Highway 6 Statement of Concern and Support

To: Chancellor George Blumenthal
Campus Provost/Executive Vice Chancellor Alison Galloway

As a community member and civil libertarian, I wish to express my concern regarding the grave questions of Due Process of Law and Freedom of Speech that have arisen in the case of the undergraduate UCSC students known to as the Highway 6. While I understand that the actions taken by university administrators such as yourselves are governed generally by relevant internal policies, such policies must adhere to, conform with and at times give way to the substantive and procedural rights guaranteed to every person by the First, Fifth and Fourteenth Amendments to the United States Constitution. I am addressing this Statement to you because as a community member I am committed to engage on issues of local importance. And as a civil libertarian, I am committed to the belief that every citizen has the inalienable right to not only exercise their constitutional freedoms but to do so in an atmosphere that promotes the free expression of those rights. My duty to do so rises to a moral imperative when fear and misunderstanding threaten to crowd out rational thought and reason.

Addressing the due process considerations, Section 1 of the Fourteenth Amendment to the United States Constitution proclaims, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law” (emphasis added). As a California public institution, the University of California is subject to and must serve as a steward of these rights. As applied to the instant case, California Penal Code Section 626.4 sets forth and circumscribes the Chancellor’s power to issue emergency suspensions. This statutory authority is, however, limited by the California Supreme Court ruling in Braxton v. Municipal Court (1973) 10 Cal.3d 138. Under Braxton, a campus official issuing a suspension must provide “notice and a hearing on alleged misconduct before the issuance of any exclusion order unless the campus administrator reasonably finds that the situation is such an exigent one that the continued presence on the campus of the person from whom consent to remain is withdrawn constitutes a substantial and material threat of significant injury to persons or property.”

In the case of the Highway 6, the guarantees of due process appear to have given way to university administration perceived “exigent circumstances” and lawful process looks to have been abridged on that basis. Indeed, these students were suspended without notice or opportunity to be heard in clear violation of procedural due process. Moreover, the actions taken by the Highway 6 did not take place on campus. To my knowledge, no showing was or has been made supporting the contention that the “continuing presence” on campus of any or all of these individuals poses a “substantial or material threat” of any kind. The absence of such a showing strongly militates against an official action, which on its face seems wholly devoid of proper process. This remains a cause of great personal concern as a community member and as a civil libertarian.

However, of equal concern is the chilling effect such suspensions have on the right of every person, including matriculating students, to exercise his or her constitutionally guaranteed right to freedom of speech. I believe that free speech is not just a First Amendment right and constitutional value. Whatever its legal status, free speech is central to democratic social values, central to education and academic values, and central to the moral dignity of each individual. While I recognize the university administration’s statutory and moral obligation to maintain a safe, productive and intellectually robust atmosphere on campus, I nevertheless must call into question the exercise of that authority when it serves to significantly stifle or completely abridge concomitant civil liberties.

It is my understanding that the Voluntary Resolution that each student has received may be appealed and that such an appeal may be heard by a panel composed of staff members and students. It is further my understanding that among the substantive bases for such an appeal are “whether there was procedural fairness at the Voluntary Meeting” and “whether the punishment was overharsh in consideration of the facts”.

In my view, there can be no question that the due process was not adequately observed or provided prior to the issuance of the temporary or interim suspension. While the harm caused by this deprivation of process cannot be undone by any present act, it can serve to clarify the guidelines and procedures for future cases. Whether there was “procedural fairness” with respect to the Voluntary Resolution is the subject of the pending appeal so I will not comment on the merits of that issue.

Regarding the question of whether the punishment was over harsh in consideration of the facts, my feeling (and this is my opinion as an activist who has been involved in many rallies, protests and demonstrations which took place in our community) is that a suspension of four (4) academic quarters is wholly disproportionate to the action taken by the students. Indeed, the establishment of such a harsh punishment does more than serve as a cautionary benchmark. It raises the specter of having free speech measured by the medium and rather than the message and this must never become the accepted norm in a great society or in a great university.

In closing, let me say that both our community and our university are best served when the freedoms we prize among all things are applied equally. Universities must encourage free thought and speech and must not frustrate its expression by imposing parochial restrictions. Universities are the birthplace of bold experiments in the sciences and in the arts and must be no less so when it comes to democratic values. Our cherished freedom of speech as conceived by the farmers of our constitution was a bold experiment then and remains so today. While many in our community and on campus may have been made uncomfortable by the manner in which theses six students expressed themselves, it is incumbent upon us to remember that right to freedom of speech was not created to make us comfortable; it was created to makes us free. I respectfully commend these thoughts and concerns for your consideration.