1970.01.15: Leon Letwin, Civil Disobedience Law Seminar (UCLA Law School)

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LOS ANGELES: SCHOOL OF LAW

January 15, 1970

TO: Ray Goldstone

FROM: Leon Letwin

In Schwartz’s article that we used in the first

session, he says that Perkins in “The University and

Due Process, December 8, 1967″ (a reprint of an address

to the American Council on Education, Washington, D.C.)

“conjures up a chamber of horrors involving incompetent

charges rendering decisions on student grades, personal

behavior and a multitude of other matters. It pleads

for a respect for the autonomy of the University ••

Do you have the speech? It might be useful as a

statement of the argument against court involvement in

University affairs which comes up in a second session.

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UNIVERSITY OF CALIFORNIA-(LeUerhead fer Interdepartmental Use)

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SEMINAR ENROLLMENT

Winter 1970

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It is a commonplace that the campus toea~ is an incredibly

different place today than it was when populated by “the silent

generation” of the 1950’s. Student concern with the gap between

professed human values and the real world runs far broader and

deeper. And there have been impressive changes in attitude as

to personal responsibility for participating in efforts to produce

change. While these attitudes have rarely, if ever, moved

a majorit y of students into action, they have episodically moved

f airly large numbers and, perhaps equally important, the impulse

motivating the activist has from time to time received widespread,

t hough passive, support of the majority. Accompanying these

changes have also come important changes in attitude toward what

constitutes effective or appropriate forms of political action,

and toward the appropriate degree of deference or respect due to

the “established order.” the “status quo,” the “system.”

In such a setting it seems artificial to begin a review of

student-university legal relationships by focusing on, say,

procedural due process on the campus. While this wasafrontier

issue but a few years ago, it is today regarded by significant

numbers of students as of minor importance, not the “real issue.”

It seems worth spending the introductory session surveying aspects

of the general campus atmosphere.

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The chrrent literature on “civil disobedience” helps in two

.respects:A the content and intensity of present-day student social

concerns , and it presents some of the attitudes toward appropriate

mechanisms of social change and toward legality and authority.

In reading these materials you may wish to keep before you

the following questions:

1) What are the differing attitudes toward “the system”

represented by the conflicting viewpoints presented on “civil

disobedience”–what it is and what it implies? Is “civil disobedience”

revolutionary? What are the varying positions toward the

appropriateness of demanding”a.mnesty” for acts of disobedience or

illegality? To what degree are these differences reducible to

more fundamental differences in assumption or objectives of those

ranged on either side of the issue?

2) Are the justifications that might be offered for civil

disobedience stronger or weaker in the campus context than elsewhere?

Should the response to acts of civil disobedience be any

different on the campus than in other sections of the community?

How?

3) What kinds of arguments would those who have engaged in

politically inspired acts of violence be inclined to offer as

justification for such course of a ction?

4) What are the implications for the lawyer defending those

charged with acts of civil disobedience? What are the implications

and responsibilities of the lawyer whose client insists on engaging

in civil disobedience within the courtroom, e.g. refusing to accord

the traditional forms of respect .to the judge, etc.

* * *

On reserve:

Fortas, Concerning Dissent and Civil Disobedience

Zinn, Disobedience and Democracy

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ROUGH DRAFT January 23, 1970

Retrospective Comment on Week 2

1 now think we should proceed entirely differently than

we had in the introductory weeks. We should drop the introduction

on civil disobedience, and drop Week 2 as it now

stands.

All, or at least a major part of the seminar, should be

structured along problem-solving lines.

Week 1 could start, for example, with the facts of

Jones v. Board of Education for the State of Tennessee,

279 F.2d 190 (1968). These facts raise a variable parade of

horribles, suggesting every possible objection that people

might have to any university disciplinary proceeding: the

absence of adequately spelled out standards of conduct;

promulgation problems; the substance of the rules; the way

in which they were applied; procedural flaws; constitutional

flaws; and the like. One could spend an entire introductory

session giving people the opportunity to react on a

level to the issues raised. Session 2 could involve asking

half the class, say, to draft a complaint and the other half

to draft a motion to strike the complaint for failure to state

a cause of action. One could give them § 1983 of the Civil

and

Rights Act,/other code provisions. · ane could, to complicate

the issue, assume that the school was a private school so as

to raise the state action question. One could give them a

variety of cases to which we now have represented in Week 2 f

dealing with right/privilege, state action, contract theories

as applied to private schools to give them a basis for thinking

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through the theory on which the complaint would be founded.

One could also include issues of ness

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whether exhaustion of remedies, the propriety of preliminary

injunctions, etc.

The whole enterprise could be entitled “Jurisdiction”

to illustrate that the point is to raise the threshold questions

– of the theory on whether one can even get into court on such

claims and, if so, on what theories?

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II.

These materials are intended to serve a number of purposes.

A. Background. Wright, The Constitution on the Campus, and

Van Alstyne, The Judicial Trend Toward Academic Freedom, describe

the trend toward constitutionalization of campus relationships,

til recently left largely to the unfettered discretion of “the

University”–i.e., its faculty and administration. The cases

included are samples of various approaches, old and new.

For background purposes 2 other items not included here

may be useful.

Developments in the Law, Academic Freedom, 81 Harv. L.

Rev. 1045 (1968) (extremely comprehensive)

Van Alstyne, Student Academic Freedom and the Rule-Making

Power of Public Universities: Some Constitutional

Considerations, 2 Law in Transition Q. 1 (1965)

B. The Broad Legal Concepts. The debate as to whether there

were constitutional limits on how universities could conduct themselves

in relation to students (and faculty) took place in the

context of several legal issues. In the public universities the

debate focused on the privilege/right distinction, discussed in a

general way by Van Alstyne, The Demise of the Right-Privilege

Distinction in Constitutional Law.

In the area of the private schools, the debate tended to

focus on the scope of “state action” (were the private schools to

be viewed as public institutions for constitutional purposes?),

or on whether contract or tort theory could somehow be stretched·

to impose, in effect, constitutional restrictions on private schools

that were however not operative by their own force.

c. The Broad Policy Issues. Is it desirable to impose a

regime of external legal norms upon the workings of the university?

What are the classic arguments against it? This is dealt with to

one or another degree in each of the cases included in the materials.

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III.

The first document, “A Judicial Document on Student Discipline,”

is an interesting opinion, first, for its legislative quality, and

secondly, for philosophic premises it relies on in specifying the

due process requirements of a campus adjudicatory system. A somewhat

different philosophy (at least as to what is desirable if not constitutionally

required) presumably underpins the ‘~CLA Code of

Procedures Regarding Student Conduct.” Please read both documents

now, not for their detailed provisions but to get a sense of the

general viewpoints they seem to represent. Next week we will return

to a more leisurely consideration of particular problems in relation

to the UCLA Code.

The Goldstone and Lovell article comments in a general way on

the UCLA Code. It also discusses the issue raised by the fact that

the UCLA Campus Conduct Committee’s decision is merely advisory to

the Chancellor, not binding upon him.

The remaining materials raised issues 1) as to the right of

counsel in a campus proceeding and the role of non-lawyer student

advisors. You may wish to consider the legal and ethical problems

facing law students participating in such proceedings; 2) arising

out of selective enforcement of rules of conduct by the university

administration; and 3) as to the relationship between a student

conduct committee hearing and a criminal trial arising out of the

same transaction.

1970.01.15: Leon’s California State Bar Certificate