Lawyers for the University of California and 32 pro-Palestinian student activists sparred in court Monday over student efforts to block the use of UC police videos, police reports and officers’ testimony in university-run student conduct hearings that could result in student expulsion.
Alameda County Superior Court Judge James Richman is expected to issue a ruling on the students’ lawsuit in a matter of days.
The 32 students were among 79 protesters who took over UC Berkeley’s Wheeler Hall April 9, demanding that the nine-campus University of California system divest from Israel.
In June, the Alameda County District Attorney agreed to drop criminal charges against the activists and consented to a “factual finding of innocence” for all the accused. But the university decided to proceed separately with student conduct charges against the pupils involved in the Wheeler Hall takeover.
The hearing for the first student, Roberto Hernandez, began Sept. 30 and continued into early-October. But the university put the Hernandez proceeding on hold and stopped scheduling other hearings when the students filed suit Oct. 7.
The suit argues that, under the terms of the deal with the district attorney, all records of arrest, including videos, reports and even officers’ testimony are under seal and cannot be used in any setting, including a student conduct hearing.
But UC’s lead attorney Jeffrey Blair argued Monday that the law does not require the university to omit an entire police report or video from a student conduct hearing. The law, he said, only requires the university to omit any direct references to an arrest.
The university pursued this line of reasoning earlier this month in the Hernandez case. During the second day of hearings, UC replaced the original Hernandez police report with a report that blacked out any direct reference to his arrest.
But the students’ chief attorney Dan Siegel ridiculed the effort in court Monday, arguing that simply removing the word “arrest” from the police report does not remove the distinct impression that Hernandez was, indeed, arrested.
Furthermore, Siegel said that the purpose of a “factual finding of innocence” is to erase any trace of an alleged crime and argued that a police report, video and even officers’ testimony should therefore be excluded from the student conduct hearings.
But Judge Richman, who sharply questioned both lawyers during the hearing, was skeptical of Siegel’s interpretation of the law.
“You’re not going to persuade me that’s what it means,” he said.
The lawsuit also charges that the university has violated several of its own rules in conducting the Hernandez hearing – failing to provide a proper hearing committee and unfairly closing the hearing to the public, among other violations.
“All we’re asking you to do, your honor, is to order the university to follow...its own rules,” Siegel said Monday.
But Blair argued that the university has abided by all its rules. The university closed the Hernandez hearing, he said, because it heard of student plans to disrupt the proceedings. The university’s code of conduct, he noted, allows for a closed hearing to “preserve order.”
But Siegel argued that UC cannot shut a hearing based on rumors of disruption. The university can only take action, he said, after an actual disruption has occurred.
Blair, pointing to a series of previous cases, also argued that Richman does not have the jurisdiction to intervene in the midst of the student conduct charges.
Unless there is compelling evidence that proceeding with the student conduct hearings will cause “irreparable harm” to the students, Blair said, Richman must let the conduct hearings play out. If there is then evidence of wrongdoing by the university, he said, the court can hear the case.
Richman said several times that he is reluctant to intervene in this sort of case, fueling university hopes of victory.
But Siegel argued that it would be wasteful to proceed with 32 hearings that may be flawed, only to end up in court arguing about them once again. Richman suggested that he found Siegel’s argument compelling, stoking student hopes.
Contact reporter at scharfenberg