Issue 3 (December 2010)
On Administrative Conduct: Procedural Violations and the Rule of the Arbitrary
Rooted in the Principles of Community,
the student conduct procedures are centered on the community values of
integrity, civility, and responsibility. We define these values as:
Being honest in representations of ourselves including academic work and everyday interactions.
Being respectful towards others to encourage a space where each person can excel.
Being accountable for our own behavior and acting in accordance with community standards, including intervening when there is a concern.
Center for Student Conduct and Community Standards, UC Berkeley
In the fall of 2009, students, workers, and faculty across the UC system rose up against what they saw as the UC administration’s underhanded efforts to force through policies of privatization and austerity measures. They held rallies and teach-ins, took over and barricaded buildings, paralyzed entire campuses. Many were arrested, some were cited and released, and most no longer face criminal charges from their actions. Despite this, the UC administration has shown itself to be deeply invested in punishing those involved by other means—namely, by means of the student judicial process. (1) At UC Berkeley, these tasks fall under the jurisdiction of the Center for Student Conduct and Community Standards, or, as it is commonly referred to, the Office of Student Conduct (OSC). OSC, together with its counterpart UCPD, constitute the repressive or policing apparatus of the university.
In its efforts to prosecute student protesters, OSC has committed multiple violations of its own procedural rules and regulations, trampling the “community values” of integrity, civility, and—in particular—responsibility it claims to represent. The purpose of this essay is to document a few of these violations, to turn the tables on OSC and hold it accountable for its shoddy record of “administrative conduct.” It is not intended to define a particular line of action in response, although many possibilities come to mind—sue UC administrators, fire OSC staff for gross incompetence, rewrite the Code of Student Conduct from scratch or, better yet, abolish it entirely. Rather, it is intended to provide some of the raw materials of critique, to be deployed creatively by those fighting corruption of the administration and the violence of its privatization agenda.
The Code of Student Conduct states: “Student Conduct hearings begin within 45 days from the date the notice of charges was emailed to the charged student by Student Conduct and Community Standards” (§ II.C.2.d, p. 10). “Days” are defined by the Code as business days, so 45 days is approximately nine weeks. Presumably, this 45-day “timeline” is designed to protect the right to a “prompt and fair” hearing accorded by official UCOP policy. According to the Campus Rights Project (CRP), a group of lawyers and law students at UC Berkeley that formed to support the numerous students facing conduct charges, most of their clients received charge letters in January or February 2010, which would require any hearing to take place by the end of April at the absolute latest. So far, however, only two complete conduct hearings have taken place, although, as we will see, three students have been prosecuted. For the purposes of this essay, we will refer to these students in chronological order as A, B, and C.
In any case, the timeline story is full of twists and turns. It begins with an email from Associate Dean of Students Christina Gonzales to Assistant Dean of Students Susan Trageser, dated August 28, 2009. (2) In the email, Gonzales signs off on a request from OSC to “suspend the timeline for the student conduct process.” Ironically, the rationale for the request was precisely the budget cuts that protesters would later target: staff furloughs, temporary salary cuts in the form of unpaid leave. Trageser argued that OSC would not be able to complete its work within the appropriate amount of time, because its workers would lose about 11 workdays over the course of the entire year. Why this should justify an indefinite suspension of the timeline is left unexplained. (Even Trageser seems to acknowledge that a blanket suspension would be unacceptable, when she indicates that the timeline provided by the Code will continue to “serve as a guide for staff as they work to resolve cases.”)
The Code of Student Conduct does allow for some flexibility with regard to the timeline. The Code that was in effect in 2009, when the timeline was suspended, states that “The timelines set forth in this document may be extended in unusual circumstances as determined by the Dean of Students” (§ II, p. 6). In this case, however, the timeline was suspended not by the Dean but by the Associate Dean of Students, who lacks the authority to do so. The Code, in other words, was suspended improperly.
