Issue 2 (April 2010)
Letters to UC Berkeley's Life and Leadership
de bono et malo
My recent affair with Campus Life and Leadership was loathe at first sight. We soon fell into a rhythm of electronic correspondence, transmitting emails a distance that would be easy for passenger pigeon or medieval courier. But, our perceptions of the problem and conceptions of outcomes could not have been further apart.
It had been more than three decades since I last looked at the Campus Code of Student Conduct while a law student on the staff of the Student Advocate, where matters ranged from grade appeals to the burgeoning phenomenon of sexual harassment. The Code’s hot button issue then was regulating off-campus conduct by students.
On the afternoon of December 14, 2009, a former legal services colleague asked if I could advise Zachary Bowin—a student arrested the previous Friday night near the Chancellor’s residence—who was to be arraigned in superior court that afternoon. When I later spoke with Zach, his case had been continued and no charges had been filed by the District Attorney. But, I warned him that he had not yet escaped the grip of the campus conduct apparatus, for activities that unquestionably took place on campus. In the moment, I had no idea the apparatus and its apparatchiks were now part of the born-again Campus Life and Leadership—an amalgam of Cal boosters, Greeks, public service projects, legal aid, social justice programs, and gender equity resources.
My disquieting communiques by internet and telephone with Campus Life's high functionaries were followed by a surreal encounter with the hastily-assembled hearing panel. The scene called to mind a southern Illinois school board meeting in the late 20th century. As Zach’s advisor and attorney, I was permitted to speak only when spoken to, and Zach was treated as an errant schoolboy. It was only a week before the new semester that I was put in touch with Angela Miller. Over the next several weeks I noted a number of legal deficiencies in the Code of Conduct and the way it was being applied:
1. Due Process: Rules governing disciplinary hearings at public universities are subject to Constitutional due process restrictions. Goldberg v. Regents of Univ. of Cal. (1967) 248 Cal. App. 2d 867, 875 (holding that “the University's rule-making powers and its relationship with its students are subject to federal constitutional guarantees”). The elements of due process include: a notice of specific charges against the student; the names of witnesses and a statement of the gist of their proposed testimony; and a hearing. Andersen v. Regents of Univ. of Cal. (1972) 22 Cal. App. 3d 763, 772. There needs to be a balance between what the Life and Leadership functionaries call their educational mission and the mandate to adjudicate and resolve conduct complaints.
2. Interim Suspension: The Code’s provision for interim suspension §VI (105.08) is sparse. Moreover, the Center and its hearing panels interpret that provision as if it stands apart from all other sections of the Code. For example, the Center’s Director maintains that the informal resolution processes are not applicable to interim suspensions, and that she and her staff have no authority to modify suspension terms.
A panel convened by the Center for a “prompt hearing” has no procedural rules to guide panelists, the suspended student and her advisor on (a) the evidentiary standards and burdens of proof and (b) its mandate to determine whether the suspension “restrict[s the student] only to the minimum extent necessary when there is reasonable cause to believe that the student's participation in University activities or presence at specified areas of the campus will lead to physical abuse, threats of violence, or conduct that threatens the health or safety of any person […] or other disruptive activity incompatible with the orderly operation of the campus” pending a hearing on the underlying Code charges. Code, § VI-105.08 [emphases added].
3. Chancellor’s Review: An interim suspension must be “reviewed by the Chancellor within twenty-four hours,” §VI (105.08). In Angela’s case, she was further advised in the December 12 Notice that she could “place a statement in the record for the Chancellor’s consideration…” Yet, no evidence has been produced of: (a) the Chancellor’s recusal from review and delegation of authority to the Provost or (b) a “considered” review by the Provost. The Center’s January 13 evidence packet contained only a cursory statement by Provost Breslauer (not on letterhead, dated Saturday, December 12, 2009, 2:15): “I have reviewed the case of Ms. Angela Miller and concur with [the Vice Chancellor for Student Affairs’] decision to proceed with interim suspension of this student.” As Angela did not actually receive the Notice of Interim Suspension until approximately 48 to 72 hours later, the offer to submit a statement was meaningless and remains unfulfilled.
4. Burden and Standard of Proof: It is presumed that a student charged with a violation of the Code is not responsible for any violation unless she admits responsibility or a hearing determines otherwise. Code, §I(B). Furthermore, the Center bears the burden of proving the charges. This is consistent with Systemwide policies, Policy on Student Conduct and Discipline §103.11 (rev. Oct. 20, 2008), UC Policies (http://www.ucop.edu/ucophome/coordrev/ucpolicies/aos/uc100.html), and constitutional jurisprudence. Notwithstanding, there was no such presumption for Angela before, during or after her “prompt hearing,” and she remains to date on interim suspension status.
