Issue 3 (December 2010)


American Civil Liberties Union of Northern California

November 18, 2010

Chancellor Robert Birgeneau
Office of the Chancellor
200 California Hall #1500
University of California
Berkeley, CA 94720-1500

Re: Flawed Disciplinary Process for November 2009 Student Protesters

Dear Chancellor Birgeneau:

The American Civil Liberties Union of Northern California writes to express our grave concerns over the University's effort to discipline students who participated in demonstrations in November 2009. We are particularly troubled because the University has failed to adhere consistently to its own Campus Code of Student Conduct ("Code").

First, the University has violated the strict timelines in the Code. Over 60 charges resulted from the November 2009 incidents, and yet not a single student who requested a hearing received one within the timeline set forth in the Code. Second, the University has applied a patchwork of versions of the Code, including provisions nowhere set forth in writing and a version adopted after the conduct at issue occurred. We are troubled by the University's systemic violation of its own disciplinary procedures, especially, the express requirement set forth in the Code that the University hold hearings within 45 days of the notice of charges. The Code, published by the University and distributed to students, provides the basis for the charges that the University has brought against the students. But by denying students the protections guaranteed by these very same guidelines, the University is breaching its contractual obligations to students and violating basic principles of due process.

The premise of the disciplinary proceedings is that students should live up to the rules of the University community. But the University itself must also live up to those rules. Basic principles of contract law and due process prohibit the University from disciplining students when the University has refused to abide by its own procedures. By imposing discipline through proceedings that violate the procedural protections in the Code, the University casts doubt on the legitimacy of its disciplinary process. See Kendall-Jackson Winery, Ltd. v. Superior Court, 76 Cal. App. 4th 970, 978 (Cal. Ct. App. 1999) ("allowing a plaintiff with unclean hands to recover…creates doubts as to the justice provided by the judicial system."). The ACLU therefore urges the University drop all charges or expunge any discipline already imposed against students who requested a hearing but did not receive one within the 45 days set forth in the Code. We further note that we are writing to you about last year's protesters. Resolution of these very old charges would allow the University community to move forward and, we hope, fairly, with respect to any new charges that may arise out of protests occurring this year.

I. Factual Background

The University actions in question relate to student conduct charges stemming from political protests occurring on November 18 and November 20, 2009 ("November incidents"). The November 18, 2009 event led to conduct charges for between 20 and 30 students; the November 20 incident led to approximately 40 conduct cases.

At the time the November incidents occurred, the University had in effect a version of its Code of Student Conduct that had last been amended in October 2009. In February 2010, the University amended the Code.

A. No Notice of Applicable Procedural Rules

The University has applied a patchwork of procedural rules, including versions of the Code, or sections thereof, adopted after the underlying conduct occurred, as well as procedures nowhere set forth in writing.

We understand that several students asked University Conduct Officers which version of the Code they were using, and, without exception, Conduct Officers were unable to provide answers.

Two aspects of the proceedings are especially noteworthy. First, the University decided in pre-hearing conferences to apply the October 2009 Code to some cases and the February 2010 Code to others. In yet other cases, the University picked individual terms from one version of the code and other terms from another. In some cases, the University postponed ruling on which code to apply until the actual hearing.

Second, some proceedings included aspects which were not provided for in any version of the Code. For example, the University introduced the role of a "Process Advisor" into the proceedings, purportedly to assist the Hearing Panel and the Faculty Chair in interpreting the Code. In some instances, however, the Process Advisor has been the same Student Conduct Officer previously assigned as the prosecutor in the case. Additionally, the Process Advisor has taken the place of the Faculty Chair in interpreting and applying the Code's provisions. The Process Advisor has also been present in closed hearing panel deliberations. The role of the Process Advisor is not provided for in any published version of the Code, and students were not notified in advance that the "Advisor" to the Panel hearing their cases might be the same individual that previously sought to prosecute them.

B. Failure to Provide Hearings in the Timeframe Prescribed by the Code

Although numerous aspects of the Code vary from version to version, both the October 2009 and February 2010 versions of the Code require that the University hold a hearing within 45 days of the decision to charge, which, in turn, must be made within 30 days of the University receiving information sufficient to sustain a complaint after an investigation. October 2009 Code § II.C.2.b; February 2010 Code § II.C.2.d. The 45 day time limit would have required all hearings regarding the November incidents to have taken place, at the latest, by April 2009. The first hearings were not even noticed, however, until May 2009.(1) All of the May hearings were scheduled during finals or after students had left the University for the summer. Some students requested that their hearings be rescheduled, expressing their disappointment that the hearings were not timely as required by University policy. The University assured students that the hearings would take place in August 2010, but no hearings were held that month. Three hearings have been held to date, but they occurred almost a year after the conduct at issue.

