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DAY, FEBRUARY 10, 1970
NIGHT EDITOR: NADINE COHODAS
SACUA'S closed, meetings:
Faculty elitism must end
Fleming
By L. HART WRIGHT
and LUKE K. COOPERRIDER
Daily Guest Writers
A MOST serious charge recently
was published in The Daily,
on different occasions, by two of
its senior staff writers. President
Fleming was branded a "liar," pri-
marily because of statements he
made under oath in connection
with the LSA sit-in case.
The label in question was based
on such a lack of understanding
regarding judicial procedures as
to compel some appraisal of the
circumstances by persons with a
legal perspective.
Before attempting this, our per-
sonal conflicts of interest should
be aired. We are, respectively, the
present and the former Chairman
of the Board for Student Publi-
cations and, as such, do not take
the dim view some seem to hold
regarding the overall quality of
The Daily. Robben Fleming is our
colleague - a distinguished pro-
fessor of labor law. Finally, the
formal pleading which the Uni-
versity filed in court to trigger a
restraining order regarding t h e
sit-in, and on which The Daily
focused so much attention, was
drafted for the University by an
academically able former student
of ours, a local practicing attorn-
ey who graduated from the law
school.,
a liar?
A
The appraisal which follows is
offered not in the peculiar inter-
est of just one of the above three
but rather because of an interest
in the general reputation of all
three.
THE DAILY'S own writers re-
ly primarily on two circumstances.
The first in pointtof time has
to do with the fact that the for-
mal oath, which -appears at the
bottom of the pleading which Mr.
Fleming signed, stated that, on
the basis of his own "knowledge,"
the facts otherwise related in that
pleading were true. This oath, it
now is said, contained a fabrica-
tion. Mr. Fleming, it is said, could
not have had personal knowledge
of all the facts alleged since some
of the defendants can show that,
as to them, at least some of the
alleged facts are not true. Alter-
natively, it is said that if Mr.
Fleming relied merely on a "be-
lief" based on information sup-
plied Ito him by other University
employes, he lied in failing to so
state in the pleading, having said
instead that all facts alleged in
the pleading were true as a mat-
ter of his own knowledge.
Assume, pro arguendo, that all
or some of the facts alleged as to
certain of the named defendants
were in error. This alone hardly
proves, in the eyes of one with
different conclusion
any legal perspective, t h a t Mr.
Fleming was a liar.
It must be remembered that Mr.
Fleming signed that complaint in
his official corporate capacity, as
President of this University, not
as a private individual. A n d in
certain types of judicial actions.
a corporate president is required
to respond in terms of what he
believes to be corporate knowl-
edge. For example, had the situa-
tion been somewhat reversed and
had the University been served
with a discovery notice, the Presi-
dent would have had a legal obli-
gation to reveal all facts of wtieh
all University employes, acting
within the scope of their duties,
had knowledge.
However, in the sit-in c a s e,
Michigan Court Rule 114.3 does
require the affiant to state the
several matters alleged either
"positively or upon informationer
belief, according to the fact."
Thus, if certain of the defendants
named in that complaint can
show the facts alleged as to them
were not true, Mr. Fleming - act-
ing as President - was in error
when, instead of asserting that he
relied merely upon "information
or belief," he stated that the facts
were true of his own knowledge.
BUT B E F O R E affirmatively
branding him with the contempt-
]['HE SENATE Advisory Committee on
University Affairs (SACUA) is pro-
bably the most powerful University Com-
mittee outside the central administration.
As the executive arm of the faculty's
Senate Assembly, SACUA is consulted by
high University officials on nearly every
major decision and the committee's re-
commendations often provide the basis
for major administration policy decisions.
But despite the fact that its actions
vitally affect the day-to-day lives of stu-
dents, faculty, and non-academic employ-
er, SACUA has continually refused to open
its meetings to the public and press. The
committee meets behind closed (and of-
ten locked) doors while the rest of the
University community is deliberately bar-
red from participation in its decision-
imaking process and denied access to in-
formation available to the committee.
