Demand Letter vs. UC Berkeley's Unconstitutional Student Conduct Process

PRESS RELEASE

On Tuesday April 13, 2010, following months of pressing the University to respect the rights of students and adhere to its own policies, the Campus Rights Project issued a letter from partnering attorneys to the Office of Student Conduct on behalf the students facing charges. The letter called for the dismissal of charges, or for the timely resolution of the charges in accordance with students’ constitutional and statutory rights. Should the University fail to respond, the letter states that the attorneys will be “forced to vigorously and fully investigate each client’s legal options so that they can fully exercise their rights.”

In response to the University of California, Berkeley Administration's initiation of disciplinary charges against student activists who participated in the demonstrations during Fall semester 2009, UC Berkeley law students established the Campus Rights Project, an initiative aimed to ensure that the Administration respects students’ due process rights in Student Conduct proceedings. Since the beginning of 2010, over a dozen UC Berkeley law students have been advising over 65 UC Berkeley students in Office of Student Conduct proceedings under the supervision of law faculty and local practitioners, including a number of Berkeley Law alumni.

UC Berkeley’s rules accord students some due process rights but fall short of what is required by law. Campus Rights Project has observed numerous violations of students’ constitutional rights, as well as those guaranteed by state and federal law, and the University’s own Student Code of Conduct. Violations include inadequate notice of charges, as well as a complete absence of specific facts or evidence in support of the charges. Carmen Comsti, a first-year law student with the Campus Rights Project, stated that “UCB Administration is abusing the disciplinary process, which undermines student, worker, and faculty resistance to layoffs, furloughs, service cut-backs, and fee hikes. They are clamping down on student activism by retaliating against students fighting for quality public education in order to create fear and inhibit political speech by students.”

Since the protests on campus last semester, the University has suspended its timeline for resolving charges against students, leaving many students waiting for answers. In a letter issued to the University last week, the ACLU of Northern California outlined its serious concerns with the UCB Student Code of Conduct and the violations of students’ due process rights throughout the disciplinary process. The letter concludes that "the University has not met constitutional standards for due process of law in its disciplinary proceedings."

UCB Administration has also denied students access to counsel in disciplinary hearings. While the University has no obligation to provide representation, courts have held that universities are required to allow students to independently retain counsel for conduct hearings. Contrary to these judicial rulings, the University maintains that under the Code of Student Conduct a student's representative is only permitted to speak only at the discretion of the hearing panel and has gone as far as to exclude attorneys from the process. “As future attorneys who believe that the right to counsel is a fundamental protection against state power, and thus a bulwark of democratic freedom, we are especially concerned with how a prohibition on lawyer representation implicates the basic fairness of any Student Conduct proceeding,” said Kiva Schrager, a first-year law student with the Campus Rights Project.

In the case of two students, Angela Miller and Zachary Bowin, the office issued a sanction of interim suspension, prohibiting them from entering any part of the Berkeley campus, and from “any and all contact, ant any time, for any reason, and/or by any manner…with any faculty, staff or students.” The University imposed these sanctions before either student had a formal hearing, causing them o miss their final exams. In the case of Ms. Miller, the University attempted to evict her from her Berkeley Student Cooperative apartment. According to Daniela Urban, Campus Rights Project member and first-year law student, “perhaps the most disturbing aspect of the panel’s decision was the utter lack of evidence it cited to support the only charge at issue: whether Ms. Miller is a threat to the health and safety of the campus community.”

Despite the concerns that have been raised regarding both the content of University’s Student Code of Conduct, as well as its application, the Office of Student Conduct continues to levy unprecedented sanctions against students.