THE KERR DIRECTIVES
Administrative regulations curtailing freedom
of speech and freedom of assembly have, since 1919, been based on an interpretation of
Article IX, Section 9 of the California Constitution, the "Charter" section.
This declares the University to be a "public trust" that must be "entirely
independent of all political or sectarian influence and kept free therefrom in the
appointment of its Regents and in the administration of its affairs." All Presidents
of the University have understood the law to mean that "University facilities and the
name of the University must not be used in ways which will involve the University as
an institution in the political, religious, and other controversial issues of the
day." (Kerr Directives, 9/61.) In practice, this has not only meant that students,
faculty, and employees were prohibited from speaking "in the name of" the
University, but that partisan groups were not allowed to have any headquarters on the
grounds of the University. The protests this Fall at the Berkeley campus began when
officials prohibited political groups from making membership drives and collecting funds
on the campus, on the grounds that this made their headquarters on campus and thus
involved the University in partisan affairs.
The difficulties in carrying out such a
policy rigorously are enormous: they could, for instance, mean abandoning the teaching of
history, economics, and political science. Therefore every University President has found
his own way for justifying some appearance of politics on campus. President R. G.
Sproul took the position that politics is sometimes cultural, and in that respect a
legitimate part of University life. His policies governing the use of University
facilities were set down in "Rule 17", which states: "The University
recognizes a responsibility to invite or approve the inviting of qualified outside
speakers on important public problems, including religious and political problems, for the
purpose of promoting the intellectual development of its students." (Rule 17, rev.
6/1/49.) Again there was the stricture that "meetings or events which by their
nature, method of promoting, or general bandling, tend to involve the University in
political or sectarian religious activities in a partisan way will not be permitted."
(Ibid.) The restrictions were severe: application for permission to hold meetings
or hear speakers had to be made a week in advance; "discussion of highly
controversial subjects normally will be approved only when two or more aspects of the
problem are to be presented by a panel of qualified speakers" (Ibid.); and
"no literature may be distributed free or sold in connection with meetings or events
without permission obtained in advance. "(Ibid.) And there was a last
restriction: the determination of whether a given group qualified as an
"on-campus" organization rested with the ASUC. All "on-campus" groups
were to be "recognized by and under the jurisdiction of the governing board of the
Associated Students . . . financially accountable to it, and subject to regulation and
control by it." (Rule 17)
For the ASUC officially had much greater
power then. It is hard to compare the present restrictions on the ASUC with those of
President Sproul, because he was not much given to writing things down; he ruled less by
law than by word of mouth. His basic policy regarding the ASUC was: "the President
will normally observe the autonomy of student affairs, but reserves the right to intervene
in matters affecting the welfare of the University or the responsibilities of its teaching
or administrative officers." (Minutes of the ASUC ExCom, 1/11/61.) President Sproul
did not object to the ExCom taking stands on state ballot propositions (ExCom, 27/Sept/50
, circulating a petition protesting the surpression of the Hungarian uprising (ExCom,
20/Nov/56), protesting to the Berkeley City Council over parking time limits (ExCom,
21/May/57), collecting money for Hungarian relief (c.f. Daily Cal, 22 Nov. 56),
negotiating with merchants for the "fair bear" wage and organizing strikes in
support of it (ExCom 14/Oct/58), and expressing opposition to HUAC (ExCom 6/Mar/53). All
of these were undertaken in the name of the ASUC, notwithstanding President
Sproul's express statement (University Regulation No. 6, rev. June 54), "individual
members or groups of members of the academic or non-academic staff, or of the student body
of the University, should not initiate or seek to promote, through members of the
Legislature or the Congress, or other State or Federal officers, any policies or
legislation relating to the University, or to give the appearance of acting in the name of
the University on any policies or legislation, without specific authorization." In
1957 Rule 17 was eased: the stipulation that both views of any controversy be presented
was removed, and ASUC approval of meetings and speakers was no longer required. (c.f. Rule
17, new section 5.)
This, then, was the situation prior to
October 1959 (the date of the first "Kerr Directives.") The raising of funds and
soliciting of members for partisan causes was forbidden by Rule 17, but occasionally
allowed anyway. Democrats and Republicans could now speak on campus but Communists could
not. The ASUC was no longer the arbiter of what issues were "on" campus and what
were "off"; given the conflicting examples of what parttisan stands were, in
fact, taken "in the name of the University" and what were not, given the
conflicting examples of what particular social actions were "in the welfare of the
University" and what were not, the only determination could come by going to ask at
Sproul Hall. Clark Kerr, on becoming President of the University, tried to create some
logical order by codifying all verbal, written, and explicit policies on student conduct
into the now famous "Kerr Directives" (rev. 1961, 1963).