What makes this procedural violation particularly outrageous is this: between the fall 2009 and spring 2010 semesters, the Code was silently removed from the OSC website, edited, and replaced. The words “Edited/Modified February 2010” are emblazoned across the top of each page of the current version. One of these modifications was the subtle addition of four words on the end of the sentence quoted above, which now reads: “The timelines set forth in this document may be extended in unusual circumstances as determined by the Dean of Students or his/her designee.” This addition is telling: it points to the administration’s recognition that it had made a mistake. To modify the Code after the fact in order to bring it into line with OSC’s earlier actions—a blatant attempt to smooth out the historical record—smacks of desperation and the arbitrary exercise of power. If it weren’t so ridiculous, it would be the stuff of authoritarian states.
Last spring, Assistant Dean Trageser told the Daily Californian that “We still use the timeline as a guideline, but there are instances where we can't follow it exactly.” (3) This is both intentionally vague and demonstrably false. None of the conduct cases arising from the protests in fall 2009 has proceeded in accordance with the timeline—ten months passed before the first hearing took place. Regardless, it is important to recognize that the question of the timeline is not a mere technicality—what is at stake is the very legitimacy of the conduct proceedings. Much like the legal concept of the statute of limitations, the timeline establishes a set of temporal limitations that, more than suggestions or guidelines, literally determine whether or not charges may be brought, whether or not a hearing may take place. Outside the timeline, to put it simply, charges may not be brought, and hearings may not occur. As such, the stubborn insistence of Chancellor Birgeneau and OSC that the hearings must go forward constitutes an enormous violation of the provisions of the Code and of the rights of students.
On September 9, student A received an official letter signed by Jeff Woods, the OSC conduct officer in charge of prosecuting his case. According to the email, the defendant was to attend a “pre-hearing conference” on September 16. The point of this “conference,” which would be attended by the student, his advisor, the conduct officer, and the faculty chair of the hearing panel, was to settle any procedural issues regarding the hearing, to exchange the evidence that would be used, and more generally to explain what the hearing was going to look like.
After listing the allegations against student A and noting the time and location of the hearing, the letter stated: “Since your case was initiated under the Code procedures that included a pre-hearing conference, a pre-hearing conference is being scheduled for your case.” If the student did not attend the pre-hearing conference, it continued, “you may be prevented from presenting witnesses and information in support of your case.” In other words, if the student was hoping to participate effectively in the process, skipping the conference was not an option.
What is most significant about the letter, however, is the ambiguity about which version of the Code was governing the proceedings. As described above, the Code that was in effect when the protests occurred in 2009 was modified and reposted to the OSC website in February 2010. One of these changes was the elimination of the pre-hearing conference—the 2010 Code outlines a “pre-hearing process” that does not include a formal meeting (§ II.C.2.c, p. 10). The letter, then, would seem to indicate that the earlier Code is being used, since the case was “initiated” under that Code. However, at the pre-hearing conference, Woods insisted that OSC was operating under the current—that is, the modified—version of the Code. This response produced an almost surreal scenario: the questioning was taking place, precisely, in a context that does not exist under the version of the Code that Woods (and OSC more generally) had opted to use. When confronted with these arguments—put forth by not only the student but the chair of the hearing panel as well, who seemed to see legal challenges on the horizon—Woods replied that while the February 2010 Code was operative, OSC could use parts of the old 2009 Code in certain situations. He went on to assert (falsely) that the pre-hearing conference was optional, and that it was student A who had requested it. All of this, of course, is belied by his letter from September 9.
