Minutes of the Berkeley Division

University of California, Academic Senate

November 24, 1964
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Meeting.—The Berkeley Division of the Academic Senate met in special session on Tuesday, November 24, 1964 at 3:10 p.m. in Room 155 Dwinelle Hall, pursuant to call. Present: about 525 voting members of the Division. Professor R. W. Jennings, Chairman, presided.

Before calling for approval of the minutes of the previous meetings, the Chairman explained the reason for cancelling the regular meeting, scheduled for November 10, and for calling this special meeting. He also discussed procedures for the meeting.

Minutes.—The minutes of the meetings of October 13 and 15, 1964 were approved as distributed.

Announcements.—The Chairman recognized Vice-Chancellor L. Constance, who read the following statement addressed to the Berkeley Division from Chancellor Strong:

On October 13 the Academic Senate declared itself in favor of "maximum freedom for student political activity" at Berkeley. In the spirit of that declaration, the six faculty representatives of the Committee on Campus Political Activity submitted a report to me which went forward to President Kerr and The Regents. I conferred twice yesterday with these representatives on the ten points in their report and on my announcement published in the Daily Californian this morning, in response to their recommendations pertaining to the Berkeley Campus. It was our mutual concern to proceed in accordance with the enabling policy adopted by The Regents last Friday, namely, that "certain campus facilities, carefully selected and properly regulated, may be used by students and staff for planning, implementing, raising funds or recruiting participants for lawful off-campus action, not for unlawful off-campus action." Thus, students now do have maximum political freedom.

I am calling upon the assistance of the Student Affairs Committee for advice on the selection and regulation of campus facilities which may be used as specified by The Regents enabling policy. I will be glad to have any recommendations which the Committee on Academic Freedom may wish to make as a result of the investigation which it was instructed to make by the Senate. The Chairman of that Committee, Professor Garbarino, has been active in formulating the statement of the six faculty representatives.

I should like to say a word also about the report of the Senate ad hoc Committee appointed to consider the cases of the eight suspended students. I appreciate


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the thorough and conscientious way in which the Committee performed a difficult task. The Committee declared itself "troubled by the refusal of these students to respond unconditionally to Dean Williams' request for an interview." Since the University cannot function unless students respond to requests of officers and faculty, the administration must view such action as a serious matter. Indeed, the refusal of a student to appear in the office of the Dean of Students after appropriate notification to do so is cause for immediate removal of that student from the rolls of the University. I would like to point out, however, that although the administration did not find it possible to accept fully the recommendations of the Committee, it did award suspensions which were de facto.

Finally, I would like to say that I cannot enough express my appreciation to those members of the faculty who have in this time of troubles expressed their concern and devoted their energies to finding solutions acceptable to reasonable men. Unfortunately, these troubles tend to polarize us, and to bring out the suspicions that the faculty always has of the administration. I understand these feelings: I have shared them, and I know they betoken the vigilance that makes free men. But, as you know, we administrators are faculty members under the skin; we are amateur administrators—if we were not perhaps we would make fewer mistakes. Out of all the confusion and misunderstanding of the past two months has now emerged a condition of maximum lawful student political activity on campus. Some of the details remain to be worked out, but surely this is a policy upon which reasonable men can agree. I seek to work together with you in overcoming divisive and destructive forces, so that we may solve our mutual problems in the most constructive way.

Student Conduct.—The Chairman then recognized Professor I. M. Heyman, Chairman of the Ad Hoc Committee on Student Conduct, who spoke briefly on the Report of the Committee. He informed the Division that the Report is presently being prepared for distribution to members of the Division at an early date.

Professor L. W. Levine then presented the following motion:

It is the sense of the Berkeley Division of the Academic Senate that a great university, dedicated to freedom of thought and responsible citizenship, cannot deny to its students the full exercise on campus of the rights guaranteed to citizens generally under the First and Fourteenth Amendments. The University's regulation of such activities should extend no further than is necessary to prevent undue interference with other University activities. Such regulations must be carefully drawn so that they cannot be used as an excuse for encroaching on the constitutionally protected scope of speech and political and social activity.

