HEALY v. JAMES
Legal provision: Association
Argument of Melvin L. Wulf
Chief Justice Warren E. Burger: We’ll hear arguments next in 71-452, Healy against James.
Mr. Wulf, you may proceed when you’re ready.
Mr. Melvin L. Wulf: Mr. Chief Justice, and may it please the Court.
This case is here out of petition for writ of certiorari from the United States Court of Appeals for the Second Circuit.
The question that presents is whether the First Amendment forbids the President of a State College from refusing official recognition to a student political organization when the decision is based only upon undifferentiated fear or apprehension of disturbance.
The facts of the case are: that the petitioners in this case following the applicable rules of the college, Central Connecticut State College, submitted an application for recognition of a local chapter of the students for a democratic society.
The fact of recognition has significant consequences because without it, a student group cannot meet on campus, cannot make use of any of the college’s facilities, cannot sponsor meetings on campus, cannot make use of the student newspaper, nor use of the student bulletin boards nor can it make application for student funds.
: Are these students still enrolled there?
Mr. Melvin L. Wulf: Two of them are sir.
Tess and Doyle are still duly enrolled at the college, yes.
The application that they submitted and I want to read it and its entirety because it’s really the foundation of our assertions about their First Amendment claim.
Said that they would like to form a local chapter of Students for Democratic Society, and they gave three reasons.
They said because the university is intended to be the arena of education where there is an unfettered exchange of ideas.
SDS would provide a form of discussion in self education for students developing an analysis of American society institutions including higher education and a world situation in general.
They said that SDS would provide an agency for integrating thought with action, so as to bring about constructive changes in the university, in American life and the world.
And thirdly, they said that SDS would provide a coordinating body for relating the problems of leftist students and other groups such as the student body as a whole, the working class, the black populace or whatever other individuals or groups in fact or potentially in accord with the purposes of the Central Connecticut State College Chapter of SDS.
That application was submitted a joint student faculty committee called the Student Activities Committee, and the petitioners came before the committee who raised a few questions with them.
They themselves, the committee was concerned about evidence of violent responsive, the national SDS organization at local SDS chapters throughout the country.
And they asked the petitioners about what their ties would be to the National SDS?
And the student’s replied, this is on page 94 of the appendix that the Chapter does not affiliate with the national organization.
They said, we will be completely independent and when asked why the chapter -- why they carry to use the name of National SDS.
They said because the name brings to mind the type of organization we wish to bring across.
That is a left wing organization which will allow the student’s interested in such to express themselves.
Justice Potter Stewart: Who are the members of the Committee, was it a student faculty?
Mr. Melvin L. Wulf: It’s a joint student faculty committee.
I do not know what the --
Justice Potter Stewart: Just student faculty?
No members of the administration as such?
: One dean.
Mr. Melvin L. Wulf: I think yes.
One of deans, Judd who was later serve as the Hearing Officer as a matter of fact was a member of that same committee.
Justice Potter Stewart: And the -- don’t know much about the structure, organization structure of this college or university, do we, in the record?
Mr. Melvin L. Wulf: No, we do not.
But the university -- well, we know as a fact that Principal --
Justice Potter Stewart: Central Connecticut State College is not a university I guess.
It’s a college.
Mr. Melvin L. Wulf: It’s a -- some of the wholly states afforded --
Justice Potter Stewart: College.
Mr. Melvin L. Wulf: It does grant a Graduate -- Graduate Master’s Degree as a matter of fact.
It has 7,000 according to its catalog which I have here.
There are 7,000 full time day students and additional 15,000 evening and summer students.
It’s a fairly, fairly large place.
Justice Potter Stewart: Where is it?
Hartford or where?
Mr. Melvin L. Wulf: New Britain sir.
Justice Potter Stewart: New Britain and it’s a wholly -- wholly state support?
Mr. Melvin L. Wulf: Wholly state support.
It’s part of the Connecticut State College system.
: Mr. Wulf, let me get straightened out as you described the application, now you refer to themselves as a chapter of SDS, am I correct in that impression?
Mr. Melvin L. Wulf: They did, yes sir.
: And yet, they disavow in the affiliation according to later words?
Mr. Melvin L. Wulf: They originally -- in there recent application, they described themselves as a local chapter of SDS.
Although they described themselves as that, they protested that they would not have ties to the National SDS Organization.
Subsequently, I presumably in order to try to meet the objections that various people made to the National SDS, they said that they would call themselves CCSC-SDS which is a lot of initials but specifically withdrawing their description as being a local chapter.
: Had some of these applicants been members of other chapters elsewhere?
Mr. Melvin L. Wulf: The record doesn’t show sir and I don’t know.
: I thought one of them had some Michigan State affiliation?
Mr. Melvin L. Wulf: Their faculty adviser had when he was a graduate student of Michigan State University, been a member of SDS out there.
And he testified at the hearing for the purpose of supporting petitioners claim that there could be such a thing as a local SDS chapter that didn’t really have any official formal -- certainly formal affiliation with National SDS that local chapters could be totally independent. He said that was the way his chapter had functioned at Michigan State University.
: Who is Barbara Healy?
Mr. Melvin L. Wulf: She is one of the student petitioners, Your Honor.
: And appendix 81 says member of Michigan State Chapter?
Mr. Melvin L. Wulf: Appendix 81.
I am sorry.
That Catherine Healy is our petitioner student.
Barbara Healy, this is an excerpt from a hearing of the House Internal Security Committee which was introduced at the hearing by the hearing officer in order to try to show an inevitable relationship between local SDS chapters and national SDS, and this was a membership card that the House Committee had acquired somehow or rather I don’t know how.
But it was one of the number of -- there is one in the proceeding page 2.
She is a different.
She is a different Ms. Healy.
Chief Justice Warren E. Burger: I recalled something in the record about questions relating to the use of violence and was there response to the effect that would depend on circumstances whether violence would be used?
Mr. Melvin L. Wulf: That’s right.
Chief Justice Warren E. Burger: Where is that in --
Mr. Melvin L. Wulf: That’s on page 95 of the appendix and it’s part of the same meeting of the Student Affairs Committee which I referred to a little earlier.
And I was next going to describe that Q&A that took place at that hearing.
The committee members asked Ms. Healy, how would you respond to issues of violence as other SDS chapters have?
It seems a little garbled but that is the way it is in the original transcript.
And her answer was her action would have to be dependent upon each issue.
