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New: ACLU Letter Alleges Abuse of UC Disciplinary Procedures

By Riya Bhattacharjee
Friday April 09, 2010 - 05:48:00 PM

The American Civil Liberties Union sent a letter to UC Berkeley Chancellor Robert Birgeneau April 6 objecting to the university’s handling of student misconduct charges following a Dec. 11 protest outside the chancellor’s house. 

Triggered by what it said were extremely restrictive suspension conditions imposed on students in the aftermath of the protest, the letter calls attention to problems in the university’s disciplinary procedures, particularly in the context of UC Berkeley students Zach Bowin and Angela Miller. 

In a nine-page letter to the chancellor and Academic Senate Chair Christopher Kutz, the two governing entities of the campus, ACLU staff attorney Julia Mass detailed how the interim suspensions imposed on Bowin and Miller stood out as examples of abuse of university authority and violation of the students’ constitutional rights. 

Mass asked the university to “immediately take steps to change its policies and procedures to address these concerns.” 

According to Bowin and Miller’s attorney, UC Berkeley Law School lecturer Steve Rosenbaum, Kutz sent an e-mail reply to the ACLU saying he wanted Berkeley’s Code of Conduct to be the “gold standard” for student conduct codes. 

On Wednesday, the Student Affairs Committee of the Academic Senate conducted proceedings involving the student suspensions. 

Rosenbaum called it “a good sign.” 

Bowin and Miller were two of eight protesters arrested following a demonstration outside the chancellor’s house against budget cuts, fee hikes and furloughs. 

The chancellor and his wife said they were frightened when windows, lights and planters were smashed, and incendiary objects were thrown at the building.  

The protesters were charged with rioting, threatening an education official, attempted burglary, attempted arson of an occupied building, felony vandalism and assault with a deadly weapon on a police officer.  

Although the District Attorney’s office later dismissed the charges, Bowin and Miller were placed on interim suspension for their participation in an on-campus demonstration.  

The ACLU letter charged “that while the charges against them, if proven, would certainly warrant disciplinary action, the interim suspensions were issued without a pre-suspension hearing and without regard for the purpose and limits of interim suspensions.” 

According to the ACLU, although the interim suspensions received by Bowin and Miller included charges, there were no specific facts or evidence in support of them. 

Both students missed final examinations and were banned from entering any part of the Berkeley campus or communicating with any member of the university community, about any subject, on or off campus, whether in person, on the telephone, or by e-mail. 

For Miller, who lived in student housing, the suspension also meant immediate eviction from her university-leased co-op apartment “prior to any opportunity to respond to the charges against her.” 

Bowin testified at one of his hearings that he thought “he was joining a peaceful protest and did not commit or approve of any acts of violence.” 

Citing the “limited information” available and his excellent student record, the hearing panel dismissed his charges entirely in February. Although he was very quickly let back on campus, Miller’s story was a different one altogether. 

The panel report indicated that her “commitment to [her studies] was not clear, and concluded that her failure to show remorse did not fit with her claims to be anti vandalism and violence. 

Miller still has charges pending against her and can come onto campus only for classes.  

She can arrive 15 minutes ahead of time and leave 15 minutes after class and is not allowed to go to libraries, cafes or events on campus. 

Rosenbaum said Miller received additional charges from the university in mid-February for violating her interim suspension because she attended an on-campus student conduct forum. 

Miller’s conduct hearing has been set for May 7 at the earliest. 

“Part of that is because we filed a grievance on her behalf because the university was unfairly applying its own policy,” Rosenbaum said, adding that the conditions of interim suspension were overly broad and tantamount to punishment. 

Campus Counsel Mark Smith said that although he couldn’t comment about individual student cases or complaints about disciplinary procedures because of the ongoing student conduct process, he “would be looking at some of the cases and planned to re-write the Student Conduct Code in the forthcoming months.” 

“I’ll be looking at suggestions and case references made in the ACLU letter,” he said. “I certainly don’t agree with a lot of the complaints, but we always think there is room for improvement.” 

“They say that, but what are they doing about it?” Rosenbaum responded. 

Smith said the April 6 letter was the first time the ACLU had contacted the university about their concerns regarding the suspensions. 

“We have certainly had correspondence with the students’ lawyers about some of the same concerns,” he said. 

Rosenbaum said that ACLU staff attorney Michael Risher had contacted the university right after the December incident to express concern that, in the absence of specific evidence surrounding the case, the actions taken by UC police might have violated the protesters’ constitutional rights.  

“They have been weighing in since then,” Rosenbaum said. “Once the ACLU speaks, people listen.”