Berkeley Law Student Statement of Public Education, Struggle, and Silencing Dissent.

by

from Uncivil Procedure:

Realizing that batons, rubber bullets, and tasers cannot quell the campus community’s opposition to the Regents’ project of privatizing the University of California (“UC”), the Administration has resorted to a more subtle but equally vile method of coercion: UC is taking disciplinary action against student activists through a process that violates students’ federally guaranteed due process rights, including the right to notice of charges, the right to inspect evidence, and the right to counsel.

On January 13, 2010, a hearing panel of the Committee on Student Conduct shamefully upheld an ‘interim suspension’ placed on Angela Miller. The suspension bans Ms. Miller, a University of California, Berkeley (“UCB”) Junior, from campus property, from speaking with anyone affiliated with UCB anywhere at anytime, evicts her from her off-campus housing, and more. Not only does the suspension immediately and clearly violate Ms. Miller’s expression rights, due process rights, and California landlord-tenant law, but Ms. Miller’s suspension—and the Stalinist procedure that the UCB Administration used to uphold it—also show that UCB is willing to break any law, smear any student’s reputation, and arrest any protester to silence dissent.

The Administration’s prosecution of Ms. Miller’s case exemplifies UCB’s untamed disregard for its students’ well-being and legal rights. Under the guise of legitimate proceedings, UCB is violating students’ Constitutional rights of due process. At a minimum, we urge the campus community to take a legally grounded, straightforward and resolute position: the Administration’s denial of students’ fundamental due process rights in the disciplinary process should not be permitted at the University of California.

Moreover, using unsubstantiated rhetoric of safety concerns, the UCB Administration is abusing the disciplinary process to undermine student, worker, and faculty resistance to layoffs, furloughs, service cut-backs, and fee hikes. The Administration is clamping down on student activism by instilling fear of retaliatory sanctions.

We expose, point by point, the Administration’s draconian effort both to deny Ms. Miller a fair hearing and to silence campus dissent. We also assert that students have due process rights in disciplinary hearings and that Ms. Miller was denied these federally-guaranteed rights. Immediately below, we provide context and the factual circumstances from which Ms. Miller’s interim suspension arose.

Context

Students, staff, and faculty at the University of California strongly disapproved of the Regents of the University of California’s response to UC’s “budget crisis.” Within the last year, the Regents furloughed and laid-off employees, slashed campus services, and approved unprecedented fee increases for students. Student and faculty discontent with the UC Administration’s handling of the “budget crisis” manifested itself in a UC system-wide student, worker, and faculty strike on November 18-20, 2009. Concurrently, the University Professional and Technical Employees, supported by the Coalition of University Employees, commenced an Unfair Labor Practice strike against UC. Shortly following the November walkout, students spontaneously established an “Open University” at Wheeler Hall, the location of horrific scenes of police brutality against student demonstrators on November 20. The completely non-violent and cooperative “Open University” created a 24-hour student space during the reading week, disrupting no scheduled classes.

Police commanded by the UCB Chancellor and Dean Jonathan Poullard performed a Gestapo-like raid on the Open University at 4:40 a.m. on December 11, 2009, arresting all students present. The police violated standard procedure and shuttled all those students arrested to the Santa Rita Jail in Dublin instead of citing them for a misdemeanor on the scene. In order to protest the Chancellor’s outrageous and reactionary response to the Open University, protesters demonstrated outside the Chancellor’s University House located on the UCB campus later that night. As sensationalized by media reports, a couple demonstrators vandalized a window or two and broke a concrete planter during the protest. University Police responded by indiscriminately arresting anyone they could get their hands on, including UCB student Angela Miller. She committed no vandalism and broke no law. Reacting in a frenzy to the acts of minor vandalism, the Administration irrationally and unjustifiably placed Ms. Miller on interim suspension based only on her mere presence at the University House protest.

Analysis of the Panel’s Decision to Uphold Ms. Miller’s Interim Suspension

Subsequent to the imposition of the interim suspension, Ms. Miller went before a tribunal of the worst sort. Not only is the student conduct system hopelessly stacked against the student, but the three person panel (consisting of Christine Wildsoet, Professor in the School of Optometry; H. Faye Lawson, Student Advocate, Office of the Dean, Haas School of Business; Chen Ling, undergraduate student) was simply unable to appropriately consider the simplest factual issues and make a single ruling on evidence or other procedural questions. The panel instead relied on the University’s own representative to do so.

