UC Berkeley Faculty: Suspend the Code, Drop the Charges!

About 130 UC Berkeley faculty have signed a letter to Chancellor Birgeneau demanding the suspension of the Code of Student conduct as well as the cessation of charges against student protesters.

April 20, 2010 (download pdf version)

Chancellor Robert Birgeneau
Office of the Chancellor
200 California Hall #1500
Executive Vice-Chancellor and Provost George Breslauer
200 California Hall

Office of Student Conduct
2536 Channing Way
Building E. 2nd Floor

We, the undersigned faculty, call for the immediate cessation of all proceedings against the students involved in protest actions that are currently underway by the OSC. Such proceedings should be suspended until and unless the serious procedural issues that currently mar these proceedings can be fully addressed and rectified. Because it is clear that no fair evaluation can be conducted under these circumstances, we call for the immediate halt to all disciplinary proceedings against student protestors following from the events on December 11th and November 20th of this academic year.

It has become abundantly clear in the last weeks that these proceedings are not only seriously flawed, but that no just outcome can emerge from these procedures in their current form. The problems as we see them pertain to two separate but interlocking issues: the version of the code of student conduct that is currently used and the specific applications of that code in these specific cases. These flawed applications arise from inadequacies in the code itself and from flagrant instances of bad judgment on the part of those conducting the inquiries. These egregious applications of the code have raised serious questions whether those charged with directing a fair disciplinary review have overreached their mandate and contravened both legal and educational standards to which we, as a community, are bound. The rights to political protest, guaranteed by the University’s commitment to free speech and rights of assembly are paramount in this context and must provide the framework within which charges against any of these students are assessed. We note with grave concern the lack of a sufficient effort to balance these concerns with the alleged offenses as well as the failure to develop and apply appropriate measures for assessing these charges.

Our concerns below this pertain both to clear procedural flaws in the existing code and to unjust applications in these cases:

1.) Failure to Afford Due Process: The first and most glaring procedural flaw is that UC rules regarding student conduct do not afford due process rights that comply with established legal standards. We note that (a) various courts have held that procedural protections are required in the context of administrative disciplinary proceedings and that those decisions have relevance in these cases and (b) where such disciplinary proceedings lead to the conclusion that criminal charges are warranted, or where students suffer other material deprivations, such as suspension, expulsion, or the withholding of the diploma, students clearly ought to be entitled to legal counsel who could review the evidence and present counter-argument where necessary. The Campus Rights Project, the ACLU of Northern California, and many of our own faculty and advisors in law have expressed concern about this legal failing.

2.) Impositions of Sanctions without Adjudication: We see clear evidence of unjust applications of this flawed policy. In the case of two students, Angela Miller and Zachary Bowin, sanctions were imposed prior to the convening of any formal disciplinary review, and thus to any determination of culpability. In such cases, due process procedures were fully abandoned with unjust consequences. Although the OSC has described these measures as interim restraints, they are, in fact, the equivalent of non-adjudicated punishment.

3.) No Specification of the Evidence Necessary to Ground Charges: A second procedural flaw, clearly the result of the failure to afford due process protection, is highlighted by the clear miscarriage of justice committed in these two cases: for example, the code does not adequately specify the kinds of evidence and the means of cross-examination on the basis of which any charge may be articulated or adjudicated. Nor does it allow for an advisor to have a meaningful role at the time of hearing. As a result, allegations that certain students are a “threat” to campus life or have engaged in “physical abuse” seriously impugn the reputation of students, and this is especially alarming that the students were given no evidence at the time to support the allegation, and given no opportunity to present counter-evidence or to consult legal experts. Indeed, at no time has a clear evidentiary basis been made available for the allegations against these students. As we all know, such allegations have long-term effects on the capacity of students to finish their education and to gain employment. As a result, such allegations should either be corroborated by standard processes of evidentiary review and disputation, or dropped altogether. As it stands, there is no basis in evidence for these charges, and the rights of students have been fully suspended or denied.

Indeed, no legally acceptable standard of evidence has been established in the OSC adjudication of these cases. The accusation and the punishment seem to come at the same time (recalling the worst scenarios from Kafka). We call upon the OSC to develop standards that would comply with existing legal standards demanding a preponderance of evidence as well as clear and convincing grounds for any further disciplinary actions. We deplore allegations that presume guilt by association, or which single out political viewpoints as grounds for sanctions (recalling the worst scenarios from McCarthyism).

4.) Inadequate Protection of the Right to Protest: No explanation of the Student Code of Conduct was made public and available to students in advance of the protest actions of November 20th or December 11th. On December 11th, the students were clearly protesting with the explicit understanding that they had the permission from the University to express their views publicly in a protest action. If and when that permission was rescinded, it should have been directly communicated to those participating in the protest actions. The failure to communicate policy and the retractable conditions of permission in this instance foregrounds the need for structured and stable lines of communication between administration and students on such matters. It also calls attention to the arbitrary power of the administration to grant rights of protest and to withdraw them when these rights should be more securely and consistently protected by the clearly communicated policies of the university. Indeed, the tradition of civil disobedience belongs squarely to both traditions of academic freedom and freedom of speech. Since students had reason to assume that they were operating under an administrative ratification of those very rights, they had no intention to trespass, but understood themselves as exercising rights of protest fundamental to free speech at the university.

