Live and in color, "The Advocates." Lisle Baker.
Guest advocate, Evan Semerjian. The moderator, Victor Palmieri. And the man
faced with a choice, the Honorable Louis Nunn, Governor of
Good evening. Every Sunday at this
time, "The Advocates" looks at an important public problem in terms of a
practical choice. And tonight the problem is student unrest. The practical
choice is this: "Should colleges expel any student who uses physical force
as a means of persuasion?" Advocate Lisle Baker says yes,
Governor Nunn, if we allow physical force to displace
reasoned debate as a means of settling disputes on campus, we will not only
undo what a university is all about — the right to think and the right to
disagree with each other — but we will also encourage the wider use of
violence in society at large, for if educated men will not stand for
peaceful change and against mob rule, who will? Here tonight to tell us why the deliberate use of physical force on campus
completely disqualifies a student for membership in that academic community
is Dr. James Hester, president of New York University. And here to convince
you that an automatic rule protects both students and faculty from the
arbitrary exercise of power is Professor Alan Dershowitz of the Harvard Law
All right, thank you, Mr. Baker. Our
advocate Evan Semerjian says no, the rule is unfair.
Governor, automatic expulsion is unwise for two basic
fundamental reasons. First, it wrongly assumes that physical force is never
justified as a means of persuasion. On the contrary, it is justified in many
situations. Second, whether force is justified or not, automatic expulsion
is unfair, arbitrary and unreasonable. And to help us understand these
points we have here tonight Tom Gerety, graduate of Yale University and now
a Harvard Law student, and Dr. James P. Dixon, president of Antioch College
at Yellow Springs, Ohio.
Thank you, Mr.
Semerjian- Campus violence this year is even more widespread than last. And
in more and more universities students are resorting to unlawful physical
force. They're disrupting meetings in classes; they're holding officials.
Tonight we're not talking about pranks. We're talking about the deliberate
use of force as a political instrument on the campus. Tonight's debate focuses on two questions. Can it be right to
force a university to use force in a university as a means of persuasion?
And the second question: Would it make sense to have a rule requiring the
automatic expulsion of students who after a fair procedure are found to have
used such force? So we're not debating which kinds of student protests are
lawful or unlawful. We're only considering illegal actions.
With us tonight is Governor Louis Nunn of the Commonwealth of
Kentucky. Governor Nunn is also chairman of the board of trustees of the
University of Kentucky. Well, Governor, can you tell us what the situation
is at the University for dealing with student protestors?
We haven't had any difficulties at the University of
Kentucky and I think there are several basic reasons. Number one, l8 year
olds have been able to vote in our state for a number of years. Consequently
they have been participating in affairs of government. Also we enacted a law
which made it possible for 18 year olds to serve on our boards — not in a
voting capacity but by serving on the boards of trustees and the boards of
regents at all of our public universities, this keeps open the lines of
communication and there's dialogue that leads us to a better understanding.
Then we've adopted student codes and the students, the faculty, the members
of the boards participated in adopting a code that all students could
understand and one that I think they could live with. Consequently, we've
had no difficulty, and we don't anticipate any in the immediate
Governor, I'm glad to hear that. The
rule we're adopting tonight — or debating tonight, but if it's a good one
though, it's one you want to have on your books before trouble comes. So
let's hear about it. Advocate Baker is arguing that colleges should adopt
the rule requiring automatic expulsion of any student who is found to have
used illegal physical force. Advocate Baiter, let's begin the
Thank you. The issue tonight is whether
colleges and universities should be at the mercy of a small band of morally
arrogant students. Now in society we protect ourselves from another man's
will whether he's President of the United States or a next-door neighbor, by
appealing to the higher authority of impartial law. But the problem with
colleges is that many of them are now lawless — some discipline students
arbitrarily and others call in police at the first sign of trouble. We think
there's a better way to do things. Students should have clearer rules of
conduct and fair hearings. Now clear rules not only protect the college, but
they also protect the student by keeping the college from disciplining the
student except for an explicit violation of a clear rule. Now the most
important clear rule you can have would outlaw physical force as a means of
persuasion on campus. This would not restrict constitutionally protected
speech or assembly nor would it prevent students from using their ingenuity
to devise effective tactics for peaceful change. But it would keep colleges
from being at the mercy of students who use muscle power rather than brain
power to impose their morality. Because unless you outlaw physical force,
the rule of jungle still prevails, and the rule of law is a fraud.
Now, tonight we've asked Dr. James Hester, president of New
York University, to join us. We haven't quite persuaded Dr. Hester to accept
an automatic rule but he can speak to the illegitimacy of physical force on
campus. Dr. Hester, would you come to the stand?
Welcome, Dr. Hester.
Dr. Hester, is
physical force ever appropriate on campus?
don't think so, and I'll try to explain briefly why. This is, of course, a
very complex question, but there are a couple of basic reasons that I think
make force illegitimate.
The university performs
many functions, but its preeminent function in our society is to serve as
our most comprehensive agency for advancing understanding and knowledge, for
advancing civilization through the use of the mind, through brain power. Now
through the experience that we've had over the centuries, we've learned that
the brain functions most effectively, most fully, most creatively when it is
free and is unrestrained by threats and intimidations of any kind. And
therefore we have worked hard and only recently achieved conditions of
maximum freedom for both faculty and students in our universities. For the
faculty, freedom has been established in the last couple of decades very
effectively; for the students we are still achieving more freedom for them
than they enjoyed several decades ago.
virtually everyone in the university is free to raise any question that he
wishes, to challenge anyone he wishes, to challenge the institution, to
challenge the society, and this is good because only in that kind of
environment can we expect to make progress, can we expect to unearth the
inadequacies of our present system and go forward.
