Issue 2 (April 2010)


Full Transcript of the Public Forum on UC Berkeley's Code of Student Conduct

Valley Life Sciences Building, UC Berkeley, Wednesday, February 17, 2010, 6:30-8:00 pm.

Panel Participants:

Jonathan Poullard, Assistant Vice-Chancellor of Student Affairs and Dean of Students, UC Berkeley
Susan Trageser, Assistant Dean of Students and Director, Center for Student Conduct and Community Standards, Campus Life and Leadership, UC Berkeley
Daniela Urban, Boalt School of Law Student, UC Berkeley
Nathan Shaffer, Boalt School of Law Student, UC Berkeley

Greg Levine, Associate Professor, History of Art Department, UC Berkeley



Greg Levine: Welcome, everyone, to this forum on the Code of Student Conduct. My name is Greg Levine, I am a faculty member in the Department of History of Art. I will be serving, obviously, as moderator for this event, and on behalf of the organizers and on behalf of many others who aren't here but have been concerned about this issue both in the student community and the administration, I would like to introduce or thank our panelists, also give you a little bit of the program for the evening.

In their order of statements, we will talk about our program in a minute. We are going to begin with Susan Trageser, UC Berkeley Assistant Dean of Students and Director of the Center for Student Conduct and Community Standards. Our second panelist is Daniela Urban, student at the UC Berkeley Boalt Hall School of Law. Third we have Nathan Shaffer, student at UC Berkeley Boat Hall School of Law. And Jonathan Poullard, our final panelist, UC Berkeley Assistant Vice-Chancellor for Student Affairs and Dean of Students. Thank you.

We will begin with each of our panelists giving a brief statement, no more than five minutes. One minute is fine, five minutes is fine as well. And then we will move quickly from these introductory remarks to perhaps some discussion among the panelists for a few minutes, then directly to questions and answers. I am going to be picking people who raise their hands, who wish to ask questions to our panelists, and we have until 8 pm for questions and answers, so we have plenty of time. During the Q&A session it is also possible that the panelists might want to respond to a question directed to one of their colleagues. We can have a little organic discussion around one or two questions. I see no reason not to, and signal me if you want to respond to something and I am not catching your eye. I'll try to recognize people as quickly as I can, and recognize as many people as I can as well.

As moderator I have some requests of you all, and they have to do with the importance of this event, but also I thing the strong opinions, strong feelings surrounding this event. There are people in this room who might feel angered, who might feel hurt, there are quite possibly students and administrators who feel they are not being heard, they are not being understood. I think the importance of this event is to see how we can be heard amongst each other, and to learn from each other from our perspectives. So there are probably a great deal of very strong opinions and feelings in this room and they do have a place in this room frankly, but I do want to ask you to help us make this an informative and substantive event. I think we have to remember that we are here as part of a community, as fractured as it might feel.

I would like to ask that you address each other with respect and use that as the starting point for what we can achieve in terms of discussion and understanding. I ask that you allow each person in this room to speak and to be heard and not interrupted. I also ask that you think of this forum as a starting point for hopefully further discussion in many different places, times and groups. And I want to ask us to be mindful of sharing the time amongst all of us in this room. So questions need to be contained a bit, and answers also need to be somewhat contained. So I am counting on all of you to help me help this process along and I think we do want to have this be something that we see as productive and taking this further. Strong opinions, again, do have a place here, strong feelings do have a place here, but see if we can bring those strengths of opinions and feelings into a productive discussion rather than something that is otherwise. So let me turn immediately to Susan Trageser to begin our brief statements from each of our panelists.

Susan Trageser: Great, thank you. Can everyone hear me? So, what I want to talk about is a little bit of an overview about the Code of Student Conduct and the process here on campus. So the approach of the Center for Student Conduct and Community Standards takes is an educational one based on a development philosophy. The Code of Student Conduct is actually a policy that lays out minimal expectations or guidelines for behavior of members of this community both in and out of the classroom, but also outlines the processes or the options for addressing possible violations of those expectations from members of the community if we receive complaints or incidents have occured. Again, I would just like to remind everybody that it is an educational process based on a development philosophy, it is not a criminal proceeding or process.

Greg Levine: Good, now we move to Daniela.

Daniela Urban: I am Daniela, I am a student at Boalt Hall School of Law, as he said, and in regard to the Code of Student Conduct, while it is meant to be an educational and developmental tool, it's being used as a criminal proceeding and to have a quasi-judicial process without the legal protections that we would have in an actual judicial process.

So, if we had an actual judicial process, you would have the right to due process, which includes the right to counsel. In the Office of Student Conduct they allow an advisor of sorts, but an advisor is not acting as your counsel--as an attorney would if you were in a courtroom. Similarly, you have the right to know the evidence against you, or in the criminal world you would know what the prosecutor has or what the other side's attorney has, and here you don't have that. Although you can inspect the student file, it will not always be updated. With regards to what your charges may be, there doesn't seem to be evidence in your file that sustains those charges. And with regards to this as well, there is a right to be silent. However, in the Office of Student Conduct by staying silent, you have an inference of guilt because you are not able to present them the evidence that they would need to proceed with the process.

It is also a failure to notify what charges are at issue. There is a big statement of charges. What parts of those charges are actually being pursued and why, it is not made clear. If you were being charged criminally, you would know exactly what the charges are and the law supporting them. Whereas here, since the conduct is not supposed to be that kind of tool, those protections aren't present. There is also, with regards to those charges, the question of the witness, what people are going to be at the hearing to testify against you. In criminal law you have the chance to cross-examine, to know what witnesses are supporting the evidence. Here you don't have that--even though the so-called learning process looks similar to a judicial process.

The informal interview process is being used as a discovery tool, as an information gathering step, as opposed to actually trying to resolve the dispute. They are asked to waive their right to silence and procure information that any lawyer in a criminal proceeding would tell them never to say, never talk more than they are required to. This puts a pressure on the students to confess in the way that they may just say everything they know because it is an administrator in their place of schooling, and they feel that this is something required of them. And there is some implication that if they do talk, they will get a lesser disciplinary charge or procedure. This might not be the case, but if it is the case, it seems unjust to require someone to confess in order to proceed with their informal process. And also, they might sometimes be required to testify at other people's hearings when there is a group involved. If there is something you might know about, they may require you to testify at someone else's hearing. And that is the kind of due process elements that are at issue with the Code of Student Conduct and the Office of Student Conduct.

