For many Americans, the sometimes violent turmoil that rocked college campuses in the 1960s seemed to come out of no where. In the past, colleges had been viewed as bucolic retreats where a privileged few were given the opportunity to nurture themselves in an atmosphere that was part vocational training, part finishing school. But during the Fall semester of 1964 everything fell apart and everything came together. Mario Savio harangued through a bullhorn on the steps of Sproul Hall. Joan Baez led a plaza full of students through the familiar verses of “We Shall Overcome.” Campus police in riot gear dragged demonstrators through hallways and threw them into paddy wagons. And what did Boalt Hall law students do?
At first, it seems, very little.
For our apathy we were called out by our peers. “There is among law students across the country a distinct lack of activity in interests and areas outside legal studies,” warned an editorial in the Harvard Law Record. “Thus at Berkeley, the FSM, supported and opposed by students representing every conceivable combination of political thought and academic concentration, left Boalt Hall unscathed.”
Early in the crisis the Boalt Hall faculty met to hammer out a statement that would present the law school’s official position on the FSM, but with our professors spread over a wide spectrum of political views from ultra-conservative to ultra-liberal, the resulting document was merely a bland acknowledgment that “the sources of the present controversy are deep-rooted and complex…”
Nevertheless Boalt Hall faculty were drawn into the FSM turmoil. Because the central issue of the dispute was the definition of free speech, the Academic Senate turned to the law school to help establish guidelines. Discussion focused on defining the appropriate “time, place, and manner” for political rhetoric, rather than on regulating its content. When on September 29 and 30, and October 1, 1964 students were cited for staffing tables to solicit donations and support for off-campus political activities, the administration asked the Academic Senate to establish an ad hoc committee to advise on disciplinary action. Boalt Hall Prof. Ira M. Heyman was selected as chairman of a committee that was comprised of law professors Robert Cole, Robert O’Neil and Hans Linde. The group faced a daunting task.
“The explosive quality of a rebellion,” Heyman later wrote, “the bitter feelings of many administrators toward what they saw as arrogant conduct, the outside pressures for retribution, and the adversary positions of the Free Speech Movement (FSM) and the University, required an unusually independent tribunal applying quite formal procedures for finding facts and imposing sanctions.”
Boalt Hall Prof. David Louisell became one of the most vocal critics of the FSM, claiming that the movement had “sedulously and effectively cultivated the myth of denial of free speech, assimilating a free-speech slogan as its name. This tactic was clever, dramatic, and captivating, but I fear that essentially it was sham…. The real issue then was whether students could organize and carry on political activities with a guaranteed immunity from University discipline for all such activities, whether lawful or unlawful.”
Other Boalt Hall professors took leading roles in the action. Prof. Adrian Kragen, one of the more conservative members of the Boalt Hall faculty, was dispatched to travel throughout California to try to explain the complex and deteriorating situation. Sanford Kadish was active in hammering out language for proposals emanating from the Committee on Campus Political Activity. Richard Buxbaum was one of five defense counsels who volunteered their services to those arrested during the FSM protests.
On November 17th the law students at last joined the debate in a formal manner. In a vote of 402 to 170, the Boalt Hall Student Association condemned the administration’s suppression of political activity on campus. While first taking care to state that “criticism of the University’s restrictions should not be taken to imply approval of the conduct of student demonstrators protesting them,” the BHSA affirmed “that a free society can tolerate no less than an unrestricted opportunity for the exchange of views on the political and social questions of the day.” The issues went beyond mere questions of legality. “The time-tested strength of our University has rested in its capacity to tolerate — indeed, to foster — vastly differing viewpoints on the issues of the day.”