Now this kind of freedom is a very complicated environment. It exists
because the people in the university accept certain ground rules in their
relations with one another, both explicit and implicit rules about the way
the people should be treated. These rules have become more explicit as
violence has been introduced into the university. We do now have
comprehensive codes of behavior which are mandatory. To introduce violence
into the university, to use force, contradicts the basic assumption that the
freedom that is essential for the functioning of the human mind is essential
to the university and therefore those who use it are disqualifying
themselves from being part of the university. It also...
Dr. Hester, let me interrupt you just a second. Some
students claim that they have no vehicle, that there are no outlets for
their moral interests in posing change in the university without
This simply isn't true. Most instances
in which violence has been used, the issues have never been adequately
pushed before the existing agencies within the university. If the same
amount of effort were made to persuade the faculty, to persuade other
students, to persuade the trustees, or the administration of the cause that
the students have in mind, much more would be accomplished than the use of
force itself. There may be instances in which there have been of
conservative reactionary elements in a university, but I would argue that
the use of force in order to dislodge them does not justify the great damage
that is done to the essential condition of the university. And in many more
instances, real change has come about through peaceful protest and petition
within the university.
Dr. Hester, we're now
going to hear from Mr. Semerjian who will ask you some questions on
Dr. Hester, how do you do? I
understand from Mr. Baker's argument before you took the stand that perhaps
there may be a small band of morally arrogant students who are the ones
responsible for the physical force that has occurred on many campuses in the
past three or four years. Do you agree with that characterization?
Yes, in fact I would say those that have used force most
often are not those interested in constructive change, but those interested
in destroying the university. And they realize that using force is the way
to destroy the university.
Is it your position,
Doctor, that the only students in this country who are using physical force
of any kind are this small band of morally arrogant students?
Not at all. There are many students who get caught up in
the issues in the university, become persuaded by the violent radicals
that...the only way that they can effectively persuade the administration is
through force and there have been many who have been misled into violent
protest of one kind or another who are not themselves dedicated to the
proposition that the university must be destroyed.
So in your view there are only two kinds of students who are involved in
campus protest of this type. Is that what you're saying?
I didn't say there were only two kinds. You asked if
there were two kinds, and I said there are.
Well, is there another kind?
There are others
...there are...there are constructive…
are the other categories, excuse me for just a second, I don't want to
interrupt you, I just want to make sure the question is clear.
Are there other categories of students who engage in
physical force as a means of persuasion besides the small band of morally
arrogant students that Mr. Baker referred to and the ones who are misled by
this small band of morally arrogant students?
think those would be the principle categories...
There are no other major groups that you know...
...not that come to my mind right now...
...so it's the morally arrogant ones and the ones misled
by the morally arrogant ones that are the two major groups
I would say so, yes.
There are no other groups that you can think of at this
Not at this moment.
All right. Now, are you saying, Dr. Hester, that physical
force is never justified in a university setting?
I would say so. I would say that the essential condition of the
university is so important that force is never justified because it damages
that essential condition.
And you're aware of
no situation at all in your experience at N.Y.U. or anywhere else through
reading the newspapers or any other medium that the physical force has been
justified? Is that what you're saying?
believe that in those instances where physical force has been followed by a
reform, that probably the reform was on its way already and it very likely
would have been more successfully carried out had it been done peacefully
rather than violently.
All right, Doctor, now
your position then is that there can never be a situation in which physical
force is justified.
I would say that in a
university there can never be, yes.
And if you
do use such physical force then you are morally arrogant or misled by those
Is that what you're saying?
All right. Now let me give you an
example of a situation and which we'll assume to be true, and you tell me
whether your opinion would be changed. Now assume there is a college
somewhere where there are ten blacks who are students of the university and
other students of the university have found that the number of blacks at the
university in proportion to the other students there are much smaller, much
more out of proportion than the number of blacks who are available in the
community. And these students, for years, appealed to the administration and
the admissions office and the faculty to increase the number of blacks who
are students there. And after referring it to an advisory committee, the
university agrees that there are too few blacks, that in fact, they have
been admitting too few of them and they, in fact, promise the following year
to admit more. The students are satisfied and they go back and wait. And the
following year there are still only ten blacks, and the following year after
that there are still only ten blacks. Now, you would say in that situation,
wouldn't you, that the students have done everything they could under your
system to appeal to the college and university...
...no, not necessarily...
...there are many things...
...what else could they do?
They could continue their effort to persuade the faculty, to persuade the
administration, to persuade the trustees, whatever bodies...
How many years, Doctor, would you want them to continue
doing this before the university changed its policy about admission of
I think the integrity of the university
is so important that they must continue to use every peaceful means possible
in order to make their point.
Well, I'm asking
you, Doctor, what in addition to appealing to the university officials, as
you suggested in your direct testimony, would you suggest that they
There are many, many devices that they can
use. There are many forms of peaceful protest.
Let's say that these students were frustrated and fed up because the
university reneged on its promise to admit more blacks, even though it
promised it would do so and acknowledged that more should be admitted. And
let's say the students just to be fair about it, waited a couple of years
and even threw in some more pleas. Now would you say that if they
interrupted a class one of those days and took thirty minutes to present
their views to all the students there that those students would be morally
unjustified in using physical force in order to present their views after
the university had made that promise?
have been many instances in which students have asked permission to present
their views before a class and its been done and there's been no use of
Well, let me ask
...Mr. Semerjian, I'm going to ask the
governor to take the last question on cross-examination.
Could I ask you
this question? Are you going on the assumption that they should be admitted
because they're black or because of their qualifications? Do you have blacks
that are qualified, or do you want him to take them in the university merely
on the basis of color?