OSC’s ability to pick and choose which components of the Code will be used for a given case undermines any possibility of a consistent conduct process. But even if OSC had stuck with the new version, it would still constitute an abuse to prosecute students for conduct that took place under a different Code. As the ACLU of Northern California recently wrote in an “amicus curiae” letter addressed to the “honorable” members of the hearing panel of student B, “discipline cannot be imposed pursuant to substantive and procedural rules that were adopted only after the underlying conduct occurred, particularly where any changes deprive students of protections or rights they previously enjoyed.” As we have seen, the new version of the Code makes a number of substantive changes that make it harder for students to defend themselves, including the elimination of the pre-hearing conference and the modification of the procedure for suspending the timeline. But the new Code also alters the language regarding the ability of the student’s adviser to participate in the hearing. Compare the relevant sentences in the 2009 and 2010 Codes respectively:
In a formal hearing, the student may consult with his or her advisor throughout the proceedings, however, advisors may only participate directly if the hearing panel, in its discretion, believes such participation would benefit the proceedings. (2009 § I.F, p. 5)
In a formal hearing, the student may consult with his or her advisor throughout the proceedings; however, advisors 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). (2010 § I.F, p. 5)
The difference is clear—the former gives the hearing panel considerable flexibility in determining whether to allow the advisor to participate. Such participation could conceivably “benefit the proceedings” in various ways, such as making things more efficient by keeping the student defendant from having to consult with his or her advisor at every step. Most important, however, is the role of the advisor in enabling the student to exercise the right to remain silent. The 2010 Code states: “Students may also choose to remain silent during any portion of the conduct process and no inference will be drawn from their silence” (§ I.C, p. 5). (4) The student’s refusal to speak must not prejudice the hearing panel against him or her in any way. Here, the panel’s lack of professional training becomes a serious liability. In her hearing, for example, student B started out answering the panel’s questions willingly. When the panel began to bombard her with what she felt were hostile questions, however, the student wanted to stop but felt pressured to continue. To push back against the barrage of questions seemed like it would raise doubts in the minds of the panel members. In the end, student B felt she could stop only when the questions became so harsh that she began to feel sick to her stomach. (5)
OSC has attempted to use post hoc modifications to the Code to prosecute students whose alleged violations took place under a different Code. At the same time, they have claimed the authority to construct a potentially different ad hoc Code for each case, taking bits and pieces of the old Code and adding them to the new one. Even if the language of the charges themselves remains constant, the shape of the hearing is determined by the procedures outlined in the Code and as such this “flexibility” with the rules constitutes a serious abuse.
UC Office of the President (UCOP) policy, on which every UC campus bases its respective Code of Conduct, affords students the right to a “prompt and fair” hearing. (6) There is a certain tension, however, between these guidelines and the financial burden of holding conduct hearings. When the Daily Californian recently looked into the costs of the conduct hearings, they found that OSC had spent approximately $23,000 and at the time only a single hearing had concluded. (7) That hearing, it bears mentioning, lasted a total of approximately 15 hours, spread over a three-week period between September 16 and October 5. It included the participation of the five-member hearing panel (two of whom are faculty, a third staff), four OSC staff, at least four UCPD officers to guard the building, two UCPD officers who testified, and an audio technician to record the proceedings. Logistics, furthermore, present a significant obstacle to OSC. Hearings are only held on Wednesday and Thursday afternoons. Considering the numbers of students whose hearings have yet to be scheduled and the amount of time required for each hearing, it will be impossible for OSC to resolve these cases by the end of the fall 2010 semester—more than an entire year will have passed since the alleged violations occurred.
As Assistant Dean Trageser told the Daily Cal, OSC “is always exploring ways to reduce costs.” One way to do so, then, would be to minimize the number of hearings, either by encouraging students to resolve conduct cases informally or, if hearings must be held, to “consolidate” them—in other words, to try students accused of the same violation together in groups. From the moment hearings for the fall 2009 protesters began to be scheduled, consolidation was OSC’s basic operating procedure. In early September, many students received notices scheduling both pre-hearing conferences and hearings themselves for the same place and time.
Regarding the consolidation of hearings, the Code states:
Cases in which more than one student is charged with violating the same Code section(s) and which depend on common evidence may, at the discretion of Student Conduct and Community Standards, either be considered jointly in a single consolidated hearing or be assigned to separate, individual hearings. All charged students must waive their rights to confidentiality before the hearing may be consolidated. (§ II.C.2.g, p. 12)
Note the language: a waiver of confidentiality must be presented before hearings may be consolidated. But OSC never received a waiver from any of the defendants. Furthermore, by scheduling consolidated pre-hearing conferences, OSC violated confidentiality regulations from the outset. Imagine, for example, a student who wants the fact that she is facing conduct charges to remain secret. If he or she is required to appear at the same time and place as other students, any hope of confidentiality immediately disappears.
