Some Thoughts on University Disciplinary Proceedings

Abstract

CONSTITUTIONAL DOCTRINE is too often used to define what ought to be. Because the federal courts have refused to find de facto segregation covered by the doctrine of the Brown case, school superintendents conclude not only that nothing need be done to reduce racial concentrations in the schools, but that nothing should be done.' Or, in the salad days of urban renewal, the narrow scope of constitutionally defined just compensation was seen as the wise measure of damages for relocatees despite the evident inadequacy of this formula to compensate for the many harms imposed on those whose lives were disrupted for the benefit of society.2 Much of the debate at Berkeley concerning students' and institutional authority has similarly been couched in constitutional terms. Student attention is focussed too much on claims of legal rights to free expression which they assert must be honored on the campus as well as off. The Regents reply that their policies do not contemplate that advocacy or content of speech shall be restricted beyond the purview of the First and Fourteenth Amendments to the Constitution' without apparent support for a commitment to the merits of an open society. The General Counsel opines that a particularly ambiguous proposed general standard of conduct is permissible, citing a number of decisions in which judges, at various times in the past and on various doctrinal grounds, have refused to interfere with dismissal of students. Nothing is said about the dangers of a vague, open-ended standard (in this case that students are required to observe generally accepted standards of conduct);4 nor is any alternative language proposed which might better identify