An Alameda County Superior Court judge has rejected a request by 32 pro-Palestinian student activists facing possible expulsion to intervene in UC Berkeley student conduct hearings.
The protesters, who participated in the April 9 takeover of the university’s Wheeler Hall, asked Judge James Richman, among other things, to block the use of police videos, reports and testimony in the student conduct hearings. The students argued that such testimony was legally banned and would unfairly bias the disciplinary process.
But Richman, who heard the case Oct. 28 and mailed out his ruling Oct. 30, agreed with university arguments that the courts should not get involved, if at all, until after the hearings are completed.
“The university is pleased with the result,” said Jeff Blair, who argued the case for UC.
Richman based his decision on a number of prior court rulings which have established that “as a general rule” the courts will not intervene in quasi-judicial hearings until the “administrative agency,” in this case the university, issues a final ruling. After a ruling, the case law suggests, the accused can go to court if they feel the administrative agency has handled the case improperly.
“I am disappointed, but I’m not surprised,” said Dan Siegel, lead attorney for the students. “It was a relatively low probability of success, but we thought we had a strong case.”
The students and their attorneys attempted to put the best spin on the ruling, noting that Richman did not rule on the substance of the case, but rather on the timing of court intervention.
“All he really said is, I can’t deal with this at this time,” said Roberto Hernandez, 23, one of the students facing conduct charges.
UC Berkeley began the first conduct hearing Sept. 30, focusing on the Hernandez case in particular, but suspended the proceeding when the students filed suit Oct. 7. Now that Richman has issued a ruling, UC Berkeley officials say they plan to restart hearings “as soon as possible.”
Siegel said that, if the rest of the hearings mirror the Hernandez proceeding, the students will almost certainly take the university to court when the hearings are complete. But Blair said he is confident that the university would win a court case on the merits.
The students’ lawyers have complained, among other things, about a university decision to close the Hernandez hearing to the public and about the composition of the committee hearing the Hernandez case.
But university officials say they have acted within the UC Berkeley student code of conduct. The rules allow the hearing committee chairperson to close the proceedings to preserve order and university officials say there had been talk of activists storming the Hernandez proceeding, a charge that activists deny.
University lawyers also note that, while the code of conduct dictates that a five-person committee should run a conduct hearing, it allows a quorum of three, as in the Hernandez case, to preside.
The students sought remedies on the issues of open hearings and committee composition, in addition to a block on police evidence, in their Oct. 7 lawsuit. But Richman declined to intervene in any way.
A total of 79 protesters, including students and community members, took over Wheeler Hall April 9, demanding that the nine-campus University of California system divest from Israel.
In June, the Alameda County District Attorney dropped all criminal charges against the activists, including resisting arrest and, in Hernandez’s case, assaulting an officer. The county agreed to a “factual finding of innocence” for all the protesters, including a seal on all the activists’ arrest records.
But the university decided to proceed, on a separate track, with student conduct charges against the 41 students who took part in the Wheeler Hall takeover.
Nine of the 41 students agreed to a “stayed suspension,” essentially a one-semester probation, leaving 32 to face formal student conduct hearings.
Last week the students’ lawyers argued 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 student conduct hearings.
The university argued that the law only requires it to eliminate any direct reference to arrest in the evidence. Last month, UC Berkeley blacked out any mention of the word arrest in the Hernandez police report, but kept the rest of the report in the record.
Blair said the university will have to decide how to handle the police videos, which depict UC police officers walking or dragging protesters away from the foyer of Wheeler Hall and booking them in a hallway.
Blair said UC will have to remove images of bookings, which is a clear “record of arrest,” but may be able to show officers walking or pulling activists away from the foyer.
“Just because you’re removing a student from a room doesn’t mean you’re arresting them,” he argued.
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