Special of the week; Issue 34-69

NDE are the national educational radio network presents special of the week. We continue this week with the presentation of comments on panels from the Ann Arbor symposium student protest the law held in mid-May sponsored by the Institute of continuing legal education. A joint effort of the all schools of Wayne State University and the University of Michigan attorneys college administrators and state officials from thirty eight states attended the two day meeting on the subject. The array of sanctions alternatives to expulsion. The group heard Tom Jay Ferrer assistant professor at the Columbia University School of Law. I think there are three kinds of issues here are issues of law. There are issues of policy and there are issues of what one might call public relations although I don't mean it in manipulative sense I mean it in the sense of being able to explain to a very avid legislator or that alumni what your policies are

particular why you have in some cases decided not to apply sanctions. In this context I want to approach what seems to me one of the important issues in this whole area. There is a widely held view that it is both illegal and indeed the moral obligation of administrators to prosecute or do impose sanctions on every violation of the university rules. I categorically reject this view. I think it is a historical and inconsistent with what the society does on a regular basis. It is correctness and moreover to the extent it fails to measure the relationship between means and ends. Seems to me positively immoral. There are all kinds of situations in which the society does not in fact prosecute violations of the criminal law. We rarely prosecute violations of the antitrust laws even the more vulgar and

crass violations of those laws. The electric fixing cases of a few years ago struck us as exceptional because they were exceptional. Indeed most kinds of violations of business regulation laws despite the fact that in many cases they are forced. Theoretically by criminal sanctions are simply not prosecuted in the society. But this is equally true even of the violation of the most common kinds of criminal law for a variety of reasons and because of the youth of the person and because he's the supreme the sole support of a large family because he has repented or is already rehabilitated. Because the courts are clogged because there is not a great deal of public support for the violator for the prosecution of violations of this particular crime. Like the contraception laws for example prior to his will be Connecticut. This is built into our system and at its best it's not a it's not a

license to administer justice arbitrarily. We assume that there has to be some reason for failing to prosecute. But all I'm suggesting is that there are many reasons built into the hose system of criminal justice for refusing to prosecute are accepted and they ought to be just as applicable to the campus as they are to the general society. And yet I've heard very few people administrators Council two administrations or even members of the faculty say this openly. Yet it seems to me a perfectly simple point and a point which one is capable of communicating to the persons outside the university who are concerned with policies that you pursue. Well. That is a starter. I'd like to look briefly at the list of objectives which I set out in my outline. I was trying to do is suggest the range of purposes which an administration might have in employing the various sanctions available through it.

Now the first one and you can say is simply to preserve order. And to confirm the authority of the existing decision making structure in a sense then he did a denial of any purpose other than the maintenance of oneself in a position of authority. And I don't think it's it's really too hyperbolic to say that this really can only be the objective of a dictatorship. After all in our own society one of the rooted assumptions is that power ought to be used to promote some socially useful objectives and not simply held or cherished for its own right. And while the practice is not always consistent with the theory. This is I think one of the important myths assumptions of our society. Moreover since colleges and universities are not self-supporting and the profit making institutions they really are compelled to advance some kind of social objectives I'm gonna just the occasion

for their being by their structure. Now of course we could change change our objectives and I think that the consequences of the policy sanctioning policies adopted were in effect to seek objective. I would very much have to change the nature of the whole character and operation of the American University. And there's a very nice paradox here it seems to me because while in the methods we adopted we would be filling out neatly the caricature drawn for us are drawn of us by the STDs. In fact I think we would be driven to create universities doctors which are very much patterned after those which apparently are being adopted in both the Soviet Union and communist China. But I mean that is that given the degree of political activation of the students

a policy of maximum intimidation expulsion expulsion even at the first signs of this Internet would mean the exclusion of very large numbers of students from the university and the exclusion of certain types of students. But principally the kinds of students who have stuff our government and foundation bureaucracies and to a lesser extent to be less rich than business bureaucracy. I probably would have to be to educate the minimum number in the minimal way necessary to keep the economy functioning and to sustain militarily useful research and development. This is a possible objective. We would simply want mass literacy for the bulk of the population and we would select certain people to study physics chemistry foreign languages to the extent that was necessary for the purposes of the State Department and the multinational corporation. I think this change in education would quite clearly require changes in the greater