In enforcing such minimal and essential regulations by disciplinary action, the standards of due process must be maintained and penalties imposed solely and finally by an impartial body chosen by and responsible to the Academic Senate. The only alternative to such regulation by the University would be to leave all regulation to the courts.

Chairman Jennings stated that the Parliamentarian had ruled that the motion could be a sense of this meeting; not a sense motion of the Berkeley Division. The motion was then seconded. During the discussion which followed Professor A. M. Ross introduced a substitute motion as follows:


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Since campus political activity is intimately connected with the educational process, the Senate has an inescapable and continuing obligation to express its views on this complex problem. The Senate reaffirms its support for maximum freedom for student political activity and its declaration that force and violence have no place on the Berkeley campus. We believe that current issues of campus political activity are amenable to solution through continued discussion and debate. The regulations issued by Chancellor Strong today represent substantial progress. While important questions remain to be settled, we are confident that additional measures will be taken in the near future to insure maximum freedom of expression.

We will also have the benefit of the report which the Committee on Academic Freedom will prepare pursuant to our instructions. In this time of great danger to the Berkeley campus, we call on all parties to observe mature restraint. We urge this course not only in the interest of protecting the welfare of our academic community but also because we are convinced that the mutual concerns of faculty, students and administration can be resolved most effectively in this fashion.

The substitute motion was seconded, and after further debate, was passed on vote by show of hands. As an amendment to the main motion it was then voted on as a main motion but was defeated on a vote by show of hands as follows: 261 for; 274 against. A discussion followed during which Professor Levine asked to introduce a substitute for his earlier sense motion:

It is the sense of this meeting of the Academic Senate that a standing committee chosen by and responsible to the Senate should be appointed to deal with questions of student conduct arising with reference to political thought or action.

There was a ruling that the motion could be entertained as a sense motion, but that no action could be taken as a result. The motion was then seconded. An appeal from the ruling was put to vote and failed to carry. There was further discussion, after which the motion was put to vote and lost on a division.

Academic Freedom.—The meeting then moved to consideration of the Report of the Committee on Academic Freedom, which was presented by Professor J. W. Garbarino, Chairman. Professor Garbarino read a letter from the Committee addressed to Chancellor Strong and spoke to it. The letter follows:

November 19, 1964

Dr. Edward W. Strong
Chancellor, University of California
Berkeley Campus
Berkeley, California

Dear Chancellor Strong:

The Academic Freedom Committee has received and considered your letter of November 10 indicating that you have referred the recommendation of the German Department that Dr. Eli Katz be appointed an Assistant Professor to the Budget Committee but that "No action will be taken pending receipt of a report from the Committee on Academic Freedom, Berkeley Division, on matters of policy and procedure involved in this case."


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The referral to the Budget Committee is in line with the conclusion and request of the Berkeley Privilege and Tenure Committee that the departmental recommendation "be processed in accordance with regular procedures." It would appear also to be a first step in compliance with the motion adopted by the Berkeley Division of the Senate on October 15 requesting "prompt implementation by the Administration of the decision and recommendation of our Committee on Privilege and Tenure in the Katz case."

We are greatly concerned, however, about the statement at the close of your letter that "No action will be taken pending receipt of a report from the Committee on Academic Freedom, Berkeley Division, on matters of policy and procedure involved in this case." The delay contemplated by this statement means that the Administration will not give "prompt implementation" to the decision and recommendation of the Privilege and Tenure Committee as requested by the Senate. More than that, however, the statement implies that the action to be taken in the Katz case will be conditioned by the report this committee will make "on matters of policy and procedure involved in this case." In our view any such retroactive application to the Katz case of conclusions reached by this committee about proper policy and procedure in such cases would be altogether improper.