Here things get a little more complicated. At one of the earliest pre-hearing conferences, Jeff Woods, the conduct officer representing OSC, insisted that the hearings were being treated as consolidated. Woods refused to acknowledge the fact that this would violate the Code, considering that confidentiality had not been waived. He was so obstinate that even the unsympathetic chair of the hearing panel later wrote in his report to the Dean:
Time was also spent on the question of whether the Student Conduct office could consolidate the case with other cases. Mr. Woods repeatedly asserted that Student Conduct’s position was that this hearing was to be consolidated to the extent possible. . . . Mr. Woods was unhelpful in this regard, by not spelling out what he had in mind regarding a consolidated hearing. (I later learned from [Assistant Dean] Susan Trageser that the plan was to have a common initial portion, followed by individual sessions in which student-specific information could be presented and students could cross-examine any witnesses. The Code makes no mention of this “partially consolidated” type of hearing, and I disapprove of it unless all parties agree to it.)
Clearly, all parties had not agreed to it, but the hearing nevertheless proceeded as designed by OSC—another sign that the hearing panel constitutes little more than a powerless facade. The strangest part, though, was that when the hearing finally took place, the defendant, student A, was alone. It seemed like OSC’s plans had either fallen through or been abandoned. Had they recognized that consolidating the hearings without first receiving waivers of confidentiality from all those involved would violate the language of the Code?
Only later did it become clear what had happened. Although only student A was present when the first conduct hearing took place on September 23, OSC had consolidated it with the hearing of student C, who, they expected, would be tried in absentia using the same evidence. General evidence was presented on September 23, but the process took such a long time that the second half of the hearing had to be pushed back to October 5. On that day, after student A’s verdict and sanction were announced and he was shown out (more on this below), OSC used the same evidence to hear student C’s case before the same hearing panel. But it is unclear whether student C was ever notified that his hearing would be held on October 5.
Once again, OSC has shown its willingness to disregard “inconvenient” language in the Code when it serves financial or political interests. The Code is absolutely clear on the question of consolidation. First, in temporal terms, all parties involved must sign a waiver of confidentiality before any hearings are consolidated. Second, in organizational terms, hearings can be held in one of two ways: either they are “considered jointly in a single consolidated hearing” or they are “separate [and] individual.” In both respects, OSC willfully ignored the language of the Code. Note that the Code contains no exception regarding the possibility of logistical “fixes” allowing partial consolidation of hearings in order to maximize efficiency while preventing violations of confidentiality. Regardless of whether or not confidentiality was violated in the end, OSC has violated the procedural regulations that govern its conduct.
As this essay is written, although two hearings (plus a third, consolidated hearing in absentia) have taken place, only a single sanction has been officially decided. This is because, although the panel hears evidence, decides “responsibility” (guilt), and recommends a sanction, in the end the sanction is just that, a recommendation. The official sanction comes from the Dean of Students (or, as the 2010 Code amended, “his/her designee” [§ II.C.2.e, p. 12]) himself. Normally, the Dean adopts the recommended sanction—when interviewed by the Daily Cal, Associate Dean Gonzales could think of only three or four cases in the last four years in which a different sanction was imposed. (8)
It’s time to add another case to the list. On November 1, Steve Sutton, the Executive Director of the Office of Student Development (and, in this case, Dean of Students Jonathan Poullard’s designee) decided to stiffen the final sanction. Instead of merely receiving a warning letter, student A was to be put on disciplinary probation through the end of the academic year. Under probation, any “misconduct” results in “further disciplinary action, normally in the form of Suspension or Dismissal.” Sutton provided no explanation or rationale for his decision in the letter. He saw none of the evidence presented during the 15-hour hearing, only a five-page report written up later by the chair of the hearing panel.
In this case, the procedure under the Code was followed correctly. The Code gives final authority over the student judicial process to bureaucrats who participate in none of it. It codifies arbitrary punishment.