Well, I'm assuming — for
purposes of my example — that they are qualified and that the university in
fact promised to increase the number of blacks as students there and so, the
issue of whether they're qualified or not isn't really present. It's the
fact that the university promised to admit them and then never did anything
about it that is the issue in this case.
think the hypothetical question is clear, Dr. Hester...
...can I give you...
answer is very clear...
know of any faculty with which I've had experience which over a period of
time, if enough effort is made to persuade it, doesn't respond to the deeply
felt interest of students.
And if there was one
outside your experience you wouldn't know it tonight. Is that what you’re
Dr. Hester, thank you very much for being on "The Advocates."
Governor, the problem with force is that it's so quick
and easy, and if all students waited the two years and tried every available
means like Mr. Semerjian seems to indicate that they do, we wouldn't be here
tonight. However, it seems to be the first resort rather than the last.
President Hester has told us that students who deliberately use physical
force disqualify themselves from membership in the academic community. And
we think expulsion should be automatic. No student should be at the mercy of
a tribunal that can play favorites. And no tribunal should be at the mercy
of students who would use the same physical force to intimidate that
tribunal into granting them amnesty. Moreover, as automatic rule gives
students and not the college the responsibility to decide whether they stay
in school or not. If they choose to use force, they choose to leave. Thank
Mr. Baker, you say that they should not be
at the mercy of a tribunal. Are you saying that we should do away — in
effect do away with the jury system that we've used in this country that
No, no. I'm saying ... I'm talking about
in the campus community — which is a voluntary community — nobody forces
anybody to go to colleges, and we're trying ... we're proposing tonight,
that students be treated like the adults they are. And part of the being
adult is having the responsibility for your own decisions. If you know that
your act is going to result in an expulsion immediately, then you are really
responsible for your decision. It's not the college who takes the blame, who
has to handle the hot potato. It's you. And that's what being an adult is
Let's go to Mr. Semerjian for a
moment now, and we'll be back to you for rebuttal in just a few minutes. Mr.
Semerjian, what's the case against this proposal?
Well, Governor, I think we can show, in response to what Mr. Baker just
said, that this proposal really doesn't treat students like adults at all.
In fact, it treats them like non entities and perhaps something beneath what
we would call adults. I see no reason why students should be considered
second-class citizens and be given rights and freedoms which are beneath
those of citizens who are not members of a university.
Automatic expulsion violates the fundamental principles
requiring the punishment to fit the offense and the offender. We wouldn't
punish stealing a loaf of bread with deportation. And yet the automatic
expulsion makes no distinction between the classroom sit-ins to protest
university racial discrimination and wanton assault and battery to protest
the color of the dean's tie, for example. There's no inquiry permitted here
into mitigating circumstances or background or motive. All students whether
they're straight A and honest or on probation and dishonest are to be
expelled. Such unfairness to students can't be tolerated in this country.
Furthermore the rule actually forces harm upon the college because it forces
members of the faculty and administrators to adopt an arbitrary position. It
forces them to be unreasonable and, in fact, to abdicate their roles as
members of the faculty and as administrators.'
other thing the rule does, it assumes there is nothing a college can do to
justify the use of physical force. It assumes that existing communication is
adequate. It assumes that the university is sufficiently responsible. I
think our history in the past three to five years has shown that this is not
so. And is still being shown not so.
involving force has a lot of historical precedent. And to see how it's been
indispensible in the achievement of many reforms in this country let's take
a look at this film:
Harbor, December l6, 1773. In fury here by the unfairness by the English tea
tax, a group of colonists under the direction of Samuel Adams dressed as
Indians, boards three ships and dumps 342 chests of tea overboard. The king
demands compensation for the ruined cargo, Boston refuses to pay.
The Boston Tea Party helped establish our nation. It
was an illegal use of physical force.
The free states, 1854. Abolitionists continue their efforts to
help the black people escape from the slave states. Fugitive slaves by the
hundreds are smuggled north to Canada by boat, in false bottom wagons, and
under cover of darkness.
actions helped bring slavery to an end.
Flint, Michigan, 1937. Demanding bargaining rights, workers begin a sit-in
and take over of General Motors factories. Machines are silent 44 days as
the strike spreads, forcing 50 plants to close their gates. 125,000 workers
are left idle.
That same year, the Supreme
Court upheld the right of workers to organize and engage in collective
Southern United States, 1964.
Sit-ins, marches and other protests continue to focus attention on
discrimination against black Americans.
Each and everyone in this line is running the risk of parading without a
Laws considered to be unjust
are deliberately violated to force the courts to re-examine them.
Many Americans disapprove, but those protests made
close the springs of racial poison. Let us lay aside irrelevant
Columbia University, April
23rd, 1968. This institution's first revolt erupts over issues of racism,
war research and lack of administrative responsiveness to students.
Buildings are seized and occupied. The president's office is taken by
protestors. Occupations end one week later in a riot that leaves 148
injured, 720 under arrest.
Governor, Columbia wasn't the first use of physical force as a means of
persuasion, and nor was it the last. And who knows whether it will be the
last. With that kind of history, a fixed rule expelling students for using
the same kind of physical force as a means of persuasion smacks a little bit
of hypocrisy. It seems to me that it contradicts our own traditions and
shared values in many ways where physical force might be justified because
peoples' backs are against the wall.
Now to help
us understand why students find it necessary to use physical force, I'd like
to ask Tom Gerety, a graduate of Yale University and now a first year law
student at Harvard, to take the stand.