BY HAUGHTILY insulating itself from
dialog, SACUA operates both auto-
cratically and ignorantly. This was ap-
parent yesterday when about a dozen stu-
dents walked over to the Administration
Bldg. to see the little dictators at work.
Yesterday's meeting was of particular in-
terest since it had been learned that the
topic "student-faculty relations" was the
firs item on the agenda.
In keeping with SACUA's uncomprom-
ising tradition of secrecy, no students had
been invited to attend the discussion. In
fact when the dissident students arrived
and announced their intention to ob-
serve the session, SACUA voted unani-
mously to adjourn rather than allow the
students to observe the meeting. The
faculty wouldn't even permit students to
attend the meeting let alone participate
in it.
THE SACUA decision represents aca-
demic elitism in its most repugnant
form. For despite the committee's pro-
testations to the contrary, closed SACUA
meetings allow a tiny group of faculty
members to secretly make decisions af-
fecting thousands of students. This is in-
imicable to the basic principles of free-
dom and democracy which these same
men purport to protect.
SACUA's decision is an incredible act
of hypocrisy .Only last week the commit-
tee issued a statement calilng for support
of the principles of academic freedom in
condemning the anti-military and anti-
recruiting demonstrations led by SDS.
That statement called on "all elements of
the University community to reaffirm and
maintain their support for the principle
that the campus must be a free market
place of ideas."
How then can we have a free market
place of ideas if SACUA makes its decis-
ions cowering behind closed doors? The
committee calls for free inquiry one week
but refuses to allow it at its own meeting
three days later.
Whose freedom is SACUA willing to
protect? It should be clear from yester-
day's meeting that when faculty rant
about "academic freedom" they are mere-
ly supporting the right of the faculty to
rule, and rule secretly at that.
IT IS CLEAR that the SACUA members
recognize the political implications of
their actions but have chosen to ignore
them. Their arrogance can only result in
increased hostility and a 11e n a t io n.
Everyone who has seriously stud-
ied the modern phenomenon of student
unrest has identified students' disen-
franchisement from the decision-making
process as a primary factor in their
dissatisfaction.
Most students are unwilling to continue
to accept the oligarchical nature of the
University. By refusing to open its meet-
ing SACUA is at best only buying a little
time. It is clear that students will not
tolerate his acivity for very much longer.
-THE EDITORIAL DIRECTORS
Letters to the Editor
Misplaced decimals
To the Editor:
ANN ARBOR BANK officials
asserted that 400 students with-
drew over $100,000 from the bank
in Friday's mass protest.
They estimated that this con-
stitutes two tenths of one per cent
>f the total number of student
accounts and less than eight hun-
dreths of one per cent of the
bank's total deposits.
This means that the bank had
200,000 students accounts and
total deposits of one and one quar-
ter billion dollars. The true fig-
ures, according to a different AAB
statement, are 48,400accounts and
total deposits of $126 million.
Still wonder if the AAB is a safe
place for your money?
-Fred Arnold, Grad.
-Mike Potter, '72
Tenants Union
Feb. 9
(EDITOR'S NOTE: The Ann Arbor
Rank says that an error was made
in the figures given The Daily.
The article Feb. sreported that two-
tenths of one percent of their stu-
dent accounts were withdrawn, this
figure should be two percent. It
was also reported that eight one-
thousandths of one percent of their
assets were withdrawn, this figure
should read eight-one hundredths
of one percent.)
SACUA
To the Editor:
dated Feb. 4 he suggests that the
question of his truthfulness should
be settled on the basis of his
reputation vis a vis the reputation
of The Daily editor.
THE WRITERS believe that we
of the faculty cannot stand by
silently in this situation if we ex-
pect to exert any moral influence
on this campus. The recent con-
demnation by SACUA of some stu-
dent conduct suggests that SACUA
does feel it has moral authority.