Would you use any means possible?
No, I can’t say that.
We’d not know until we know what the issues are.
And question seven was, could you envision the SDS interrupting a class impossible for me to say.
But with that comes to and I am going to deal with that later on in my argument is not withstanding the ambiguity, terrible ambiguity of the question and the equal ambiguity of the answers, we would conceived that at most, it’s a refusal to renounce the use of violence under all circumstances.
Chief Justice Warren E. Burger: Would you think in the entire facts hearing that could draw that inference then, that they might use of force and violence to interrupt classes or to --
Mr. Melvin L. Wulf: No.
I don’ think that they could draw the inference that they might use it.
I think that they must draw that the furthest inference they can draw is that these people are not pacifists, that they would not under all circumstances renounce the use of violence.
Chief Justice Warren E. Burger: Well, they weren’t talking about -- they weren’t talking about Vietnam War here in this colloquy.
They were talking about the violence on the campus and in the classroom.
Mr. Melvin L. Wulf: Precisely, and the whole thrust of our argument is regardless of these answers, regardless of these answers and taking it for counter ambiguity that the local chapter had to be recognized because to refuse to do so is a forbidden prior restraint and then and only then should these petitioners engage in conduct which is either illegal and would be prosecuted or with be a misconduct for purposes of the school administration and could be dealt with as a local disciplinary problem only until that point when that point was reached if it ever was reached because this is not a guarantee that their by any means that they are going to engage in any illegal or violent conduct, but only that they did not renounce it.
But if and when they did in engage in the forbidden conduct, then sanctions could be taken appropriately against them.
: So, if the answer to the question had been a yes, we can envision it and we might very well do so, your answer would be the same?
Mr. Melvin L. Wulf: Precisely I say yes.
Justice Potter Stewart: And well, this is related to a question I have on my mind.
There’s so much in these briefs here in the record bearing on the question of whether or not, this is or is not a local chapter, a bona fide affiliated local chapter of the SDS and in your argument, does that make any difference at all?
Mr. Melvin L. Wulf: No, not at all.
I think --
Justice Potter Stewart: I don’t think so.
But that seems to be the issue throughout here.
Mr. Melvin L. Wulf: Well, that is the issue as the respondents and their friends in court make it because they find to put SDS on trial and our perspective of course is that it’s the petitioners who are before this Court and not SDS and you’ll find very little in the record, very little in the record, very little in the respondent’s brief about the petitioners.
But our claim of course is that it’s the petitioners who are making the application here.
Justice Potter Stewart: Your claim was whether or not, or let’s just assume its affiliated with the SDS.
Nonetheless, it was a violation of the constitutional rights of your clients not to be accredited by as a campus organization?
Mr. Melvin L. Wulf: Surely, surely sir.
But I accept my --
Justice Potter Stewart: So, isn’t that -- is that a red herring to your argument or isn’t it?
That’s what I want to because that seems to be so much of what the briefs devoted to, both briefs.
Mr. Melvin L. Wulf: Well, perhaps I was misled by its being introduced as a red herring by the respondents and I try to deal with it.
Justice Potter Stewart: Well, if it isn’t.
Maybe it isn’t but I would be sure I understand your argument.
Mr. Melvin L. Wulf: Well, I accept my client’s claims that they intended not to have any affiliation with National SDS.
Justice Potter Stewart: What difference does that make to your argument?
Mr. Melvin L. Wulf: It doesn’t make any difference in my argument because even if as initially, they said they want to be a local chapter of SDS, and if they were in fact, going to have a formal relationship with SDS, my argument will still be the same.
Justice Potter Stewart: That’s what I thought.
Justice William H. Rehnquist: Mr. Wulf, are there any grounds then upon which you believe that the university or college could refuse recognition to a group?
Mr. Melvin L. Wulf: I think that on a whole, the answer that would be no.
I think that if on a face of an application, a student group wanted to organize for the purpose of engaging and admittedly illegal acts, students to engage in bank robbing for example, I think that they could deny that kind of an application.
But when the application is for bona fide a political organization, I think that the university or the college has to look to the individual applicants to see what their criteria -- what their characteristics are.
I don’t think they can look very far as to what their characters are.
Justice Byron R. White: But if they said, if they said we are bona fide a political organization and at times we achieve our means through violent means, you would say they have to wait for the violence or could they like the bank robbing group be denied?
Mr. Melvin L. Wulf: Predominant -- if they were predominantly political, they would have the -- college would have to grant the application and would have to wait to see whether they in fact engage in any illegal conduct.
I don’t think that where First Amendment Rights are at issue that the state can make predictions even on the basis of assertions by the citizens themselves that they might engage in some illegal conduct, that the state cannot predict, that they will, and that the purpose of that First Amendment of course is to try to discourage people from engaging in illegal conduct and it might well be that upon participating in the political process, those who might be dispose towards illegal conduct will be discourage from engaging in the illegal conduct.
Chief Justice Warren E. Burger: Mr. Wulf, suppose that in this colloquy on page 7, it had been developed in response to the question --
Mr. Melvin L. Wulf: What page sir?
Chief Justice Warren E. Burger: Page 95, excuse me.
Page 95 where they were discussing the use of interruption of class in force and violence, use of force and violence, suppose the answer was we would reserved the right to use force and violence to disrupt the classes of all professors who did not denounce the Vietnam War and several other issues that they might identify.
Would you think that would be enough to refuse to grant them?
Mr. Melvin L. Wulf: Did they say they would only they will exercise it or merely reserve it?
Chief Justice Warren E. Burger: Reserve the right to use force and violence?
Mr. Melvin L. Wulf: It cannot be denied.
Chief Justice Warren E. Burger: Now, then let’s take it the next step.
Your step, that they would use force and violence to disrupt the classes of all professors who did not do certain things in agreement with their organizational policies.
Mr. Melvin L. Wulf: That would be a hard case Mr. Chief Justice.
Chief Justice Warren E. Burger: Be it easier for some than it would for others though I suspect. [Laughter]
Mr. Melvin L. Wulf: I don’t know if --
Chief Justice Warren E. Burger: Do you think --
Mr. Melvin L. Wulf: I do not know if I would be here arguing that case frankly Mr. Chief Justice.
Chief Justice Warren E. Burger: What's the difference?
Mr. Melvin L. Wulf: But if the intention was that immediately upon recognition, they were going to go out and disrupt classes imminently, immediately, go out and disrupt classes professors who do not agree with their politics, probably it could be denied.
