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Campus "Unrest" demonstrations and consequences, 1970-1971

1971-11-12 American Report: Review of Religion and American Power Page 13

AMERICAN REPORT 9-S

Violence: The American Way 
(Continued from p. 1)

ed in early October by the Senate vote on Sen. Mike Gravel's D. Alaska) amendment to thee Military Procurements Authorization Bill that would require cessation of bombing in Indochina. Only 18 Senators voted for the amendment. More than two dozen who have been called loves voted for the B-52's This vote really tested our reliance on violence and our determination to withdraw. 
When we stop the bombing, we will get out all right. While we keep it up our opinions are open. We can substitute bombs for boys for a while showing the world it is only "our boys" that matter to us. The cost of bombing Laos can exceed, as it does the gross national product of that little country, But ultimately the bombing will destroy our soul and America in the hearts of humanity. As a use of violence, the bombings are the most inhumane indiscriminate and deadly of all. They burn and destroy the little children in the villages, the women, and the elderly as readily as combatants. Once we see the meaning of violence in our character, we will stop the bombing immediately

We will not be able to spare our children violence - even our own violence - until we spare all children violence. Violence is a strong emotion. It does not make nice distinctions. It replies with gunfire t the plea, "Don't Shoot. We Are Your Children" when its fury is unleashed. Until we recognize our common humanity with the villagers of Viet Nam, North and South, the prisoners of Attica and San Quentin, and the students of Jackson State an Kent State we will shoot our own children.
Only a renunciation of violence will avoid  future Viet Nams, Atticas ,Jackson and Kent States. America continues to exalt the power of violence, ignoring its inhumanity its purpose as death and injury to others. Only a reverence for life offers, the change to renounce violence. Violence evidences the dehumanization of our lives. A new humanism, conceding our common humanity, concern for all people committed to their happiness and fulfillment, will glorify life. 

Ramsey Clark is former U.S. Attorney General . 

Kent: A Legal Overview
[Cont. from p. 8-S]

posterous, and self refuting, and the proposition does not gain reason by substituting the "state" for the "king" 
Perhaps such a notion about monarchy was meaningful many centuries ago; it is utter nonsense today. Such reasoning has been astutely followed by the Cuyahga County Court of Appeals in suits filed by the families against the State of Ohio. The issue may have to be  determined in the Ohio Supreme Court, and could conceivably be heard by the United States Supreme Court. Nevertheless, the courageous decision of the Cuyahoga County Court of Appeals is the first tangible success in the courts which the families have had thus far, and this is encouraging. 
Another danger to the realization of justice in this case lies in the judicial interpretation of the Civil Rights Act, United States Code Title 2, Section 1983. This section, which was passed by the United States Congress in 1871 reads as follows:


Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State of Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity , or other proper proceeding for redress. 