We therefore request that SACUA
conduct an , inquiry in order to
make the following determinations
of fact and propriety:
-Has the President testified
falsely as charged by the students
named above?
-Have the President and Uni-
versity administration conducted
themselves in a manner designed
to maximize the legal punishment
of the bookstore protesters? Such
conduct would be contrary to the
President's remarks at the Faculty
Senate meeting last fall the tenor
of which was that the Administra-
tion harbored no ill feeling to-
ward the protesters and would not
be vindictive.
-What efforts, if any, has the
President made on behalf of the
protesters in their legal fight?
-Did the President deal in good
faith with student leaders on the
bookstore issue prior to the sit-in
or did he, as has been suggested,
provoke the sit-in by improperly
manipulating the decision-making
process? In this regard, was the
appointment of Mr. Ulrich to con-
duct a feasibility study for the
proposed bookstore a proper move
when one considers that Ulrich
owns one of the largest bookstores
in Ann Arbor and stood to lose
much by the creation of a student
bookstore?
--Prof. John Concoran,
philosophy dept.
-Prof. J. D. Halpern
mathematics dept.
Feb. 8
Diversion
To the Editor:
I HAVE observed with mixed
emotions the rising appeal of en-
vironmental problems as a focus
for action on this and other cam-
puses. Though I do not mean to
downgrade the importance of this
issue, I do feel that it is part of
an attempt by the rulers of this
country to siphon campus action
from the Vietnam War.
Since the war has uniquely co-
dified almost all the elements that
America has stood for in the eyes
of us (i.e., racism, imperialism,
militarism, and hypocracy) it has
become the major symbol of our
time. The war has been an exposed
nerve on the hulking body of this
country and,hasvsuch, the rulers
of America have gone to' great
lengths to p r e v e n t its being
touched.
. FIRST THERE were the naked
threats of the Johnson-Hershey
mentality, followed by the co-
opting of The March on Washing-
ton by the Liberal Establishment
to the point where its meaning
was so vitiated that even law
school professors could find it in
their anachronistic hearts to sup-
port it, and now the insidious
emergence of a, great new issue.
Environmental. restoration is,
indeed, a topic that should cap-
ture our attention. Right now,
however, lets continue the battle
against the more immediate and
terminal pollutants such as na-
palm, bullets, and Richard Nixon's
breath.
-Robert Rubinstein
Law '72
Jan. 27
Fun?
To the Editor:
PRESIDENT NIXON said in his
news' conference January 30 that
the war in Vietnam will be ended
in ten years. On the other hand,
he said that the U.S. commitment
.to withdraw all ground. combat
troops is not irreversible. Vietnam-
ization, he said, is irreversible.
Isn't it fun to watch President
Nixon play his political g a m e s
with you, with the people of Viet-
nam, with the people of Laos, with
his new set of ABM toys, with the
millions of suffering people across
the world?
-Thomas Rieke
Jan. 31
uous characterization "liar" be-
cause of this error, one might ask:
Who actually was responsible for
the error, was it an understand-
able error under the circumstanc-
es, and just how serious were the
consequences.
The whole pleading, including
the oath, was drafted hurriedly
by a local practicing attorney af-
ter the sit-in had started and,
thus, under what, in legal circles,
are sometimes characterized as
"semi-combat" conditions.
It is precisely in just such set-
tings that lawyers often devote
their attention to substance, at
the expense of form. (Journal-
ists, faced with a deadline, often
do the same and sometimes with
substantially more serious conse-
quences.)
It also is precisely in such set-
tings that clients (here, the Pres-
ident) are otherwise busily en-
gaged and, thus, rely upon their
lawy'ers to use that language
which is technically appropriate
to the circumstance.