Similarly, the standard of proof for all hearings is a preponderance of evidence (“generally defined as ‘greater than 50%’ or alternatively ‘more likely than not.’) Code, § II (C)(2)( b)(4). This standard was not applied in the decision of the hearing panel issued on January 15 in Angela’s case.
5. Timeline: The Notice of Charges must contain “a [t]imeline for the disciplinary process” and must state “the duration of the Interim Suspension.”Code §1-A. The Vice Chancellor’s Notice contains neither a timeline, nor duration of the suspension, much less a date for hearing the underlying charges. Until the recent revision, the timeline in the Code provided for 30 days of investigation and 45 days to hold a formal hearing. This 75- day timeline represents the bulk of an academic semester at UC Berkeley, and is also ample time to complete any proceeding under the Code. In the event of “unusual circumstances,” the Dean of Students or his designee has the flexibility to alter the timeline. Code § III-D. However, that “flexibility” should be cautiously exercised and in no event should it allow for total suspension of the hearing timeline, as apparently was done, effective August 28, 2009.
6. Informal Resolution: Students charged with conduct violations are to be offered the opportunity to resolve their case without a formal hearing. Code, § II-C(1): And, under the revised Code, “additional options for informal resolution may be appropriate […] includ[ing], but … not limited to: mediation, peer review boards, and restorative processes. Student Conduct and Community Standards staff will determine when these options for resolution may be appropriate and make referrals.” Id., §(C) (1)(b). As stated above, this option was not made available to Angela and her fellow student advisor before her suspension hearing. To date, there has been no serious effort to engage in negotiations or any of the newly created alternative dispute processes. Staff training is particularly warranted in implementing these features of the Code.
7. Access to Counsel: Although the University has no duty to provide a lawyer for student conduct proceedings, it cannot restrict a student's right to counsel (Andersen v. Regents of Univ. of Cal., supra at 773). Angela was forced to appear before a hearing panel that prevented her from having fully active and participatory counsel and continues to be deprived for her upcoming hearing of conduct charges. Under § I-F of the Code, in effect in December 2009, “the student may consult with his or her advisor throughout the [formal hearing] proceedings, however, advisors may only participate directly if the hearing panel, in its discretion, believes such participation would benefit the proceedings. The extent of such participation will be determined by the hearing panel.” [emphasis added].” In a revised version, effective this semester and posted in mid-January 2010, “[A]dvisors may not participate directly in the hearing process. Exceptions will only be made by the hearing panel or hearing officer in unusual circumstances (i.e. need for translator).” Where the deprivation or sanction is as serious as suspension, expulsion or withholding of a diploma, and the legal sophistication of the accused student is limited, access to counsel is all the more imperative.
Neither Angela nor Zach was advised that they had a Constitutional right to be represented by counsel. Angela continues to be deprived of counsel for her upcoming hearing—in a manner even more limited than required in the Code that was in effect at the time of her suspension and notice of conduct code violations. Having an advisor present in a token capacity is not tantamount to having the right to counsel of her choosing and zealous representation, a right to which she is constitutionally entitled.
8. Open Hearing: Under the Code, hearings are closed unless the accused student and the hearing body mutually agree to open the hearing to the public. §-II (C)(2)(g). There are no guidelines in the Code for determining when the panel or its chair deems it appropriate to close a hearing beyond this oblique reference: “The hearing body may close any hearing to the public when necessary to maintain order or to protect the rights of the participants including the privacy rights of student witnesses.” The chair has less drastic means to maintain order or to protect witness privacy should the occasion arise. Where the accused student waives any right to privacy, it is fundamentally unfair to conduct a hearing closed to the campus community and the general public.
9. Free Speech and Association: The Interim Suspension’s total ban on campus access and physical or electronic communication with any faculty, staff or students was overbroad and well beyond “the minimum extent necessary…” In Eisen v. Regents of the Univ. of Cal., (1969) 269 Cal.App.2d 696, the California Court of Appeal reiterated that under state and federal case law “the alleged impairment of constitutional rights” flowing from a University policy can only be justified when outweighed by “a sufficient state interest.” Id. at 700 (citing Canon v. Justice Court (1964) 61 Cal.2d 446, 456). The court went on to say that where narrower means are available, the University cannot infringe on the freedom of assembly and association unless necessary to achieve an “overriding and compelling” governmental purpose. Eisen at 701, 702, 706 (citations omitted). No such purpose was demonstrated here. Alternatively, narrower means were available for maintaining order and preventing harm.