This is a critically important provision of the United States Code, in that it is one of the few available laws which permit private citizens to seek legal redress in Federal Court for violations of their constitutional rights by state officials. This is not to say that the mere existence of a statute is a complete solution to the problem of abusive misconduct by state officials - from policemen, to judges, to prosecutors, to the governor himself - wherever such occurs. The statute presumably gives the citizen a right. But the practical reality of the enormous consumption of time which the legal effort entails, as well as the considerable expense to the litigants, puts the private citizen at a severe disadvantage, even where he has a provable and justifiable case. Moreover, this is not an area of law like personal injury, where most people carry liability insurance to cover them in the event that they wrongfully cause harm to others - and where the munificent insurance company picks up the tab for the entire litigation expense, as well as for any damage settlement or judgment up to the policy limits. 
Since under the Civil Rights Act, only individuals may be sued in their individual capacities (and not public entities such as the State or its political subdivisions), the collection of a judgment must bee made against a private person who is probably uninsured - frequently one without funds available to satisfy the judgment. Thus, the practicalities become even more oppressive - since it is the rare citizen who is willing to finance costly litigation for a wrong done to him by a state official without any definitive hope or likelihood of collecting his judgment - even if he wins. Sometimes an action under the Civil Rights Act is worth pursuing, - for example, to prevent an unjust discharge from employment, or to prevent abusive treatment to a large class of persons similarly situated, 
But in the Kent case, the best that can be said for the practical value of the Civil Rights Act is that it hopefully creates a right to b heard in a court of law on the merits of the issues. I do not intend to minimize the importance of that value because in the cases of the families of the killed students. money will not bring their children back to life. To these bereaved parents, it is of the utmost importance that there be a public airing of the issues so that their viewpoint will be heard, and if a jury should so find, those responsible identified. 
But to someone like Dean Kahler, who is permanently paralyzed - a paraplegic for life- a hearing of the issues is only one of several important considerations: in his case, as in the case of his parents, the economic and human loss is significant, and money damages are particularly relevant. For Dean Kahler, and the other seriously injured students, the best hope for full justice lies in the successful outcome of their lawsuits against the State of Ohio -a financially responsible entity against which a judgment might be obtainable if the state courts permit suit against the state by overturning the doctrine of sovereign immunity, thereby allowing the case to be tried to a jury in a court of law. 
As limited as the remedy in the Federal Civil Rights Act may seem to be due to the practical limitations already discussed even that limited remedy is now in danger of becoming unavailable. The suits in Federal court filed for the injured students and for the families of the killed students were recently dismissed by the lower court on the grounds that the Eleventh Amendment to the United States Constitution immunizes the governor, the generals, the guardsmen, and other public officials from suit. The Eleventh Amendment prevents a citizen from suing a STATE in Federal Court. While the suits were brought only against specifically named INDIVIDUALS, such as the governor, the generals, the guardsmen, the lower Federal court held that this constituted a suit against the State of Ohio and thus such suit was barred by the Eleventh Amendment. 
This ruling is being challenged in the United States Circuit Court of Appeals for the Sixth Circuit on the Ground that Congress intended a remedy against state officials under the Civil Rights Act, in their individual capacities, where these officials act "under color of law," and that the Eleventh Amendment was not designed to emasculate the Civil Rights Act - and Congress did not intend when it passed the Civil Rights Act.; Again, this issue will have to be determined by the higher courts before the Kent case can even be heard by a jury in Federal Court.
There are also suits pending in state court against the governor. the generals, and individual guardsmen- and they have moved the court to dismiss these cases primarily on the ground that in reality these cases are suits against the state, and thereby barred by the doctrine of sovereign immunity. The lower court has not yet ruled on this motion to dismiss. 
As one summarizes the legal front, it becomes apparent that the Kent plaintiffs must first establish that they have a right to be heard in court before a jury - that is to say  that they have a right to be in court at all before their cases can be brought to trial.
Even if the right to present evidence in some court is finally established, there then must begin the arduous effort of what attorneys call "discovery" procedures involving the gathering of sworn testimony and other information and documents in preparation for trial. The trial of the Kent case will require the use of experts, the use of demonstrative exhibits, and the presentation of many witnesses - to say nothing of the incredible amount of legal time and resources which will have to be committed to the effort. And these considerations will be true for both sides of the controversy. 
Perhaps this analysis lends itself to a degree of pessimism. In my opinion, such pessimism is unjustified. A better word is frustration - frustration about the slow, halting pace of litigation. The anecdotes for frustration are hard work and perseverance. Given the commitment and dedication that some political leaders, religious leaders, community leaders, fellow attorneys, students, and citizens in general have demonstrated, the will to persevere and overcome is there. The Kent Story has yet to be written. 

Steven A. Sindelll is the attorney for the parents of five of the students killed and wounded at Kent State University on May 4, 1970. He lives in Cleveland.

"... They're (campus protesters) worse than the brownshirts and the communist element and also the nightriders and the vigilantes. They're the worst type of people that we harbor in America... I think that we're up against the strongest, well trained, militant revolutionary group that has every assembled in America."

