Reporting on the latest issues.
Above the Law?
Recent protests are raging again at the University of California and other universities, but what about the first wave of protesters from November?
By Rebecca Green
March 3, 2010
UC Berkeley students protest a 32 percent fee increase last year. (Flickr/Epioles)
For many students across California, the start of this semester looked unusual. Instead of checking in with their advisers, they were checking in with their lawyers. These students are currently experiencing the backlash of protesting against the University of California’s decision to implement a 32 percent fee increase last November. Several protests included the occupation of buildings on several UC campuses and an alleged attack on the UC–Berkeley Chancellor Robert J. Birgeneau’s home. These actions led to the arrest of hundreds of University of California students. Media attention waned once bail was posted, but the students’ problems did not end when they were released from custody. Many are now facing charges from the university's Center for Student Conduct, but no one seems quite sure of how the code of conduct and the law should interact.
Zach Bowin, a UC–Berkeley student arrested on Dec. 11 near the campus chancellor’s home, maintains that he was present at a peaceful march and did nothing illegal. But his notice of interim suspension, signed off on by Vice Chancellor of Student Affairs Harry Le Grande, dated the day after the protest charged Bowin with “theft, unauthorized conduct, physical abuse, disorderly conduct, disturbing the peace, failure to comply, destructive devices, and other policies or regulations.” The letter further specified that Bowin was “prohibited from entering upon any part of the Berkeley campus … pursuant to supporting evidentiary material.”
“Their sole piece of evidence was a press report,” says Steve Rosenbaum, Bowin’s attorney. “[Bowin]’s name was there as one of the arrestees. He’s not been convicted of a crime, he’s not been tried by a court or a jury for a crime, he’s not even been arraigned.”
Rosenbaum, who is taking on Bowin and other students' cases pro bono, helped revise the code of student conduct 30 years ago when he was attending Berkeley’s law school. He believed the suspension notice Bowin received was unnecessarily broad and very likely illegal. “They don’t often impose these kinds of interim suspensions; there’s very little written in the code of conduct about it, there’s just like a paragraph,” he explains. “But if you read the code as a whole, and together with UC policy, court cases, and the California and United States Constitutions, then you would assume certain things about free speech and free association. Even if it’s rarely issued, it’s not like they’re writing on a blank slate.”
Rosenbaum wrote to Le Grande requesting milder sanctions so that Bowin, a 4.0 student, could at least take his final exams. But his appeals went unanswered. “They put us in a box. They weren’t willing to negotiate,” he says.
Carmen Comsti, one of a group of Berkeley law students helping to fight the conduct charges against Bowin and dozens of other undergraduates, explains why it is so difficult to interpret what actions the university can and cannot lawfully take in situations like this. The Center for Student Conduct has already changed the process once in January in the midst of the students receiving their charges. “They keep on emphasizing that this is not a legal proceeding and that we’re not legal advisers,” she said. “They keep asserting the claim that they aren’t subject to state or federal law.”
Whatever happens with the students it this case, it could set a dangerous precedent for future student protests. “[We want to ensure] that the university doesn’t use the conduct office as a way to suppress student protests and student criticism of the university,” Comsti says of her efforts with the other law students.
“There’s a specialized set of case law regulating what a university can do,” explains Christopher Kutz, chair of the UC–Berkeley academic senate. “It’s not a criminal process … It’s a different kind of entity.” Kutz says the academic senate has been following the student conduct cases and will be sitting down with the Center for Student Conduct to ensure that university policies comply with both the law and fairness.
“The student conduct process is an educational process implemented under a developmental philosophy,” says Susan Trageser, director of the UC–Berkeley center for student conduct and community standards. She declines to answer any further questions due to confidentiality issues, and instead pointed to the code which is back online now and states at the top: “Edited/Modified February 2010.”
Angela Miller, another UC–Berkeley student arrested on the same night as Bowin, received the same interim suspension notice but was not able to find legal representation in time for her first interview. One of her friends who was present at the informal hearing reported that “the police officer called [Miller] a terrorist and compared her to the Ku Klux Klan.” After the meeting, the university ordered her to leave her home, a student co-op in a building leased from the university, by 5:00 p.m. on the afternoon before the new semester began. The co-op’s operations manager would not comment, saying they respect the privacy of their members, but her friends say Miller resisted the order and is still living there today.
On Feb. 1, after the Center for Student Conduct decided to lift Bowin’s interim suspension after all, Rosenbaum sent a letter to Associate Dean Christina Gonzales saying that since Miller “was never afforded a hearing that satisfies her basic due-process rights, I am advising her today that [her] interim suspension is invalid.” In turn, the university lifted her provisional sanctions as well, allowing her to go to classes and remain in her co-op while waiting for her formal hearing on May 7. On Feb. 23, the university dropped all conduct charges against Bowin due to “insufficient evidence,” but Miller may still have to wait all semester for a conclusion of her case.
“I think the administration uses this tactic as a way to reduce the amount of dissent on campus,” says Brian Glasscock, a UC–Santa Cruz student suspended after his arrest during the occupation of a building on his campus. Like Miller, Glasscock had no representation during his first student conduct interview and is now being threatened with permanent expulsion during formal proceedings. “My concern about that section of the procedure is that while it may seem more like a trial, the members who sit on that panel are most likely sympathetic not to my interest but to the administration’s gains because the administration is the one selecting those people; it’s not done randomly.”
