Uncivil Procedure

fomenting legal insurgency

Month: November, 2011

“Behind the Curtain” — Background for the “No Confidence” Vote

In anticipation of the faculty’s upcoming “no confidence” vote on senior-level administrators’ management of the university, Uncivil Procedure is proud to post the Campus Rights Project’s report Behind the Curtain: Birgeneau, Breslauer, and LeGrande’s Past Response to Student Protest and Police Violence. Read the cited emails here; read through the original 300 pages of administrators’ emails here. The report and emails provide an illuminating glance at these administrators’ hostility towards student activists, their partisan support of UCPD, and their adept use of the university’s public relations apparatus to justify police violence against students.

Uncivil Procedure‘s favorite: “[W]e need to find a new word other than ‘activists’ to describe the protestors; that descriptor gives them too much gravitas. I prefer: intruders, occupiers, and/or protesters. Also, assuming everything goes according to plan, I would like a quote expressing my admiration for the very professional way in which the police managed to apprehend and remove the illegal occupiers.” Chancellor Birgeneau, December 10, 2009; email to George Breslauer, Claire Holmes, Janet Gilmore, et al.

NO CONFIDENCE IN BIRGENEAU, BRESLAUER, AND LeGRANDE!

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The Center for Student Conduct and Community Standards: An Apparatus for Repressing Student Resistance Movements

Foreword

This article was originally written for and published in the 2011 Cal Disorientation Guide. Unfortunately, the Guide was not widely distributed this year. The purpose of this article is to briefly explain the university’s system of student discipline, particularly how the university uses the disciplinary process to repress and manage student resistance to austerity and privatization. Uncivil Procedure is reprinting this article because of the continuing relevance of the struggle against the student disciplinary process. As the Occupy movement struggles to take root on several UC campuses, students once again confront the police. Such confrontation has already resulted in dozens of arrests. And, as we know from the Fall 2009 actions, it is almost certain that campus police will at some point file student-conduct complaints against students involved in the campus occupations. Chancellor Birgeneau’s vague grant of ‘amnesty’ to the students arrested at Berkeley on November 9 serves to remind that the administration clearly had designs to punish the beaten students; fortunately, the public outcry against the police brutality on November 9 forced the administration to retreat from its plan to further antagonize students through the disciplinary process.  This grant of ‘amnesty’–assuming it encompasses those who were ‘not non-violent’–shows what popular rage can accomplish. Yet, we cannot forget that we must also be committed to providing long-term support to comrades who experience state repression.

Introduction

The image of riot cops at UCB violently suppressing student demonstrations over the past two years is all too familiar. But such application of bare state violence is not by any means the full extent of the administration’s campaign of repression of students’ struggle against austerity measures and the privatization of public education. After the riot cops have retreated from campus, the administration less visibly continues to wage its campaign of repression through the Center for Student Conduct and Community Standards (“CSCCS”), commonly referred to as the Office of Student Conduct (“OSC”). And, in a most basic sense, OSC performs its repressive function by subjecting students to the student disciplinary process. Student activists must therefore be prepared to confront OSC as a repressive organ of the administration. To this end, this piece provides a brief introduction to OSC and the Code of Student Conduct OSC enforces.

Grounds for Discipline” and “Conduct Sanctions”—The Administration’s Bureaucratic Weapons Against Students

The Code of Student Conduct (“Code”) envisions a total regulation—unbounded by spatial terms—of the student’s person. It implements this vision by establishing a catalog of “grounds for discipline”—25, to be exact—which warrant one or a cocktail of the Code’s “conduct sanctions.”1 As vocalized through the catalog of “grounds for discipline,” the Code demands from UCB students absolute obedience to administrative and police authority, including the administration’s regulations for the use of university property.

Among the common charges campus activists face are (1) theft—“conversion of, . . . or damage to any property of the University”; (2) unauthorized conduct—“[u]nauthorized entry to . . . or use of any University . . . resources[] or properties”; (3) obstruction of university activities—“[o]bstruction or disruption of teaching, research, administration, [or] disciplinary procedures”; (4) disturbing the peace—“[p]articipati[ng] in a disturbance of the peace or unlawful assembly”; (5) failure to comply—“[f]ailure to identify oneself to, or comply with the directions of, a University official or other public official . . . ; or resisting or obstructing such University or other public officials in the performance of . . . their duties”; and (6) camping or lodging—“[c]amping or lodging on University property other than in authorized facilities.”