Gerety, welcome to "The Advocates."
have you found it necessary to use physical force as a means of
Yes, I have. As an undergraduate
at Yale on issues related to the war and the university's involvement in our
war policies, and as a graduate student at Harvard, on issues related to the
institution's racism in its hiring policies, I found myself and others in
situations where I think that the use of force as a political tactic was
justified. Many times when students bring issues before university
communities — in so far as university communities are not totally democratic
institutions — they find that they not only do not win concessions, they
often do not win hearings from the administrators on their grievances and on
issues which relate not only to university government and the role of the
university in the society, but to the larger questions of justice and the
substantial values of our society that affect all of us as
Mr. Gerety, at Yale what kind of
physical force did you use?
faculty meetings, we dispersed meetings called by the president of the
university, and finally on several occasions — both when I was at Yale and
since I've been at Yale — students have seized buildings.
Did Yale punish you for that?
No, they didn't. I think Yale was operating under a set of reasonable
rules at that time.
All right. And were
reforms accomplished as a result of the physical force in which you
I think there were. We didn't win
everything that we wanted, but we won concessions; we won precedence on the
governance of the university, and we won major substantive concessions on
the role of the university insofar as it's engaged as an institution in this
society and on the role of the university insofar as it's an
I take it that these were reforms
achieved which would not have been achieved had you not used physical
I think not. They might have been
achieved later. I think perhaps they would have been achieved -
Mr. Baker, your turn for
Mr. Gerety, you said
essentially — as I understand it — that you think that the universities will
not move on their own initiative or even under persuasion -- rational
persuasion — by members of the community including yourself to do the things
that they ought to do. Now, let's take an example, for instance. At Harvard
this year — Harvard Law School — there were instances in which students
forced their way into a faculty meeting and refused to leave because they
wanted to be heard. Now do you know about that incident?
I do know about it.
right. Now, how many faculty did those students button-hole to try to get
themselves into that faculty meeting before that meeting occurred?
I don't want to get into an argument on the merits, but
as I understood it the dean invited the students in.
He invited the students? So they weren't forced in at
I don't think so...
...didn't force themselves in. Well, that version
differs. But let's go back to your original case of Yale. How many faculty
members did you button-hole when you were at Yale before you went in to
disrupt the meeting? How many did you try to persuade by sitting down with
them — each individually — and saying, "I think this is a good
Not only did I button-hole faculty
members, but faculty members buttonholed me, and I think I must have talked
to every single faculty member that I knew and met, and there were a lot
that I didn't.
We petitioned. We petitioned over...
...how many signatures did you get on your
At Yale we got many signatures on
petitions, and moreover we had manifestations, we had
Did you have student
newspapers? Did you use student newspapers?
Student newspapers editorialized in many cases. The Yale Daily News
editorialized on our side on the issue of ROTC and on issues of university
governance. We petitioned, we demonstrated over a period of several
And in the process of this, you
persuaded a great many people, I assume, that your cause was just, otherwise
they wouldn't have signed that petition, isn't that right?
Moreover, a great many students, and I think in fact a
great many faculty members, supported us from the beginning, but
...are not run by students, and often they're not even
run by faculty
We're not talking about who
runs the universities tonight, we're talking about what kind of conduct
students should engage in. Now, you weren't intimidated into your views.
What gives you the right to try and intimidate other people into
I think that when questions arise
which are substantial and involve the values not only of the university but
of our whole society, in times of war, in times when a country is acting in
a racist way towards minorities within the country, those of us who believe
strongly, sometimes have to risk our careers, sometimes men have had to risk
their lives — and many have in this country — to put those values before
their fellow citizens.
...I think the governor has a
Obviously, the faculty has an
opinion that's different from yours. Now, how much force do you think the
faculty should exert on you — convince you? Should they lock you in your
rooms? You're talking about this matter of force. Now, they obviously could
exert a lot of force on you. Do you object to them exerting force?
Well, Governor, I think in many instances the faculty
stands behind the facade of a very powerful institution. Universities are,
after all, wealthy, big institutions in our society. And they can stand
behind that facade and not move at all. This is particularly
...I understand that. We're not
talking about that. What we're talking about is physical force, as I
understand it, and I want you to clarify as to how much physical force — I'm
cot talking about petitions or newspapers as he mentioned, but I'm talking
about actual physical force. Now, who should have the authority and should
it be you or the faculty and what would be your reaction if they exerted
the same force on you, came into your dormitory and wouldn't let you
I think if I was acting unjustly
towards my roommate, towards someone who lived in the dormitory, excluding
someone from the dormitory; if the faculty tried to convince me and
couldn't, and if I wouldn't move, if I wouldn't alter my stand, the faculty
would be very justified in doing this, just as the faculty would probably be
justified in expelling a student who assaulted faculty members
Thank you very much, Mr. Gerety.
Mr. Semerjian, let's proceed with your case.
Now, with respect to that question, Governor, I think that one of the
problems involved with what the students are trying to do is that they're
faced with a basic, fundamental and very important inequality of bargaining
power. And in that film which we saw a few minutes ago, I think the parallel
between the workers and the General Motors plant in 1937 and the students at
Columbia is very striking — not because their demands were necessarily the
same, but because they were fighting against that inequality — the fact that
they're against the facade which does not respond and it's the same kind of
problem in both cases.
Tom Gerety and other
students who share these experiences are not alone in their views. Many
faculty members and administrators agree with them, and one of them is Rev.
William Sloane Coffin, chaplain at Yale University whose' understanding and
concern for students is well known throughout the country. We asked Rev.
Coffin whether students are ever justified in using physical
A lot of people think
students are soft. They'd protest at anything. I think it's correct that
they are soft. But it's a great plus, that is, I don't suppose any
generation of students has ever been brought up in this country being told
so frequently, "you're important. You're important." And they believe it.
