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 Kentucky.

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 school.

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 future,

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 case.

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?

I 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.

And now 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 force.

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 cross-examination.

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 as well.

Are these

...there are...there are constructive…

...what 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?

I 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 involved...

I would say so, yes.

There are no other groups that you can think of at this time.

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?

I 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 who are.

That's right.

Is that what you're saying?

That's right.

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...

...to change...

...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 blacks?

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 do?

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?

There 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 force whatsoever.

Well, let me ask you...

...Mr. Semerjian, I'm going to ask the governor to take the last question on cross-examination.

All right.

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.

I think the hypothetical question is clear, Dr. Hester...

...can I give you...

...your answer is very clear...

...my...

...thank you...

...I don't 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 saying?

That's right.

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 you.

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 would…

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 all about.

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.'

One 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.

Now dissent 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:

Boston 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.

These illegal 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 bargain.

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 permit.

Laws considered to be unjust are deliberately violated to force the courts to re-examine them.

Many Americans disapprove, but those protests made their point.

Let us close the springs of racial poison. Let us lay aside irrelevant differences.

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.

Mr. Gerety, welcome to "The Advocates."

Mr. Gerety have you found it necessary to use physical force as a means of persuasion?

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 citizens.

Mr. Gerety, at Yale what kind of physical force did you use?

We beseiged 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 engaged?

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 employer.

I take it that these were reforms achieved which would not have been achieved had you not used physical force.

I think not. They might have been achieved later. I think perhaps they would have been achieved - never.

Mr. Baker, your turn for cross-examination.

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.

All 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 all.

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 idea?"

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.

Did you petition?

We petitioned. We petitioned over...

...how many signatures did you get on your petition?

At Yale we got many signatures on petitions, and moreover we had manifestations, we had demonstrations.

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 years.

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 universities ...

...and, and...

...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 theirs?

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.

Let me ask you...

...I think the governor has a question.

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 true...

...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 sleep?

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 arbitrarily,

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 force.

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.

Most human 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 film)

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 stand.

Welcome, Dr. Dixon. Glad to have you with us.

Doctor, would you ever consider adopting an automatic expulsion rule at Antioch?

No, in fact...

Why not?

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 contemporary problems.

Doctor, do you think that automatic expulsion would have any significant deterrent effect?

A significant deterrent effect on the use of force?

Yes,

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 problem?

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.

Mr. Baker.

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.

Why does 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 the circumstance.

Doctor, you're essentially arguing, as I understand it, for discretion. Isn't that correct?

Yes.

Based on the particular facts of the case.

Right.

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.

Perhaps so…

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 argument.

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.

Doctor, 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 mechanism?

I think an automatic rule allows a university to avoid that kind of mechanism.

It 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...

...one more 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 circumstances.

That's after the fact when you can play favorites. Thank you.

Dr. Dixon, thank you for coming to "The Advocates."

Well, 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 adopted.

Okay, Mr. Baker, let's hear your rebuttal.

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 say?

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."

Thank you.

Professor Dershowitz, do you favor an automatic rule for disciplining students?

Yes, I do.

Why?

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 one.

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 result.

All right, let's go to Mr. Semerjian for cress-examination.

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...

...well, let me...

...the old story of a Bolshevik who was trying to...

…well, I don't want to…just a minute, Mr. Dershowitz…

...wait a minute, wait...

...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...

...I prefer that he...

...but I'm afraid this is his time for cross-examination,

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 violence?

I am.

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 say...

...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 expulsion.

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 punishment.

All right. And in other instances of the use of physical force you would not" apply the automatic expulsion rule?

No, I would want to debate this at great length before the violence occurred...

...all right...

...and this would be a moral, fundamental decision...

…well, Dr. '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 down.

Exactly. Of course I am. Any reasonable man would do that...

...you're drawing a distinction between those two.

...yes.

...and to the extent that there is a difference, then you agree with me — that automatic expulsion is bad.

No, I agree exactly the opposite. Automatic expulsion...

...well, let me see...

...is good for some acts and bad for other acts...

...let me see...

...we ought to decide on which...

...if I understand you...

...acts are good and which are bad...

...let me see if I understand you, Mr. Dershowitz. You are drawing a distinction between some kinds of physical force and other kinds of physical force?

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 story...

...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 responsive level.

But I won't use force...

...I'm glad to hear that. Now, you are drawing a distinction between two kinds of force. That is true, isn't it?

Of course.

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.

I 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…

...fine...

...but don't 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 acts...

...all right...

...deserve equal punishment...

...fine...

...that's the 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 stories...

...how many syllables can he use?...

...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 decision.

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 conduct...

...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...

...is that unexpected? This is a complicated issue...

...well. I'm asking. This is...

...of course...

...the trouble with your position, Mr. Dershowitz, is...

...because it's complicated?...

...just a minute, Mr. Dershowitz...

...you want a simple answer to a complicated problem...

...please, wait. Don't answer until I ask a question.

Yes, sir.

Now, the question is that you have, it seems to me, set out a litany of different kinds of physical force.

...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 behavior.

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 advance?

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.

That's right, yes.

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...

...you've got five words to answer that...

...quite clearly is that under the sentencing procedures available to citizens on the outside an automatic rule does not exist.

Gentlemen, thank you very much. Professor, thank you.

Well, 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 seconds.

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?

All 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.

Now just 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.

All 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 undecided.

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.

"The Advocates" 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)

Thank you, 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 guards?"

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 night.

"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.

This program was made possible by grants from the Ford Foundation and the Corporation for Public Broadcasting.