Chief Justice Warren E. Burger: What’s the difference between reserving the right to use some force and violence and announcing the affirmative intent to use it?
Mr. Melvin L. Wulf: The difference is that they may might well be talked out of it between the time that their organization is granted recognition and the time that they would otherwise have engage in disrupted acts and that’s, as I said before is all purpose of the First Amendment is to allow these free kind of political dialogue and I am sure all of us here hope of results in the abolition of the use of force.
Chief Justice Warren E. Burger: Well, doesn’t -- wouldn’t the trier of fact again or triers of fact have a basis for an inference that yes, we will not use force and violence if you will agree with us and adopt our views, but we will use force and violence if you don’t agree with us.
Isn’t that the thrust of that kind of answer?
Mr. Melvin L. Wulf: That maybe the thrust sir, but I still do not think it’s adequate upon, ground upon which to deny a person, citizen -- a citizen who the right to exercise his First Amendment Rights because that to notwithstanding his assertions the he might use it would be a forbidden prior restraint because the state cannot make these kinds of prediction.
Again, even if the applicants do not renounce the use of violence.
I mean, there are people who would renounce the use of violence, but some circumstances might emerge where they would find themselves in the midst of it and participate at it.
But the point is that in this kind of situation where it is exercise of First Amendment Rights being made by citizens, students in this particular case, the state has no right really to even catechize about what their views are about the use of violence.
Justice Potter Stewart: I am -- just what First Amendment rights are you referring to?
Mr. Melvin L. Wulf: Well here, I am referring to specifically to the right of speech and the right of association.
Both of them are involved in this case.
Justice Potter Stewart: You and it’s your submission that a college university wants at least that allows some student organizations on the campus?
Mr. Melvin L. Wulf: Which is the case here.
Justice Potter Stewart: Which is the case here, we cannot bar any at least short of the hypothetical situation that the Chief Justice put to you in his questions.
Mr. Melvin L. Wulf: Without reservation, yes that’s --
Justice Potter Stewart: In other words, they could not, college university could say we want no secret societies on this campus or we want no Greek letter societies on this campus, or we want no societies that discriminate against Jews on this campus, couldn’t do that?
Mr. Melvin L. Wulf: I think it probably could and probably has band organizations which themselves exercise.
Justice Potter Stewart: Why?
Mr. Melvin L. Wulf: Racial religious discrimination.
Justice Potter Stewart: Why could if you are right?
Mr. Melvin L. Wulf: Well, I do not think that those are political organizations.
Justice Potter Stewart: Well, let’s say they are political organizations?
Mr. Melvin L. Wulf: The Ku Klux Klan for example.
Justice Potter Stewart: Let’s say one of the organizations is neo-fascist organization, we want no Jews.
We want only white tyrants.
Mr. Melvin L. Wulf: I don’t that they could be band at all on the same principle that that --
: Nor the Ku Klux Klan.
Mr. Melvin L. Wulf: Nor the Ku Klux Klan of course.
Justice Potter Stewart: No, and how about a Greek letter fraternity that confines his membership to White Anglo-Saxon Protestant?
Mr. Melvin L. Wulf: Well, this Court is --
Justice Potter Stewart: Are all Greek letter fraternity?
Mr. Melvin L. Wulf: This Court as a matter of fact in 1915 --
Justice Potter Stewart: I thought it had.
Mr. Melvin L. Wulf: In the War case said that abandon Mississippi upon Greek letter fraternities of the University of Mississippi was not unconstitutional but there wasn’t any First Amendment claim in that case.
It was is an equal protection claim and a Due Process Claim and I am not so sure that there would not be a different -- well, that there could not be a strong First Amendment argument made on behalf of Greek letter fraternities here today compared to 50 or 60 years ago whatever the case was.
But I do not think that the war case really has any bearing here because we decide well before, the --
Justice Potter Stewart: Not before the First Amendment was --
Mr. Melvin L. Wulf: Before this Court articulated the First Amendment and its modern cause at all and I think there might well be a difference decision in war.
: Well, 1915 was before the Court had applied the First Amendment to the states.
Mr. Melvin L. Wulf: That’s true sir, yes.
: Well don’t you think discriminatory organizations might be bearable because recognition involves the state, the college extending the use of its own facilities for those organizations?
Mr. Melvin L. Wulf: That has in fact I think in the argument to support the forbidding such organizations on college campuses.
: Because it does involve recognition in the sense that the state approves it, authorizes them as an affirmative authorization to operate and it’s a making available of state facilities for meetings and things?
Mr. Melvin L. Wulf: Yes and it would be easy although I am not so sure that you could press that same argument with respect to the Ku Klux Klan on a state-supported university.
I think the state-supported university has a First Amendment duty to allow the formation in our campus of a chapter of a Ku Klux Klan.
But it has the same duty to continue to recognize a Greek letter fraternity which discriminates against Jews, blacks and every minority group. I do not know. I am not prepared to argue that.
: That case state that furnish the chapter house for a White Anglo-Saxon Organization?
Mr. Melvin L. Wulf: Are they Greek letter social organization?
: Well, it’s whatever you want to call it.
Mr. Melvin L. Wulf: Well, I think there is a distinction to be draw between organizations which are political as difficult as that might be --
: Oh, This is a right of association in the sense that it’s a discussion organization.
It’s part of the whole educational process.
Mr. Melvin L. Wulf: That was the argument we're here, of course and unsuccessful in 1915 and perhaps a successor would make it equally unsuccessfully now.
But I think without being able right now to draw the distinctions, I think there is an arguable distinction between a group which is predominantly political like SDS and a group which is predominantly social.
Justice Potter Stewart: Who is to decide that?
Mr. Melvin L. Wulf: Ah --
Justice Potter Stewart: It’s not for us to decide --
Mr. Melvin L. Wulf: I really don’t know who would decide that.
I really don’t know.
I think this Court --
Justice Potter Stewart: If we are political, then political?
Chief Justice Warren E. Burger: Well, isn’t the right of association extended to others than political organization?
Mr. Melvin L. Wulf: That is and that’s why I feel I am getting myself into a thicket by trying to argue the fraternity case when it’s really not the case before us and because there -- what I say that that would be argued differently here, the ACLU might in fact be the group that would arguing it here because there might well be enough of a associational right to justify a very strong First Amendment claim on behalf of Greek letter fraternities.