Finally, it is just in such set-
tings that judges know that law-
yers may make technical errors in
their pleadings and, as any lawyer
well knows, had the error been
c a 11 e d to the attention of the
judge at the point the University
asked for the restraining order, he
would have allowed the University
to amend the pleading without
prejudice, permitting t h e words
"information and belief" to be
substituted for the words "own
knowledge." Indeed, to have done
otherwise would seem to violate
another Michigan Court Rule
(118.1) which requires that leave
to amend "be freely given" with-
out prejudice in the ease of all
pleadings.
EVEN SO, the above described
error to which The Daily's writ-
ers point was regrettable if in fact
some student was unfairly charg-
ed. But it also is true that the re-
straining order triggered by the
pleading did n o t itself contain
teeth that actually bit those
charged. T h e purpose of a re-
straining order, in contrast to a
criminal charge, is to inform a de-
fendant in advance t h a t if he
thereafter does certain things, he
will be quilty of an offense called
contempt.
In short, had the officer actual-
ly been able to serve the restrain-
ing order and had the persons in-
side t h e n vacated the building,
they would not have been guilty
of offending the restraining order.
In actual fact, however, the re-
straining order w a s withdrawn,
perhaps because t h e University
may have had doubts about
whether it properly had been serv-
ed on the defendants, given the
additional fact that those it or
around the building never per-
mitted the officer to gain access.
In any event, we regret very
much that the inapt characteri-
zation "liar" was applied to the
type of error involved here. The
fault ultimately is traceable to the
circumstances which led the Uni-
versity's hurried lawyer to make a
correctable mistake. We only hope
that this episode does not lead
President Fleming, in future
equally trying circumstances, to
attempt, as a matter of self-pro-
tection, to be his own lawyer. It
is in the whole community's in-
terest that he focus on other as-
pects of such problems. And while
he is a distinguished labor lawyer,
precisely because of his long spec-
ialization he probably has forgot-
ten much about many other fac-
ets of' the law and, we dare say,
knows at this point little about
the legal nuances involved in the
law of pleadings!
THE SECOND primary circum-
stance on which The Daily's
writers rely in justifying the char-
acterization "liar" actually illus-
trates what in our professional
judgment is at best an unbecom-
ing and at worst an absolutely
ugly case of entrapment. w i t h
Robben Fleming being the goat
rather than a liar.
Two and a half months after
the University had aborted the re-
straining order, the sit-inners
then being charged with "conten-
tion,," Mr. Fleming. in testifying at
one such trial, was cross-examin.
ed by a person whose apparent
aim was to discredit the Presi-
dent. At least an attempt w a s
made to engage Mr. Fleming in
the unrewarding game of total re-
call. that is, in a rehash of the de-
A
kI
tails, pertaining to what by then
was an age-old and aborted plead-
ing.
The cross-examiner asked Mr.
Fleming if, in that much earlier
pleading, he had not stated that
the facts therein were true of his
"own knowledge" except "as to
matters stated therein to be on
information a n d belief." Mr.
Fleming replied, "I did." The
cross-examiner then moved in for
the obvious kill:
Qs:"I see. And, any matters
that y)u state in there on infor-
mation and belief, you. believed
to be true. Is that correct?
A: "Right."
Then, while still on the stand, Mr.
Fleming was allowed to re-read
t h e earlier aborted pleading
which, not surprisingly, he said
he had not see* during the inter-
vening two and a half months.
And of course, the lawyer then
showed Mr. Fleming that his ear-
lier answer was somewhat imac-
curate. The earlier pleading, of
course, contained no reference
whatever to "information and be-
lief," having literally referred on-
ly to Mr. Fleming's own knowl-
edge.
This circumstance serves only
to remind us that if we do not
re-read this letter at frequent in-
tervals, we too will lay ourselves
open to a similar future entrap-
ment by anyone who, unsuspect-
ingly, plans to engage in just such
shameful artifice.
IT ALSO IS regrettable t h a t
The Daily's most 'recent writer, in
documenting his case, did not see
fit to print the other item. In the
course of the testimony just re-
lated, Mr. Fleming went on, in
effect, to say he had supposed
that anything told to him in his
corporate capacity by another em-
ployee then came within his own
knowledge.
