Special of the week; Issue 28-69

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 very timely conference on this special. The beginning of the section entitled judicial remedies for campus problems. The student in court is discussed by Mr. Richard Lipsey attorney with his own firm and Mineola New York. Mr. Libby represents students and most recently has represented the students at the Stony Brook campus of the State University of New York. I'm in the fortunate position of representing those who make the non-negotiable demands. You know and also I seriousness there was a US a similar

conference held as many of you know when May 1968 at Denver and you would have been given a copy of Denver Waubra journal which I believe will deal with many of the problems that we will be discussing this afternoon in great detail with a good basis in terms of the social logical implications on the law in the law. At that conference Edward Schwartz who was then the president of the National Student Association indicated that point of view to the effect that these conferences discussing the legal rights of students were really not particularly useful because they were focusing on the wrong questions. That's right to read from his comments. Those of us who have the Denver War Journal say that they began on page five but 25 he says for the past two years many of the people at this conference have been meeting almost bimonthly

to rehash a set of similar issues concerning student rights. We acknowledge at these meetings our general agreement on the nature of due process. We recounted the latest instance of the own limitation of a campus speaker man. We debated whether student political organizing should remain free from administrative control. We took a peek at the rising incidence of spying on the campus and in general we patted ourselves on the back and agreed that higher education is making progress in these areas. Mr Schwartz then went on to state that these were really the concerns of procedural liberals and that the real issues confronting the academic community today were the issues of student participation in decision making of the university and the role that the university should play in the society. He finished his comments by predicting that in the

coming year he will be met with a new round of campus protests. No doubt a serious of not more serious than those which you face this spring. Some of you will become school for counterinsurgents others of you will learn how to use the police and a few of you may lose your jobs. Nevertheless however adept you become in handling tactics the protest will not end in thin you'll be until you become adept at accepting change. I think it's clear from what has occurred in the last several months that Mr. Schwartz was right and that the problem is that our universities faced today are in large part not questions that can be dealt with through affirmative legal remedies but rather relates to overall questions of social policy and the lawyers point of view attempting to represent students. This can be a

rather frustrating and difficult experience. One thing that can be observed is that a lawsuit can serve a purpose of focusing public interest in beginning a dialogue on the issues. Unfortunately however that is not going to be sufficient to meet student demands. It's sometimes hoped that we lawyers can begin public dialogue so that our institutions will begin to face these problems on and for the last several years. The Supreme Court has been an offset to the reactions of other institutions in the society when they haven't responded the Supreme Court was I guess perhaps the most sophisticated example of that was the reapportionment decisions. Unfortunately I don't think that we're going to be able to look today. I think it's quite clear from the nature of the society today and from the nature of the person who is now occupying the presidency that the Supreme Court is not going to

be making decisions dealing with our social problems when the other institutions namely the legislature and the schools do not become responsive. And for that reason I think we're placed in a very difficult dilemma. I suspect that what is going to occur and what in fact is already occurring. What was alluded to this morning was the fact of the idea of collective activity by students the analogy to unions. Robert Powell the present president of the NSA at the same conference and they predicted that this is precisely the outlet that student activity was going to take. Organize union activity with collective bargaining and there's a good deal of analogy I believe into what's going on today. What occurred in the early 1900s with the unions. The only difference was that then the sit ins and protests took place all the living conditions and wages. Today I believe our students perhaps are more

selfless they're concerned with problems of the direction in which the society is going to go. They're willing to risk tremendous consequences because they believe that our institutions are not responding properly to the many difficulties with which we find ourselves faced. And I believe that in this sense the students reveal a tremendous amount of commitment and a tremendous concern for the nature of the society. As with other groups we're going to find. Or other interest groups we're going to find a tremendous organization and we've already found this beginning in New York there's a statutory provision which some of you may not be familiar with this it was promulgated by. Actually it was a regulation promulgated by State University trustees of New York which gives student governments of every operated unit of the State University the power to assess their own student activity thing.