And although, I am talking in terms of distinctions, it may be that I might end up believing there aren’t any viable distinctions between social and political groups.
I think the right to associate in social organizations is not less important in the right to associate in political organization.
Justice Potter Stewart: How about secret societies?
They just wouldn’t say, just in such hearing as you had here.
Let’s say, we’re sorry.
We can’t answer any of your questions because we’re secret society?
Mr. Melvin L. Wulf: Well the petitioners here, begging your pardon said they didn’t say that.
But if it were a secret society, I think that there is probably some duty as some initial duty which the petitioners here follow to disclose what the purpose of the organization is.
Justice Potter Stewart: Now, what if they just were against all force and violence, but beyond that, we can’t tell you anything about our purposes or our reason for existence because we are secret society?
Mr. Melvin L. Wulf: And they are seeking recognition on the college campus?
Justice Potter Stewart: Yes, they are and there are many secret societies on various campuses as you know.
Mr. Melvin L. Wulf: I think, well, I am really not familiar with those secret societies on campus which you referred to.
Justice Potter Stewart: It’s a secret, that’s the reason you’re not. [Laughter]
Mr. Melvin L. Wulf: I really can’t believe that they are so secret, perhaps you are talking about Skull and Bones about which I have -- I don’t know whether that is one of them or not.
I think Yale has one or two secret societies, but I really can’t believe that the offices at Yale don’t know what those secret societies are up to.
I think they have a right to know.
I don’t think that a student group has a right to official recognition by a college or university unless they disclose --
Justice Potter Stewart: All the Greek letter fraternities and sororities have elements of secret societies, if I am not mistaken.
Mr. Melvin L. Wulf: Yes.
Justice Potter Stewart: And many universities have barred them from their campuses in recent years.
: I guess what surprise you haven’t really challenged this whole process of accrediting?
You don’t challenge a fair or you haven’t challenge the right of the state to have rules for recognition?
Mr. Melvin L. Wulf: No, we don’t.
: Close to this procedure?
You don’t challenge the standards they use?
Mr. Melvin L. Wulf: It’s not challenged in this case -- no, we don’t.
It’s not challenged in this case and we do not challenge the standards here.
Well, there really weren’t any standards because that part of the college rule --
: Would you think the state may go through the procedure of making you -- making organizations to tell about themselves?
Mr. Melvin L. Wulf: I don’t take the position here that a university has to give blanket recognition to groups which want to function as student organizations which invoke the -- which use the name of the college in which they are organized.
Now, I think there is probably that minimal obligation by student groups or a minimal right by the universities for purposes of regulation or simply to know -- the regulation really is a time, place and matter regulation.
They have a right to require these student organizations to be formally recognized so that they can distribute the limited facilities of the university on an equitable basis.
: Tell me Mr. Wulf because you’re talking only about public supported institutions?
Mr. Melvin L. Wulf: Yes.
Justice William H. Rehnquist: But Connecticut State as I understand it did not actually prohibit this organization from the existing on the campus, it is simply refuse to give it affirmative recognition, didn’t it?
Mr. Melvin L. Wulf: No, in this case, without recognition, this organization and according to the respondents, any organization simply could not function as an organization on the campus.
Justice William H. Rehnquist: But I mean, membership in it was not a ground for suspension or expulsion from the school and that sort of thing?
Mr. Melvin L. Wulf: No, but they simply could not function in their organizational role on the campus.
They could not meet.
In fact, the record reflects a meeting that these petitioners, these very petitioners held after the initial District Court decision in order to discuss what they would do next and they met in a campus snack bar, and they are immediately served with a typewritten notice by the dean to disperse because they said that they were meeting as the formal SDS group and since they were not recognized, they could not meet even there in the coffee shop.
So, denial here, they can probably be members of SDS somewhere else, but that does not serve their purposes as members of the community if Central Connecticut State College.
They want to be able to function on the campus as a group, use the school’s facility and talk to their fellow student as an organized political organization.
: Mr. Wulf, I think you mentioned at the outset that the student organization’s had access to some college or student funds, what did you had in mind now?
Mr. Melvin L. Wulf: Well, the only thing is the record is at the first meeting of the Student Affairs Committee in the appendix at page 95, one of the questions is would you seek funds from student government?
And the answer is yes.
So therefore, I assume that recognized organizations are entitled to seek funds from student government.
But that is all that appears in the record.
Our basic claim is that in this case, there is no reference at all in the hearing, in the record about these petitioners.
It is all about SDS.
But as these petitioners who are making the claim to function as a political organization on this campus.
We think that the refusal on this record or on this record was a prior restraint based entirely on a guilt by association, and I must say that the version of the First Amendment urged upon you by the respondents and their friends in Court is would be so severely radical a departure from normal traditional standards of First Amendment Law as articulated by this Court over the years that I urge you to reject their version.
And, I would like to save a few minutes for rebuttal, Your Honor.
Chief Justice Warren E. Burger: Very well Mr. Wulf.
Argument of F. Michael Ahern
Mr. F. Michael Ahern: Mr. Chief Justice, and may it please the Court.
Under the verbal assault of all the high sounding rhetoric of the past several years concerning the First Amendment rights of student to wear their hair long, to express their political views and to demonstrate, I fear we may well be losing sight of the purpose of the educational process, and I would like restate it.
The primary purpose of educational institutions at all levels, we submit, is to provide the best education possible to the students.
Not to provide a platform for the expression of political views by a few students.
The faculty members are hired to teach their academic specialties, not to radicalize and politicize the students.
And the students who voluntarily enter the educational community should do so to learn and not to attempt to influence their fellow students to accept their own political philosophies.
Generally speaking, the vast majority of students enter the college community with an understanding that the president and the deans are in charge, and they have the obligation to exercise their authority to maintain an educational climate that is conducive to learning.
Indeed, every student is entitled to expect that the administrators will so operate the college that he will give full measure, full educational measure for every dollar of tuition expended.
This means that any disruption of classes or interference with the educational process cannot be tolerated or condone.
The campus strikes in disruptions of a last few years which have been led by small minority of radical students are to deplored because they cheated the majority of students out of the opportunity to attend classes, excuse me, wasted the examination, preparation by the students because the exams were never held, and even cancelled or postponed commencement exercises.
And I submit that at least this situation was partly caused by the college administrators refusing or being unwilling to exercise their authority to close disturbances at the outset.