In Angela’s case, the notorious banning order remains in effect, except to the extent she needs to attend classes and communicate with her professors, teaching assistants and students during class hours.
10. Eviction from Housing: The attempt to preclude Angela from “entering and using” her University-leased housing runs counter to the basic due process protections afforded tenants under state law. She is a tenant of the Berkeley Student Co-operative and her tenancy is governed by California Landlord Tenant Law. Cal. Code Civ. Proc. §§ 1161-1162. Without following the procedures required by law, neither the Vice-Chancellery, the Center for Student Conduct nor a Center-convened hearing panel has authority to order Angela's lease terminated or to modify it in any way. The hearing panel likewise has no authority to exclude a student from her legal residence.
According to its mission statement, Campus Life “provides students with the resources and support they need along their learning journey [...] [and] is the hub for transformational student leadership and community engagement.” Yet, to date in my encounter with this campus creature, I have seen little learning, transformation or engagement. On the contrary, the journey appears to be one going back in time when schools assumed the role of parents—in loco parentis—deciding what was best for their student charges.
It is the antithesis of an educational experience, but a voyage rife with disrespect, secrecy and ad hoc administration, more reminiscent of the infamous Star Chamber than the birthplace of the Free Speech Movement and the home of student activism and intellectual fervor.
The following is a selection of correspondence in the matters of Zachary
Bowin and Angela Miller. They have both consented to public release
of the documents containing information about their Student Code proceedings.
lex non scripta
1. Harry LeGrande (Vice Chancellor, Student Affairs): Zachary Bowin's Notice of Interim Suspension and Student Conduct Charges [pdf]
2. Harry LeGrande: Angela Miller's Notice of Interim Suspension [pdf]
1. Stephen Rosenbaum: Zachary Bowin's Request for Prompt Hearing [pdf]
2. Code of Student Conduct Panel Report on Zachary Bowin's Hearing [pdf]
3. Stephen Rosenbaum: Zachary Bowin's Request for Reconsideration of Terms of Interim Suspension and Dismissal of Student Conduct Charges [pdf]
4. Susan Trageser (Assistant Dean of Students and Director, Center for Student Conduct and Community Standards, Campus Life and Leadership): Email in Response to Stephen Rosenbaum's Request for Reconsideration of Terms of Interim Suspension and Dismissal of Student Conduct Charges (4 above) [pdf]
5. Christina Gonzalez (Associate Dean of Students): Response to Request to Lift Interim Suspension [pdf]
6. Susan Trageser: Zachary Bowin's Case Drop Letter [pdf]
in foro interno
1. Code of Student Conduct Panel Report on Angela Miller's Hearing
2. Stephen Rosenbaum: Angela Miller's Request for Reconsideration of Interim Suspension and Dismissal of Student Conduct Charges [pdf]
3. Stephen Rosenbaum: Angela Miller's Second Request for Reconsideration of Interim Suspension and Dismissal of Student Conduct Charges [pdf]
4. Jonathan Poullard (Assistant Vice-Chancellor of Student Affairs and Dean of Students): Response to Request for Reconsideration of Interim Suspension (3 and 4 above) [pdf]
audi alteram partem
1. Susan Trageser: Notice of Angela Miller's New Possible Violations
of Student Code of Conduct [pdf]
2. Stephen Rosenbaum: Response to the Notice of Angela Miller's New Charges [pdf]
3. Susan Trageser: Response to Angela Miller's Request for Dismissal [pdf]
4. Susan Trageser: Administrative Disposition (Angela Miller) [pdf]
4a. Angela Miller's Reflection Paper Questions [pdf]
5. Stephen Rosenbaum: Angela Miller's Response to Administrative Disposition (Redacted) [pdf]
6. Susan Trageser: Response to Angela MIller's Requests to Conduct Hearing [pdf]
Stephen Rosenbaum has been a Lecturer on the adjunct faculty at UC Berkeley Boalt Hall School of Law (his alma mater) since 1988, where he teaches courses in civil rights litigation, social justice skills, mental health law and policy and Spanish language and cultural competency. He has also been a staff attorney with civil legal services offices for almost 30 years, most recently with a non-profit disability advocacy organization where he specializes in education rights. Rosenbaum sits on the board of directors of the ACLU of Northern California.