the police. In. And put a radio receiver in the car of his companion. He then proceeded while in the company of his companion to elicit statements from him which were transmitted over his

radio receiver. The evidence was used at the trial and the Supreme Court held that he could not be convicted that the use that this that these procedures were violating the Constitution and the evidence could therefore not be admissible. The ground the court gave was the fact that after the indictment against after he became the focus of inquiry on the role of the Supreme Court cases he was entitled to counsel. I could not be questioned in the absence of counsel Kenneth it's obvious to anyone that that's merely a DNA a legal characterization. Obviously the right to attorney and that kind of circumstance doesn't have anything to do with what's going on. It will be n. And so it appeared that they quite might be moving in the direction of developing some doctrines with respect to this whole

problem of undercover agents and informers. Up until then the traditional legal theory was that you could use informers that your privacy wasn't being invaded because you by your own consent were admitting a person you have a whole series of cases where people would have radio receivers planted on them go and interview people. Well then came the case of Haifa. We the United States with James Hoffa alleged that he would what actually happen if he had been conveyed edger recall there was a trial which ended up in a hung jury. He then was brought to trial for trying to go on with we influenced certain of the jurors and the evidence which was introduced which was sufficient to convict him of the bribing of the jurors was information which was supplied by an informer. Who was carry on and what sort of living with him coming to see him except when

he was then disputing the factual record as to whether the government had planted him or not. It's your dream to work with what the majority opinion took the position that the make any difference that under either set of facts even at the governor. If the government had planted him there that he had admitted the person who was present and therefore there was not an unlawful search therefore its constitutional rights when invaded. A mistrial was really not dealt with in the majority opinion. However Lauren had the sense in that case and there's some language in the sandwiches were interesting. You like to read you a very short excerpt. One of the excerpts and the beginning of his opinion is now if this is 385 us 314 he could take the scent that I'm speaking to now in the language. Quote an invasion of basic rights made possible by prevailing

upon friendship with the victim is no less proscribed than an invidious then an invasion accomplished by force. And what cited Messiah versus the United States. Later on in the same the sense he has some other interesting language and I quote again this is a page 315 385 us 350 at this late date in the annals of law enforcement. It seems to me that we cannot say either that every use of informers and undercover agents is proper. We're on the other hand that now uses our. There are some situations where the law could not adequately be enforced without the employment of some guile or misrepresentation of identity. However one of the important duties of this court is to give careful scrutiny to practices of government agencies when they are challenging cases before us. You know wanted to ensure that the protections of the

Constitution are respected and to maintain the integrity felt federal law enforcement. I think it's very interesting I think it indicates a direction which the law has to go. And I think that I'll give you some of the might my thinking behind this this problem. I think it's fair to say that in terms of viewing our society and the whole concept of what it Liberty things of that nature the Brandeis talks about power of Connecticut. Our society is not one which would uphold the cutie in 1900. What kind of society where you have cameras on the wall where you have children informing on their parents if you didn't that's in Germany. It's clear that there is some out of boundary beyond which police surveillance cannot go without violating our very notions of due process.

We'll take some extreme example. I'm fairly confident that the federal law enforcement agency suddenly decided to have surveyed all the citizens in a given community and enter into co-operative arrangements with their children and to put microphones or other things around. But that whole concept of forgetting about the individual questions of telephone communications or anything else the whole concept of surveillance would be inconsistent and began to be thrown out by the court. I guess the basic idea being that our criminal system the only idea our criminal system is not that good guilty people. If that were the case all of us would be in jail. Hence the basic concept being that our criminal system is to provide it's intended to provide a certain amount of deterrence and at the same time to give us all a certain amount of relaxation or security when you begin to get this kind of extension. Governmental crime it obviously creates a situation in which the

criminal system is not creating a very apprehension it's designed to avoid. Now I think that the answer is that this has to be a balancing act. If you're going to call for example a search on the Fourth Amendment and I think there's obviously ample precedent for that now in view of the recent cases that were decided in the housing inspection area where the quote began really to weigh competing interests in terms of what would justify the issue of warrants and whatnot. I'm not suggesting that the use of undercover agents be deemed unconstitutional but I am suggesting that it is ultimately I suspect going to be held to be considered a search under what the men and it warrants will have to be issue and that the court is going to begin to impose standards is that when it's justified and when it's not justified. I think that. It's clear that these kinds of determinations really want to be made by Judge first without his letting police go ahead in the side and invade people's privacy. The

fact is that the use of these on the cover agents was not showing him a fact in the academic environment both on the students and on the faculty. That the use of undercover agents were you not talking about microphones or recording devices of any kind creates another very substantial problem that is every time you run into this issue. It's a question of the credibility of the police officer on the credibility of the student. And it usually comes in situations where there's an issue as to whether there was entrapment of some high not a Supreme Court has already formulated a whole series of protections involving around the right to counsel which in point were evolved as a prophylactic rule to protect people against the problem of confessions. I sure could have years ago with a confession problems there was always this credibility problem between the police officer and the individual. And I think that another aspect of this problem then use

of undercover agents is that require them of the credibility crime difficulty and the fact that these offices undercover agents are sent specifically in to find evidence a crime so they almost have an inherent bias to some degree in terms of what they're doing. So I think that there is a chance particularly within the academic community when it comes to extensive use of undercover agents that this area is going to come under a certain amount of protection in the constitutional area. Another area that relates to the problems of the right to privacy is the question of search and seizure. Now I don't I don't think there's in my own mind there isn't too much of a problem with this I think it would be pretty clear that the courts are ultimately go home at state universities or anyone any university is considered to be a state university depending on what avenue this private space distinction I suspect they're going to have that you're entitled to the protection of requiring the