However, I submit the administrators are not entirely to blame.
The rush of decisions of the federal courts following the so called arrival of the constitution on the campus has had a chilling effect on the responsible administrators.
Almost every administrative decision which is made for the purpose of securing order or controlling student conduct on the campus is immediately challenge in the courts and becomes the subject of an extensive and time consuming legal process before it is resolved.
This case I submit exemplifies the difficulties which college officials have faced and continue to face in attempting to administer the colleges throughout the country whenever the administrative decision is escalated into a constitutional issue and the confrontation between a few students and the authorities.
The petitioners in the instant case have arrogantly sought recognition of their local chapter of students for a democratic society on their terms.
When the president and his deans refuse to exceed to those terms, the petitioners immediately raised the specter of interference with their constitutional rights of free speech and free association and sought the aid of the federal courts to impose their will on the administrators.
The precise issue in this case has never been considered by this Court previously.
That issue we submit is whether the denial of official campus recognition to the local chapter of Students for a Democratic Society at Central Connecticut State College violated in any way the individual constitutional rights of the petitioners in this case.
We submit that it did not.
Without demeaning in the least the importance of that issue, I submitted Healy's to insignificance in the light of the greater issue that is involved here.
That is who shall govern the colleges of this country, the students or the college officials?
As the late Justice Black noted in his dissent in Tinker, it is nothing but wishful thinking to imagine that young immature students will not soon believe that it is their right to control the schools.
And I think those words were prophetic.
Recognizing that there are no legal presidents for their position, the petitioners here had advanced the proposition that a college community is somewhat like a municipality and should be considered as such by the Court in applying the protections of the constitution.
If this Courts accepts the petitioners’ theory, it will mean that a student entering an educational community has an unfettered right to exercise his First amendment rights of free speech and free association on the campus.
Justice Thurgood Marshall: Mr. Ahern.
Mr. F. Michael Ahern: Excuse me.
Justice Thurgood Marshall: Do you recognize the fact that this school is governed by the Fourteenth Amendment?
Mr. F. Michael Ahern: Yes, I do Justice Marshall.
Does this both --
Justice William H. Rehnquist: Mr. Ahern, it was my understanding from Mr. Wulf’s argument that he conceives that a college is perfectly free to deny recognition to all political organizations and he says if you granted to one, you must granted to all but, I would think quite consistently what you’re saying a college if it didn’t want any of these, I think you could deny recognition to all political organization.
Mr. F. Michael Ahern: I think it could deny political campus recognition to all political organizations, I don’t think they can stop political organizations.
But, they do not have to grant official campus recognition to such organizations.
Justice Potter Stewart: But the claim is general that unless there is campus recognitions, there can’t be a meeting any place on the campus or any such organization and appendix 16 and 17 seems to support that view, talking about the meeting of proposed meeting of November 6, 1969 in the Devils’ Den?
Mr. F. Michael Ahern: I think that notice has been misrepresented to the Court if it please Mr. Justice Stewart.
Justice Potter Stewart: Such meeting may not quite to take place in the Devils’ Den or the Students’ Center nor in or on any other property of the college since the CCSC-SDS is not a duly recognized college organization?
Mr. F. Michael Ahern: That’s correct Justice Stewart.
But you did not read the first paragraph of the notice which says or the memorandum which states, notice has been received by this office of a meeting of the CCSC-SDS on Thursday, November 6 at 7 o’clock at the Devils’ Den.
Justice Potter Stewart: Right.
Mr. F. Michael Ahern: That is all together different than a casual meeting of the group of students to discuss the President’s denial of recognition.
This is a local chapter being called to a meeting, to discuss the denial by President James of recognition for --
Justice Potter Stewart: Well, now in their brief.
In the brief of the petitioners, it is alleged that official recognition is a prerequisite to meeting anywhere on campus.
Mr. F. Michael Ahern: As an organization?
Justice Potter Stewart: Yes.
Mr. F. Michael Ahern: That’s correct.
Justice Potter Stewart: And you don’t deny that, do you?
Mr. F. Michael Ahern: No, I don’t Your Honor.
Justice Potter Stewart: So, to that extent at least First Amendment rights as they’re called are implicated, aren’t there?
If in the absence of official recognition, this group could not meet?
Mr. F. Michael Ahern: Well, they --
Justice Potter Stewart: Anywhere on the property of the university or the college?
Mr. F. Michael Ahern: I think, there’s a distinction Justice Stewart between the organization, meeting as an organization and individuals meeting together to have discussion, political or otherwise.
This a prior, a previously announced meeting of this local chapter of students --
Justice Potter Stewart: No, I'm -- I was just referring to that particular meeting as seeming to confirm the general statement.
I was asking you about the general statement.
In the absence of official recognition, no organization has any status.
It’s just --
Mr. F. Michael Ahern: That is correct.
Justice Potter Stewart: On the campus of this --
Mr. F. Michael Ahern: It has no status on the campus of --
Justice Potter Stewart: And cannot meet on the property?
Mr. F. Michael Ahern: That’s correct, as an organization.
Justice Thurgood Marshall: Mr. Ahern, can people meet in the chapel, it’s alright?
Mr. F. Michael Ahern: That’s correct.
Justice Thurgood Marshall: But can people have meeting in the chapel as the students for no action, they could not meet unless they were approved?
Mr. F. Michael Ahern: You mean a no action organization?
That is correct Justice Marshall.
Justice Thurgood Marshall: The same group, they could not meet?
Mr. F. Michael Ahern: That’s correct.
For a very simple reason by previously announcing the meeting of the local chapter of SDS, they not only meeting -- those people who are interested in discussing this matter are not only meeting, but they are also notifying the 7,000 students on the campus that there will be an official meeting of an organization which will discuss a particular idea.
Justice Thurgood Marshall: Well, the students with no action is like – don’t like to meet prior.
They like that thing around.
Mr. F. Michael Ahern: Well then, they should seek official campus recognition.
Justice Thurgood Marshall: And if it is denied they can’t meet?
Mr. F. Michael Ahern: If it’s denied on the basis that the -- they are affiliated with the national organization that advocates violence and disruption, I think that is a legitimate prohibition.
Justice William H. Rehnquist: Mr. Ahern --
Justice Thurgood Marshall: Regarding the fact that all of them are members, are sons and daughters of the most respectful people in the world just because the name is a name that school doesn’t like?