It's a fee which they can make mandatory on all the students and they are given the absolute right to collect and disburse these funds as they see fit. Obviously if student governments and students are to become an effective interest group it's necessary if they have financial independence. And this is one step in that direction. Along with this a number of the State University units have chosen to retain attorneys who assist them in the goshi ations and also to assist them in court actions. We presently represent three of the four State University units in New York Buffalo Binghamton and Stony Brook. I suspect that this is going to be the wave of the future and I think that for the sake of the university and for the sake of the students it had better be it seems to me and the experiences we've had that it's in the best interest of both the students and the university to resolve the different problems

through effective negotiation and discussion. Much of what was talked about this morning really related to that and I think that perhaps this is the most important thing that can be emphasized. It's clear that from the students point of view under the present case law they have a much better chance of securing rights through negotiation with schools rights that they would have a great deal of difficulty in obtaining through court action. Once such regulations are promulgated of course the schools are bound by them. On the hand on the other hand the universities themselves I think are finding an increasing amount of encroachment from the outside community whether it's the federal government passing legislation restricting student aid to rioters or whether it's a police invading the campus invading the Academic freedom of the campus whether it's political figures making statements

concerning how the schools want to respond to whether it's Governor Reagan sending police in. Whatever the situation it's clear that the universities are threatened from the outside in order to deal with this in effect the fashion. I think that they will find that the most sensible way to proceed is through negotiation and through discussion resolving these matters internally. Leaving these concerns aside I think the one I'm talking about now the questions of power allocations on the university campus. There's one area I don't believe has been touched on yet and that is the concept of the students feelings as to the role of the university in the society. Is a book that was written not too long ago called a private university by Ridgway which describes in some detail the financial support received by our institutions of higher learning from government auspices and the interconnection between the good the university and

the other institutions in the society. It's clear from what is going on today that the students feel that the university is part of the social milieu has a responsibility to speak out on the issues that are really confronting us today. That is not really a question of student participation in colleges. It's a question of the direction the colleges are going to take with respect to the problems of our urban areas with respect to the problems of Vietnam. I think Mason gross the president of Rutgers has recognized this at a conference during the summer an inland extent. He wants all foreigners to suggest that universities were going to have to begin as institutions that take very. Clear positions on many of the important issues confronting new universities today because a good deal of the problem on the campuses relates not so much to control as the belief and it's the trust. Having confidence in the university having

competition and university administrators. One indication we have of the kind of concern that the students have in this area has occurred in Buffalo where the students have for a long time had tempted this secure a moratorium which they construction as part of the university construction program. They claim that the contractors have been hiring people from unions who discriminate and they want to do something about it. One of the things that they have asked us to do is to attempt to bring some kind of suit to seek an injunction against the state university construction program. And I think that this indicates another direction in which students are going to go today as a collective group that is in her analogous to many other social action groups in the society. They are begin going to begin to speak to the issues that they feel strongly about. Well though they may not have a direct relation to the academic community. I would also suggest that perhaps they really do have that connection and perhaps that it's a vital

area of an educational experience. It's our feelings and based on what we've seen that many of the students who are the most active students today are really having a much more sophisticated education and a much more relevant education than I had when I was in school because they are learning to deal with power learning to deal with institutions and discussing the problems that really exist today. In any event the fact does exist that we as lawyers must deal with a whole host of legal problems and the remainder of my remarks will be directed in in this area to begin with I'd like to discuss what might be considered to be the more traditional legal theories dealing with problems of student rights. These areas have really in fact been dealt with quite extensively and a good deal of literature already. A representative sample again is in the Denver water rejoin review and many of the citations in there will take you to the authorities to discuss

these problems. Another to last I would like to review very briefly with you. These ideas generally speaking. The legal characterizations they use by courts that deal with the problems of student rights fall into three categories at the present time. That's a concept of in local parenthesis the contract theory and the inherent authority of the school theory. Also recently on the basis on writings there has been talk about if I do share a relationship theory the idea that the school is a Visa be the students and that because of that it has tremendous responsibilities through those do not act arbitrarily a whole theory has evolved around this. To my knowledge no case has yet been decided on the fight theory doctrine the fact is all really that it doesn't make much difference what theory you call it because all that's

really occurring with any of these theories is that a court is using a legal characterization to subsume its conclusions with respect to the relationship that should exist between the school and the student with respect to a particular set of factual circumstances. However there are there are cases which talk in these different theories and to that extent I suppose we as legal practitioners have they will be speaking in these terms just to give you a couple of examples of practical application. There was a recent case in New York Drucker v. New York University decided in a city court of New York involved a situation in which a student registered for class and then chose to withdraw and then to get back his fee. The catalog at the University stated that it was nonrefundable. He brought it back in the court and the court held that he could get his fee back.