The second thing would be the First Amendment issues that are violated. And one is the fact that some disciplinary procedures go beyond the university's ability to limit free speech and free association, such as telling students that as part of their discipline or their suspension, they cannot converse with certain groups, not talk to certain people or be in certain places. Those types of disciplinary procedures eliminate your constitutional rights of freedom of speech and freedom of association. And in that, they are limiting through a student conduct process, they are eliminating political speech or association, which is fundamental to our constitution and our society, and it is being done through this educational tool, or what is supposed to be an educational tool.

So we think that the philosophical foundation of the Code of Student Conduct conflicts with what is actually being pursued, which looks more like a judicial process. And if it is a judicial process, it should have those protections in place that they would get in a criminal or other legal proceeding. Changes need to happen in the application or the actual construction of the Code.

Greg Levine: Nathan.

Nathan Shaffer: So I want to talk about two things. The Office of Student Conduct seems to call the code itself a process that is operating under a developmental process based on an educational philosophy. That's fine. But regardless of what you call it, there are two things that need to happen. One, the Code of Conduct needs to abide by the law, and two, the Code of Conduct needs to be followed as written. Neither of those things is actually true of the process coming out of the Office of Student Conduct.

So the first thing is the law. Daniela pointed out all of the procedural protections that are unavailable in some of the proceedings, and the reasons that those things are required is that the university is a public university and they actually have the ability to impose great sanctions on students. So you can imagine somebody has spent three and a half years, invested tens of thousands of dollars in their education, and that could essentially be taken from them by the state. The University of California was created by the State of California, it is a state actor. Student property, their educational investment, can be taken from them by the state, without any of the protections that are normally afforded to people facing that kind of state action.

So, what the law requires in California is that the University be treated somewhat similar to a public employer or another state agency when it has a significant property interest. At a bare minimum is the right to a fair hearing where you have the opportunity to cross-examine witnesses, know the evidence being brought against you. You also have right to counsel at these hearings. The California law is actually pretty explicit. There are some very good cases that specifically talk about the right to counsel in California for universities to honor that right in this context. And the third thing that you need to have is fair process. And you need to have the right to know the rules that you are supposed to follow, and if you don't know the rules you're supposed to follow, you can't be charged for not following them.

So while the Code kind of matches with the law in certain places, it's a little bit wishy-washy.
Sometimes it looks very punitive and it looks like student property can be taken. The word from the administration tends to be: no, it is not punitive, your property will not be taken, this is educational. But the actual result is your property is being taken, your degree is being withheld in some cases, or you don't have enough time to finish. Now some of the procedures that are not being followed in the Code, I think, are pretty important as well. One we are seeing is that there are two options for informal resolution, or two paths for informal resolution. The first is the student accepts responsibility for the conduct that has occurred, and then the code actually lists an ''or'', which allows the student to accept the sanctions without the responsibility of confessing to doing anything. What we haven't really seen is the opportunity for students to sit down and negotiate an informal resolution under that second part under the Code. What we have seen is either: take a severe sanction or tell us everything and we'll see where we go from there. That is problematic, to say the least, for the reasons that Daniela pointed out. 

Also what we’re looking at is a theoretical problem in the Code of Student Conduct. In the 1950’s, back before any of this stuff was really important, the Supreme Court made a rule that schools were no longer supposed to stand in loco parentis to students, which means that they’re no longer suppose to take the role of the parent while the student is under their care. That means that in the 60’s and in the 70’s many schools developed codes of student conduct that were punitive in nature; they had crimes listed just like ours. You could be charged with theft under the code. I don’t know what is more criminal in nature than that, but it doesn’t sound educational to me. What we see now in the University of California is that they are pulling back from this punitive kind of state-organized system of punishment and stamping the word “educational” on it, which makes everything a lot looser and allows them to ignore our rights. And impose worse sanctions and worse punishments on us without the protections that we are supposed to be afforded. And as far as we are concerned in the law school, we see that as a severe overbreach. We think it is illegal and it is also not what is described in the Code of Student Conduct. So, we would like to see administrators sit down with public stakeholders, including students and probably people who know the law, who know what should be followed, and who know what the universities legal requirements are. And then with other stakeholder groups, maybe the GA, the ASUC or other people that have faced this process before or may face it in the future. We would like to see them sitting down and thinking of a code that actually complies with all of these requirements that a state or public university is to follow. And here I im not talking in vagaries, like, you should respect freedom of speech or you should respect student rights. These are hard rules set up in existing law that the university is supposed to follow. And that is our basic position as law students.

Greg Levine: Jonathan.

Jonathan Poullard: [Hard to hear, no substantial answer.]

Greg Levine: I will now move to the Q&A.

Eli: Could you please respond to some of the questions? [audience laughter]

Jonathan Poullard: I wasn’t trying to be flip. What is your name?

Eli: Eli

Jonathan Poullard: Eli. I wasn't trying to be flip. I don’t want to get into a debate about the processes here. I came here a few years ago. I was quite astonished at how our code was written. I thought it was very archaic. I thought it was very acrimonious from the very beginning of this. I was trying to write something in response because there were so many things that I felt in many ways were not factual in terms of how we work with student conduct. So when they talk about issues of due process, fair hearings, right to counsel. Actually if you look at the law, there is no legal counsel. With respect to whether or not someone has a right to counsel within an educational judicial process, they do not have a right to counsel. That is not true, that is not a truism.

So we can talk and we can debate whether or not on our campus we should have lawyers as a part of our process, right. I still do believe that our process is an educational one. And I do believe that sanctions that are severe are educational in nature. So for example they were talking about the issues of theft. If you look at the cases on my desk, when someone might be accused of theft, they don’t always get, you know, a warning or a probation. They might get an educational sanction. They might give time back, they might make restitution. That is education. Are they always down in the lower level? For the most part, they are. It is rare that our sanctions are at a higher level: probation, suspension, or expulsion. And in my 23 years of working in higher education, this is my fifth campus, I have only expelled in my entire career [one or two students?]. It must be something so outrageous that you can never ever return back to the campus community. This has got to be huge, right> That’s not the way that it normally works. With respect to First Amendment issues, with regards to how the Code is overreaching, again, I can go point by point by point, so if we want to get in a tit for tat, that was what I was trying to avoid. I wasn't actually trying to avoid questions or avoid conversation.