Miller and Rosenbaum have filed an official grievance against several university administrators including Trageser and Gonzales for “unfair application of University policy or procedures.” The grievance challenges the “legally impermissible, arbitrary, and unreasonably discriminatory practices associated with the Berkeley Campus Code of Student Conduct” and requests that “the Campus Code of Conduct not be applied further to [Miller] or any other student with pending charges.” According to grievance procedures, a complaint resolution officer designated by Le Grand has 75 days to complete an investigation of the allegations, after which Le Grand, also one of the administrators targeted in the grievance, is “responsible for making a determination on the outcome of the grievance.”
Glasscock is fighting to stay at UC–Santa Cruz, even though he says he feels betrayed by the university. He wants his story to encourage other student activists not to be held back by the university’s intimidation. “I hope that I can come out of this not expelled and not suspended and have that be an example for people that if they do take political action on campus, they don’t have to be afraid of these summons because people would stand up for them and people would support them,” he says.
Rosenbaum and Comsti echo Glasscock's belief that hard-line university administrators seek an advantage from pursuing harsh conduct charges for last year’s protesters. “These students were guinea pigs,” Rosenbaum says. “It’s going to make them think twice before participating in any kind of lawful protest, and I think that’s part of the message the university was trying to send.”
Rebecca Green graduated from UC–Berkeley in December.
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I’m trying really, really, really hard to feel sorry for these little twits. Ok. I’m done. Hey here’s a concept for a course in college; KIDS YOUR ACTIONS HAVE CONSEQUENCES. The first amendment is not an excuse for your stupidity. Mr. Bowin or whatever your name is, I hope someone chucks the book at you.
— Turtle - Mar 3, 02:05 PM - #@Turtle: Sure, actions have consequences. But the university’s actions have consequences, too. What would you think of the students if they DIDN’T stand up for their education and just dropped out quietly and became burger-flippers because they can no longer afford to attend their so-called public university? Would that be nobler? Anyway, I think you’ve missed the point here. There is no evidence that your Mr. Bowin actually did anything other than be in the general vicinity of a protest, which, last time I checked, did not merit book-chucking. Ever heard of innocent until proven guilty, or perhaps beyond reasonable doubt? I hope you never get chosen to sit on a jury.
— Hare - Mar 3, 11:51 PM - #@Hare With all due respect, the protests are extremely naive. If you go to a state university and the state becomes pretty much bankrupt, what do you expect?
California has no money. They’re going to a California university. Where is the money supposed to come from?
It’s not the university’s fault that the state is bankrupt. It’s a mixture of the financial meltdown, the recession, and broken State government policies that have driven California to the edge.
It’s naive. There’s nothing that can be done. Where’s the money supposed to come from, if not fee increases?
Would they rather the school just shut itself down and say “Sorry guys, we can’t afford to teach you anymore. Go find another college.”
UC Berkeley is supposed to have smart people. Whoops.
— leopard - Mar 4, 04:45 PM - #my state started it first! we had our protest 3 wks ago!(:
— harper - Mar 4, 05:14 PM - #the state has plenty of money. its all winding up in the pockets of private corporations (ie agribusiness). You don’t fund public education on the backs of the working class, it comes through re-distributive policies. it’s these policies california is lacking not money, we’re one of the LARGEST economies in the world all by ourselves.
— steph - Mar 4, 08:49 PM - #Leopard, Turtle,
Judging by the general rhetoric of your comments, you clearly are not university or college students. You should know that the majority of universities have had steadily increasing fee increases within the past decade. Those which have not been passed onto the student body or facilities. These protests may have gotten out of hand in some cases (and those caught doing illegal things should obviously be punished), the blanket application of the universities disciplinary policies is misuse. Students, like all citizens, should not be intimidated when using peaceful protesting against governing entities.
— Erik - Mar 4, 09:51 PM - #Glad to see students speaking out. The crimes are of those above in power.
— carolinanickel - Mar 5, 12:06 AM - #The states are going broke, the Federal government is in the RED and services are being cut. We are told that we cannot afford, education or health care.
Politicians quibble over small amounts of money and wring their hands about the growing deficit and CEO salaries.
Have we forgotten the 300-pound gorilla at the table? Have we forgotten where all the BIG MONEY is going?
What could we afford to do, if we stopped fighting pointless wars off the budget books?
Next time someone tells you we cannot afford education, tell them:
“It’s the WAR stupid!”“swords to plowshears”
— Dr. Bill - Mar 5, 12:25 PM - #“war money to education!”
This is outrageous. I was arrested in a peaceful protest while a student, and the university also tried to kick me out. At least they gave me a hearing first! (We won)
— Mike Nolan - Mar 5, 02:42 PM - #The news reports state: “Some protesters threw incendiary objects at the house in an attack that left the chancellor and his wife fearing for their lives.”
I’m a strong supporter of public education, but I think the problem is the public and their politicians aren’t willing to make the investment. The public needs to be convinced to support education, but I doubt attacking the 68 year old chancellor (who has a PhD in physics… not just some politician) is going to help. Some of these protesters just seem to be criminals.
— Wes - Mar 5, 03:58 PM - #Why do students lose their Constitutional rights?
Even if there was violence they are entitled to rights.
what gives?
(Not a student)
— Makaainana - Mar 12, 12:09 PM - #