Perhaps the most disturbing aspect of the panel’s “decision” was the utter lack of evidence it cited to support the only charge at issue: whether Ms. Miller is a threat to the health and safety of the campus community.

This is a serious charge to level against a student, and a sensible person expects the Administration to produce exceptionally strong evidence before pursuing charges that threaten Ms. Miller’s future and already cause her great hardship. At the hearing, however, the weakness of the Administration’s case was glaringly apparent. First, the hearing panel cited a news report from the University’s own press office about the protest at the Chancellor’s house—the hearing panel itself did not even pretend that the news report implicated Ms. Miller in any illegal activity, nor did it establish that the author of the report was a reliable witness to the events in question. This fails to meet any basic evidentiary standard, and we find it highly objectionable that the Committee took a University-produced news report as unquestioned, unbiased fact without even providing Ms. Miller the opportunity to cross examine the author of the report. Second, the hearing panel relied on the testimony of a police officer who did not witness Ms. Miller commit any illegal activities or violations of the Code of Student Conduct whatsoever. The police officer could only allege that photographic evidence, which the police officer refused to show, depicted Ms. Miller “carrying a lighted torch on the night in question.” The police officer’s failure to permit Ms. Miller to inspect the photographic evidence—or even prove its existence—is a clear violation of the evidentiary rules of the Code of Student Conduct and offends basic values of justice. What’s more, Ms. Miller was not notified that the Administration would bring a witness relying on hearsay testimony about her involvement in the protest. The only item at issue was supposed to be her danger to the campus community. Violations of rules of evidence aside, the mere fact of carrying a torch alone is far from sufficient to establish that Ms. Miller is guilty of any of the charges leveled against her. Given this embarrassing lack of evidence, the District Attorney unsurprisingly refuses to press charges against any of those indiscriminately arrested on December 11, 2009.

Failing to offer any credible evidence of Ms. Miller’s violation of the Code of Student Conduct, the hearing panel resorted to base personal attacks on Ms. Miller to justify upholding her interim suspension. In particular, the hearing panel was astounded by Ms. Miller’s supposed “apparent lack of concern” that her interim suspension precluded her from completing two final exams. This statement is rank hypocrisy, as the Administration caused Ms. Miller to miss those finals because of groundless allegations. Additionally, the hearing panel suggested that Ms. Miller “provided little evidence of positive contributions to the campus community.” Not surprisingly, the hearing panel failed to define “positive contributions to the campus community.” Whatever the definition, the vast majority of the non-active student body likely fits this description. This is no justification for an interim suspension. Ms. Miller was not on trial for her contributions to the campus community. That the hearing panel upheld Ms. Miller’s interim suspension on this irrelevant ground only serves to underscore the panel’s pettiness and lack of commitment to justice.

In addition, the hearing panel chastised Ms. Miller for failing to demonstrate “remorse” for participating in the “protest” at the Chancellor’s house. There are two extremely disturbing aspects to the hearing panel’s statement. First, the hearing panel fallaciously conflates “protest” with illegal activity or some violation of the Code of Student Conduct, as the panel takes the fact of Ms. Miller’s mere participation in the protest as evidence of property destruction, attempted burglary, and assault. Protesting, however, on the UCB campus is currently legal, and so, the Office of Student Conduct never charged Ms. Miller for actually participating in a demonstration. Ms. Miller’s mere participation in the December 11, 2009 protest is an illegitimate ground on which to uphold the interim suspension. Second, the panel’s consternation about Ms. Miller’s failure to show “remorse” for her involvement in the protest clearly suggests that the purpose of the Inquisition-like tactic is to exact a renunciation of dissenting opinion. The clear implication is that showing “remorse” by denouncing the student struggle leads to a lesser punishment.