Greg Levine: Before we move on, Jonathan, you made a point of asking the speaker to give their first name, as you raise your question. Anybody here wants to respond to Jonathan?

Nathan Shaffer: So the right to counsel. Our position is that it is pretty clear. There is good law in the state of California that specifically says that students will receive notice of their right to counsel in judicial hearings, which is representation, and not somebody sitting next to you or being silent. Representation by counsel is an essential part of due process.

Jonathan Poullard: I will be more than happy to [send him the judicial documents].

Nathan Shaffer: Sure. But moving on, there is other law that actually does apply to the university, and it is not always followed. So, we have had some meetings with Student Conduct where pretty outlandish things have been said. One student conduct officer told me personally that the laws of the state of California don’t apply to the university; this is the Student Conduct Office. Because this is an educational process. And that was in a context of asking for pieces of evidence that should be part of a student’s conduct file. There are three laws that apply to the University of California, two of them are California state laws, and one of them is federal. They require that this information should be in the conduct file and it just simply wasn’t there. I mean this is a problem whenever either the Code or the practices of the Office of Student Conduct do not comply with state and federal law.

Greg Levine: Do you want to respond? And then we will move on to the next question.

Susan Trageser: Yes. Please. So, Student Conduct and Community Standards receives different pieces of information at different times in the process and at the point and time that we receive that information we will add that to a student’s conduct record. And that’s across the board for any conduct situation. Any time that a student has a conduct record, they are always welcome to come in and see their record in our office; every student that has a conduct record also a right to get a copy of that record. You can request that information that we have available to us at the time. If it is not information [which is present] there, it is not information we have in our office. We are not hiding anything. We are not trying to be deceptive in any way. But we do receive information at different times and as we receive it, we do add it to the student’s file and it is certainly available to them.

One of the things that we have been working on very diligently and have been working on since for a longer time [...][...] so I have been here three years, we've been working on it the entire time I have been here. We’ve been working on how quickly we receive information from UCPD and what types of information we receive from UCPD. So that is an evolving process and I think that we’re making some great strides.

Greg Levine: Thank you, and a second question here.

BJ: Hi, I am BJ. I am a law student at Boalt and I was also a police officer for eleven years so I have some background in due process and constitutional rights. My question is, why would the information that’s being obtained in these informal hearings with no due process, where your due process has been suspended, be then shared with UCPD in an ongoing criminal investigation where certainly due process should be applied?

Jonathan Poullard: I didn’t get that question, DJ.

BJ: B-J. So, your office is conducting informal hearings during which you are not applying the due process that we feel should be applied. And the information that you are seeking to obtain in these informal hearings or that you are obtaining from the students that aren’t represented is then being shared with UCPD in an ongoing open criminal investigation. Why would you share this information that has been obtained without due process?

Susan Trageser: What happens in a conduct process is that we are trying to have a conversation with somebody that we have received some information about that says that they might have been involved in the incident. There are times, and so that's the type of conversation, talking to someone about what they may have been involved in, hearing that from their perspective, is actually what we believe is the most valuable information to have. That person is there in the moment and can talk more articulately about what was actually taking place. And so that information has a lot of value to the process. Of course, the other piece of that conversation is to talk about information that we have received from UCPD, BPD or any other sources. I am not sure what you are referring to when you are talking about information being provided back to UCPD. There are certain times when we receive information with regards to, say, a sexual assault or something like that, where we do have to share information with them that a report has been received by our office. But I am not aware of a practice of going back to sharing information.

BJ: So is your statement that you are not sharing information these defendents are providing to you to the UCPD in an open investigation that they are[...]

Susan Trageser: Again I am not sure what you are talking when you say ‘these defendants’. I...

BJ: The students who are being charged!

Susan Trageser: We are having the conversation. There is no standard practice of sharing information with UCPD. There are some situations where, depending on the nature of the complaint that comes in our door, we have to share that information back and the example that I gave was the sexual assault.

BJ: So you would only share where you are required to.

Susan Trageser: That’s typically our practice, yes.

Greg Levine: We are going to Nathan, then take this gentleman’s question.

Nathan Shaffer: I just have two concerns. That has not been my experience. One, I have seen police reports stamped with the date when they are transmitted to student conduct. So, I have seen a police report stamped with the December 15th date that should have been filed with Student Conduct. In the meeting in January [it] wasn’t there. And later [I] saw a police report and saw it stamped with the date that it was received by Student Conduct. So, the idea that as soon as the information comes in and gets put into the student’s file is not true. At least in that one particular instance. Further, every letter I have seen from an incident in which UCPD was involved—and I have seen dozens at this point—has been cc’d at the bottom. There is this little cc that says 'file' and 'chief of UCPD'. So, every single communication coming out of the Student Conduct Office is cc’d to the UCPD. I mean, I can provide documented evidence of that.

Susan Trageser: And that is correct, our letters [bursts of laughter from audience] are cc’d back to the UCPD. My understanding of BJ’s question was about the information individual students were coming in and sharing with us about their specific situations. And if you see our letters, they are very template-like. And so that information is not a part of those details, the specifics are not part of those letters, part of any letter.

Jonathan Poullard: Let's go back to the point how information gets across. This is my fifth university and this is the first campus I have been working on where we do not receive on a regular basis reports from UCPD. Every Monday and Thursday my office would receive a stack of conduct information from [the equivalent of the UCPD]. So, immediately when that came in from their office, and the letters had been out to students saying: ‘You are alleged to have violated XYZ policy. Here is why we think you have done that. Attached to that letter was the actual police report'. Because that way there was no issue about 'what are these folks hiding.' From the start we would be on the exact same page, what you've got, I got. So please come see me—here it is. We are now working with UCPD on a policy to redact [exact formulation unclear in recording, the point is that if there are names of student A and student B on the police report, then student B's name would be redacted from the copy placed in student A's file]. We will work to make sure there is no disconnect, no perceived smoke and mirrors of ''Oh, we have things that the police don't.' We are basing our report on UCPD reports and sometimes it comes from our agency and sometimes it comes from [...][...].