Applying traditional contract theory they held that the contract had really not related to this particular transaction because it had not been brought effectively to the students attention. They also talked about the idea that the penalty that the amount the school was keeping was really a penalty rather than a liquidated damages and therefore the student was entitled to the money back. Now this speaks in traditional contract lingo and I suppose that given the climate today it makes a good deal of sense for a practicing attorney to use these characterizations as much as possible in attempting to get results in our relationships on the Stony Brook campus campus we've had a couple of situations which although they didn't go to litigation raised the same general problem and I'd like to mention them briefly as further illustrations of the kinds of difficulties that can arise in the kind of remedies students might have. Stony Brook is part of the State University has had a tremendous amount of crippling problems because of a lack of

room on the campus. Last summer the school sent a letter to all sophomores indicating to them that if they registered for a dormitory at the school they would not be tripple. Lo and behold when they arrived on campus they found themselves triple. They came to us and asked what could be done was my judgement that in those circumstances it was a good allegation that can be made with record respect to a contract relationship in terms of the dormitory. We brought this to the attention of the school and through a series of negotiation sessions all the triples were eliminated so the court action wasn't necessary. It's my judgment though that we would have prevailed in that kind of secure situation particularly since the courts are inclined to view the school as a state agency is acting in a proprietary capacity when it comes to such things as providing room and food and things of this nature. Second situation that arose was

situation with a transfer student who transferred to Stony Brook as a geology major. He transferred in as a senior. He registered for courses or I should say made application the register for courses and found that his disgruntlement in dismay that he had been given no geology courses whatsoever. He had meanwhile left the other school with broken all Kleis with it and was in a situation where he either attended Stonybrook or really didn't bother going to school during the next year. We brought this to the attention of the school and that situation was remedy. But I think these are typical situations which really have a very traditional a legal remedy and where the contract theory can be used very effectively to the student's advantage. Another important area to look for is the school's regulations itself. We had one situation

which we may be getting. We may discuss in a different context later today an area has been very troublesome to many of the campuses in the country the question of restricting the people who can come onto that campus particularly in view of the riots that have been a wising we had a situation with a student from Queens College who actually left this school and was became a non student and then began staying at Stony Brook. He had several people it's lonely Brook friends of his who played in the band with him and he stayed several times overnight at the school. Apparently the ret resident assistant who had responsibility for the dorm and for the called local college facilities college a Stony Brook refers to a discreet housing unit. Apparently the railroad who had that area and who had the ability supposedly to make determinations of who could stay there and I particularly like this individual

and called the campus security police to arrest him or actually not arrest him but to have him leave campus when the campus security police told him that he would leave or be arrested. He chose to stay and was arrested for criminal trespass and loitering. We defended him in court. The school's position was that it had the inherent authority to police its campus that it had the right to prevent people from effectively becoming permanent people on campus despite the fact that they didn't live there and that this discretion had been vested in the particular resin in the system. Our position was that there was a school regulation which provided that an individual was entitled to be on campus if he was the guest of the student. The court upheld the opposition and maintained that the school did not have the authority to vest discretion in administrative

authorities of this nature and in such fashion supersede the regulations which are on the books. The court and as an aside I also indicated that if a person were on a school campus for a legitimate purpose he could not be excluded from a school which is in this case public property. A 30 area that has to be looked to within traditional legal theory R.V. of the whole framework of style of statutes and regulations on the state's books. And the regulations of course promulgated by a state university trust these people with this nature. We had an interesting experience when we were first attempt when students donnybrook first we attempted to retain us. They made out a check or actually requested that a check be made out to us.