In holding a hearing, making findings of fact, and formulating conclusions in the Katz case, the Privilege and Tenure Committee was engaging in an adjudicatory process. So far as the rules and regulations of the Academic Senate are concerned that process was complete when the Privilege and Tenure Committee finished its work and submitted its report. Those rules do not provide for an appeal from an adjudication of the Privilege and Tenure Committee to any other committee of the Academic Senate. To apply to the final decision of the Katz case the answers we shall supply to the questions submitted to us by the Senate on October 15 would in effect be to allow an appeal from the Privilege and Tenure Committee to the Academic Freedom Committee and thus accomplish indirectly what cannot be done directly. The integrity of the adjudicatory jurisdiction and process of our Committee on Privilege and Tenure depends upon its independence and the finality of its decisions and recommendations within the rules and procedures established by the Senate.

General questions of law, policy, and administration may be presented to the appropriate Academic Senate committees by administrative officials of the University, may be taken up by such committees on their own motion when acting within the jurisdiction assigned them by the By-Laws, or may be referred to them by the Assembly or the Divisional Senate. It is only thus that the Senate can discharge the highly important function of giving advice to the Administration. There is an important distinction between policy determination and adjudication, between Senate advice to the Administration on a wide range of administrative and policy matters and serving as an appellate body to a duly constituted Senate committee which made an individual determination of a breach of privilege of a member of the faculty.

The questions referred to us by our Divisional Senate on October 15 were questions of law, policy, and procedure. They arose out of the Katz case and, to some extent, are framed with reference to it. This, however, is only a manner of presenting questions which are general in their nature. Our answers, like other


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declarations of law or policy, can only be given a general and a prospective application.

Accordingly, it is the conclusion of the Academic Freedom Committee that completing the regular processing of the recommendation of the German Department that Dr. Katz be appointed an Assistant Professor cannot properly be stayed pending our answers to the questions submitted to us by the Divisional Senate on October 15.

Sincerely yours,
Joseph Garbarino, Chairman
Committee on Academic Freedom

Professor Garbarino made the following motion:

That the Berkeley Division endorses the position of the Committee on Academic Freedom that the prompt implementation of the recommendation for the appointment of Dr. Katz as Assistant Professor should not be stayed pending the answers to the questions of policy and procedure submitted to the Committee by the Division on October 15.

The motion was seconded.

Professor H. K. Schachman then moved an amendment by adding to the original motion the following paragraphs, and spoke to his motion.

  1. The Berkeley Division of the Academic Senate requests once more prompt implementation by the Administration of the decision and recommendation of our Committee on Privilege and Tenure in the Katz case.
  2. The Berkeley Division of the Academic Senate commends its Committee on Academic Freedom for refusing to act as an appellate body in a matter which had been adjudicated previously by the proper Committee of the Academic Senate.
  3. The Berkeley Division of the Academic Senate commends the Committee on Academic Freedom for protesting the use of new procedures and new concepts in a retroactive fashion for a case that had been thoroughly considered by the proper body at an earlier time.
  4. The Berkeley Division of the Academic Senate directs its Committee on Academic Freedom to retain an active watch-dog function on this matter and to continue to report to the Division until the status of the Katz case is resolved satisfactorily. Finally,
  5. 5. The Berkeley Division of the Academic Senate hereby condemns the local and statewide Administration of the University for its disregard of and contempt for the Academic Senate and its duly constituted Committee system.

The motion to amend was seconded. In the discussion which followed a motion requesting division of the amendment to separate paragraph 5 was seconded but did not carry. Thereafter a motion to amend paragraph 5 by adding at the end "in its handling of the Katz case" was seconded and passed. A motion to refer the matter to a mail ballot was seconded, but failed to carry, after which Professor Schachman's amendment as amended above was put to vote and passed. The original motion presented by Professor Garbarino, as amended by this action, was put to a standing vote and carried: 267 for; 79 against.


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Report of the Meeting of the Assembly.—Item IV on the agenda, Report of the Meeting of the Assembly on November 2, 1964, was put over to the next meeting of the Division where it will be considered as Unfinished Business.

Adjourned.—6:05 p.m.

Attest:
Arthur E. Hutson
Secretary

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Title: Nov. 24, 1964
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