Greg Levine: Sir.

George: My name is George. I am an attorney for BAMN and Labor and Civil Rights Attorney. I am in California because of the affirmative action issue. I have two questions for the Dean. We know that there were at least three people who had their hands broken by UCPD police or by Alameda County Sheriff’s Department. We know that professors were tackled and taken to the ground for doing nothing.

Greg Levine: Sir, is this is a concern...

George: It is a question. We know that people were thrown in jail and put in solitary confinement and we know that the university is doing absolutely nothing to investigate all of those cases. So my first question is: isn’t it a tremendous amount of hypocrisy to bring charges against students, threaten their career in education, and do nothing about how you do that kind of thing? My second question is this: we know that in the south people sat-in at lunch counters and on buses in places which were not supposed to be the kind of place and manner for tremendous causes. We know that happened on the campuses. In the sixties, that brought us affirmative action, that brought us peace ultimately in Vietnam, that brought us all kinds of things and yet here we are in a university that supposedly honors that and we are prosecuting these folks in the same way that Mr. Connor did in Birmingham, Alabama, that the people across the south did, that the university administrations did. My final question: is it not the case that on both counts, you are not doing anything about the police and you are prosecuting people who are demonstrating in the same way that Dr. King did? Isn’t this a big load of hypocrisy by the university to bring these charges?

Audience: [clapping]

Jonathan Poullard: So, I am not going to deal with the first issue because again that is about BPD or UCPD. Let’s go to the second question first. And you are talking to someone who considers himself a huge activist. I was a former [...][...] as an undergraduate at Jackson [...][...], a black college in Jackson, Mississippi [talk about a protest] and I knew when I did it I was going to get arrested. Why? Because I was breaking the law! That’s why I got arrested! And I knew that was going to happen! That’s why I did it. I was making a statement in the same way that Martin Luther King knew that when he did that he was going to get arrested, just like Gandhi knew he was going to get arrested. Just because one breaks the law does not mean one does not bear responsibility for the consequences of one’s actions.

So, if that means that I break the law willingly and I know that that’s what I’ll be doing, there might be consequences and I have to deal with those consequences, great! Because that’s the part of our rights; I have a right to do something and I have responsibility to take care of it on the other end. So no, I do not think that it is hypocritical that some of them be arrested if they have broken the law. On my very first day on my job here, May 1st 2006, the Chancellor took me to the ASUC meeting to meet the ASUC senators. I was the Chancellor's designee. One of the very first questions that I was posed to was: 'Jonathan Poullard, what do you think about the students who are engaged in activism and they are taking over the street and they are blocking traffic, should they be arrested?’ My question for them was, 'Are they breaking the law? They said, ‘Well yeah’. I said, 'Well then they should be arrested'.

Audience: [various voices interjecting]

Greg Levine: Please hold your questions.

Jonathan Poullard: So for me, yes, if people are breaking the law then they should be arrested.

Greg Levine: I’d like to turn to Daniela for a response, then take—let’s see you had your hand up earlier.

Daniela Urban: You are responding to the arrests but we are talking about the student conduct process.

Jonathan Poullard: Look, I was answering his question.

Daniela Urban: But I think that the issue here is that UCPD handles the arrests and they have the mechanisms and the due process and the procedure to do that. But Student Conduct is taking a similar role. So, did you also get suspended from your university when you got arrested?

Jonathan Poullard: No, I got a…

Daniela Urban: And that’s our issue. It’s double jeopardy. That they charge criminally but also here they are being charged within their own university.

Jonathan Poullard: Absolutely, they are two separate processes. But yes, I got put under probation for that behavior. I absolutely did, and I got a citation, and I got arrested. Absolutely, there were two different processes. There was an on-campus process and there was the off-campus process.

Greg Levine: It seems to me just as a point of interest maybe that I have seen that there are tensions between these two processes. And again that is something that we discovered. So maybe that is a topic that we can come back to but I would like to continue the questions.

Callie: So you talked about the police reports and then you talked about the letter that was sent to people giving notice of possible violations and student charges. And so I am holding those here and I am seeing the police reports just say trespassing and refusing to leave upon request on one count, and on another, it says trespassing and disturbing the peace. But the charges are theft, unauthorized conduct, physical abuse, obstruction of university activities, disturbing the peace, failure to comply, and camping and lodging. So I am wondering: Where do you see in the police reports that there is theft or where does it actually say: physical abuse, including sexual abuse, I mean sexual assault. Those are really serious charges to go on people’s student files when you seem to have no evidence. So I guess the question is: who’s inventing these charges?

Susan Trageser: Again, the police report is written based off of their standards and their guidelines and whether or not they are going to pursue criminal actions. When that information comes into student conduct, we are looking at it from a very different place, we are looking at it in conjunction with the Code of Student Conduct and the standards that are outlined in the Code of Student Conduct, which, by the way, are UC system standards. They are very broad to encompass a wide range of different possible violations or different possible behaviors within the university community, and so they are coming from different places. So when we receive the information at Student Conduct, we are looking to see, based off of that information, does it look like, or which sections of the code does it look like might have been violated.

Callie: So sexual assault is sleeping alone in a sleeping bag?

Susan Trageser: Again, the sections of the codes are written very broadly. The section that you are talking about is 102.08 and it talks about physical abuse, it talks about sexual assault, it talks about threats of violence, it talks about other types of threats, and it talks about conduct that threatens the health and safety of any person in this community. Most often when that aspect of the Code is alleged against someone, more times than not it's referring to the end of that which talks about conduct that threatens the health and safety of the university.

Roy: My question is directed to Mr. Poullard. [You claim that the code is] educational, and I was wondering what educational value is there in taking a student out of her house.

Jonathan Poullard: What is your name, Sir?

Roy: My name is Roy.

Jonathan Poullard: I am not going to answer a specific question about a specific case and student. Even if I wanted to, I couldn't. I think I know what you are making a reference to... [many people interjecting]

Roy: Kicking a student out of her house is an educational sanction?