The check was made out as a retainer fee and then the school stopped payment. They claimed that they had the exclusive authority to make decisions with reference to those funds. We cited to them the statutory regulatory provision that exists that giving a student the right to assess this on student activities fee and collect it and spend it as they see fit and several days later if the check was reissued to us this was one example of walking through the applicable regulatory provisions. Another example that we've had although we've not yet gone to litigation with it is a regulatory provision of the State University trustees that provides that the state operated units at the State University must provide consultation for the students and formulating policy. What has happened and not a number of situations. For example at Harper where they formulated parietal our

regulations the students were given about two days notice of the fact that the council was going to consider the problem. No specific proposals were made available to the students and was done during examinations. The rules were then formulated against and the students wanted to take a position with respect to the inability of those regulations. We wrote a memorandum a legal memorandum for them pointing out that among other defects might be the procedure by which the regulations were in fact an act because we felt that consultation within the framework of the State University trustees meant in effect that hearing. We had another situation where the state statute specifically delegated to the local councils there's in New York all the state operated units that universities

have nine member local councils appointed by the governor and they have complete power to make the rules and regulations concerning student conduct and also rules and regulations relating to the facilities of the school things of that nature. It turns out that there have been clocking regulations in effect at the university for six years which were never passed by the local council but instead were promulgated by executive fiat. We are presently a process of filing a lawsuit against the school's $100000 to re get reimbursement for all the illegal plucky penalties that were assessed. Should be a rather interesting case because according the school washings at the school with the counsel for the State University trustees will undoubtedly take the position that we go out most of the statutory delegation to the local council. There is inherent authority in the school. An executive official of the school to provide these kinds of internal

regulatory curvaceous should be rather curious to see what occurs. A final situation which has which is in the process of litigation at the present time at Stony Brook again relating to this regulatory provision statutory framework problem is the schools of policies under which they come to with force the traffic regulations. They have the side that they are going to impound the cars of students who have unpaid a certain number of traffic tickets and they're not going to return the cards unless a certain percentage of those traffic fines are paid. We have taken the position it has absolutely no authority to do this kind of thing that they could no more do that than they could walk into the kid's room and take this clothing is effectively an expropriation of property with most of the most efficient statutory delegation. We brought in an injunction action. Really what's known as

nautical 78 proceeding in New York wrong and asked for a temporary restraining order which is granted it's not been the fact for about a month and a half and I do not find that the administration is particularly receptive to my present campus at this point. The injunction itself is going to be argued sometime in the next couple of weeks and the final resolution of that problem should be rather interesting. Again I can't emphasize enough is well good and well to talk about the constitutional problems involved in situations. But you can oil wealth and find if you look hard enough. Statutory provisions and regulation provisions and traditional theories of law which can give you a good had a good a good place to hang your hat on in terms of litigation in the courts. And this is particularly useful

because of the situation in which you find yourself today. I think it's with the exception of your neighbor across the lake Michigan. I think it's fair to say the courts in general have not been receptive to the problems of academic freedom the while the problems of faculty student relationships all these questions. And if you can fit your claims in the traditional theories problems a statutory delegation regulatory delegation contract theories I think you'll find the courts a lot more receptive at this point to respond to your ideas. The minute you start making unusual legal claims the court has an immediate negative reaction to it. Part of the problem of course in worldly situations I think is that the courts are not particularly anxious given what is going on generally today. To do anything or to make have any holdings which they feel can be construed to have the effect of undermining the authority of schools.

So the closer you can statistics are to get it traditional analysis the better off your are. The other area that I would like to call still conditional legal analysis although some might object to that is how Richter's ation against are many of the constitutional issues which seem to be the rage today. Questions of private school and public school that whether in fact colleges can be considered private or not. Questions of freedom of protest against the time of the press. Right to peacefully assemble things of this nature procedural due process that way. I think it's fair to say many of these have received recognition of protection and I don't anticipate a good deal of difficulty in these areas anymore.

Next week on special of the week Richard Libby will continue his remarks on the student in court made during this part of the symposium called student protest and the law dealing with judicial remedies for campus problems. Mr. Libby is an attorney in Mineola New York and he represents students on several of the campuses of the State University of New York. 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 is special of the week next week over n e e r the national educational radio network.