Streamlining the Code of Conduct

With limitations on lawyers, students have to go it alone

By Michael Klein
From the February 2005 Print Edition

Recent revisions to the Student Code of Conduct have sparked tension between the UC Berkeley administration and students. Administrators spent more than 18 months deliberating over the new code, which was signed into policy by former Chancellor Robert Berdahl last fall. During this process, the Committee on Student Conduct acted as a student advisory board to ensure that the interests of students were adequately voiced throughout the revision process.

The most controversial aspect of the new code lies in the limitation of the role of the student attorney during the hearing process. According to the preceding code, revised 1996, the defense could utilize a lawyer to take the floor in the formal hearing. Thereby, the lawyer would present the evidence and conduct cross-examinations on behalf of the student. Now all that has changed, and the defendant must speak for him- or herself unless the panel deems necessary the direct participation of a lawyer. However, all students still retain the full right to seek counsel from an attorney throughout the entire judicial process. In addition, an attorney may still be present at the formal hearing to offer legal advice to the student defendant.

Also controversial is the revision that restricts the hearings to a private setting unless the hearing panel and defendant come to a mutual agreement to open the hearing to the public. Students wishing to open the hearing must now submit a written proposal to the panel.

Because of the antagonism generated by several publicized anti-war and pro-Palestinian rallies, the administration hopes to mitigate any excessive tension in the hearings. UC Berkeley professor Robert Jacobsen, who has chaired some hearings in past, was reported in the Daily Californian as commenting that making these administrative hearings public would require an infrastructure that is nonexistent at this time. Despite student displeasure, it should be noted that the new code allows for one non-participating observer of the defendant’s choice to witness the private hearings. Some believe that these protestors simply want to grasp the attention of the nation by intensifying a public administrative hearing as they have done so in the past.

Administrators agree that this new policy aims to end the era of adversarial hearings and usher in a new, more educational disciplinary process. They feel that the presence of lawyers detracts from the central educational aspect of the proceedings, which allow students to plead their own cases in front of a panel of university faculty, staff, and students. According to the Daily Californian, professor Paul Vojta feels that lawyers have stalled the hearing process in the past by introducing vast amounts of irrelevant evidence.

Beth Karren, an attorney with Student Legal Services at the Office of Student Life, confirmed the validity of the intentions of the university to offer a less adversarial judicial hearing process. “In the past, there was serious slowdown in the process,” Karren remarked. “Now it should be more streamlined.” She added that the possibility remains that the hearings will be judged unfair by students or the administration, whereby the students involved will still retain the right to an appeal. Karren made the point that despite the propensity of students to cry foul over this new process, the hearings under the new code have yet to take place. “We will have to wait and see,” Karren said, referring to the estimated effectiveness of the new code.

The April 2002 protest held by the Students for Justice in Palestine left more than 30 students arrested, and the planned hearings moved slowly on for six months. This sluggish process was due largely to the stalling of lawyers and the very atmosphere of tension that the university hopes to rid the judicial process of. Michael Smith, who faced a hearing in 2003 for his conduct at an anti-war rally earlier that year, said that the changes being made to the code force students into a situation of being unaware of their rights and at a disadvantage to a full-time, paid prosecution.

This does seem difficult for some to believe as they recognize that the role of the advising attorney still remains available to students throughout the judicial process, and that this administrative hearing process emphasizes an educational purpose different from the central aims found in the criminal justice hearing. Karen Warren, coordinator of Student Affairs, was quoted in the Daily Californian as explaining that the neutral hearing panel reduces the intimidation of traditional adversarial hearings laden throughout with the pressure of lawyers. Though some argue that it is quite unfair that students are deprived of an attorney while faculty are allowed one, Warren attests that the new code does not allow the panel or faculty rights to an attorney either.

As some UC Berkeley students and protestors vehemently oppose the new code for fear of violation of free speech, they must first realize that hearings have yet to take place under the new code. If the student defendants play more of a role, they will perhaps take more responsibility for their actions, and their arguments in their own defense will likely streamline the administrative legal process.

If you enjoyed this article, please consider supporting the Patriot