The San Marcos 10—Vietnam War Protests and Civil Liberties in Texas

Student anti-war demonstrator on the campus of Southwest Texas State University a surrounded by a hostile crowd.

Fifty years ago in 1969 anti-Vietnam War protests were literally a dime a dozen.  In the previous five years demonstrations had escaped  liberal/radical like New York City and Berkley, California and the protest magnate Washington, D.C. to campuses across the United States and to cities and towns in the fly-over heartland.  After radicals and authorities had clashed violently at the Pentagon in 1967 band in the streets of Chicago during the Democratic National Convention a year earlier, the respectable middle class including groups like Another Mother for Peace, Civil Rights and labor leaders joined the moderate wing of the peace movement to launch the Vietnam Moratorium on October 15, 1969 and an even larger wave of Moratorium protests were scheduled for a month later including a mass march on Washington.

An event like a small rally at Southwest Texas State University (now Texas State University) in San Marcos, a small central Texas city 30 miles southwest of Austin, on November 13 was hardly a blip on the radar screen among the literally scores of protests being held daily.  It was particularly modest in scope and included no marches, picketing, speeches, or even any hand-out literature.  A few dozen students and a handful of sympathetic staff  simply sat down quietly in front of the landmark statue of rearing wild horses by sculptor Anna Vaughn Hyatt near the center of campus.  They held signs like “Vietnam is an Edsel” and  “44,000 U.S. Dead, For What?”  Some wore black mourning armbands for the dead on all sides.

Pretty tame stuff actually.  But not mild enough for Texas where patriotism was equated with jingoist militarism and protest of any kind was suspected of being Communist.

Texas author and historian E.R. Bills.

Esteemed Texas historian and writer—and my Facebook friend—E.R. Bills has documented the event and its significant fallout in his latest book, The San Marcos 10:  An Anti-War Protest in Texas  Bills’ previous books included the gritty depictions of horrific racist violence in The 1910 Slocum Massacre: An Act of Genocide in East Texas and his depiction of lynching by burning in Black Holocaust: The Paris Horror and a Legacy of Texas Terror.  His new book comes on the heels of his essays in Texas Dissident: Dispatches from a Diminished State 2006-2016.  Bills earned his bachelor of arts degree and Texas State.  Most of the information in this post comes directly or indirectly from his research and work.

E.R. Bills new book.  In the cover illustration pro-war students drape the Huntington Horses monument with an American flag and a love it or leave it flag.

November 13 was actually not the first time students had rallied against the war at SWTSU.  Dozens joined a quiet protest at the same location on the first day of the Vietnam Moratorium on October 15 without incident or interference from the University.  But the publicity  surrounding the protest in the local and state press alarmed and embarrassed officials, perhaps especially so because the school was the alma mater of former President Lyndon Johnson who had been targeted and vilified by the anti-war movement for his escalation of the war in Vietnam.

Led by Dean of Students Floyd Martine, the administration scrambled to put the kibosh  on future demonstrations.  New rules strictly regulating protests were hastily promulgated  restricting protests to a designated “free speech area” away from the central quad and forbad demonstration assemblies before 4:00 p.m. on weekdays.  Free Speech Zones were then just beginning to be used to move protests out of sight out of mind and away from any targets of the demonstration.  They have since become ubiquitous and a notorious abuse of civil liberties due in no small part, as we shall see, to the events in San Marcos.

Students consulted with two lawyers recommended by the American Civil Liberties Union (ACLU) who advised them that that they a First Amendment right to hold another protest in the original location as long as they did not block traffic or create a disturbance.  They determined to press on with their plans for the second demonstration.  A sense of urgency was compounded when the first news of the My Lai Massacre was released the day before.

With plans going forward Martine set about recruiting football jocks and so-called cowboys—rowdy West Texas good ol’ boys always up for a display of macho swagger.  Neither group had appeared on their own to counter the first demonstration.  They were allegedly called out to “represent” a silent majority of patriotic and loyal students.  In reality they were given  wink and nod encouragement to disrupt and intimidated protesters.

The Huntington Horses sculpture by Ann Vaugh Hyatt was a central feature on the campus quad and a natural gathering point.  The rearing stallions who have thrown off one rider and are about to do the same to the other was said to represent the spirit of independence and freedom.

Regardless about 75 protestors arrived by the statue at 10 am and began their witness.  They were quickly surrounded by jeering and threatening counter demonstrators as well as a large number of curious onlookers.  At by 10:35 campus police began roping in the demonstrators.  Martine read a statement.

Ladies and gentlemen. May I have your attention please? I am Floyd Martine, Dean of Students. In the judgment of the university administration, this assembly is a violation of established university policies as set forth in the Student Handbook. I hereby direct you  to leave this area within three minutes. Any student remaining beyond that time will be  suspended from school until the fall of 1970.