Now it's a plus because by implication other people are important, too. The
result is their threshold of oppression is very low. They see the humanity
of human beings at stake immediately — much sooner than I would, you know,
having been brought up ... you take a lot of nonsense in this world. They
say, "we don't have to." That's what's wrong with the world, too many people
are taking too much nonsense. People say, "why don't you confine yourself to
reason?" We've all learned that rational persuasion is the least likely way
to persuade people to be rational.
beings want peace at any price as long as the peace is theirs and someone
else is paying the price. Al Capone when he had all of Chicago bottled up,
he used to say, "we don't want no trouble." That's a very deep human
sentiment. And college professors and ...presidents rather...very often will
say, "we will always be glad to reason, but we'll never knuckle under the
pressure," but they seem to respond a little bit more when there's a little
bit of clout. Human beings are human that way. And, unfortunately, it takes
a certain amount of pressure to get people to pay attention. (end of
There are a lot of other reasons,
Governor, why this proposal should not be adopted, and to tell us what some
of these are, I'd now like to ask Dr. James P. Dixon, president of Antioch
College and a member of three Presidential advisory committees, to take the
Welcome, Dr. Dixon. Glad to have you
Doctor, would you ever consider
adopting an automatic expulsion rule at Antioch?
I think the general rule should run just the opposite. I
think the general rule should be that automatic punishment has no place in
the affairs of the university. I say this because it seems to me that it may
have a place in the affairs of two year olds but it does not have a place n
the affairs of the adult community. And I think that automatic punishment,
of this sort that's proposed, is most likely to undermine the very fragile
trust which holds universities together, and the very fragile trust which
permits the kind of communication, that permits the university to deal with
Doctor, do you think
that automatic expulsion would have any significant deterrent
A significant deterrent effect on the
use of force?
I think it would probably escalate it. Sure evidence as we have suggests
that — you know force occurs in small packages and in large packages, and
such evidence as we have about force when it occurs in large packages
suggests a counter-force, escalates the confrontation, polarizes the
situation, reduces the possibility to get at the real issues.
Doctor, what would be a better approach to the
I think the better approach to the
problem, if you please, is to muddle through — if I may say and I say that
in the best sense of the word. To take each situation as it occurs, to try
to see what is at work, to try to see whether or not the demands are
legitimate or whether the use of force is capricious, to try to deal with
the issues in each circumstance, and to try to use each circumstance as a
circumstance for learning about the problem of the use of force.
Thank you very much, Doctor.
Doctor, doesn't really putting
a deterrent in an automatic situation put the burden of decision on the
student rather than the faculty?
No, it holds
the student hostage to the faculty.
it hold a student hostage at all? He's hostage right now because when he
goes before an administrative tribunal, that tribunal can play favorites, it
can pick the SDS member and throw him out, and it can leave the hot-headed
liberal in and say, "you're just a good guy, you're not really destructive."
What we're proposing is that you just take conduct. You say physical force
is wrong. And if you use it, you leave and you decide. You the student
decide. Now what's wrong with that? Isn't that consistent with treating
people like adults?
No, no. It's not in the
nature of the university to judge in advance -- not about physical force or
physical theory. It is in the nature of the university to be an institution
that examines into the situation and then makes its judgment on the basis of
Doctor, you're essentially
arguing, as I understand it, for discretion. Isn't that correct?
Based on the
particular facts of the case.
But isn't it the peculiar thing about the use of force
that it can be used against the exercise of discretion?
Yes, and so can reason.
No, but, Doctor, the point is that if students are willing to use physical
force to get you to hire blacks or to end ROTC or do any other particular
goal they would be willing to use force to make you give them amnesty for
their use of force.
Now, isn't it useful to take and deprive them of that
second opportunity by making the rule an automatic one?
No. No, I think that the argument that is now being
presented suggests that one cannot trust students and that one has no right
to trust the legitimacy of force. I think that is a false
I beg to differ with you, Doctor. If
you really trust students, you will say, "you're man enough to make up your
own mind about what happens. If you jump in the water, there's an automatic
penalty that you're going to get wet. And the same thing happens on college.
If you use force, you leave the university." That puts the burden of the
decision on the student rather than on the faculty.
I think it puts the burden on the faculty to explain why
that is a reasonable way for a faculty to behave in a country where the
problems of force are not just inside the university but are outside, and
where the problem of the university is to bring reason and care and
compassion to the problems of society...
...that's right. Now how can the university find ways to deal with society's
problems if instead of using reason and compassion and rational persuasion
to decide what's a good idea, somebody comes and hits you over the head and
says, "Let's not worry about that, I know, and I'm going to tell you, and
I'm going to beat you over the head until you agree with me." How can a
university do its job if it's subject to the rule of force rather than the
rule of reason?
Well, if the university does
not have the confidence that it can deal with the problems of force that
threaten it, you know, and deal with it reasonably and rationally but must
wipe across them in an automatic sense, it's not a very good position to
deal, in fact, with force in society.
are you clear on what Mr. Baker means when he uses the word "force"? Is
there a problem in your mind as to how force if defined that leads to want
to withhold the exercise the discretion until its happened?
I don't sense any, no,
Doctor, doesn't really putting an automatic rule into the situation force
the university to be very careful about what conduct it prescribes and what
conduct it does not? For instance, if you decide you want to be merciful
towards a student, you write that into the regulation. You say, "Any student
who uses physical force for a morally justified end which we define as
getting us to hire blacks or getting us to end ROTC, or getting us to end
contracts with the Defense Department, will not be automatically expelled.”
Now, that would enable you to have the same kind of result, but it would let
the student know in advance what's going to happen to him. Why doesn't an
automatic rule force the university to go through that kind of
I think an automatic rule allows a
university to avoid that kind of mechanism.
can't though. If every student who uses physical force as a means of
persuasion goes out, that means that the university has to sit there and
scratch its head very hard...
quick question, Mr. Baker...