society not merely changes in the university. Indeed the end of a functioning democracy as we know it and indeed it might even deprive those in power of certain aesthetic pleasure ascends schools such as schools schools of art and architecture tend to be hotbeds of dissidents. So we would certainly want to remove most of those who currently just bathe in those kinds of problems. And in fact the consequences of this kind of change in educational policy based upon the use of maximum sanctioning powers at the earliest possible moment would have on pursuing consequences for economic development. And while I doubt that any respectable administrator as counsel would consciously espouse this objective it is it seems to me possible to push in that direction unconsciously through the Lluvia accumulation of day to day decisions. Therefore it seems to me it's useful to look at the face and the turn away. And moreover by recognizing the consequences

of a policy of maximum sanctions we cannot think communicate more clearly to those outside the university. Why this is not a policy of most university administration. And I do insist that it is one of the obligations of those who administer our colleges and universities. Turning then to the second objective which I think roughly States our conception of the status quo is to maintain the university as a social socializing agent and training institute for functionaries in the corporate governmental and foundation bureaucracies and as a means to its own replenishment. And finally as a mechanism for expediting a modest social mobility and promoting socially socially useful research. Now the issue in my mind is whether it is possible to continue to serve that objective without some movement towards objectives

which perhaps somewhat grandiloquently described as the provide the larger society with an operating model of a truly democratic and civilized community. The reason I think B requires movement towards is that many of the kind of socially sensitive and broadly educated young men who are recruited under contemporary standards especially as I suggested in government and foundation world insist on movement towards or unwilling to abide by the present arrangements of authority on campus. And I think this is also true of the most disadvantaged in the society. So here again if we wish to continue to provide a means for some greater social mobility to guide ourselves as a as institutions which promote social mobility then to some degree we must be moving towards Objective-C.

Now what is it that the non revolutionary as well as the revolutionary students object to in the status quo at the university. I think but most of the objections can alternately be traced through antagonism to the manipulative accommodating star of administration which is the routed method and technique of administration in all of the major bureaucracies not just the educational one the governmental one in the business one as well. And the question is aimed to me is a different style really possible for the Multiversity for the greats rolling université with his vast vast population of students faculty and administration. Does it preclude For example does the effort to increase the sense of participation in the sense that this is a democratic and civilized community preclude efficient and even

innovating administration doesn't require government by committee and indeed as frequently committees manned by activists of the right and the left as I frequently try to convince my more radical friends. Government by committee will never by its nature be innovating government. And if one really wants innovation what one wants is a strong authority at the center but one that is more or less easily removed. Perhaps that's like asking for a chase or I'm not quite sure. Well let me let me try and suggest very briefly what seems to me are some of the requirements of of a more democratic more attractive Morse seemingly participatory kind of community in the university. This is to me first of all elements of the university community must be represented in the nomination of

the search for and the election of the principal executive offices. That's just a threshold requirement for an important one. Secondly demimonde really the critical requirement is that the chief executive officer of the university or of the college must be a man of a quite different style than the one who has tended to be selected for the last several decades. And he must not be a behind the scenes accommodate her. You see his basic constituency is residing outside the university but someone capable of providing forceful moral leadership and at the same time someone who is committed to the notion of an open neutral university but who is not personally committed to a droughty and is someone who is capable of taking personal positions on the same time insisting upon the right of all shades of opinion to be reflected within the university community. Let me give you an example

of what I'm not. Referring to. I don't like to talk about individual persons or individual incidents but sometimes we've got to move out of the realm of the abstract and talk about individual cases over painful women. After the first bust we all seem to have adopted they are got at Columbia someone arrange an interview for May with the second highest ranking official at the university. A man of high intelligence from an enormously respected at Columbia and indeed at that point the heir apparent to the presidency of Columbia. Students of mine many students of mine who had been antagonistic to the sit ins after the bus come to me out raging wild with fury about what they'd seen on the couch. And I