Jonathan Poullard: It depends on the behavior of the student.

Audience: [many voices]

Jonathan Poullard: I think that there are times when given the behavior in that situation, it is incumbent upon the institution to act. Absolutely I do. Is that a normal action, absolutely not, it is very, very rare.

Nathan Shaffer: I think that this underscores two points. The first point is that the sanctions students can face under this code do rise to sanctions that people face in general criminal processes, which makes it all the more important that due process be applied. And that the code is actually recognized for what it is: a punitive process that has really no educational value. And the second thing I'd like to point out is that the Dean of Students just admitted through sheer arrogance, the University is willing to violate California landlord and tenant law to make its educational point.

Philippe: I just wanted to clarify, maybe it wasn't clear. If the student violated a section of the code, and got notice of possible charges, the whole section is pasted into that letter. I just want to clarify to clear up some confusion.

Susan Trageser: Right. There is the whole section that, like 102.08, is pasted into the letter. We have been told we have to use the whole language in those sections. The only opportunity that we have been given to make an exception is to use an ellipse in 102.08 [in order] to be able to remove the sexual assault and sex offense language which is there when [the violation] not a case of sexual assault.

Greg Levine: Can you articulate who, what is the authority behind that decision?

Susan Trageser: That is what was explained to me that [...] a UC report when I arrived.

Greg Levine: Okay so this is UC systemwide. It is coming down from the Office of the President.

Susan Trageser: That is what was explained to me when I arrived.

Audience: [many voices interject]

Callie: We all have that question. Everybody in the room wants to know why it's still there. [referring to the sexual assault language in the notices of charges]

Susan Trageser: That would have been an administrative error.

Audience: [laughter]

Daniela Urban: Just a response. It's not just that one charge. I think it is just one reason why Nathan and I had to sit down and really look at the language of the code, so that students are aware of exactly what they are being charged with when they get notices of possible charges. Because when you get, you know, six elements in one charge, you have no idea where it's coming from and it needs to be clear what is at issue.

Audience member : Just drop the charge!

Zach: So my name is Zach. Okay, so I received the letter. But I should mention that [...][...] sexual assault […] two dozen others so far and they all say sexual assault. But my question is, in the letter there are two attachments: the letter with the charges and the letter from the Student Advocates Office, which says that the charges should be received 30 days after the incident. So I called it to ask why I had not received a notice to my charges within 30 days. It was actually received about 75 days later, so I was wondering why the timeline is always suspended.

Susan Trageser: So as I was sure that everybody is well aware this is a difficult budget time…

Audience: [laughter]

Susan Trageser:
And we are facing furloughs. And the Code of Student Conduct and the timeline does not include that opportunity for furloughs. And so for the staff and office to be able to do our work there is no way that we could do that within the bounds of the timeline. The code allows the opportunity for extensions, for modifications to be made to that timeline through a request from the Office of the Dean of Students. The request was made based off of the campus furloughs this year to suspend the timeline.

Greg Levine: We are going to go to Daniela and then we are going to go to the woman in the blue.

Daniela Urban: Just a brief response: one of the biggest issues with that is that it is indefinite. It sets no extra fifteen days to accommodate the extra two [furlough] days, it just says the entire process is suspended and this is for every single step of the process. So requesting a file, a hearing, any of these processes is indefinitely suspended.

Greg Levine: In the blue, yes, stand up.

Carmen Comsti: I am Carmen Comsti, I am also a law student. I have two questions: one related to the process issues and the other one to the suspension of the timeline. I know that this week or maybe last week you put up a new version of the student code of conduct and I want to know what the processes is for changing and revising the Student Code of Conduct. And why students aren’t informed as to when the code is actually changed. And the second question is that I have heard directly from the officers in the Office of Student Conduct that you do ask questions to students about other students in events. And that such information could be used in other students’ interviews against them. This is confusing to me because I know one of the rights under the Student Code of Conduct is that there is a presumption of innocence and if you are taking information from other students, I just don't see how that works together if you are already presuming that incriminating evidence from different students might actually harm another student's case.

Susan Trageser: Okay, so to the first part of your question about the code of conduct and modifications that were made to the code. Students were involved in the review of those modifications. Representatives from the Student Advocates Office worked with us for almost two years around some of the modifications that were made. Modifications to the code were very minor. The name of the office wasn't consistent. It still has been referred to as Student Judicial Affairs. We haven't had Student Judicial Affairs for at least two and a half years now. So there were minor modifications that were made to the Code in a way that students were absolutely a part of that process. We made every effort to make notifications that some modifications were being made. In reference to your second question, some of the other modifications that were made in the code of student conduct was to take away some of the legalistic language—as opposed to talking about cross-examination, asking questions. Because again, it is not a legal process, it is an educational process. There was the addition of an administrative hearing option, in order to give students another option for how their cases were resolved. Some of the other modifications that were made were electronic communication. In the past some of the letters of communication in the Code had to be sent US mail or certified mail. A lot of the students never received that correspondence that we were trying to communicate with them and constantly asked: 'Can you not communicate with me via e-mail?'

Greg Levine: The second part of the question…

Susan Trageser: The second part of the question that you asked, Carmen, was around gathering information, and about one student coming in and saying something about either sharing information with us that involved another student and how that might be used in that student’s case. That actually does happen. A lot of cases that we receive—whether they are non-academic in nature or academic in nature—Involve multiple people. So, we do consult within our office once we've had an opportunity to speak with parties that are involved, want to see if we are getting consistent information, to see what other information is needed and where some of the gaps might be. So that does in fact take place.

Greg Levine: Yes?

Elliot: My name is Elliot and I have two questions. But first I wanted to point out how sweet the irony is of the suspension of the timeframe for the budget cuts. So two questions: my first question, thanks to UCMeP, I became aware that the Student Code of Conduct was missing for a while. I wasn't there so I was wondering where it went. My second question, and just from what I am gathering from this conversation is that when you came to Berkeley four years ago, you thought that the student conduct was archaic. I’m hearing a different side from the legal students saying that they believe it is punitive. It should be more legalized rather than less. So my question is, then, would you agree or are you open to revising it, going through the process that they recommend, sitting down with student leaders, ASUC, sitting down with Deans, legal advisers, and revamping the Student Code of Conduct?