...and say what
exactly do we want to prescribe? It's every kind of physical force we want
to prescribe? Does burning down the library, for instance, warrant an
automatic expulsion in your mind? Or is there something lesser which would
not? You see you have to think about it very hard when you have an automatic
rule, do you not?
I think you have to think
about it much harder when you're faced with a variety of
That's after the fact when you
can play favorites. Thank you.
thank you for coming to "The Advocates."
Governor, I think that if Mr. Baker is trying to suggest that universities
should not think hard and should not scratch their heads and try to resolve
this problem by thinking about it, then I have a further protest to make
about this particular rule. It seems to me that if anything ought to be
encouraged, it's thinking. It seems to me that if there's one thing this
rule does, is it discourages it and it permits the university as a powerful
institution to hide behind a meaningless, arbitrary set of words.
Should we throw out Tom Gerety, the witness we met here
tonight and told us what he did at Yale? Yale didn't even punish him for
that. And yet if he tried that at a university which adopted this rule, he'd
be thrown out automatically. No questions asked. Now, there isn't a single
university that has been cited here tonight that has this rule, and why is
that? Because people would hesitate to adopt it, and the reason for that is
why should anybody advocate their discretion in determining who is a person
deserving of severe punishment and who isn't? Who wants to deprive himself
of the opportunity to inquire into the background of physical force to find
out why somebody did something? I think the example of your own state,
Governor, Kentucky, where physical force has not been used because it hasn't
been necessary to be used is a good one — where the rule has not been
Okay, Mr. Baker, let's hear your
Thank you, Governor, Mr. Semerjian's
main point seems to be that physical force is justified when you can't get
colleges to pay attention to their students. Now, students have a right to
be heard, but they don't have the right to win every-time. And they don't
have the right to intimidate people to get that right to win, especially at
the cost of destroying the university. He says an automatic rule doesn't let
universities think. I say students who intimidate faculty members don't let
them think. And you've got to ask which is the bigger cause. Do you want
students to think about what will happen to them and whether they should
leave the college or not, or do you want faculty members to think about
whether students are going to hit them over the head because they don't do
what he says -- or if the faculty member doesn't do what the students
Now, to tell us why discretion is
essentially unfair in this circumstance is Prof. Alan Dershowitz of Harvard
Law School, Professor Dershowitz has represented many students — not many
students but he's represented some students ~ who've been arrested for the
use of physical force.
Professor, welcome back
to "The Advocates."
Professor Dershowitz, do you favor an automatic rule for
I favor an automatic
rule basically to protect the civil liberties of the students. I think that
an automatic rule relating, regulating college discipline of students who
are disruptive first requires the decision-maker to articulate with great
precision exactly what kind of conduct will result in the punishment. It
doesn't permit a "muddling through" of the kind that the president of
Antioch discussed and "muddling through" is a terrible system. The granting
of discretion to administrators who then can exercise their discretion in
any kind of discriminatory manner which is typical of the way police operate
in our society and the way prosecutors operate in society and the way judges
operate in society is very, very opposed to civil liberties.
Moreover, it requires that fair warning be given to the
students so the students know precisely what kind of conduct is permissible,
what punishment would follow, and it doesn't make it depend on what the
student believes, what he thinks, what he advocates, what organizations he
belongs to, what race he belongs to. If you give the administration
discretion, he can consider all of these factors after the fact in deciding
what kind of punishment to impose. But he can't write that kind of factor
into a rule in advance, and that's why an automatic rule is a good
Moreover, it focuses on acts rather than
beliefs and in a democratic society it's terribly important to punish only
for deliberately performed acts and not for the motivations behind these
acts. Also the decision — what kind of conduct — to punish is less
politicized if it's made in advance. You don't think any harder about a
problem after the crime's been committed necessarily. You think differently
about it. You not only think about the crime and the moral quality of the
act, but you have the man in front of you and you say to yourself, "There's
that fellow. He's a straight A student" as the example was given, "why
should I punish him?" Well, if we don't want to punish the straight A
students let's write that into the rule. How many faculties would adopt that
rule? If we don't want to punish liberals, but do v/ant to punish SDS
students, try to write that into a rule, but don't "muddle through" with
that kind of discretion.
Moreover, my experience
in the criminal law indicates that when you have an automatic rule, the
level of punishments are invariably lower because you have to face up to the
fact that this is the standard punishment. You can't have a range of
punishments in advance, and then punish more harshly those people who you
don't like and less harshly those people you do like.
And finally, it seems to me that the academic community,
that is, the faculty and the students who have a greater role in deciding
the moral issue of v/hat punishment should accompany what conduct if this is
an automatic rule because when we have a discretionary rule the
administrators can always come back and say, "Well, a case-by-case basis, we
can't reconvene the faculty every time there's a case; we can't bring in the
students." But if there's an automatic rule to be decided in advance, the
students will have a much greater role to be played in what the punishment
is for what kind of conduct and that is in my mind a very desirable
All right, let's go to Mr. Semerjian
Mr. Dershowitz, I take
it that you are assuming that in all those instances where physical force
is used or attempted by students, that the universities prior to the use of
that force, were in a position to negotiate the demands or would have been
responsive or otherwise have set up sufficient channels of communication so
that force wouldn't be necessary.
Now, let me
make it clear. I'm not in favor of an automatic rule which would punish all
uses of force by expulsion. There's a difference between force and violence.
An old story illustrates this...
...the old story of a Bolshevik who was
…well, I don't want to…just a
minute, Mr. Dershowitz…
...wait a minute,
...I don't want to hear your story. I
want to know now, you're drawing a distinction now between...
That's very harsh treatment, Mr. Semerjian, not to let
the man tell his story...
...a former student
can get away with it, but I...