came in the day after that both of us saw our colleagues there whose heads had been cut open with their shoulders broken so I suppose many of you have seen the same thing now at that time it was new and it was shocking. I said to this man the best thing you can do for this university campus this moment to restore some sense of community to it is to make an open statement condemning what the police have done on this campus. I said this after he conceded to me a fact he had initiated the statment that the police had been unbearably brutal being violated every instruction which had been given to them and that brutality was sufficiently widespread so that it couldn't be attributed to the odd acts of the occasional eccentric police officer. He refused to do so with used to make a public statement until it was cleared with yet higher authority and it was quite clear that he was not

going to be cleared that point with. This was consistent with the bureaucratic ethic in the sense of a hierarchy in the sense of fidelity to the hierarchical arrangements until the boss clear is that the subordinate remain silent. I don't wish to denigrate that ethic I don't believe that large bureaucracies can be rotten with a layout architect way but there are times it seems to me of moral crisis for the institution where one has to rise above. That kind of a standard. And it was the failure to rise above it in this case which I think caused Columbia a great deal more pain and damage than was necessary. That's the kind of style ever that I'm not referring to. This means in practical terms it seems to me that the bulk of administrative work must be delegated to the primers subordinate of the chief executive official. And this is quite analogous to relate to the

relationship between the secretary and the under secretary of state. At least in 1962 63 when I was in the government it was the undersecretary of state who handled the administration of this vast edifice. Foreign Office Services stablish me but I was the secretary of state's function to establish the leave the foreign policy of the make the basic policy decisions and to project those decisions on a broader scale. I think thirdly that the university or college if it is to move towards Objective-C must openly declare its commitment to meeting the important social needs of our time. Again just to exemplify that pomposity most of our great colleges and universities are still committed same as they to the doctrine of elitism that there is a deep unwillingness to employ any portion of the available human or physical capital and educational

programs for example which are useful for the disadvantaged who otherwise have no hope of catching up. We very recently tried to deal how to deal with this problem at Columbia Law School. It's a problem which increasingly other other law schools other professional schools need. The whole university just committed to the notion of merit merit admission and merit education without consideration of the differing of the group basis of our actual society are being forced to confront. Now let's talk a little more directly now about the question of sanctions and particularly about the interrelationship objectives these objectives which I've discussed and of sanctions. There is some problem it seems to May for the larger society.

If the university becomes the only the only institution in society or the principal institution and society which comes close to achieving model C that is if the organization of the university is far more democratic and more participatory in spirit than that of the institutions to which your students go after their university life. This may of course create additional tension within the society. A person is accustomed the feeling a sense of dissipation when he finds himself in a governmental hierarchy where he waits fifteen years before is going to feel a sense of participation. This can in fact have a disabling impact on that student and ultimately on that instead on the institution which is gone. And this is this is not a problem which I'm prepared to dismiss but clearly it's not one of very to resolve either and I simply throw it out as one of the many conundrums that we have to wrestle with at this particular time on

now. With respect to the specific sanctions let me just run through them and then we can talk about them individually. I started at the top with expulsion Perhaps instead of a list this is really a kind of circle. Then I listed suspension probation denial of facilities for group activities denial of financial assistance. And finally and perhaps in a separate category all together the transfer of responsibility for the application of sanctions to the public authorities and the unqualified support of their investigative and prosecutorial efforts. And I'd like to start with that one because I think that raises the most serious problems for us. I think these things have to be said or be admitted about.

Public sanctioned processes in the first place. Today public sanctions are frequently if not invariably disproportionate vindictive and discriminatory when applied to students both in the method of arrest and use of excessive force by the police in making those arrests and the sentences imposed by a lawyer in New York I'm familiar with. He was representing a student to be refused to cite the analogous case the student who refused to report for induction was given five years imprisonment the same lawyer who represented a man convicted of manslaughter was given a suspended sentence. He's he's represented robbers muggers and the most serious sentence that any of them had received in the last two years he said was one year. This does seem to me to suggest a certain discriminating application of the sanctions available to society for that reason alone.