That the ultimate purpose of student conduct charges against campus activists is to curb the upsurge of student dissent becomes even more apparent when the hearing panel criticizes Ms. Miller’s legal protest tactics. The panel condescendingly remarked that it did not understand “how protesting (‘claiming the streets’) would address the current financial problems of UC Berkeley . . . .” The tactical efficacy of protesting to address the “budget crisis” was not an issue submitted to the panel, and was certainly no grounds on which to justify Ms. Miller’s interim suspension. The hearing panel’s aversion to Ms. Miller’s politics permeated the proceeding, and thus contaminated the ultimate decision to uphold the interim suspension. Skirting Code of Student Conduct procedure to find reasonable cause that Ms. Miller’s suspension is necessary to prevent future violence against any person on University property or to prevent conduct that disrupts the orderly operation of the University, the hearing panel used vague claims against Ms. Miller’s character, political views, and legal protest tactics to uphold the interim suspension. The Administration’s failure to present evidence that reasonably proves that Ms. Miller committed the acts alleged against her violates not only UCB’s own formal hearing procedure outlined in the Berkeley Campus Code of Student Conduct but also violates due process standards that courts apply to public institutions of higher education.

Students’ Due Process Rights in Disciplinary Hearings

California law is clear that the rules governing disciplinary hearings at public universities are subject to constitutional due process guarantees. California courts hold that the relationship between student and university is a contractual one, which by its legal nature includes constitutional principles of due process, such as the right to a fair hearing before discipline. Substantively, this contractual relationship means that the Administration cannot expel Ms. Miller arbitrarily and that Ms. Miller is only subject to reasonable rules and policies. Ms. Miller’s irrevocable due process rights include notice of specific charges against her, notification of the evidence gathered by the university, such as the names of witnesses and a statement concerning witnesses’ proposed testimony, and a hearing that is consistent with the circumstances of her particular case, including a right to counsel.

The Administration, which was legally required to notify Ms. Miller of the charges against her, failed to specify that Ms. Miller’s general activities in legal protest and her character were part of the hearing proceedings. Additionally, the Code of Student Conduct claims that students have no right to legal representation. While the University has no duty to provide or pay for counsel for the student, it certainly cannot prevent or impugn the student’s legal right to retain counsel. As future attorneys who believe that the right to counsel is a fundamental protection against state power, and thus a bulwark of democratic freedom, we are especially concerned with how a prohibition on lawyer representation implicates the basic fairness of any Student Conduct proceeding. The Administration did not merely leave Ms. Miller’s due process rights unsatisfied, but even the due process rights, however minimal, that UCB has codified in the Code of Student Conduct were completely disregarded. The result is that Ms. Miller is banned from campus without any sort of protection or adequate hearing, even though UCB must provide one.

Conclusion

The record of Ms. Miller’s hearing demonstrates that the panel upheld the interim suspension—a severe punishment—on an exceedingly weak evidentiary basis. The panel’s decision thus clearly violates the Code of Student Conduct’s presumption of innocence. That the panel’s decision was founded on ad hominem attacks against Ms. Miller, an array of facts wholly unrelated to the events of December 11, 2009, and hostility towards Ms. Miller’s status as a student dissenter should be grounds for an immediate fair hearing and the immediate dismissal of the panel members who failed to discharge their duties as impartial adjudicators. That tenured UCB faculty and administrators—individuals who are supposed to promote respect for the pursuit of truth—so brazenly ignored fundamental notions of justice is an embarrassment to academia. The actions of the Committee for Student Conduct impressed a mark of shame on the entire campus community.

We cannot forget that the panel’s childish and disgusting decision will work significant personal hardship on Ms. Miller. In a blatant abuse of power, the panel illegally ordered her to vacate her off-campus Berkeley Student Co-op housing only three days after notifying her that her suspension was upheld. Additionally, the academic impact of the groundless interim suspension—approved by a Committee for Student Conduct panel that denied Ms. Miller basic due process rights—seriously implicates her success at UCB.

Placing Ms. Miller on a pillory, the panel’s decision consciously seeks to chill and impede student activism—this is UCB’s warning to any who dare show a contrary opinion. Engaging in campus activism now jeopardizes one’s future. We cannot idly sit by while UCB uses illegal tactics to neutralize the most vocal student dissent in the struggle for accessible public education. We call upon the campus community to concertedly resist the UCB Administration’s latest move to quell the tide of campus dissent.

(pdf version is available here)

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