While the 200 or so members of the mob surrounding the demonstrators screamed epithets and threats including ominous chants of  “string ‘em up!” most of the protestors left the penned in area, many receiving rough handling and pommeling by the jocks with no attempt by campus police to protect them.  Ten students remained kneeling or sitting.  At the last moment German instructor Allen Black ducked under the rope to join them.

Campus police string the rope line to pen in the protestors being given an ultimatum to leave.

In exactly three minutes Martine told the protestors “Your time is up!”  and began taking names of the remaining students.  No one was arrested that day, but the protestors promptly received official written notice that they were suspended.

Despite continued efforts to smear the students as commies and dirty hippies, they were nothing of the sort.  Like most of the students at this second tier public university they were the sons and daughters of ordinary working and middle class families, several the first in their families to attend college.  They did not look or dress particularly different from the counter protestors screaming at them.  They included a Who’s Who math student, two veterans, one a baseball player, three other mid-20s males, a 19-year-old male and three women.  They were:

27-year-old, Vietnam veteran David G. Bayless of Silver City, New Mexico, 19-year-old Frances A. Burleson of Houston, 23-year-old Paul S. Cates of San Antonio, 19-year-old Arthur A. Henson of Pasadena, 23-year-old Michael S. Holman of Austin, 27-year-old David O. McConchie of Wimberly, 24-year-old Murray Rosenwasser of Lockhart, 21-year-old Joseph A. Saranello of Brooklyn, New York, 20-year-old Sallie A Satagaj of San Antonio, and 18-year-old Frances A. Vykoukal of Sealy.

While the students were all immediately suspended, the German instructor was not initially punished.  But he and a few other junior faculty who voiced public support for the students ultimately had their teaching contracts not renewed.

E.R. Bills wrote in an essay for the Zinn Education Project:

On the evening of the San Marcos 10’s suspension, hundreds of their classmates and faculty members marched on the Administration Building protesting the 10’s treatment. The next morning they reappeared and Texas State President Bill Jones told a group of student representatives the university “means to hurt no one.”

“After all,” Jones said, “we are here for the same purpose—education.”

The legal battle on behalf of the students quickly was on.  It turned into an epic.  It began as a grievance within the University system presenting their case to the Student-Faculty Board of Review, Jones,  and the Texas State University System Board of Regents. Their appeals were denied at every level.

The ACLU took the case to Federal Court suing Martine, Jones, and SWTSU for $100,000 in damages.  They also asked for a temporary restraining order to prohibit enforcement of the suspensions until the case was resolved in court, a permanent injunction preventing the university from making notations on their permanent records,  and a declaratory judgment that the Student Handbook policy dealing with student expression be void because it was vague and over-broad.  The ACLU reasonably argued that the University and other defendants had “created a policy which violates the rights of freedom of speech and assembly granted under the First and Fourteenth Amendments to the United States Constitution.”

In early December denied the immediate appeal for reinstatement of the students without ruling on the merits of the case.  But he wrote, “no party denies that the First Amendment applies with full vigor on the campus, but a university by reasonable regulation, can limit and regulate the exercise of rights granted by the Constitution. . .”  That was a clear signal the whole action would ultimately be denied.

However on December 13 5th U.S. Circuit Court of Appeals in New Orleans temporarily blocked the suspensions pending disposition of the appeal.  The students were allowed to resume studies at the University and enroll for the spring semester as the case wound through the courts.

But in July of 1970 the same court ruled that the school had acted within their rights, effectively affirming the original suspension order.  Lawyers filed an appeal of that ruling and a second suit demanding that the students receive full credit for the work completed during the initial appeal.

The second suit again landed before Judge Roberts who ruled against the 10, stating that he could see no constitutional justification for reversing the finding conclusion of the 5th U.S. Circuit Court of Appeals.  

Ironically when SWTSU president Jones tried to personally apologize to Lyndon Johnson for the protest, the former President who was racked with regrets over the war told him, “They were right.”

Liberal icon and court maverick William O. Douglas was the only member of the Supreme Court to vote to hear the San Marcos 10 appeal.

In 1972 an appeal was made to the Supreme Court, but only stalwart liberal Justice William O. Douglas voted to hear the case.  Without comment or a determination of the facts, the Supreme Court’s inaction allowed the suspension decision to stand.

Not only were the San Marcos 10 retroactively suspended, but they were denied refunds to their already paid tuition.  The following notation was placed in their student transcripts, “The U. S. Supreme Court has ruled for the administration and all credit is denied.”

The case of the San Marcos 10 was quickly obscured as anti-war demonstrations heated up across the country by student occupations of college facilities, and student anti-war demonstrators were shot and killed at Kent State in Ohio and Jackson State in Mississippi in 1970 leading to more than a week of student strikes across the nation.

But the ghost of the case still haunts justice.  It remains a precedent often cited in cases of university attempts to stifle campus free speech.  Although some lower and appeals courts have reached different conclusions depending on the exact details of the suppression the current hyper conservative Supreme Court majority can be counted upon to apply the precedent broadly against dissent.