Mr. F. Michael Ahern: I don’t think it’s a question of the school of not liking it.
I think it’s a question of the --
Justice Thurgood Marshall: If you don’t see any First Amendment problem in the right to associate together, do you?
Mr. F. Michael Ahern: As an organization, no.
Not in this instance and the peculiar aspects of the college campus.
Justice Thurgood Marshall: So that when you decided whether or not it is an organization, then that takes it out of the First Amendment?
Mr. F. Michael Ahern: Well, I question whether or not the SDS national organization is basically a political organization.
Justice Thurgood Marshall: But is the -- they in this case?
Mr. F. Michael Ahern: Pardon me?
Justice Thurgood Marshall: The national organization in this case?
Mr. F. Michael Ahern: They are not a party to this case, no.
Justice Thurgood Marshall: Is there anything in the record about it?
Mr. F. Michael Ahern: There is something in the record concerning national SDS.
Justice Thurgood Marshall: One said, which said they want to be affiliated with that and that’s all.
Mr. F. Michael Ahern: That’s correct Mr. Justice.
Justice Thurgood Marshall: And that’s enough?
Mr. F. Michael Ahern: Certainly, that opens up the area of --
Justice Thurgood Marshall: No, no, no.
Do you have any other reason not to let them in?
Mr. F. Michael Ahern: I do not follow you.
You mean there is --
Justice Thurgood Marshall: Do you have any other reason not to recognize this group?
Mr. F. Michael Ahern: Yes.
Justice Thurgood Marshall: What’s the other reason?
Mr. F. Michael Ahern: Because the petitioners have never divulged the purposes and aims of the national which they adopt.
Justice Thurgood Marshall: Well, if they divulge a name, the purposes of their organization?
Mr. F. Michael Ahern: That’s correct.
Justice Thurgood Marshall: And that’s what you’re dealing with?
Mr. F. Michael Ahern: That’s what we’re dealing with, but the purposes and aims as they set forth in their statement of purpose have a different perspective when they affiliate themselves with the national organization.
Justice Thurgood Marshall: So you really keep the national organization out?
Mr. F. Michael Ahern: No, we’re keeping a local chapter of the national organization out.
Unless it determines and tells the administrators what aims and purposes of the national association they adopt for their own.
Justice Thurgood Marshall: Supposed they don’t know.
Mr. F. Michael Ahern: Well then how can they organize a group if they don’t know what their aims and purposes of the?
Justice Thurgood Marshall: Do you listen to the future or you are looking to the present?
Mr. F. Michael Ahern: We are looking to the present.
Justice Thurgood Marshall: Didn’t they tell you what their organization was?
Mr. F. Michael Ahern: They told us that they were a local chapter of the national SDS.
Justice Thurgood Marshall: That’s right.
Mr. F. Michael Ahern: So that I think the President of the college unreasonably --
Justice Thurgood Marshall: They were denied their right to meet together as a local chapter of SDS?
Mr. F. Michael Ahern: I didn’t follow that Justice Marshall.
Justice Thurgood Marshall: They were denied the right to meet together.
Mr. F. Michael Ahern: As a local chapter of the SDS, that is correct on the campus.
Justice Thurgood Marshall: And you don’t see any First Amendment violation?
Mr. F. Michael Ahern: No, I do not.
Justice William H. Rehnquist: Mr. Ahern?.
Mr. F. Michael Ahern: Yes?
Justice William H. Rehnquist: Supposing these petitioners after they have been turned down went to the rooms of one of them say in university housing and wanted to discuss it, would they have faced any disciplinary sanction for doing that?
Justice William H. Rehnquist: No, they would not Justice Rehnquist.
As I stated to Justice Marshall, there was a previous notice of a meeting of the local chapter of SDS at the Devils’ Den, at a particular time on a particular day, and that is the meeting that Dean Judd and Dean Clow attended or visited and told them they could not meet as a local chapter of SDS on the campus.
Chief Justice Warren E. Burger: Mr. Ahern, I am looking at pages 94 and 95 that we were discussing after Mr. Wulf focused some action on them.
Mr. F. Michael Ahern: Yes, sir.
Chief Justice Warren E. Burger: You’ll have to watch that microphone that’s very sensitive.
Was that the only meeting or hearing or inquiry or were there others of this kind?
Mr. F. Michael Ahern: There were two meetings of the – you’re talking now of the Student Affairs Committee.
Chief Justice Warren E. Burger: Student committee, yes.
Mr. F. Michael Ahern: There were two meetings.
The date on page 94 I think is incorrect.
I think it was a meeting of October 2, 1969 at which the initial application was presented and petitioner Healy was questioned.
That meeting was postponed until a later time to give the petitioners as I understand at an opportunity to present a statement to the Committee as to their affiliation with the national SDS.
At the latter meeting, a statement was read into the record, I believe stating that although they call themselves a local chapter of SDS, they would not be under the dictates or influence of the national organization.
They are after the committee conditionally approved their application.
We submit that the petitioners attempted --
Justice Byron R. White: Was there any further inquiry about whether they would or would not follow a policy of disruption or violence?
Mr. F. Michael Ahern: There was a --
Justice Byron R. White: This passage on 95, the only thing in the record about.
Mr. F. Michael Ahern: No.
At the court ordered administrative hearing.
The minutes of these meetings where introduced into the record without objection by petitioner Healy or counsel and Petitioner Healy was present at the hearing at the time they were introduced.
Justice Byron R. White: And made no other statements?
Mr. F. Michael Ahern: Made no other statement and did not object to their introduction at that time as I understand the record.
Justice Byron R. White: So the record -- as the record stands this is the organization as a response to those inquiries, final response to those inquiries?
Mr. F. Michael Ahern: That is correct Justice White.
We submit that the petitioners attempted treatment of this case as a prior restraint case suspicious.
The respondents have never restrained the individual petitioners in the exercise of their individual rights of free speech or free association.
And the record is devoid of any such indication.
All they have done is to refuse to give the administrative stamp of approval to the local chapter of SDS which we submit was perfectly proper under the circumstances of this case.
In each of the federal court cases in which administrative recognition was required to be given to the American Civil Liberties Union or a local chapter of the American Civil Liberties Union.
That is the Radford College Case and the University or Southern Mississippi Case, both which are cited in all of our briefs.
The Court cited the aims and purposes of the American Civil Liberties Union, the national organization, in considering whether the local chapters would be disrupted influences on the campus.