5.) Failure by OSC to Follow its Own Procedures: We call attention to the fact that the OSC neither honors its own timelines nor holds itself accountable to its own procedures, which implies that certain rogue judgments, preemptive punishments, and “rehabilitative” methods are being pursued without any warrant in university code or existing law. We deplore the practice of preemptive punishment that works through a sham “ educational” model, as is evident in the recent settlement offers that couple suspension with an “essay assignment” that requires students to perform a political self-criticism, indeed, to take a prescribed political point of view, such as the appropriate limits of the freedoms guaranteed to journalists (as was done to Josh Wolf, the journalist who covered the Wheeler Hall events from within the building and with the explicit approval of his dean). This disciplinary action not only makes use of a fully discredited educational model (one that is better described as “inculcation” and does not even reserve that respect for diverse viewpoints that defines the fundament of liberal education) that we, as educators, find fully deplorable and would never accept as part of any educational institution worth the name. As a result, any finding on the basis of such a flawed conduct should be invalidated, and would be invalidated in the course of any legal review. We ask that the administration cease these practices immediately.

Hence, because the disciplinary procedures have proven to be pervasively flawed for all the reasons cited above, we call for the suspension of all charges against the student protesting on December 11th as well as those protesting on November 20th. In addition, we ask that the Student Code of Conduct be revised with the participation of educators and legal advisors to bring the code into conformity with legal standards of due process for students, and establish clear and legitimate evidentiary bases for any allegations. These rights are severely compromised by the procedural flaws and evidence of overreach and misconduct on the part of those conducting the reviews. We maintain that the current disciplinary procedures are so badly flawed that they should be abandoned at this time. Because no sanctions should be imposed until a review has been successfully concluded on the basis of a just application of legally sound policy, and we have neither a sound policy nor a just application at this time, we call for the cessation of all disciplinary proceedings. Of utmost importance to any such policy revision will be the commitment of the university to rights of free speech, which include rights to peaceful protest. If these rights are arbitrarily suspended or abandoned without reflection or if they are restricted without clear justification and communication, we will have dishonored the tradition of free and open expression that has distinguished this campus for decades. Let us not accept a situation where arbitrary power makes a mockery of those fundamental and enduring rights that we are surely bound to honor and protect.

Signatures below the fold.

Original Faculty Signatories:

Judith Butler, Maxine Elliot Professor of Rhetoric and Comparative Literature

Shannon Jackson, Professor, Theater, Dance and Performance Studies, and Rhetoric

Saba Mahmood, Associate Professor, Anthropology

Alice Merner Agogino, Roscoe and Elizabeth Hughes Professor of Mechanical Engineering

Daniel Perlstein, Associate Professor, Education

Katherine Sherwood, Professor, Art Practice and Disability Studies

Gillian Hart, Professor, Geography

Richard B. Norgaard, Professor, Energy and Resources

Daniel Boyarin, Taubman Professor of Talmudic Culture, Near Eastern Studies and Rhetoric

Kaja Silverman, Class of 1940, Professor of Rhetoric and Film

Ananya Roy, Professor, City and Regional Planning

Greg Levine, Associate Professor, History of Art

Peter Glazer, Associate Professor, Theater, Dance and Performance Studies

* * *

Faculty Signatories:

Elizabeth Abel, Professor, English

Kathryn Abrams, Herma Hill Kay Distinguished Professor of Law

Nezar AlSayyad, Professor, Architecture and Planning

Paola Bacchetta, Associate Professor, Gender and Women’s Studies

Ann Banfield, Professor, English

Patricia Baquedano-López, Associate Professor, Education

Andrew Barlow, Lecturer, Sociology

Barbara A. Barnes, Lecturer, Gender and Women’s Studies

Joi Barrios-Leblanc, Lecturer, South and Southeast Asian Studies

Brian Barsky, Professor, Computer Science

Patricia Berger, Associate Professor, History of Art

Emilie L. Bergmann, Professor, Spanish and Portuguese

Deborah Blocker, Associate Professor, French

Jean-Paul Bourdier, Professor, Architecture

Karl Britto, Professor, French and Comparative Literature

Wendy Brown, Heller Professor of Political Science

Michael Burawoy, Professor, Sociology

Ignacio Chapela, Associate Professor, Environmental Science, Policy and Management

Yuet-Sim Chiang, Lecturer, College Writing

T.J. Clark, George C. and Helen N. Pardee Chair, Department of History of Art

Lawrence Cohen, Professor, Anthropology, and South and Southeast Asian Studies

Catherine Cole, Professor, Theater, Dance and Performance Studies

Elizabeth Colson, Professor Emerita, Anthropology

Jason Corburn, Associate Professor, City and Regional Planning

C. Greig Crysler, Associate Professor, Architecture

Vasudha Dalmia, Magistretti Distinguished Professor of South and South East Asian Studies