II. Legal Analysis

A. The University Has Breached Its Contractual Obligations By Failing To Abide By The 45-Day Time Limit

By failing to conduct hearings within the 45-day time limit, the University has breached its contractual obligations to students.

In Zumbrun v. Univ. of S. Cal., 25 Cal.App.3d 1, 10 (1972), the court held that the basic legal relationship between a student and a university is contractual in nature.(2) In California, "[a] breach of contract action regarding a specific promise" may be reviewed under a breach of contract analysis. Kashmiri v. Regents of Univ. of Cal., 156 Cal. App. 4th 809, 826 (2008). Indeed, the University of California has subjected itself to substantial liability in the past for breaching its contracts with students regarding fee increases. Id. (finding that the University breached its contract with students when it raised its educational fees for particular terms after the students received bills for those terms).

Courts are consistent in requiring that colleges and universities follow their stated disciplinary procedures: The "operative standard requires that the educational institution proceed in accordance with its own rules and guidelines." Harris v. Trustees of Columbia Univ., 470 N.Y.S.2d 368, 375 (N.Y. App. Div. 1983) (dissenting opinion's reasoning adopted on appeal to New York Court of Appeals, 468 N.E.2d 54 (N.Y. 1984)); see also Anderson v. Mass. Inst. of Tech., No. 940348, 1995 WL 813188, at *5 (Mass. Super. Ct. Jan. 31, 1995) (issue of whether "MIT conducted its hearing fairly in accordance with its own rules" was material).

Here, the Berkeley Campus Code of Student Conduct reflects the parties' contractual agreement.(3) Both the October 2009 and the February 2010 version of the Code specify the same requirements with regard to the timeframe within which the University must initiate conduct hearings. See October 2009 Code § II.C.2.b and February 2010 Code § II.C.2.d. By failing to initiate hearings within the contractually required 45-day timeframe, the University has breached its express contractual obligation to the students whom it seeks to discipline.(4)

The 45-day requirement is not an insignificant procedural nicety. It is a material provision of the contract that serves a critical function. Like statutes of limitation, contractual time limitations provide parties with repose. The right of repose is the right "to be free of stale claims," which "in time comes to prevail over the right to prosecute them." United States v. Kubrick, 444 U.S. 111, 117 (1979). Like statutes of limitation, which are designed in part to protect potential defendants from the burden of litigating stale claims, Norgart v. Upjohn Co., 981 P.2d 79, 86 (Cal. 1999), the University's timeline serves to put students on notice about the claims against them, and to allow them to prepare defenses adequately while the evidence is still fresh. The University's time limits also prevent stale claims from being asserted when evidence has been lost or facts have become obscure from the lapse of time. Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 554 (1974).

Those concerns were realized in this case: We understand that on multiple occasions, students and University officials have said that the November incidents occurred so long ago that they can no longer remember critical details. Fresh and accurate memories are necessary to a fair disciplinary process.(5)

Because the University failed to meet the express requirement in the Code to provide hearings within 45 days, it materially breached its contract with students. See U.S. Hertz, Inc. v. Niobrara Farms, 41 Cal. App. 3d 68, 78 (1974) (party's failure to meet an express condition regarding the timeframe for performance constitutes material breach). The University cannot seek to hold students accountable to the promises set forth in the Code if it is unwilling to be held accountable itself.

B. Due Process Requires That The University Provide Students With Fair Notice Of and Abide By The Rules Of The Disciplinary Process

Due Process principles further reinforce the conclusion that the University's failure to hold the hearings within the 45-day time limit has rendered the process fundamentally unfair.

In the context of student discipline, the Due Process Clause requires "notice and an opportunity to be heard." See Dixon v. Alabama State Bd. of Educ., 294 F.2d 150 (5th Cir. 1961); Gorman v. Univ. of R.I., 837 F.2d 7, 12 (1st Cir. 1988). The Due Process Clause also requires a hearing "at a meaningful time." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546-47 (1985); see also Marin v. Univ. of Puerto Rico, 377 F. Supp. 613, 623 (D.P.R. 1974) (finding that a "[p]rompt, informal preliminary hearing must be held," and that students have the right to "a prompt, full hearing later").