By filing a request under the California Public Records Act (CPRA), the Campus Rights Project has obtained the email communication that took place between Sutton and OSC regarding the sanction. The emails are quite revealing. In response to a request for an explanation from the student’s adviser and member of CRP, Daniela Urban, Sutton sent the following email to Assistant Dean Trageser:
Hi, Susan. I need your advice and guidance. Am I to respond to Ms. Urban's note? If I am not mistaken, the only difference [between the recommended sanction and the sanction I imposed], which she describes as “significantly harsher,” was providing for probation rather than a written warning. If I were to respond, I'd simply state that in my experience of dealing with student conduct issues, which has spanned a variety of cases at multiple institutions, the level of offense in this case warranted a stronger stance than a written warning, which in my opinion is for less serious matters that create less of a disruption to our campus community. Additionally, I felt that Mr. [name redacted] and Mr. [name redacted] should receive a somewhat similar sanction, which in this case is disciplinary probation. I hesitate to give any reason, however, as I feel that will be used as a basis for their appeal rather than developing their own basis for appeal.
Aside from more immediate problems with such ex parte communication between two institutional bodies that are supposed to remain independent, Sutton’s email suggests three things about the decision. First, it was based neither on evidence presented at the hearing nor on the hearing report, but rather on his previous experience dealing with conduct issues at other institutions. His decision therefore fails to take into account the specificity of the case in question as well as the Berkeley’s unique relation to and history of student protest. Second, it suggests that the decision was a political one, since the “seriousness” of the “offense” cannot be separated from the political nature of the protest. Finally, it exposes the fundamentally arbitrary nature of the conduct procedure. By establishing an equivalence between student A, who participated fully in the conduct process, and student C, who was tried in absentia, Sutton shows that the process is literally irrelevant—in the end, all that matters is the opinion of the administration. And we pretty much know where they stand. (This is also the case for appeals, which are directed to Vice Chancellor Harry Le Grande.)
The information presented here has a relatively limited purpose: to shift our focus from “student conduct” to “administrative conduct” by documenting OSC’s arbitrary and vindictive enforcement of the Code. These operations manifest in two ways: first, an individual and institutional willingness to violate the rules that are supposed to govern its actions; and second, an individual and institutional desire to punish students who engage in political action. OSC claims to uphold the Code as the proverbial law of the land, while at the same time ignoring—at times literally erasing—any clause that gets in the way. These examples should not be glossed, however, as an argument in favor of a sort of procedural “rule of law” (“If OSC would only follow the Code, everything would be okay!”). After all, even when the Code is followed to the letter, its “rule” is inescapably arbitrary and subject to the whims and political interests of the administration.
It is only when we understand the internal logic of the Code and its application that we can read OSC’s “principles of community” effectively. Integrity: “Being honest in representations of ourselves including academic work and everyday interactions.” The arbitrary use of the Code documented here calls into question any such characterization of honesty. Paradoxically, however, it is this same arbitrariness that reveals OSC for what it is: the disciplinary arm of the administration, an institutional extension of the university’s repressive apparatus. Civility: “Being respectful towards others to encourage a space where each person can excel.” In this context, respect is a little more than an instrument designed to channel students into particular economic locations. They must “excel,” much like the university itself, whose administrators utilize empty terms like “excellence” to paper over the sacrificial evisceration of public education. (9) Responsibility: “Being accountable for our own behavior and acting in accordance with community standards, including intervening when there is a concern.” Responsibility folds over onto itself along creases left by internal tensions: OSC’s “accountability” to the students over whom it claims jurisdiction is undercut at every step by “community standards”—the power structures of the administrative order—which demand repeated “interventions” targeting not OSC’s own administrative conduct but students who challenge its, and the administration’s, authority. These students are administrative “concern”—we are the crisis. OSC’s pseudo-judicial interventions are critical to maintaining the status quo of administrative order that legitimates and enables economic interventions of top-down austerity and neoliberal reform.
Appendix I. Suspension of the Timeline
From: Christina Gonzales [email@example.com]
Sent: Friday, August 28, 2009 11:21 AM
To: ‘Susan Trageser’
Cc: ‘Jonathan Poullard’
Subject: RE: Request to Suspend Conduct Timeline
I agree with your reasoning behind the request to suspend the timeline for the student conduct process outlined in the Code of Student Conduct and therefore approve the request.