- Gov. James Rhodes at a news conference in Kent, May ,1970

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AMERICAN REPORT 9-S Violence: The American Way (Continued from p. 1) ed in early October by the Senate vote on Sen. Mike Gravel's D. Alaska) amendment to thee Military Procurements Authorization Bill that would require cessation of bombing in Indochina. Only 18 Senators voted for the amendment. More than two dozen who have been called loves voted for the B-52's This vote really tested our reliance on violence and our determination to withdraw. When we stop the bombing, we will get out all right. While we keep it up our opinions are open. We can substitute bombs for boys for a while showing the world it is only "our boys" that matter to us. The cost of bombing Laos can exceed, as it does the gross national product of that little country, But ultimately the bombing will destroy our soul and America in the hearts of humanity. As a use of violence, the bombings are the most inhumane indiscriminate and deadly of all. They burn and destroy the little children in the villages, the women, and the elderly as readily as combatants. Once we see the meaning of violence in our character, we will stop the bombing immediately We will not be able to spare our children violence - even our own violence - until we spare all children violence. Violence is a strong emotion. It does not make nice distinctions. It replies with gunfire t the plea, "Don't Shoot. We Are Your Children" when its fury is unleashed. Until we recognize our common humanity with the villagers of Viet Nam, North and South, the prisoners of Attica and San Quentin, and the students of Jackson State an Kent State we will shoot our own children. Only a renunciation of violence will avoid future Viet Nams, Atticas ,Jackson and Kent States. America continues to exalt the power of violence, ignoring its inhumanity its purpose as death and injury to others. Only a reverence for life offers, the change to renounce violence. Violence evidences the dehumanization of our lives. A new humanism, conceding our common humanity, concern for all people committed to their happiness and fulfillment, will glorify life. Ramsey Clark is former U.S. Attorney General . Kent: A Legal Overview [Cont. from p. 8-S] posterous, and self refuting, and the proposition does not gain reason by substituting the "state" for the "king" Perhaps such a notion about monarchy was meaningful many centuries ago; it is utter nonsense today. Such reasoning has been astutely followed by the Cuyahga County Court of Appeals in suits filed by the families against the State of Ohio. The issue may have to be determined in the Ohio Supreme Court, and could conceivably be heard by the United States Supreme Court. Nevertheless, the courageous decision of the Cuyahoga County Court of Appeals is the first tangible success in the courts which the families have had thus far, and this is encouraging. Another danger to the realization of justice in this case lies in the judicial interpretation of the Civil Rights Act, United States Code Title 2, Section 1983. This section, which was passed by the United States Congress in 1871 reads as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State of Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity , or other proper proceeding for redress. This is a critically important provision of the United States Code, in that it is one of the few available laws which permit private citizens to seek legal redress in Federal Court for violations of their constitutional rights by state officials. This is not to say that the mere existence of a statute is a complete solution to the problem of abusive misconduct by state officials - from policemen, to judges, to prosecutors, to the governor himself - wherever such occurs. The statute presumably gives the citizen a right. But the practical reality of the enormous consumption of time which the legal effort entails, as well as the considerable expense to the litigants, puts the private citizen at a severe disadvantage, even where he has a provable and justifiable case. Moreover, this is not an area of law like personal injury, where most people carry liability insurance to cover them in the event that they wrongfully cause harm to others - and where the munificent insurance company picks up the tab for the entire litigation expense, as well as for any damage settlement or judgment up to the policy limits. Since under the Civil Rights Act, only individuals may be sued in their individual capacities (and not public entities such as the State or its political subdivisions), the collection of a judgment must bee made against a private person who is probably uninsured - frequently one without funds available to satisfy the judgment. Thus, the practicalities become even more oppressive - since it is the rare citizen who is willing to finance costly litigation for a wrong done to him by a state official without any definitive hope or likelihood of collecting his judgment - even if he wins. Sometimes an action under the Civil Rights