Audience: [clapping]

Elliot: The first question was where it went [when it was taken off] the website.

Susan Trageser: So yes, I will address the first part of that question. So once we put up and posted the modifications that have been made, a number of people began to raise some questions, and so in the interest to have the opportunity to review it, we removed the code for a period of time. Then we went back and looked at the concerns that people were raising; we sat down and had some conversations with legal counsel to make sure that the code was safe and appropriate.

Jonathan Poullard: But let me be a little more specific, she was being nice. Let me be more specific about that. There were concerns expressed from some of the faculty at the Boalt School of Law about what they perceived to be major changes to the code when in fact there were no major changes. They were modifications that we were working on for two years, and it took us two years to make even those little modifications. It took two years to move things from hard copy to electronic [communication]. I think now it’s a little bit better, a little bit improved, a little less convoluted. And it was gone for—what—three weeks? And then it went back up. And did you look at it? And if you look at it for what it was on the 19th to what it is now. We've made modifications to the original one.

With regards to your second question, I would be happy to answer. This can be an ongoing process. Just so you know back in 2000 and back in 2003, there was a committee to review and revise the Code which is what we have right now. The committee had several faculty, several students that were from the Student Advocate’s Office, the ASUC, the GA, the students at large, and seven staff members. And we are in the process of [...][...]. If I had it my way, the entire Code would be done by students instead of the administration. If I had it my way, all the hearing panels would be done by students. In every other campus that I have been a part of, students would make recommendations to the Dean, saying: “We think XYZ. I would love that!” But where are we having the most resistance? From students who are concerned about placing students in that role. I am thinking, no no no! I want you in that role. I want you to have the kind of ability and responsibility for the Code so that you are the one administering it, and all these folks are making sure that all processes are being followed. It makes it more transparent and more clear. It would involve students, it would involve staff. This is exactly how the Code could work. We could go through sample cases and think about how they might adjudicate them, how they would develop questions. So that they are actually trained and ready.

Audience member: I have been here for 30 years and the code in the 1990s [...][...] I was chair of the Student Conduct Committee and in 1995 I did chair a committee that did re-write the campus Code of Conduct and regulations for campus operations for all students. Our campus committee met once a week or more often for an entire semester. We had everyone on there, from the police chief down to all the student affairs and student activities people, Vice Chancellor's people, Student Advocate’s Office, the ASUC, Steve, everybody across campus. Everybody that had a buy in, every stakeholder was on that committee. In six months we rewrote these things and we got to the fair point where everyone from these interest groups approved of all of these things. We had advice from legal representatives. A lawyer who is still in the Chancellor's office…has not been consulted on these matters for fifteen years. Everyone agreed across this camp on those regulations. We turned it into the Vice Chancellor and as soon as we turned it in, a staff member began to dismantle what we wrote. What became the campus Code in the late 1990s was something that we had tried to do but it was already being dismantled. Unless you have very strong legal backing here and someone knowledgeable, someone who is in charge of student conduct on this campus, you are going to get results in the regulations where First Amendment rights conflict with the law. They are going to put people in jeopardy of not getting their due process. They are going to get the campus in trouble and sued by people who feel that they have been wronged in this place. Now, I agree that the campus code of regulations should be redone [...][...] they are confusing, they are being used in ways that seem to abridge the rights of students for quick hearings, for getting First Amendment rights respected, for not being convicted because they have due process. This is not the way that these things should be set up. [...] We can do it easily, we have a fair system[...]. And if you would like, I can give you a copy of the 1995 regulations.

Jonathan Poullard: Yes

Audience member : It would be of help. I encourage you to revise this. We advise you strongly, and to have people in charge in his office that actually [...].

Greg Levine: Daniela and then…

Daniela Urban: You are welcome to work with the Student Code and again law students are willing to help with whatever legal capacities we have. I just wanted to reflect for a minute on the first question that was asked about the Code being down on the website. Because the fact that you told me that you wanted to review it wasn’t what I was told by the Office of Student Conduct. And I worry [...] because I asked explicitly about what is going on and what happened to it. And they told me that it was a technical issue, a technical problem that was going on. And furthermore they said that there wasn’t a hard copy that I could have in the meantime. So, both those issues just reflect systemic issues that we are having, and explain the distrust between students and the Office. The fact that I was explicitly lied to makes me now… you just blatantly lied to us… [...] and it was so small you could have just said we are looking it over...

Susan Trageser: And we have been having technical difficulties on our website and there was no hard copy available because…

Greg Levine: Black shirt, and please stand up.

Sean Graham: My name is Sean Graham and I am a student at the law school. My question is: why do we need a Code of Student Conduct to regulate activity that the criminal law governs. So, my question is basically why do we have OSC? Why is it necessary? And why is there an educational process to tell students proper forms of dissent? It just seems like political reeducation.

Jonathan Poullard: You know I have multiple responses to that. I have no issue with dissent. After all this is Berkeley! This is what our campus is built upon. This is the spirit of the institution. However, if that means disrupting campus processes and taking the rights of other people away, that’s a problem. What does that mean? [It means] I am not going to get you because you have a different political ideology or leaning, or disposition. That’s not my game plan. It really is what is the behavior. While if you don’t like those community standards, which come from UCOP for all ten campuses [...] but if you feel like those are not the right standards, well then let’s have a different conversation about it.

Greg Levine: Okay, quick response from Nathan and then we’ll go on to a series of questions.

Nathan Shaffer: I think my concern more rests on whether or not the Office of Student Conduct is actually competent to investigate something like a sexual assault or investigate serious allegations. We are talking about real people with real and severe injuries and potential sanctions. And whether we as a community should decide whether or not bureaucrats and life-long university administrators are there to fill the role of judicial officers in this system, in a society where we theoretically have the rule of law. I mean the idea that a student could get a trespassing charge from the police and never actually be charged with it and then face a laundry list of charges from the Office of Student Conduct shows that there is a real disconnect and really serious questions about whether or not a university administrator is a legitimate… is able to really look at these themes in a way that respects the student rights. And serious questions about the role of the university in society.

Jonathan Poullard: Let me respond. All of us, who work especially in my area of Campus Life and Leadership, all of us are trained to do this work. This is my life. This is my passion. I am an educator. This is what I do. So to say that I am not trained… these people love what they do.