...but I'm afraid this is his time
Fine. Thank you, Mr.
Palmieri. That story should have come out on direct. Now. What I want to
know is whether you are drawing a distinction between force and
And what is that distinction?
It seems to me
if you have a rule which says, "Well, if students do things bad — force or
violence — we’ll treat them the way they deserve to be treated. Nobody is
going to have to sit down and decide what these distinctions are. What we
...no, I'm asking what is the
difference between force and violence...
...that there has to be a distinction, there hos to be automatic punishment.
Then we're going to decide exactly what kind of violence justifies automatic
expulsion. I would say three kinds of things justify automatic
In the first place physical violence
against members of the academic community; in the second place, destruction
of academic property, that is, the destruction of manuscripts, of
scholarships such as was done at Stanford last week, and in the third place
any repeated disruptions of academic exercise, that is, students who persist
in refusing to allow teachers and lecturers to convey knowledge. Those are
the three things that in my mind would result in automatic
All right. And in other instances
of the use of physical force you would not" apply the automatic expulsion
No, I would want to debate this at great
length before the violence occurred...
...and this would be a moral,
'Dershowitz, before you tell me what you would debate if the proposal were
put forth and what you wouldn't debate, I take it now that you're drawing a
distinction between seizing a university building which isn't occupied by
anybody else to a demonstrated cause and burning that building
Exactly. Of course I am. Any reasonable
man would do that...
...you're drawing a
distinction between those two.
...and to the extent that there is a
difference, then you agree with me — that automatic expulsion is
No, I agree exactly the opposite.
...well, let me
...is good for some acts and bad for
...let me see...
...we ought to decide on which...
...if I understand you...
...acts are good and which are bad...
me see if I understand you, Mr. Dershowitz. You are drawing a distinction
between some kinds of physical force and other kinds of physical
I want to make that distinction, and I
want Mr. Gerety to make it. I don't want Dr. Hester to make that.
Before you get excited, Mr. Dershowitz, just remain
calm, everything’s all right. We're all friends here.
...I'm just mad because you wouldn't let me tell the
...I don't want you to get excited.
You like the students who also are excited, but let's try to keep it on a
But I won't use
...I'm glad to hear that. Now, you
are drawing a distinction between two kinds of force. That is true, isn't
All right. But with respect to a certain category of physical force which
you have yourself have designated I take it that you would be in favor of
automatic expulsion for those students.
would and I'd want it defined in advance...
...regardless of the reasons of the use of force...
...you want to have the reasons count, let's write the
reasons into the rule and define them in advance. If you want to have
mitigating factors in there, write them in the rule in advance…
expect the doctor, professors of the universities and the administrators to
say, "Well, in some cases we will, but in other cases we won't." Equal
...deserve equal punishment...
adult way of treatment.
Now, Mr. Dershowitz, I
would like you in one five-word sentence to tell me exactly what it is that
your opinion is with respect to this rule. I have' heard two different
...how many syllables can he
...I don't care. You can use
polysyllabic words if you want, but what I'd like to know in a responsive
way is, what do you believe about this proposal?
I want automatic rules to accompany every disciplinary decision in a
college, and once we accept that rule, we then have to debate what kind of
conduct justifies automatic expulsion and what kind does not. Automatic
expulsion should follow certain kinds of violent activities defined in
advance and not defined after the fact when an administrator can consider a
whole variety of impermissible factors in making his discretionary
Why do you choose expulsion, why
don't you choose fines, why don't you choose some other kind of...
…we should have fines for certain kinds of conduct,
suspension for other kinds of conduct, expulsion for other kinds of
...well, in order to find out, Mr.
Dershowitz, exactly what your position is, we're going to have to go through
the whole catalogue of student behavior and find out which ones you would
fine, which ones you would expel...
unexpected? This is a complicated issue...
...well. I'm asking. This is...
...the trouble with your position,
Mr. Dershowitz, is...
...just a minute, Mr.
...you want a simple answer to a
...please, wait. Don't
answer until I ask a question.
Now, the question is that you have, it
seems to me, set out a litany of different kinds of physical
...but I've set them out in advance
where you can know what you're doing. I haven't said that the litany is
going to occur after the conduct is over when it's too late to modify your
Gentlemen, we're out of time except
I want to ask the Governor one question. Governor, professor says let's
define the conduct in advance and have a real code of punishment for each
offense. Do you think it's possible to define the conduct in
I don't think you can define the
conduct in advance. I think that you can have general rules. Let me ask
professor this. Are you saying, in effect, that outside of the college
community that we have certain statutes, that we have certain codas, that we
have certain laws that we live by. Now, you prescribe the same thing for the
academic community for the college.
And is it your proposal that once
you enter college that you should not be subjected to the same kind of laws
as you are outside, that is, academic rules?
Well, on the contrary...Governor, ray position...
...are you saying that...
five words to answer that...
is that under the sentencing procedures available to citizens on the outside
an automatic rule does not exist.
thank you very much. Professor, thank you.
last week, "The Advocates," as they usually do, conducted a national public
opinion poll on tonight's question. But before I give you the results of
that public opinion poll, I'm going to ask our advocates for a half-a-minute
summary from each. Mr. Baker, will you have yours out fast?
Thank you. Governor Nunn, people Justify force because
they say that peaceful persuasion won't work. But force is quick and easy
and the risk is that anybody can play and as soon as you began to introduce
a rule of intimidation rather than a rule of reason into an academic
community, you're back to the jungle. Now, outlawing force on campus would
free us from this fear and make students devise peaceful methods of change.
Can we really educate idealistic students like Mr. Gerety is we teach them
to use the lazy method of intimidation? And if educated men will not stand
for peaceful change and against mob rule who will?