The proceedings appear to have suffered from a fatal defect - that the University repeatedly departed from its own written procedure. See Smith v. Denton, 895 S.W.2d 550, 555 (Ark. 1995) (holding that an institution's failure to follow its own rules violates due process); Cobb v. Rector of Univ. of Va., 69 F.Supp.2d 815, 830 (W.D. Va. 1999) (holding that significant deviations from a university's procedures may constitute a violation of procedural due process). As described above, the University appears to have applied the October 2009 Code to some cases, the February 2010 Code to others, portions of each version of the Code to yet other proceedings, and in some cases provisions nowhere set forth in any written version of the Code.

The University's inconsistent use of multiple versions of the Code violates due process because it deprives students of fair notice of the rules of the game. "It is not 'fair' if the student does not know, and is not told, that he has certain rights which he may exercise at the hearing." Gonzales v. McEuen, 435 F. Supp. 460, 476 (C.D. Cal. 1977). It is similarly unfair if the rights that a student believes she has, and the rules under which she believes the University will be adjudicating her charges, are subject to last minute changes and inconsistent application. Nor is it fair if the University introduces new procedures of which the students had no notice because they were nowhere provided for in writing - such as the "Process Advisor" which in some cases troublingly merged the roles of "prosecutor" and "judge."

While the University's procedural departures are too numerous to detail, we are especially troubled by the violation of the 45-day time limit. See Smith v. Denton, 895 S.W.2d 550, 555 (Ark. 1995) (an institution's failure to follow its own rules violates due process); Tedeschi v. Wagner Coll., 404 N.E.2d 1302, 1306 (N.Y. 1980) ("When a university has adopted a rule or guideline establishing the procedure to be followed in relation to suspension or expulsion that procedure must be substantially observed.").

Charges may be resolved through an informal or formal hearing process. See October 2009 Code II.C.1&2. Students may have declined to resolve their charges through the informal process because they mistakenly assumed that they would receive a prompt hearing with the 45-day time limit set forth in the Code. But in then failing to provide a hearing within the timeline required by its own Code, the University violated the students' due process rights by depriving them of the opportunity to make informed decisions about how to approach the proceedings. See, e.g., Cobb v. Rector of Univ. of Va., 69 F. Supp. 2d 815, 830 (W.D. Va. 1999) (significant deviations from a university's procedures may constitute a violation of procedural due process, at least if the lapses induced the student's reasonable and detrimental reliance).

C. Relief Requested

In light of the University's extensive procedural violations, the ACLU urges the University to drop charges in all pending cases involving students who did not receive a hearing within the 45 day time limit. As to all other students who did not receive a hearing within the 45 day time limit, but whose cases have already been finalized, we request that the University expunge the discipline. Contract law, the doctrine of unclean hands, and notions of fundamental fairness all counsel in favor of this result.

The traditional remedy for material breach is cancellation of the contract. Rano v. Sipa Press, Inc., 987 F.2d 580, 586 (9th Cir. 1993). The University materially breached its contract with the students. The University cannot now attempt to discipline students for their alleged actions under the very contract which it breached.

The doctrine of unclean hands likewise supports dismissal of the charges. The unclean hands doctrine "demands that a plaintiff act fairly in the matter for which he seeks a remedy." Kendall-Jackson Winery, Ltd. v. Superior Court, 76 Cal. App. 4th 970, 978 (Cal. Ct. App. 1999). Just as plaintiffs must act fairly in the actions which they bring, so, too must the University act fairly in actions that it initiates against students.

The unclean hands doctrine protects judicial integrity and promotes justice: "allowing a plaintiff with unclean hands to recover…creates doubts as to the justice provided by the judicial system." Id. The ultimate goal of the doctrine - to prevent "a wrongdoer from enjoying the fruits of his transgression," Keystone Co. v. Excavator Co., 290 U.S. 240, 245 (1933) - must be considered here to prevent the University from benefitting from its own violations of the Code. In other contexts, the University has benefitted from strict application of its procedures, for example, obtaining dismissal of suits against it where the individual failed to comply with procedural requirements. See Campbell v. Regents of Univ. of Cal., 35 Cal.4th 311, 333 (2005) (dismissing a terminated employee's complaint against the University because the employee failed to satisfy procedural requirement of administrative exhaustion). By proceeding with its charges against students without adhering to the mandated procedural protections, the University is undermining the legitimacy of its own disciplinary system.