Audience: But they are not trained to investigate!

Jonathan Poullard: This is not a courtroom of the law. We are not going to have a legal…we are not. To say that there should not…in a judicial…is saying that we are… because sometimes, sometimes there will be things that happen off campus… and then vice versa... People have been saying more recently: 'Well, if someone drops charges against people that are on campus, shouldn’t that automatically mean that they should be dropped'? […] meets the threshold of you know someone going to jail. Those are two different things.

Annie McClanahan: Okay, so a comment and then a question. The comment is just that I actually find the use of the word “educational” to describe a process that becomes ever more vague and ever less like a leglal process a bit distressing. And I just want to provide the kind of counter-example for that, namely the anthropological Graduate Student Union. I was in the UC system for about ten years and I know that one of the things that the Graduate Student Union has fought very hard to maintain and to keep, to get and then to keep, is the right to mediation for labor disputes and the right to have that process be very formal and very legal. And to have representation and to have the kinds of standards that apply in any kind of labor dispute. For a long time, through many years of negotiations, we were told: 'Oh but you don’t need that, this is an institution of education, we can do it as educators, we can have disputes mediated by somebody who is part of campus labor relations, who are the very people that we are in contract negotiations with.' And we were eventually able to get the right to have those kinds of processes be formal, be laid out, be specific, be concrete, be clear, be not so riddled with administrative errors that allow people to get letters saying that they were charged with sexual assault. And I just want to say that I think that there is actually more of an incoherence between the idea of education and this kind of increasing level of fuzziness. You know, I am a teacher and I encourage my students to be clear and not fuzzy. The other question that I had was this: Because you are the most senior UC administrator present at the time of the arrests on December 11, who made the decision to arrest students in Wheeler Hall, to lock students in Wheeler Hall and arrest them? And also why students were sent to a maximum-security jail for misdemeanor trespassing?

Jonathan Poullard: So let me answer the first question with regards to this fuzziness. It is a very intricate process [...] [tape unclear]

Annie McClanahan : But don’t you see this can have a chilling effect on what students feel that they can or cannot do on their campuses. If it’s one case, that’s too many.

Jonathan Poullard: I’ll take it. We disagree. I hear it.

Annie McClanahan : But do you understand the difficulty you pose for us from our perspective of having a process, of having a code that gets fuzzier and fuzzier. I mean you are suggesting that the improvement that you made to this Code was to make it more abstract.

Audience: [laughter]

Jonathan Poullard: That is not what I said. That is not what I said. What I hope you heard me say was that I am still willing. And I know that our Code must be revised. I think I said that more than one time this evening. Should I say it again? Let me say it again. I am very clear that whatever we need to do, let’s make it happen.

Annie McClanahan : But if those changes have to do with the language…

Greg Levine: Let’s move on.

Audience: [mumbling] Let her finish!

Jonathan Poullard: So the second question was around who made the decision. That was a multiple person decision by about a 14/15 vote. […] concerning what we were […] into once you got the information on Thursday at three o’clock [ …] you give the specifics of the conversations that have been before we made the decision to move to the arrests Friday. But I got her right.

There is a conversation with the student being the liaison to the administration regarding the concert. Whoever it was. Zach? But the information that we had for the concert was that it was more than likely going to go on. We had different times that it would be ending. A website said… it will end…whenever the police kick doors down and then another one said that it would end at seven in the morning. And then one thing said five in the morning. And so our questions revolved around how will it end in time for finals to start at 8 am and be cleaned up as the building [...] study areas […] during that whole week. And there were no answers to those questions and a lot of people brought up the liability of the concert. if the concert went on to six or seven in the morning we may not have time to clean up the finals that started at 8 in the morning. So in those conversations, we didn’t get information that there was really a plan for what would happen if the concert went on at seven or eight in the morning. And no one could tell us if indeed the plan had changed or hadn’t changed.

Callie: So, I think the question is why and who decided to lock students into a building 16 hours before that concert?

Shane Boyle: And send them to jail?

Audience: [ mumbling]

Callie: By handcuffing the door shut, that’s a felony.

Audience: [mumbling]

Callie: So you didn’t know about that? Dean Poullard was there. Maybe you know.

Jonathan Poullard: What’s this exactly referring to? Every night at eleven, ten thirty, the doors were locked, right.

Callie: The doors were handcuffed [by the police upon their entry at 4:30 am.] You can leave at any time by pushing into the bars, but at 4:30 in the morning the doors were handcuffed shut. So how does that allow people to leave?

Jonathan Poullard: So okay. So now, at 4:30, when the doors were locked from the inside, that’s either locked from the inside to arrest the folks… to arrest the folks inside that space.

Callie: Six hours after the dispersal [order].

Jonathan Poullard: To contain them while they were processed and arrested.

Zach: But why not read the dispersal order?

Jonathan Poullard: Excuse me?

Zach: Why not read a dispersal order?

Jonathan Poullard: Because quite honestly, I did not want another November 20th on my hands.

Callie: So a dispersal order?

Jonathan Poullard: So if we had gone in at 4:30 or whatever, [and say:] 'Everyone get out leave or if you don’t leave you are going to be arrested.' I would say maybe 30 might have said, 'All right I am done, I am gonna go now.' And then what about the other 32 that remained inside? They started texting, e-mailing and had all their friends come out [...] everyone outside and now we have another situation where we would have these people complain about […] so that we can make sure that by Saturday morning …

Greg Levine: Blue sweatshirt, you have been waiting for a while.

Ashoka: My question is in regards to the administrative errors that you referred to in the student conduct letters that you sent out. Being aware of these errors now, are you going to resend the letters that have been corrected?

Susan Trageser: The letters will not be resent again. We have the opportunity to make every effort that sexual assault or sexual misconduct charges are not a part of an allegations or an incident. To exclude those pieces of language from the letters [...] and so when I said administrative errors, it was on our part where we didn’t make that… or didn’t remove that language. So it’s not inappropriate that it was included.

Ashoka: So when I show up on my hearing in the coming weeks, will that still be on the list of my charges?