Associate Dean of Students
From: Susan Trageser [mailto:firstname.lastname@example.org]
Sent: Friday, August 28, 2009 8:58 AM
Cc: ‘Jonathan Poullard’
Subject: Request to Suspend Conduct Timeline
I am writing to request that the timeline for the student conduct process outlined in the Code of Student Conduct (Code) be suspended for cases received August 28, 2009 through August 31, 2010. The reason for this request is due to the furlough days that have been required for staff. As many of these days do not result in a University closure they are not covered under the definition of “days” in the Code, and will impact the ability of staff to review, gather information, and resolve cases within the current guidelines. During this time, the timeline outlined in the Code will serve as a guide for staff as they work to resolve cases.
If you have questions, please let me know.
Susan P. Trageser
Assistant Dean of Students and Director
Center for Student Conduct and Community Standards
Campus Life and Leadership
University of California, Berkeley
2536 Channing Way, Bldg. E, MC 2432
Berkeley, CA 94720-2432
TEL: (510) 643-8839
FAX: (510) 643-3133
INTEGRITY * CIVILITY * RESPONSIBILITY
1. In May 2010, a weeklong hunger strike took place on Berkeley campus. One of the demands of the hunger strikers was that all conduct charges be dropped for student protesters. In his official response, Chancellor Birgeneau refused: “As was announced to the campus community this week, we are not pursuing student conduct actions against students involved in activities during Live Week on the morning of December 11, 2009 given the genuine confusion on the part of some students regarding dispersal orders. However, we are not dropping other charges. On November 20th, 3800 students were prevented from attending classes by the actions of the protesters who occupied Wheeler Hall and a number of our buildings were disrupted by falsely pulled fire alarms. We have an obligation to all members of our community to ensure that our normal campus activities are not disrupted and our Time, Place and Manner rules are upheld.” His stubborn response both ignores the charges from the action at the Architects and Engineers (A&E) building, which houses the university’s “Capital Projects,” and absurdly implies that the students barricaded inside Wheeler Hall on November 20 somehow managed to pull fire alarms in other buildings.
2. See Appendix I.
3. “Activists Protest Student Code of Conduct,” The Daily Californian, April 6, 2010, available at http://www.dailycal.org/article/108928/activists_protest_student_code_of_conduct.
4. The 2009 Code is slightly different: “Students may also choose to remain silent during any portion of the judicial process and no inference will be drawn from their silence” (§ I.C, p. 5; emphasis added).
5. It was not always the case that students were refused representation. Earlier versions of the Code permitted advisors to represent students in the hearing, as in a court of law. In 2002, 41 protesters from the organization Students for Justice in Palestine (SJP) faced conduct violations for participating in sit-in at Wheeler Hall. In the end, their lawyers, from the Oakland-based law firm of Siegel & Yee, were able to get all the charges dropped. Soon after, the Code was modified to eliminate the student’s right to a representative.
6. See UCOP’s “Policy on Student Conduct and Discipline,” § 103.11.b, available at http://www.ucop.edu/ucophome/coordrev/ucpolicies/aos/uc100.html.
7. “Campus Conduct Hearings Have Been Costly,” The Daily Californian, November 1, 2010, available at http://www.dailycal.org/article/111000/campus_conduct_hearings_have_been_costly.
8. “Surprisingly Firm Conduct Sanction Irks Protesters,” The Daily Californian, November 4, 2010, available at http://www.dailycal.org/article/111068/surprisingly_firm_conduct_sanction_irks_protesters.
9. On October 1, 2009, Chancellor Birgeneau initiated the “Operational Excellence” (OE) program, paying $3 million at the height of the so-called financial crisis to the outside consulting firm Bain & Company in exchange for recommendations on cutting the university’s operating costs. See “Chancellor Announces Operational Excellence Effort,” available at http://oe.berkeley.edu/about/launch.shtml. For more information on OE, see the Berkeley Faculty Association’s webpage, http://ucbfa.org/reforming-the-university/operational-excellence/; and “‘Participating in ‘Operational Excellence,’“ Those Who Use It, November 8, 2010, available at http://thosewhouseit.wordpress.com/2010/11/08/participating-in-operational-excellence/.