All right, Mr. Semerjian, you have thirty
Rather than a lazy method of
intimidation, I would encourage a more active method by the university to
inquire and to think. I would say that rather than throw out people like Tom
Gerety and others that we ought to inquire into why the students have to do
this, why their backs are against the wall and what is causing them to
behave this way, if at all. And secondly, why not treat students the way
people are treated on the outside? Outside if you burn down somebody's barn,
you can get fined anywhere from $0 to $5,000 or be put into jail from 0 to
five years. But the judge decides using his discretion, what that punishment
will be. Why should a student get less?
right. Thank you, Mr. Semerjian. Well, let me tell you about that poll. We
asked over 1,000 persons across the country their opinion on tonight's
question. Here are the results of the poll. 77 percent said yes, expel the
students automatically in the case of violence; 6 percent said no, the rule
isn't fair and 7 percent had no opinion. Incidentally, that tallies very
closely with a recent poll sponsored by the Carnegie Commission on Higher
Education. It was polling professors in colleges across the country, and
they agreed. 77 percent said that they favored a rule expelling students
automatically, which is interesting considering that they usually come off
much more liberally on national issues.
prior to this broadcast we asked the 150 people in our studio to vote on
this same question. Now we know that no group of that size can give' us a
scientific sample of the country, but in selecting the group we did try to
approximate a broad • cross-section of our community here. Let's see now how
the Boston audience came out in percentages and then let's compare that with
that national "Advocates" poll. Okay there's our audience. 66 percent said
yes, but on the national poll it was 77 percent. Now, in the no votes, the
studio audience had 29 percent saying no, the rule's unfair? 16 percent
nationally said no.
Well, ladies and gentlemen in
the audience, you've now heard both sides of the argument. We're going to
take a second vote and see whether any change in your opinion has occurred
Vote yes if you favor automatic expulsion' vote no if you're opposed. Are
you ready? Okay. Remember to hold that lever for five seconds. Please vote
now. Five, four, three, two, one. Thank you.
right, first let's see again how this audience voted before the arguments.
This time in actual numbers instead of percentages, please. OK. There it is
now. 66 said yes, expel; 29 said no. Now the people who originally favored
the proposal — those 66 — let's see what happened. How many left that
position and where did they go? May we see that please? 17 left, 11 of them
went to not voting; 6 went to no. All right. Now of the people who opposed
the proposal — and there were 29 of those — how many changed their minds? 10
left. 6 of them went to not voting; four went to yes. We had five who were
originally undecided. Who went which way? 4 of them left. 3 went to no; 1
went to yes. The final tally is there. 54 say yes; 28 say no and 18 are
Well, ladies and gentlemen, now is the
time for you to act. Wherever you stand on tonight's question, whether
colleges should not expel students, you can make your position felt by
writing us, "The Advocates," Box 1970, Boston, 02134. We'll tabulate your
views, and we'll make them known to the governor here and to others around
the country who can influence this question. Please tell us the station on
which you heard this broadcast.
welcome your comment on this series at any time you want your vote to count.
Get it in early. We need it within two weeks following each broadcast.
Remember that address, "The Advocates," Box 1970, Boston, 02134.
Now last week we announced the results of our mail response
to the program three weeks ago on restrictions on lower cost foreign oil.
You may remember that Senator Charles Mathias of Maryland was our guest that
evening. Well, the results were incorrectly announced. I'd like to tell you
that it was the computer, but I really can't. Anyway tonight we have the
correct totals and as of Friday, we had received letters from 4,830
individuals from 48 states. 68 percent were against the quota restrictions
on the import of foreign oil; 30 percent were in favor of continued
restrictions on foreign oil, 2 percent expressed other views. It was a hot
question. We had only slight evidence of organized write-in.
Now on March 1st, "The Advocates" argued the question:
"Should Congress scrap the land-based missiles program?" Our guest that
evening was Republican Congressman Charles Whelan of Ohio. He's a member of
the House Armed Services Committee. He's considered that question, and he's
now prepared with his statement.
(on film) The
land-based missile discussion posed three questions — whether Congress
should provide funds this year to maintain, improve and protect our ICBMs.
Our 1,054 land-based missiles are paid for, relatively inexpensive to
maintain and represent a credible deterrent even though unprotected.
Therefore, I will vote to appropriate funds to maintain the Minuteman. To
improve Minuteman with multiple independently targetable re-entry vehicles
obviously would result in Russian arms increases. Consequently, MIRV
deployment funds should be withheld at least until the current SALT talk
results can be ascertained. Finally, the Safeguard ABM could cost as much as
50 billion dollars. Yet it remains technically unproven and could be
overwhelmed easily by attacking missiles. Thus I will oppose Safeguard
deployment. (end of film)
Congressman Whelan. Now let's look ahead to next week.
There are 24 million handguns in the
United States. New ones are sold at a rate of 750,000 a year. Most of these
weapons are used for personal protection. But they are also a major factor
in the rising rate of serious crime. Next week, "The Advocates" argue:
"Should we outlaw handguns for all except policemen and licensed
Well, this week public television
stations, KCET in Los Angeles and WGBH here in Boston were honored when "The
Advocates" received broadcastings most distinguished recognition — the
coveted George Foster Peabody award for outstanding television achievement.
All of us are very pleased and very grateful.
Governor Nunn, thank you very much. Special thanks for our guest advocate,
Mr. Semerjian, to our witnesses, our regular advocate Lisle Baker, and I'm
Victor Palmieri. And until next Sunday, we hope to see you then. Good
"The Advocates" take no position on the
question debated tonight. We ask each advocate to present responsible
arguments on one side of the question, not necessarily his personal views.
Our job is to help clarify the issue.
program was made possible by grants from the Ford Foundation and the
Corporation for Public Broadcasting.