I think that they resort to the public sanctioning processes raises serious moral problems for anyone who feels any responsibility for the students. Aside from the Prudential problems because of the entire going isn't generated among the larger student body by this asymmetrical asymmetrical application of science I would say I second lie and this relates to a point I made at the very beginning that there is no reason for administrations to acquiesce. Finally in the view at the criminal law ought to apply indiscriminately on and off campus. It's a view which is not accepted in many countries and many countries of the immunity of the university community from the general sanctioning processes of the society is deeply rooted in the system in the criminal process seas of the countries throughout Latin American countries through some of the European states. Another one of the justifications for this view it seems to me

is that unlike the mugger and his victim the administration must go on living with its students. And actually I think that disputes within the college community resulting in lower violation are in some ways quite analogous to the family fight family altercations result in innumerable violations of the criminal law. So battery defamation. And yet despite the frequency of violation prosecution is rare and the application of serious sanctions is rarer still. Now the society is going to made a judgment here that because of the fact that the parties to the crime must live together unless the parties are deep despite the fact that there's been a breach of the public peace unless the parties are determined to enforce the law the state ought to step aside as gracefully as possible. And I think there are strong analogies between that situation and the situation on campus

and in any event the desirability of punishment by the public authority must it seems to me to be bounced against the required means. Where there were other means involved tactics which offend the sensibilities and the conscience of the university community the use of police informers for example infiltrated onto the campus. Seems to me the university ought not only to refuse cooperation in these kinds of tactics but ought to publicly expose police efforts to employ those tactics in advancing order on the campus. And finally when in those cases where it is felt necessary to resort to the public authority I think that administrations must make greater efforts to make the police accountable diligences said that he feels it's simply impossible anymore regardless of the

precautions that are taken to control the police. Well it may be true. There are there are certain kinds of things which obviously can be attempted. The administration can place large numbers of the tog rivers in the vicinity. Police are intimidated by. That kind of exposure. It can have counsel available to go with the students when they're taken down the station. It can provide large numbers of faculty shadows for the police particularly when they entered the doors will be resisted. I'm not sure that it cannot be done and certainly there are cases where the police have been in control of one to one widely known case in New York is Lee Wallace rally at Madison Square Garden during the election campaign where there was a confrontation between demonstrators and police. But because senior police officials cooperation with the mare had taken certain steps including the selection of the police who were to man

the barricades in that particular day there was not a breakdown of control. In fact it seems to me that the evidence suggests it is not inevitable that this will occur. I think that for moral and for prudential reasons if not for legal reasons is there some question as to the responsibility of the administration when it calls on the police and the police proceed serving in some sense as proxies for the university to violate the constitutional rights and that of the of the individuals and the criminal law in the process of carrying out the mandate of the administration. Now turning to some of the other sanctions the difficulty of course with expulsion as I point out. In subcategories is that this merely deprives the disobedience of a formal status in the university community. But if we're going to physically expel him to prevent him from returning to the campus to continue to

participate in dissident activity which is the cause of his expulsion then it means the imposition of controls over ingress and egress. And that raises serious questions about the ability to carry on the university enterprise and the way to which we come across them if we must impose these this kind of vigilance. These kinds of controls over movement now is her probation. And the trouble is of course that the kinds of people who violate the rules of the university in the reason they violate them are wholly unrelated to the original function of probation when your principal disciplinary problem was a panty raid by members of the football to him. Probation was a serious sanction. You couldn't play next year. Most of those who engage in dissidents now are as far as I can tell are not concerned with being first man in the checkered team and their first suspension from the ability to just play in the traditional extracurricular activities through probation strikes me as

not terribly intimidating sanction. The only possibility of intimidation is that prevention becomes a precondition to automatic expulsion and that's that it seems to me is about its only significance today except to the extent it is used to destroy the functioning of certain groups. And that's why I try to separate that out of the denial of facilities for group activities of all members of a group are placed on probation. That seems to me a comparable way of achieving the result. But this of course raises all kinds of First Amendment sensitivities and which has made it a difficult sanction to apply. Tom J Ferrer will continue his remarks next week on special of the week when we continue presenting the sessions from the symposium student protest and the law held in Ann Arbor in mid-May. Mr. Ferrer is assistant professor at the Columbia University School of Law. Special of the week comes to you from an E.R. of the national educational radio network.