Technically, in the eyes of the
law, this is true for some purpos-
es but not for others. That Mr.
Fleming is probably wrong in ap-
plying that concept, to this par-
ticular circumstance h ar d1y
proves, however, that he also is a
liar.
it
LSA Assembly
at the crossroads
The following is a copy
letter that was sent to
Joseph Payne, chairman of
ate Advisory Committee on
versity. Affairs.
of a
Prof.
Sen-
Uni-
TONIGHT'S meeting of the LSA Student
Assembly could mark a turning point
for student participation in the literary
college.
But for the assembly to become a
meaningful vehicle for student power,
basic changes will be necessary both in
its structure and in the level of student
attendance at its meetings. If these
Oh thosekdids!
VICE PRESIDENT Spiro Agnew and Cal-
ifornia Governor Ronald Reagan have
much in common politically and just the
other day it became apparent they also
share similar family; problems.
First it was the Vice President's teen-
age daughter who attempted a private
insurrection when she announced 1 a s t
fall that she wanted to participate in an-.
ti-war activities.
But Daddy quashed it immediately.
And an NBC report indicates that Gov.
Reagan's daughter is following Miss Ag-
new's footsteps.
She is a singer w h o recently toured
Vietnam with a USO show. Before she
went, she claims, Miss Reagan was' an
avowed hawk. But after her tour, she de-
clared that her visit to the war zone con-
vinced her that a military victory is not
necessary.
What did Daddy do?
Said the governor with characteristic
verve and clear thinking, "While I'm par-
tial to my daughter and love her, I don't
think foreign policy should be decided by
US0 Ientertainers."
Nor by an old-time Holtywood cowboy,
Governor.
changes cannot be made, the assembly
should be terminated.
Historically, student activism in the
literarycollege has been pitifully low, and
most of it has centered around decisions
and structures at the departmental level
and University matters leaving college
matters untouched.
Until recently, the only mechanism for
student participation in the college was
the LSA Student Steering Committee --
a small, unrepresentative group of stu-
dents which; for want of a better source
of information, was used by the LSA ad-
ministration for advice on student views.
LAST TERM, the steering committee-un-
r haderwent a face-lifting. Its name was
changed to the LSA Student Assembly,
and there was a short-lived unsuccessful
attempt to broaden the organization's
base by bringing in representatives of de-
partmental groups.
For the representativeness of the group,
the net gain was zero. And to a signifi-
cant extent, the lack of student enthus-
iasm is understandable. With the excep-
tion of a few students seats on LSA
committees, the college has done nothing
to provide participation in college decis-
ion-making.
Nonetheless, students must continue to
explore ways of creating an effective me-
chanism for student activism and repre-
sentation in the college. Without such an
organ, those who argue for increased stu-
dent participation in the college will be
plagued by charges, however unjustified,
that such involvement is impractical or
that students are not interested.
QUITE POSSIBLY, the student assembly
can not be reformed sufficiently to
make its continuation profitable. At pre-
sent, for example, the organization is rid-
dled with cliqueishness. Meetings h a v e
been very poorly publicized and attend-
PRESIDENT FLEMING'S in-
tegrity has been publicly called
into question recently in articles
and a letter in The Michigan
Daily by three students, Philip
Block, Jim Forrester and Marc
Van Der Hout, exec. vice president
of SGC. We are sure you will
agree with us that this is a serious
charge and, if true, casts serious
doubt on the President's moral
,qualifications for his office..
Unfortunately the President's
response has been to ask for an
apology on the part of The Daily,
which he received in the Feb. 3
issue, and in a letter to The Daily
'I
4
HUA C's latest: Repression without redress
By DANIEL ZWERDLING
WITH NO alarm and little pub-
licity, the United States House
of Representatives 12 days ago
overwhelmingly passed a bill that
would give the Secretary of De-
fense and President dictatorial
powersto investigate and fire any
employe in virtually every major
institution in the country.