Elizabeth Deakin, Professor, City and Regional Planning

Ivonne del Valle, Assistant Professor, Spanish and Portuguese

Kathleen Donegan, Assistant Professor, English

Robert Dudley, Professor, Integrative Biology

Ian Duncan, Professor, English

Laurent El Ghaoui, Professor, EECS and IEOR

Deirdre English, Director, Felker Magazine Center, School of Journalism

Laura Enriquez, Professor, Sociology

Susan Ervin-Tripp, Professor Emerita, Department of Psychology

Peter Evans, Professor, Sociology

Louise Fortmann, Professor, Environmental Science Policy and Management

Anne-Lise François, Associate Professor, English and Comparative Literature

Catherine Gallagher, Professor, English

Robert P. Goldman, Professor, South and Southeast Asian Studies

Steven Goldsmith, Associate Professor, English

Bluma Goldstein, Professor Emerita, German

Marc-Tizoc González, Lecturer, Ethnic Studies

Kevis Goodman, Associate Professor, English

Darcy Grimaldo Grigsby, Professor, History of Art

Ramon Grosfoguel, Professor, Ethnic Studies

W. Norton Grubb, David Gardner Chair in Higher Education

Suzanne Guerlac, Professor, French

Timothy Hampton, Bernie H. Williams Professor of Comparative Literature, and French

Ian F. Haney Lopez, John H. Boalt Professor of Law

Cori Hayden, Associate Professor, Anthropology

Lyn Hejinian, Professor, English

Charles Hirschkind, Associate Professor, Anthropology

Kinch Hoekstra, Assistant Professor, Political Science and Law

James Holston, Professor, Anthropology

John Hurst, Professor Emerita, Education

Judith E. Innes, Professor, City and Regional Planning

Abdul JanMohamed, Professor, English

Mary E. Kelsey, Senior Lecturer, Sociology

Kathryn A. Klar, Lecturer, Celtic Studies

Georgina Kleege, Lecturer, English

Chana Kronfeld, Professor, Hebrew, Yiddish and Comparative Literature

Celeste Langan, Associate Professor, English

Jean Lave, Professor Emerita, Education

Zeus Leonardo, Associate Professor, Education

Raymond Lifchez, Professor, Architecture

Michael Lucey, Professor, French and Comparative Literature

Colleen Lye, Associate Professor, English

Samer Madanat, Xenel Professor of Civil and Environmental Engineering

Trinh T. Minh-ha, Professor, Rhetoric, and Gender and Women’s Studies

Minoo Moallem, Professor, Gender and Women’s Studies

Rachel Morello-Frosch, Associate Professor, Environmental Science, Policy and Management

Davitt Moroney, Professor, Music

Carlos Muñoz, Jr., Professor Emerita, Ethnic Studies

Ramona Naddaff, Associate Professor, Rhetoric

Laura Nader, Professor, Anthropology

Rasmus Nielsen, Associate Professor, Integrative Biology and Statistics

Michael Nylan, Professor, History

Geoffrey G. O’Brien, Assistant Professor, English

Todd Olson, Associate Professor, History of Art

Dan O’Neill, Associate Professor, East Asian Languages and Cultures

Keven Padian, Professor, Integrative Biology

Joanna Picciotto, Associate Professor, English

Claude H. Potts, Librarian, Romance Language Collections, Doe Library

Gautam Premnath, Assistant Professor, English

Paul Rabinow, Professor, Anthropology

Raka Ray, Professor, Sociology

Victoria Robinson, Lecturer, Ethnic Studies

Christine Rosen, Associate Professor, Haas School of Business

Scott Saul, Associate Professor, English and American Studies

Nancy Scheper-Hughes, Chancellor’s Professor of Anthropology

Alan Schoenfeld, Professor, Education

Charles Schwartz, Professor Emerita, Physics

Susan Schweik, Professor, English

Ingrid Seyer-Ochi, Assistant Professor, Education

Jonathan Simon, Professor of Law, Jurisprudence and Social Policy Program

Jeffrey Skoller, Associate Professor, Film Studies

Sandra Smith, Associate Professor, Sociology

Ann Smock, Professor, French

Janet Sorensen, Associate Professor, English

Barbara Spackman, Cecchetti Professor of Italian Studies and Comparative Literature

Shannon Steen, Professor, Theater, Dance and Performance Studies, and American Studies

Jill Stoner, Associate Professor, Architecture

Hertha Sweet-Wong, Associate Professor, English and Art Practice

Elisa Tamarkin, Professor, English

Estelle Tarica, Associate Professor, Spanish and Portuguese

Paul Thomas, Professor, Political Science

Charis Thompson, Professor, Gender and Women’s Studies

Barrie Thorne, Professor, Sociology, and Gender and Women’s Studies

James Vernon, Professor, History

Loy Volkman, Professor Emerita, Plant and Microbial Biology

Leti Volpp, Professor, Law

Loic Wacquant, Professor, Sociology

Bryan Wagner, Associate Professor, English

Richard A. Walker, Professor, Geography

Anne G. Walsh, Associate Professor, Art Practice

Michael Watts, Class of 1963, Professor of Geography

John H. Welsh, Lecturer, Engineering