So, we submitted was reasonable for Dr. James to consider the aims and purposes of the national SDS and reviewing the petitioner’s application for a local chapter of SDS at Central Connecticut State College.
The national SDS and its chapters in 1968 and 1969 had instigated and participated in violence and disruption on the campuses of the country and caused millions of dollars of damage to property and personal injuries to students, faculty and administrators.
In the face of that track record of the national SDS movement, the petitioners could hardly claim an innocuous purpose.
Chief Justice Warren E. Burger: On that score this is connection with the national movement, I noticed on page 90 and before and after 90, are these exhibits, committee exhibit number 1, etcetera which quotes “Leader of the SDS are saying we will have to destroy at times even violently in order to end the establishment power and we are going to build a guerilla force and we are engaging in sedition.”
Now, was there presentation of these documents to the applicants for this recognition?
Where these matters part of the record before that Committee?
Mr. F. Michael Ahern: These documents were introduced, no.
These documents were introduced that the court structure administrative hearing which was conducted by Dean Judd at the or at the order of the District Court Judge, Judge Clarie so that this documentation was not before the student faculty committee.
It didn’t come into the record until the Court structured administrative hearing.
Chief Justice Warren E. Burger: And this was part of the basis of the District Judges decision as distinguished from faculty or the school?
Mr. F. Michael Ahern: These -- initially, when this matter was heard by the District Judge, the Judge raised the ambiguity which appeared on the face of the application, and sent the matter back for an administrative hearing to clear up the ambiguity.
At that administrative hearing which the court ordered, this documentation was submitted through the hearing officer.
Chief Justice Warren E. Burger: Well then the applicants had an opportunity to meet it and explain it?1
Mr. F. Michael Ahern: The applicants?
One of the applicants and one of the petitioners Healy was present at the two administrative hearings accompanied by legal counsel.
That is correct Justice Burger.
Chief Justice Warren E. Burger: And how close in point of time was that to the colloquy that appears on appendix 95 in which some student, one of the petitioners apparently said that they would not know whether they would use violence or not.
Mr. F. Michael Ahern: I think the student affairs committee meeting was on October of 1969 and the Court structured administrative hearing took place the following May.
So, it would be approximately five months.
As this Court is aware, administrative decisions are not made in a vacuum, and we submit that Dr. James who had the ultimate responsibility for maintaining a peaceful campus was also aware of recent violent history of the SDS and very properly took it into consideration in reaching his determination that the local chapter of SDS would be a harmful presence on the campus.
At the court ordered administrative hearing which was intended by the Court to allow petitioners to present evidence to resolve the ambiguity in their application, the petitioners consistently refused on advised of counsel to contribute anything constructive to the record, except the statement that the local chapter would not be affiliated with the structure of the national SDS.
The statement did not contain those aims and purposes of that national SDS which the local chapter adopted as their own in order to contain the statement disavowing the violent and disruptive tactics of the national organization.
In order to contain the statement at the local chapter would not disrupt the campus or engage in violence.
On the other hand, the material submitted by the administration substantiated the fact that under the national constitution of the SDS, the national organization controls the chapters.
Also reproductions of local and national members of ship cards clearly evidence, they continuing relationship between local and national offices and also indicated joint membership record keeping systems.
In that connection, I made reference on my brief and I like to do so orally here to the fact that in printing the single appendix, a one-page exhibit hearing offices exhibit “G” has been spread over three pages in the appendix, and also the overprint on the membership applications indicating which portion of the dual application form was for national office records and which portion was for local chapter records has been deleted so that the effect of that exhibit is lost in its printing in the appendix.
I would therefore urge the Court to look at the original exhibit in order to that the respondent’s purpose in submitting it in evidence can be deduced, or if the court would like, I will make reproductions for the use of the Court.
Chief Justice Warren E. Burger: That might be a little more convenient if you of course give a copy to Mr. Wulf.
Mr. F. Michael Ahern: A copy was given to Mr. Wulf at the time the single appendix was printed, Your Honor, Chief Justice.
Justice Byron R. White: What would you say that if an organization is asked, what is your policy about disruption and the organization says, none of your business, that it could be denied recognition?
Mr. F. Michael Ahern: Justice White, I don’t think a college president is required to buy picking a paw?
I think he --
Justice Byron R. White: Yes, so your answer is yes, they could be denied recognition?
Mr. F. Michael Ahern: If they don’t simply state to the administrator just about their aims and purposes are, and if they are affiliated with an organization --
Justice Byron R. White: Let us assume there is nothing about affiliation, they just end the question is do you anticipate that you would use a violence and disrupt classes and the answer is none of your business?
Mr. F. Michael Ahern: I think they can be denied campus recognition.
Justice Byron R. White: Do you think this record is equivalent to that?
Mr. F. Michael Ahern: Yes, I do Justice White.
The dissent below cites several cases indicating that the clear and present danger rule should be applied in this case.
But we submit that the analysis of the case and the issue in the by the dissent below is erroneous.
Those cases cited by the decent dealt with the citizen’s relationship to society at large, while here, we are dealing with the student’s relationship and a voluntary community composed of students, faculty and administrators.
The administrators, pardon me, the petitioners advanced the proposition in their brief that this case gives the Court the opportunity to implant the First Amendment firmly on the college campus.
We submit that the constitution has already been firmly entrenched on the college campus, and a few radical students have used it or rather abused it to spread violence and disruption.
What is needed is more responsible administrative leadership on the campus.
Not further restriction of administrative authority in the name of constitutional freedom.
As we stated previously, what has caused the problems on the campuses in prior years, we submit has been a failure of the authorities to govern.
It would be in deed ironic if in the name of the petitioners alleged right to administrative support of their so called political programs, this Court would announce a rule that deprive school officials with backbone to face up to their responsibilities as the respondents in this case of any power to govern their institutions.
This Court would be upholding the attack by a few on the rights of academic freedom of the vast majority of student.
For without the power to prohibit a campus organization which he reasonably believes to be harmful to the academic climate of this college, the college president might as well resign.
He would have no authority in the one area where it really counts, that is upholding the moral integrity of the school.
Lacking the essential governing power, he would lack the authority to protect the majority of students on the campus.
And lacking such support of the administration, those students would have no means say cumbersome and expensive legal process to ensure their personal academic freedom.