Act is worth pursuing, - for example, to prevent an unjust discharge from employment, or to prevent abusive treatment to a large class of persons similarly situated, But in the Kent case, the best that can be said for the practical value of the Civil Rights Act is that it hopefully creates a right to b heard in a court of law on the merits of the issues. I do not intend to minimize the importance of that value because in the cases of the families of the killed students. money will not bring their children back to life. To these bereaved parents, it is of the utmost importance that there be a public airing of the issues so that their viewpoint will be heard, and if a jury should so find, those responsible identified. But to someone like Dean Kahler, who is permanently paralyzed - a paraplegic for life- a hearing of the issues is only one of several important considerations: in his case, as in the case of his parents, the economic and human loss is significant, and money damages are particularly relevant. For Dean Kahler, and the other seriously injured students, the best hope for full justice lies in the successful outcome of their lawsuits against the State of Ohio -a financially responsible entity against which a judgment might be obtainable if the state courts permit suit against the state by overturning the doctrine of sovereign immunity, thereby allowing the case to be tried to a jury in a court of law. As limited as the remedy in the Federal Civil Rights Act may seem to be due to the practical limitations already discussed even that limited remedy is now in danger of becoming unavailable. The suits in Federal court filed for the injured students and for the families of the killed students were recently dismissed by the lower court on the grounds that the Eleventh Amendment to the United States Constitution immunizes the governor, the generals, the guardsmen, and other public officials from suit. The Eleventh Amendment prevents a citizen from suing a STATE in Federal Court. While the suits were brought only against specifically named INDIVIDUALS, such as the governor, the generals, the guardsmen, the lower Federal court held that this constituted a suit against the State of Ohio and thus such suit was barred by the Eleventh Amendment. This ruling is being challenged in the United States Circuit Court of Appeals for the Sixth Circuit on the Ground that Congress intended a remedy against state officials under the Civil Rights Act, in their individual capacities, where these officials act "under color of law," and that the Eleventh Amendment was not designed to emasculate the Civil Rights Act - and Congress did not intend when it passed the Civil Rights Act.; Again, this issue will have to be determined by the higher courts before the Kent case can even be heard by a jury in Federal Court. There are also suits pending in state court against the governor. the generals, and individual guardsmen- and they have moved the court to dismiss these cases primarily on the ground that in reality these cases are suits against the state, and thereby barred by the doctrine of sovereign immunity. The lower court has not yet ruled on this motion to dismiss. As one summarizes the legal front, it becomes apparent that the Kent plaintiffs must first establish that they have a right to be heard in court before a jury - that is to say that they have a right to be in court at all before their cases can be brought to trial. Even if the right to present evidence in some court is finally established, there then must begin the arduous effort of what attorneys call "discovery" procedures involving the gathering of sworn testimony and other information and documents in preparation for trial. The trial of the Kent case will require the use of experts, the use of demonstrative exhibits, and the presentation of many witnesses - to say nothing of the incredible amount of legal time and resources which will have to be committed to the effort. And these considerations will be true for both sides of the controversy. Perhaps this analysis lends itself to a degree of pessimism. In my opinion, such pessimism is unjustified. A better word is frustration - frustration about the slow, halting pace of litigation. The anecdotes for frustration are hard work and perseverance. Given the commitment and dedication that some political leaders, religious leaders, community leaders, fellow attorneys, students, and citizens in general have demonstrated, the will to persevere and overcome is there. The Kent Story has yet to be written. Steven A. Sindelll is the attorney for the parents of five of the students killed and wounded at Kent State University on May 4, 1970. He lives in Cleveland. "... They're (campus protesters) worse than the brownshirts and the communist element and also the nightriders and the vigilantes. They're the worst type of people that we harbor in America... I think that we're up against the strongest, well trained, militant revolutionary group that has every assembled in America." - Gov. James Rhodes at a news conference in Kent, May ,1970