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Pro-Palestinian protesters file suit against university

By David Scharfenberg Daily Planet Staff
Wednesday October 09, 2002

Lawyers for UC Berkeley pro-Palestinian activists filed suit in Alameda County Superior Court Monday, seeking to block the use of police reports and videos in student conduct hearings for 32 protesters who participated in the April 9 takeover of the university’s Wheeler Hall. 

The suit also alleges that UC Berkeley has violated several sections of the student code of conduct during the hearings, that could result in disciplinary action ranging up to expulsion. 

University lawyers call the suit baseless and premature and say they will fight it in court. Legal proceedings are scheduled to begin today. 

The 32 students were among 79 protesters who occupied Wheeler Hall in April, calling on the nine-campus University of California system to divest from Israel.  

The “Wheeler 79” faced criminal charges ranging from disturbing the peace to, in the case of one student, assaulting an officer. But the Alameda County District Attorney agreed to drop charges in June and issue a “factual finding of innocence” for all the accused. 

University officials decided to proceed, however, on a separate track, with student conduct charges against the 41 students involved in the takeover. Nine of the 41 accepted a one-semester “stayed suspension,” essentially probation, while the other 32 elected to go to hearings, according to the university.  

Students face penalties ranging up to expulsion, although the Office of Student Life has recommended nothing stiffer than suspension. 

The first hearing, for graduate student Roberto Hernandez, began last week, and university officials made use of police reports and videos.  

But student lawyers contend that the agreement reached with the district attorney, in the criminal proceeding, requires a sealing of all the defendants’ “records of arrest” – including the police reports and videos. As a result, they say, the reports and videos cannot be used in any setting, not even the student conduct hearings. 

However, Deputy District Attorney Stuart Hing, who approved the deal, said he never intended to sign an agreement that would inhibit the student conduct proceedings. 

Furthermore, UC Berkeley Assistant Chancellor for Legal Affairs Michael Smith, who is a lawyer, said the students’ attorneys are misreading the law. 

Smith said sealing any “records of arrest” simply means deleting any direct mention of arrest in the evidence. The university, in the midst of the Hernandez hearing last week, deleted any direct reference to his arrest in the police report and other documents. Smith, however, said other portions of an activist’s police report, describing the protester’s behavior, can remain as evidence. 

“That’s crap,” said defense attorney Dan Siegel, arguing that a police report and a video depicting students dragged away by police officers are clearly records of arrest. “If the university’s contention was correct, the law wouldn’t mean anything.” 

University attorney Jeff Blair acknowledged that there may be a “gray area” as to what constitutes a record of arrest, but said the student lawyers are going too far. 

“Their view is you have to light a match to every record that exists,” he said. 

Lawyers for the students are also claiming that the university has violated several sections of the student code of conduct: providing Hernandez with a belated notice of a change of venue for his hearing, refusing to grant the student an open hearing, providing an improper committee to hear the case and denying the defense’s right to a copy of the audio tape of the proceedings. 

Assistant Chancellor Smith said the students will be hard-pressed to show that shifting the site of the hearing two days before it began had any effect on the outcome. He also pointed to a section of the student code of conduct that allows the university to deny an open hearing to preserve order. Smith said the university had received word of student plans to disrupt the hearings. 

Siegel replied that it is inappropriate to speculate on a disruption before it happens. 

Blair, the university attorney, said the suit is premature. He said the defense, according to the law, must exhaust all “administrative remedies” before going to court. In other words, he said, the defense must give the university time to correct any of its alleged violations of the student code of conduct before taking the case to a judge.  

Blair also said the defense must let the hearings play out to determine whether any of the alleged violations actually had an impact on the outcomes. Only then, he said, could the defense pursue remedies in court. 

But Siegel said he will argue that some of the students’ rights, such as the right to a public hearing, cannot be remedied after the fact and that the judge should take immediate action to fix the problem. 

Students’ attorneys, in a more far-flung appeal, will also ask Superior Court judge James Richman to invalidate the hearings altogether since protesters were found innocent of similar criminal charges.  

But university lawyers say the student conduct hearings are completely separate from the criminal proceedings, with different standards of proof and cannot be compared. 

“I think that’s an arguable position,” Siegel acknowledged. “That’s something for a judge to decide.”