Susan Trageser: If section 102.8 is a part of any students’ conduct allegations when they’re coming to have a conversations with us, that section will still be a part of that as in any conversation that we have in any conduct process. That section or any pieces of that section will only be the focus of that conversation.

Dan Pearlstein: I am a professor of education with a long-standing interest in punishment in schools. I guess I’m not so much interested in what students did… as in the institutional… process. There is a debate amongst faculty and students as well about whether the proper focus of protests should be merely the budget crisis in the state or include issues of democracy and the administration, and the running of the campus. One of the findings against one of the students includes the following, “It is unclear how protesting,” and this from an administrative hearing, “It is unclear how protesting would address the current financial problem at UC  although it seems to be the only mechanism considered by you up to the time of your hearing.” And I just want to suggest that that’s an indication that the administration has made a determination about the proper topics of protest and about the proper means of protest. It makes any finding against any students tainted if you say, “Well that’s not what we meant this is just about uh bad behavior.” You can’t undo the implication that what you’re really fighting against is how they protested and what they protested. I have a long-standing interest in education. Educational institutions like all institutions have legitimate concerns about the behavior of people within them but to consider punishment an educational enterprise makes the term utterly meaningless. It makes a courtroom out of an educational institution. So having said that you are punishing students for what they protested and how they protested, is there any way for this procedure to not be fatal to anyone?

Audience: [mumbling]

Susan Trageser: You are referring to something specific in regards to a specific case and we are not in a position to talk about specific cases.

Audience: [laughter]

Danieal Pearlstein: We are condemning you for what you protested and how you protested. Would this hypothetically fail to obtain due process?

Jonathan Poullard: Yes!

Daniel Pearlstein: Then those students should all be cleared, should they not?

Audience: Yes!

Jonathan Poullard: Not necessarily… I would agree with you absolutely wholeheartedly and you’re somewhat making a judgment based upon what meaning, because of the way…wait wait let me finish. It does not mean then though that what they did is not in breach under the Code of Student Conduct. Those are two separate issues!

Daniel Pearlstein: That’s why I say the focus is not on what the student did, it’s on the competency of the process.

Greg Levine: Okay, Nathan's comment.

Nathan Shaffer: Okay, I can respond a little bit to that particular situation without mentioning any details. But the decision which was made public by the student whom it affected was designed to determine whether or not that student was a danger to the physical safety of the people on campus or the property on campus. The decision that was actually issued by the by the administration referred to the student’s GPA, whether or not the student had a comprehensive plan to solve the budget crisis, whether or not the plan was appropriate. It talked about, you know, the time that the student spent on campus. It didn’t ever reference whether or not the student was a danger to the physical health or safety of others or to the safety of the property on campus. And I think that that’s perhaps what the professor is asking a question about. When we do have decisions that are based on such flawed reasoning and irrelevant topics, how can anyone really take this process seriously and consider it to be educational or legitimate?
Yvette Felarca: Okay to follow up on that, my name is Yvette Felarca from BAMN, By Any Means Necessary. From what the professors said earlier […] from what it sounds like to me, the current code of conduct is illegitimate. It sounds to me like it is unlawful because if there was a process set up where there’s supposed to be a shared community putting together this code and then someone in the staff, meaning administration, just unilaterally changes it under the noses of the people, the students and professors in particular, who worked so hard for it, then this code is illegitimate. To me it’s just like Alabama and King. It’s not a question of oh I’ll take the punishment I have to take it, so now you’ve gotta take it. Now I’m in a position to deal with it. That’s not it!  It’s a question of what is just and what is right and what is legitimate and what isn’t. And if the state of Alabama could admit that their codes called Jim Crow codes were illegitimate and they even admitted to that and dropped charges against Martin Luther King, then UC Berkeley ought to be able to do the same thing! Right?

 Audience : clapping]

Yvette Felarca: Rise to the challenge. Rise to the challenge, rise to what we are supposed to be! And one last thing, what the gentleman said, Elliot, earlier about the irony of hearing that it’s the budget cuts which made us violate your due process rights while the students are actually fighting against the fee hikes in the budget cuts. Not only were they doing that, they were fighting for jobs, fighting for school, fighting for the future.

Greg Levine: Do you have a question for the panel?

Yvette Felarca: No.

Audience: [laughter]

Greg Levine: I like to have one more question before we can wrap this up. Yeah, please.

Chad: My name is Chad. Earlier you talked about someone and mentioned if the DA or some other non-campus judicial legal organization drops charges because of insufficient evidence…shouldn’t CampusStudent Conduct drop their charges? And you said no because there is a set threshold and[…] So stealing something, the law is going to be exactly the same as the student Code. And so if the DA doesn’t see fit that to spend time and prosecute someone, how can the office of student conduct come up with a different procedure?

Jonathan Poullard: Again, I can give you a number of different times where on campus theft would go down to the DA and they would decide whether or not they want to prosecute them. Whether or not they decide to…not me…even if they decide, I’m not gonna press charges against this person. And a lot of times they don’t because they know that we do have a process on campus with how we deal with student misconduct…but BPD has also responded to…someone might have gotten harassed, someone might have gotten robbed…

Audience: But how do you... UCPD says trespassing and you say physical abuse. How does that shift take place?

Jonathan Poullard: I think Susan explained the way that the code is written.
Audience: Okay, so how do you go from felony trespassing to misdemeanor trespassing, to "safety and health are in danger," which is what she’s suggesting…

Susan Trageser: In the code we are looking at the campus community and the expectations for the person in this community. There are different things we are focused on. We have conversations about the Code of Student Conduct, where we wouldn't even begin to have a conversation about a legal proceeding.

Greg Levine: I think with Jonathan Poullard it is fine unless the panelists want to have more conversation.

Ashoka: It’s really quick.

Greg Levine: I think we need to wrap this up just to give our panelists…

Ashoka: What percentage of the 900 cases that you go over in student conduct, what percentage of them are of political dissent or political expression?

Audience: Can I clarify that according to your website you have never had 900 cases. The highest you have ever had is 880, which is actually double the number of what it was earlier. Then in the last two years, it’s been 800 and above, which was unprecedented. Before it was hovering around 400 to 500, so I just wanted to clarify.

Audience: [laughing, clapping]

[End of tape]