Like all human documents, the Kerr Directives
are a mixture of good and bad, advance and retreat. In reducing all policies to written
law, and thoroughly enforcing them. President Kerr has put an end to the illegal but
un-punished expressions of free speech that sometimes characterized his predecessor's
regime; on the other hand, he has put into law some new and markedly liberal policies. Let
us look first at the advances, the greatest of which is the concept of the "open
forum." Abandoning the former doctrine that politics was only to be allowed on campus
as a facet of culture. President Kerr has made it his official policy that "any
organization with membership restricted to students and staff and with a faculty or senior
staff advisor can hold meetings or events on campus and invite to speak at such meetings,
a wide range of speakers on issues of educational interest to students." (Kerr Dir.
'61) Instead of the mandatory week's notice of intention to hold such meetings, only
"prior notice" is required. "Individual students and student organizations
other than student governments may communicate with government officials so long as ...
they indicate that they are not representing the University." (Ibid.)
Literature may be distributed "where and at times, when such posting, distribution,
and exhibition shall not interfere with the orderly administration of University affairs
or interrupt the free flow of traffic." (Ibid.)
What, then, is wrong with the Kerr
Directives? The first is the manner of their implementation. President Kerr's intentions
regarding prior notice, distribution of literature, and the "open forum" seem
perfectly clear. But the "Chief Campus Officers," who have local jurisdiction in
enforcing the rules, have turned "prior" into "72 hours" and under the
heading of "not interrupting the free flow of traffic" have shunted the
"open forum" into out-of-the-way corners of the campus. Thus, what looks on
paper like a great advance is in fact only a small step.
The second item represents the one great
backward movement, the one item on which the Kerr Directives are more restrictive
than any other regulations: "It is certainly not appropriate to permit student
governments to speak either for the University or for the student body (italics
mine) with reference to the off-campus political, religious, economic, international or
other issues of the time. Therefore, student governments and their subsidiary agencies may
not take positions on any such off-campus issues." (Kerr Dir. '61) "Any
questions of jurisdiction arising under this rule shall be determined by the Chief Campus
Officer or his duly designated representative." (Ibid.) Under President
Sproul, the ASUC, because it rarely took stands that embarrassed the university officials,
was given relative autonomy. When, through change in the composition of its
members (i.e. election of Slate candidates), the ASUC began to make more use of its
autonomy, it was confronted by the new directives on student government. These gave the
administration the power, never before made law, to exercise complete control over the
ASUC, controlling both funds and constitutional changes: "Chief Campus Officers...are
responsible to the President and to the Regents for the fiscal soundness of student
governments...and may exercise control over expenditures of student funds (Student
Government 1959, art. 1 & 6) and "Chief Campus Officers...may require that all
changes in the existing constitutions of student governments have their formal approval
before being submitted to a vote of the student body." (Ibid, 6b)
Taken as a whole, the present regulations on
student affairs, the "Kerr Directives," are reasonably fair and liberal within
their particular framework. But the framework that President Kerr inherited is both
inconsistent and largely mistaken. The American Civil Liberties Union is at present
(October 1964) undertaking a court case to prove the obvious: that the intention of the
Charter, that in fact the literal meaning of the Charter, is to prevent the administration
from becoming a one-sided agent in social affairs. Furthermore, on July 17, 1961, the
following statement was formally presented to President Kerr by 19 faculty members:
We wish to express our individual dismay at the apparent disposition to base University
policies in this area on questionable interpretations of the State constitutional
requirement that the University "shall be kept entirely independent of all political
or sectarian influence and kept free there-from in the appointment of its regents and the
administration of its affairs..." As the Committee on Academic Freedom of the
Northern Section said in its report of November 23, 1959; "The intent of the clause
seems to us clear; it was designed to prevent political and religious influences from
interfering with University affairs on the Regential and Administrative levels. We can
find nothing in this clause that applies to voluntary student organizations."
To construe the constitutional requirement as barring from the campuses of the
University all "partisan" or "political" organizations, activities and
expressions would gravely impair our character as a great and free University. The ruling
at Berkeley barring even campus political parties (concerned with student
government elections and affairs) seems to us a particularly manifest misconstruction of
the constitutional intent. There have recently been other indications of the disturbing
misapplications to which this constitutional clause is subject when used as a basic
administrative test.
That the University is a social
agent is beyond all doubt; what the Charter asks is that it not discriminate in the favor
of any one partisan cause. To say that the actions of students who like Lyndon Johnson or
who like Barry Goldwater, and who try to convince other students that they should like one
or the other, make the University no longer "independent of sectarian influence and
kept free therefrom in the appointment of its Regents" is grossly to misinterpret
this section of the Charter. Yet it is such an interpretation that makes the Kerr
Directives, as others before them, deny University facilities for "the purpose of
soliciting political party membership or opposing particular candidates or
propositions...or for the purpose of raising money to aid projects not directly connected
with some authorized activity of the University." (Kerr, III, IV)
Such an interpretation not only is a
violation of the first amendment to the Constitution -- a university is not exempt from
the first and fourteenth amendments: c.f. Baltimore University v. Colton 98 Md
623, 57, Atl. 14 (1904) and Koblitz v. Western Reserve University 21 Ohio CPR
(n.s.) 144 (1901)) -- but is in direct contradiction to the actions of its administrators,
who have continually engaged in "partisan" activity.
--
Barry Jablon
T.A.,
English