searches to be done only on the basis of a warrant. Much as they did in the housing inspection areas is the kind of administrative searching that you know in an academic community. There's a case that was brought up on START. So the Supreme Court over it and be the people of New York. It involved a situation in which a high school principal allowed the police access to a student's locker and they found marijuana where it was some drug and he was convicted on the basis of that that the police officers also had a search warrant. Incidentally in this particular situation what happened is below a court found the search warrant was invalid but up held the search in any event on the grounds that the principal had the right to allow the student to have you know to allow the police to go into the woods walk all the Court of Appeals affirm that went to the Supreme Court and start Supreme Court has vacated the judgment. And sent it back to the public division in New York unfortunately. I say I'm watching because the basis they

sent it back on risin making reference the bumper of the North Carolina which is a Supreme Court case which holds that in a situation where a police officer says he has a warrant and in fact he doesn't have a warrant to give consent the search is invalid most times because the consent is really not a true consent. It's gone sort of under the rest and they're sort of made an analogy in the situation in Overton where in fact what happened is it was an invalid search warrant so they really avoided this problem of the school's right to search I hope that it gets back up to the Supreme Court because I think it would be useful to have this area further clarified. Finally are you that I think want to be considered when it comes to the rights of privacy which I will not go into to any extent at this time is the problem. Confidentiality of records. There's an article that was not written in a in the North Dakota law review not too long ago to begin to deal with the problem of public records and making student's record available to draft what it does

not do you know in this problem in a very sophisticated manner and I think that there is and I have to be a lot of work done in this area and I think there is going to be some constitutional protections that will evolve. M-x Ries Professor Max wise is gone. Some interesting work in this area in terms of at least pointing out the practical consideration in terms of the university that suggest that different records want to be kept by different authorities. There are only certain records ought to be made available to certain people that kind of thing. One area that I think is going to come pretty quickly into the constitutional area is the question of making notations on student records. The Praga typical problem is that it's a member of the community sends a complaint to the school about Mr X having missed the sex with the student having done this or that or that and he never finds out about it and then three years after he gets out of school an employer makes an inquiry the records go to an employer and that notation is on the record. You may never even find out about it. I think probably what's going to occur is that at the very least there's not have to be some doctrine evolved which is what title the student the

notice of the complaint being made if it's going to be entered on his record and he cannot have an opportunity through the school to have to litigate the particular complaint being made because otherwise you're going to run into a situation where on hearsay evidence and on other kinds of allegations perhaps even on vicious kinds of attitudes toward students they could be substantially prejudiced in their subsequent life. A third area that I think is going to emerge and I think. It hasn't been dealt with the rule yet. Basically I don't think anyone has encountered the problem except us. Is this what is a student government. To be example. Student government now has its own fawns. He wants to invest in the stock market.

Behalf the students are under 18 or under 21 1/2. I have to tutor over 21. What happens. Example the student newspaper. Publishes all article which is why I do this if that's possible under Supreme Court decisions. Who was responsible. Just the person who wrote the article. Well the people working on the board of the newspaper. All student government. What is obviously going to happen is it is the student governments become more and more autonomous and begin to take more and more group backing. They're obviously going to begin to approach the idea of forming a union or something. The problem is no one is talked about their legal status nor want to talk about the illegal whiten responsibilities. We had an inquiry the other day from an individual who was dealing with the students was he was in a work for them in their

publications and he was entering into a contract with them and he wanted to know what the legal effect of that contract was. Well I sort of avoided the problem by telling him that we had been dealing with students as clients and I would prefer students were clients anything rather than adults because they met their obligations and I enjoyed working when they were no problem I think I sort of skirted the issue but there is a very very serious problem in this area. I'm not even sure that perhaps legislation would not be evolved which will help deal with this problem. Some of the typical questions and problems that present themselves we suggest that the students want to try and evolve some type of structure which would protect them against the individual liability not question naturally answers and cooperate. That's a fine answer except that they really can't do that because in order to incorporate any state in the nation the board of directors has to be 21 Years of Age of elder. So you're going to be in a situation where the students want to protect themselves they have to hand over effective control of their institutions to people other than

themselves. Hence we try getting why Bill insurance for the papers and the insurance companies took the position that with respect to the tremendous disturbances in the society today they just couldn't get the insurance. I think that in the care I think that what is going to end what is important is you try and evolve that we as a practicing attorney are going to have to evolve some theories to deal with this problem when the society itself is going to react in a civil sense to the problems that students may create because of their organized activities whether it's protester or articles or anything else. Now we've taken the position in a legal memorandum a memorandum that we've written that the student newspaper after passing by was which we suggested etc. is an unincorporated association. And under the laws of New York at least that of which a lot of problems of liability for example yet I get this reasoning by analogy but there's a case involving

National Maritime Union in New York where the union's editorial board published a libelous article an action was brought against all the members of the Union and the court took the position that it was a nonprofit unincorporated association and therefore the individual members could be held liable only if each member of the unincorporated association and in fact authorized the office. Well all those declines of problems I think that are going to be going to begin to become more part of the student movement continues in the direction of the college and I think that either is not to be some kind of legislation where again there have to be some analogies and wild legal principles that exist today. This is particularly important in terms of trying to protect the students against any encroachments in terms of their own attitudes. Mr. Richard Lippa speaking on the student in court made during this part of the symposium called a student protest in the law dealing with judicial remedies for campus problems. Mr. Libby is an attorney in Mineola New York

and has represented his students on several of the campuses of the State University of New York. Next week the school in court this symposium was held in mid-May in Ann Arbor under the auspices of the law schools of Wayne State University and the University of Michigan. Here's special of the week next week over m e r the national educational radio network.