Finally, an interest in fairness to the students in this case would mandate the dismissal of all charges. By delaying the hearings, the University held over the students a cloud of legal uncertainty and prejudiced their ability to defend themselves as memories faded. These students remained in legal limbo, charged but neither disciplined nor vindicated. Familiar legal doctrines recognize that these harms counsel against prosecution after delay. The right to a speedy trial, for example, protects defendants from the "emotional stress that can be presumed to result in the ordinary person from uncertainties" of waiting for proceedings, Strunk v. United States, 412 U.S. 434, 439 (1973), and the "inability of a defendant to adequately prepare his case" due to delay. Barker v. Wingo, 407 U.S. 514, 532 (1972) (even unintentional delays must "be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant"). Similarly, the equitable doctrine of laches requires dismissal of stale claims where "the memories of witnesses had diminished to a point where respondent could not engage in effective cross-examination." See Gates v. Dep't of Motor Vehicles, 94 Cal. App. 3d 921, 925-26 (1979) (applying laches in an administrative proceeding against an automobile dismantler where the delay resulted in prejudice).

* * *

In conclusion, in all cases where the student did not receive a hearing within the 45-day time limit, we urge you to dismiss the charges in all pending cases and to expunge the discipline of any cases that have already become final.

Very truly yours,

Linda Lye

Staff Attorney

cc: George Breslauer, Executive Vice Chancellor and Provost
Christopher Patti, Campus Chief Counsel and Associate General Counsel
Fiona Doyle, Chair, Academic Senate


1. This calculation accounts only for days where classes were in session. It also accounts for furlough days taken by the University.'

2. Although Zumbrun concerned a private university, other courts have recognized that a contractual relationship applies equally to state universities. See, e.g., Andersen v. Regents of Univ. of Cal., 22 Cal. App. 3d 763, 769 (1972).

3. Student manuals and codes of conduct have been considered terms of contract. See Ross v. Creignton Univ., 957 F.2d 410, 417 (7th Cir. 1992); Lyons v. Salve Regina Coll., 565 F.2d 200, 202 (1st Cir. 1977) (terms of contract between student and college may include statements provided in student manuals and registration materials); Johnson v. Schmitz, 119 F. Supp. 2d 90, 93 (D. Conn. 2000) ("Because a student bases his or her decision to attend a college or university, in significant part, on the documents received concerning core matters…application of contract principles based on these documents and other express or may similarly create contractual agreements.").

4. Any effort to blame students for prolonging the hearing process is without merit. The University initially breached the 45-day requirement when it failed to conduct hearings by April 2009 and instead scheduled them during finals or after students had left for the summer. Some students understandably requested that their hearings be rescheduled, but in doing so were merely attempting to mitigate the harm caused by the University's initial breach.

5. In August 2009, Associate Dean of Student Christina Gonzalez purported to suspend the timeline requirements established by the Code. The 2009 Code, however, stated that only the Dean of Students could suspend the timeline, and only for "unusual circumstances." It is unclear what "unusual circumstances" justified the blanket suspension here. In addition, the timeline in the Code was not suspended by the Dean of Students, but rather by an associate dean in August 2009. Sometime thereafter, language was added to the Code to indicate that the Dean of Students' "designee" could also authorize the extension of the Code's timelines. Because such language did not exist at the time that Associate Dean Gonzalez purported to suspend the Code's timelines, the suspension was unauthorized and thus invalid. In interpreting a contract, courts must "give effect to the mutual intention of the parties as it existed" at the time the contract was executed. Cal. Civil Code § 1636 (emphasis added). Moreover, in response to grievances filed by students on this issue, a Complaint Resolution Officer declined to rule on the propriety of the blanket waiver of the timelines in the Code and instead concluded that any such procedural objection should be resolved in individual cases through the disciplinary hearing process. See August 20, 2010 Factfinder's Report by Complaint Resolution Officer Alan Kolling; see also May 3, 2010 Dismissal of Grievance by Felicia Lee (dismissing grievance on ground that procedural objection should be raised in hearing process and/or appeal procedure). Subsequently, the only two hearing panels that have addressed the issue held that they did not have authority to rule on the propriety of the suspension of the timelines. Thus, the students have been denied the opportunity to obtain a ruling on this fatal procedural flaw in the proceedings.