Under this bill, which almost no
newspapers have publicized, Con-
gress would:
" give the Secretary of Defense
the power to designate all defense-
related facilities - meaning "any
plant, factory, industry, public
utility, mine, laboratory, educa-
tional institution (involved in
classified installation, canal, dam,
bridge. highway, vessel, aircraft,
vehicle, pipeline."
0 authorize the President to order
"investigations concerning any
person or organization" working
for, or applying for work in these
facilities. The bill would establish
a special commission of investiga-
tors to snoop out the person's
"present or past membership in
name of the House Un-American
Activities Committee.
The committee wrote the bill
last July - without the request,
at least publicly, of either the
President or Defense Department
-and then exposed it to three
brief days of hearings in Septem-
ber. That was enough for govern-
ment agencies, representatives of
the AFL-CIO, and the National
Electronics Industries Association
(which represents the 300 largest
electronics firms in the nation) to
voice their support.
When the bill finally emerged
on the House floor Jan. 29, it
glided through on a 274-5 vote
after just two hours of mild de-
bate-mostly impassioned rhetoric
about the threats of Moscow-di-
rected communist subversion of
the United States.
THE BILL is a neatly designed
effort to subvert two Supreme
Court decisions in the past three
years which struck down screening
programs in government agencies,
because they were too broad and
vague. Under the current bill,
however, the federal government
fense has compiled his list, the
President may determine who-may
and who maynot have "access to
positions, places, or areas of em-
ployment"-order a full-scale in-
vestigation of any person to de-
termine if he qualifies--and final-
ly, summarily deny or revoke his
access to the institution or facility.
As Washington American Civil
Liberties Union lawyer Lawrence
Speiser notes, this doesn't just
cover employment, but access to
facilities. Since the bill includes
public transportation, vehicles, and
highways, this would authorize the
President,.to forbid virtually any-
one from driving his car, taking an
airplane-in fact, from venturing
much further past his sidewalk.
The scope of the investigations,
furthermox'e, includes "any person
or organization," not just those
concerned with classified material.
(An amendment limited an orig-
inal section,. which included all
education institutions, to those
handling classified information -
but this includes most major uni-
versities.) As a result, the Presi-
dent could order the firing of a
and examiners to do its snooping
(the-bill notes they would be first
trained in the "history of Com-
nunist and other subversive or-
ganizations, domestic and for-
eign").
Relevant material for investiga-
tion would include the person's
"present or past membership in,
:r affiliation or association with,
any organization, and . . . other
activities, behavior, associations,
facts, and conditions, past or
present."
The bill further requires the em-
ploye under iivestigation to an-
swer all inquiries, submit all in-
formation requested, and to "take
a psychiatric examination when a
question of mental illness has been
raised."
ONCE THE government has
condemned a person as unfit ma-
terial for a job (or access to the
various facilities), it would grant
him the right to demand a "hear-
ing" to reconsider his case. Like
Kafka's Joseph K., however, the
accused could not challenge his
accusers, or the evidence used
THE BILL has not yet become
law--it must first pass the Senate
-but the fact that the House of
Representatives overwhelmingly
approved it should scream the
direction the country is moving in.
Even conservative Emanuel Cellers
(D-NY}, House Judiciarycommit-
tee chairman, called the bill "a
result of national hysteria"-but
few Congressman or in e d i a
throughout the country have taken
much note of it.
Only the Washington Post and
the Chicago Sun-Times, among
the nation's papers, wrote editor-
ials about it. The Post condemned
the bill for giving "unreasonable
power to the Secretary of De-
fense."
The bill, in the meantime, goes
to the Senate Judiciary Commit-
tee. Senators have a reputation
for being more liberal than the
parochial House--but this bill
comes in the wake of the no-
knock drug bill passed just days
before, authorizing police to break
into homes without knocking if
they have "good reason" to sus-
pect the inhabitants have drugs
which they will throw away if
3 ifnriet fife