April 30, 2024
How a Little-Known Anti-Vietnam Protest Reverberates Today
by Gary B. Ostrower
Gary B. Ostrower is Professor of History Emeritus at Alfred University in western New York.
(Originally published in the Historynewsnetwork.com page
Probably no period of US history witnessed more student unrest than the Vietnam War years before Congress ended the draft in 1971. Student demonstrations started in 1963 at St. John’s University in Queens, NY, gained momentum at Berkeley the following year, and culminated with strikes at nearly 400 colleges and universities following the killing of students at Kent State and Jackson State in 1970.
Why, then, might a small-scale demonstration at a remote, though distinguished, university in western New York deserve our attention? Only fifteen students and two professors demonstrated against the Vietnam War during an ROTC ceremony at Alfred University (AU) in May 1968. The university suspended seven students and fired one of the two faculty protestors. AU charged them with violating recently adopted guidelines relating to demonstrations. The incident hardly created a ripple beyond the local area.
Although most Americans knew nothing about this event, the ACLU took note. Alfred University is a private university, but it contains an internationally- acclaimed Ceramics College funded by the State University of New York. Three of the seven students were enrolled in that SUNY unit, and the ACLU, mainly represented by a young and brilliant civil rights attorney named Neil Fabricant, aided the students.
The fired professor, a 40-year old historian named Michael Kay, was an outspoken anti-war radical. Ironically, he had been hired in part because he was a Marxist; the department chairman, David Leach, thought students should be exposed to a range of historical viewpoints. Nevertheless, Kay had become a thorn in the side of the university. He organized a chapter of Students for a Democratic Society (SDS). He rarely attended faculty meetings and frequently canceled classes. AU’s president complained, with justification, that he “has a passion for anarchy and a genius for discord.”
Many of Kay’s colleagues would have agreed. A sociologist who shared Kay’s political views wrote after the university fired him that “he gave no quarter and deserves none.” He was considered so disagreeable that not even the local American Association of University Professors (AAUP) chapter came to his defense when he alleged that the university had fired him because of his left-wing politics.
Despite calls to reinstate him, the university stood firm. He had clearly violated the university’s demonstration guidelines by interfering with the progress of the ROTC ceremony and refusing to move away when ordered to do so. He had been warned that his behavior at the ROTC ceremony placed him at risk of dismissal. And because AU was a private institution, he could not legally challenge his firing.
Not so the three suspended SUNY Ceramic College students. They claimed that AU violated their First Amendment freedoms of speech and assembly, along with their Fourteenth Amendment right to due process. Joined by the other four students, all seven went to court. Because the Ceramics College, one of AU’s four colleges, was fully funded by the State of New York and because the state provided AU with about $200,000 to cover instructional costs for Ceramics students taking courses in other AU colleges, the plaintiffs argued that AU officials had acted as state agents and therefore that the suspension constituted “state action.” That concept—state action—though little known outside of the legal community, became critically important to their suit.
Their case would be known as Powe v. Miles, Emile Powe being the first of seven plaintiffs, and Miles being Leland Miles, president of the university. The students went to Federal District Court in Buffalo where the case was assigned to Judge John T. Curtin. Following two days of hearings, Judge Curtin held that the university had not acted in the role of the state and therefore that the “state action” principle was inapplicable. For that reason, the students did not have standing to sue in a federal court. A private university, Curtin concluded, could suspend students for almost any reason, and AU was private despite receiving state monies for the Ceramic College.
The students’ attorney, Neil Fabricant, strongly disagreed. He persuaded his clients to appeal. Off they went to the U.S. Court of Appeals for the Second Circuit in New York City.
There, a three-judge panel that included Henry J. Friendly, perhaps the most highly respected appellate court jurist in the country, accepted Fabricant’s argument that New York State’s funding of the Ceramics College meant that suspending the students indeed constituted “state action.” Fabricant reminded the Court that the very name of the college—the New York State College of Ceramics at Alfred University—justified the “state action” designation. The Second Circuit therefore reversed Judge Curtin’s lower-court decision. It concluded that a federal court could properly address the First and Fourteenth Amendment issues raised by the plaintiffs.
Unfortunately for the students, however, the Appeals Court did not find that AU had violated their constitutional rights. The Court held that AU’s demonstration guidelines requiring such things as 48-hours prior notice and no disruption of educational activities (the ROTC ceremony was technically a class) were reasonable. Moreover, the Court further noted that the university had given the students adequate opportunity to protest in a way that did not abridge their First Amendment rights. They were permitted to display signs calling for an end to the Vietnam War and the abolition of compulsory ROTC by standing to the side of the ROTC parade grounds so long as they did not disrupt the ceremony. The university also granted the students a right to appeal their suspension, thereby preserving their Fourteenth Amendment right to due process. AU even permitted the students to take their spring semester final exams off campus. The Court therefore sustained AU’s decision to suspend the students for the fall semester.
The Appellate Court may have exonerated AU, but the AAUP was less forgiving. The AAUP is a professional organization committed to the defense of faculty and the principle of academic freedom. It ignored the student side of this controversy and mounted a fourteen-month investigation into Kay’s dismissal. With laser focus, the AAUP highlighted the fact that Kay had been fired before he had a chance to exercise his right to appeal and therefore concluded that he had been denied due process. The AAUP disregarded the inaction of the local AAUP chapter. Some members had found Kay so objectionable as to have recommended even before the ROTC protest that he be terminated.
Nevertheless, in what can only be viewed as a victory for AU, the AAUP stopped short of censuring the university after Alfred officials agreed to pay Kay a year’s salary and to update its faculty handbook in accord with AAUP recommendations.
So why should we remember this matter? Not because of Professor Kay’s fate, but because the Court of Appeals redefined the legal status of a private university that receives state funding. Is a private university subject to state regulation in respect to protests? Will its faculty and students enjoy constitutional protections?
Powe v. Miles became a national moot court case. It has been cited in federal and state courts 216 times since 1968. Seventy-five of these citations relate specifically to the “state action” concept. Moreover, in the immediate wake of Powe v. Miles, the New York State legislature passed Education Law Section 6450 requiring every institution of higher learning in New York receiving public funds to “adopt rules and regulations for the maintenance of public order….and provide for the enforcement thereof.” A college refusing to abide by Section 6450 would forfeit state monies.
From Powe v Miles in 1968 until about 1982, we find that courts expanded the scope of the “state action” concept, especially related to issues of race and gender. After 1982, reflecting a more conservative legal environment, courts narrowed their interpretation. In short, Powe v Miles has influenced a corner of American law for over a half century, which is to say that the ripple effects of the 1968 demonstration at Alfred University reverberate into the 21st century.