So, we submit that does in the name of freedom for the few, would be freedom of all be compromised? I submit that the court should reemphasize and restate a non-equivocal terms the authority of the school administrators to prescribe and control conduct in the schools.
And that although the students do not leave their constitutional rights at the door, those rights maybe curtailed and restricted by rules, reasonable rules and regulations.
A Judge in a United States District Court for the Southern District of Texas recently phrased it very concisely in the case of Egner v. Texas City Independent School District reported in 40 U.S. Law 2556, the February 2972 edition, and I quote from it.
“To the extent that such routine conflicts become the subject of frequent constitutional adjudication in the Lower Federal Courts, it is inevitable that a monolithic and stultifying national uniformity will be judicially imposed in the name of the Fourteenth Amendment.
Since the general terms of the amendment contained no concrete standards of decision for the great majority of such suits, it is predictable that the federal common law of school discipline which would develop will reflect nothing more than the amalgam of the educational views of diverse federal judges.
Most of whom are suited to the task by neither disposition nor competence.”
It is in this spirit that we ask the Court to affirm the judgment below.
Justice Potter Stewart: General Ahern.
Mr. F. Michael Ahern: Excuse me.
Justice Potter Stewart: Do you think the same standard should apply to a college university that applies to a public high school?
You kept referring to schools, this we have here at college?
Mr. F. Michael Ahern: Well, in view of the fact that the Tinker case decided by this Court reached down I think one of the Tinker boys is eight years old.
Justice Potter Stewart: Below the college level.
Justice Potter Stewart: Down to a primary grade.
Mr. F. Michael Ahern: Right.
It would seem to me that a college student has more perspicacity than an eight year old in a grammar school, and as the might the petitioners stated in their brief, the recent court, the recent decision of this Court in Tilton indicates that college students are more mature and more able to determine what is good for them.
Justice Potter Stewart: And do you think in considering the requirements of the protection of the First and Fourteenth Amendments, there should be a difference in a college or university which has sort of a captive population which is of somewhere in the country with and where all the students leave on the campus on one hand, a distinction could and should be made between that kind of institution and an institution where the students are only at the university for classes and go home and have plenty of places and time available off campus for whatever association or speech rights they want to indulged in?
Mr. F. Michael Ahern: I don’t think that would be a basis for distinction.
I think the distinction as to on the basis of age which is more desirable.
Justice Potter Stewart: Well, and the distinction would be on campus or off campus regardless of --
Mr. F. Michael Ahern: Off --
Justice Potter Stewart: Regardless even if you had a situation where if they wanted to organize at all.
It had to be on campus because the only thing off campus would be woods and mountains.
Mr. F. Michael Ahern: Well, the school administrators have no control of the students off the campus.
Justice Potter Stewart: Yes, but they are campuses which as I say, it was sort of captive population where everybody lives on campus and where there -- at by contrast with the place like I gather this college may be in New Britain, Connecticut where many of the students live at home or at least off campus, is that correct?
Mr. F. Michael Ahern: That is correct Justice Stewart.
Justice Potter Stewart: You think that you are not suggesting that there should be any flexibility at all?
Mr. F. Michael Ahern: Oh, when you say there, I am not suggesting any flexibility.
I think the college has to make the reasonable rules and regulations as to activities on the campus, whether the students are living on the campus or whether they are day house and come on the campus during the day.
But their activities on the campus should be the subject of reasonable rules and regulations.
Otherwise, you have chaos in the campus.
So that I think as far as the First Amendment rights of students are concern, I think the administration should be allowed to make reasonable rules and regulations so as to ensure order on the campus and the orderly process of educating the students without interference by everyone who feels that they want to make a speech.
Chief Justice Warren E. Burger: This position of the state that you’ve suggested, would that interfere with the right of the individuals that are before the Court and any in their friends to past out belief that saying this evening at eight or tomorrow evening at eight, we will meet down at Morris place, in the basement off campus.
Mr. F. Michael Ahern: I don’t see how we could stop it.
They’re not using the campus for --
Chief Justice Warren E. Burger: I am not sure where the Morris place is on or off the campus at the moment.
Mr. F. Michael Ahern: At this point, it’s off campus.
It is also allows women in the bar.
Chief Justice Warren E. Burger: I see.
Mr. F. Michael Ahern: Thank you.
Chief Justice Warren E. Burger: Mr. Wulf, you have just one minute left.
Rebuttal of Melvin L. Wulf
Mr. Melvin L. Wulf: I would just like to close by saying that Mr. Ahern’s arguments confirms are fundamental claim that the respondent is not arguing this case.
It is arguing some other case.
There is nothing in this --
Justice Byron R. White: Mr. Wulf, assume that your organization when asked about their policies including the policies with respect to whether they would engage in violence or disruption said none of your business?
Mr. Melvin L. Wulf: I do not think that make any difference Mr. Justice White.
I think –
Justice Byron R. White: Well, as I understood, you thought that the -- awhile ago that the secret society could be force to state its purposes?
Mr. Melvin L. Wulf: I think that they have a minimal responsibility to describe what the purpose of their -- what purpose of the organization is.
Justice Byron R. White: Is it your purpose to engage in violent disruption, none of your business.
Mr. Melvin L. Wulf: If they have made a prima facie showing on their application that they intent to engage in protected political activity, they cannot add be ask that question if they don’t volunteer it.
If they were asked here and they did volunteer to answer it, but if they refuse to answer to answer it, I think that the fundamental First Amendment know should still require that they granted recognition and that the administration by the event of any of illegal conduct.
Chief Justice Warren E. Burger: Mr. Wulf, in relation to what Mr. Justice White has put to you at pages 95, I think it was in the appendix would appear to be an answer, none of your business, uttered in a more circumspect way, would you agree with that?
Mr. Melvin L. Wulf: No, I think that that was very short hand way of expressing a philosophical view that rejects non-violence.
I don’t think that it was a reply that said none of your business.
I mean it quite -- certainly to try to engage people in the philosophy of violence in that short hand kind of way is never going to be successful.
But I think, I disagree that it was a response that said, none of your business, I think they answered it.
They certainly didn’t say that they did not believe in violence and to that extent, they are terribly candid.
They said we can’t say under some conditions that we might not do it, but that is not ample reason under First Amendment Law to prohibit the exercise of their First Amendment rights.
The state has to wait and see.
Chief Justice Warren E. Burger: Very well, Mr. Wulf, thank you.
Thank you, Mr. Ahern.
The case is submitted.