Correcting Students in Court

In what they called a "peaceful protest" last spring, Columbia's rebellious students seized control of several university buildings, held a dean hostage and rifled private files. But university punishment, they insisted, would be downright illegal. Rather than answer a summons to a disciplinary proceeding, five of them went to federal court.

There they asked for an injunction barring any university action against them. Instead, last week they got a dressing down from Judge Marvin Frankel. Like an exasperated teacher correcting careless students back on the campus, the former Columbia law professor dismissed the legal arguments as "a whole series of errors . . . equivocal legalisms . . . sprawling verbosities . . . gross flaws . . . baroque rhetoric."

As the judge saw it, the students ran into fatal trouble on the very "threshold" issue: he was not convinced that his court had jurisdiction, despite the students' claim that the university was an agent of the state. Frankel agreed that some Government money helped to support the university, but that "is not enough to make the recipient an instrumentality of government," he said. "Nothing supports the thesis that university 'education' as such is a 'state action.' "

Non-Sense. Although he left the way open for the students to seek further evidence to support their case and to plead again for an injunction, Frankel offered them little hope of success. One by one, he demolished their arguments. The Fifth Amendment privilege against self-incrimination would not be violated by disciplinary hearings, he said. There was no requirement to say anything at the hearings. Nor should the hearings be delayed until after any criminal proceedings. "A motor-vehicles commissioner, authorized to suspend a driver's license for speeding, need not wait for the months or years of a negligent homicide prosecution."

The most fundamental--and fuzzy--student point was that the "rule of law" should be abandoned because the sit-ins were merely an exercise of the First Amendment rights of free speech and assembly. Said Frankel: "Arguments like this are at best useless (at worst deeply pernicious) nonsense in courts of law. It is surely non-sense of the most literal kind to argue that a court of law should subordinate the 'rule of law' in favor of more 'fundamental principles' of revolutionary action designed forcibly to oust governments, courts and all. This self-contradictory sort of theory--all decked out in the forms of law with thick papers, strings of precedent, and the rest--is ultimately at the heart of the plaintiffs' case." It was not surprising that Frankel found their case both "unsound" and "untenable."

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