Note that the grounds for discipline are exceedingly ambiguous and vague, which is particularly useful to the administration’s penalization of student activism. Since the administration retains the ultimate authority to interpret the Code, the Code’s built-in ambiguity thus gives the administration unlimited discretion in disciplining students.

 The Student Disciplinary Process—the Mechanics of Repression

The Code also establishes a quasi-judicial process by which the university punishes students. Understanding the process is critical in waging an effective defense against the administration’s prosecution. Familiarity with the process not only enables strategic defensive maneuvering, but it also suggests opportunities for using the process itself as a weapon against OSC. Here’s a brief overview.

After receiving a complaint (e.g., a police report from UCPD), OSC sends a student a Notice of Potential Violation (“NPV”) email which outlines the charges (“grounds for discipline”) OSC plans to bring against the student. The NPV email also invites the student to meet with an agent of OSC to discuss the NPV. Under the not-so-convincing guise of a friendly conversation, OSC essentially treats these meetings as interrogations in which a so-called student-conduct professional attempts to elicit incriminating information from the student. Within 30 days of issuing the NPV, OSC must decide whether to formally charge the student in a “Notice of Charges” letter. Typically, OSC will automatically issue a Notice of Charges letter containing the same charges in the original NPV. At the initial meeting or shortly afterwards, OSC will then offer the student an “Administrative Disposition” (essentially, a plea bargain), a document by which the student agrees to a sanction/punishment for the charges brought against her. If the student does not accept the Administrative Disposition, OSC must provide the student a formal hearing within 45 days of the date the Notice of Charges was issued.

The Code also establishes a handful of “rights” students have in the disciplinary process, rights which in practice turn out to be largely illusory. Among the most important student rights, at least on paper, are (1) the presumption of innocence—in theory, a student is innocent until the administration proves otherwise; (2) the right to remain silent and not participate in the disciplinary process; (3) the right to have an advisor present at every stage of the disciplinary process; and (4) the right to have the disciplinary charges resolved through trial-like hearing. The administration, however, can and will discard any procedural right the Code gives to UCB students.

 The Office of Student Conduct—A Vehicle of Repression

 OSC is a quasi-judicial entity that administers and enforces the Code of Student Conduct (“Code”). OSC’s enforcement of the Code is informed by the so-called “educational philosophy” of student-discipline, a “theory” lacking any legitimate scholarly basis. The “educational” model posits that the purpose of a student-conduct office is not to impose punishment; rather, it is to aid the student in understanding and learning from her mistakes. Despite its harmless veneer, the “educational” model in practice has proved disastrous and absolutely detrimental to students.

The “educational” model prioritizes the elimination of students’ procedural rights in the disciplinary process, such as a presumption of innocence and a right to a formal evidentiary hearing—basic elements of due process that are necessary to protect students from being deprived arbitrarily of their education by administrators. In its childish logic, the “educational” model reasons that students need no protection from a supposedly beneficial “educational” process. Yet, the inconvenient fact remains that the “educational” model does not discard punitive sanctions such as probation, suspension, and expulsion. Thus, the “educational” model’s premise for disarming students of their procedural protections—that “education” is benign, unlike sanctions that threaten students’ status as students—is bogus: traditional punitive sanctions always remain in the administration’s penal arsenal. By eliminating student procedural protections, the “educational” model confers to the administration unchecked power to discipline the student. Intentionally obscuring the inherent opposition between student and administration in its flimsy concept of “education,” the “educational” model’s true purpose is to disarm the student to augment the penal authority of the administration.

And, inextricably linked to the elimination of procedural protections for students, the “educational” model posits that guilt or innocence is irrelevant, because the only intended outcome of the disciplinary process is the “education” of the student. But the student disciplinary process is devoid of any actual educational merit; the “education” OSC envisions is solely that of the student’s experience of subjection to the disciplinary process—an experience of power in a position of subordination, an experience of state coercion. Thus, the “educational” model’s disregard for student procedural rights nicely ties into its ideology of student subordination to administration power: students’ procedural rights—a potential source of student power vis a vis OSC—can only obstruct the process’ “educational” objectives.

But note that UCB’s Code of Student Conduct—despite its nod to the “educational” philosophy”—is decidedly “legalistic,” because it grants students a number of procedural rights (as required by California and Supreme Court case law), however inadequate they may be. But UCB’s “legalistic” Code is not self-executing. In practice, OSC’s staff—already fundamentally opposed to student procedural rights as missionaries of the “educational” model—regularly sacrifices students’ procedural rights to advance the “educational” philosophy. This creates a disconnect between the Code as written and the Code as applied.

Students’ descriptions of their experiences in the disciplinary process are useful in understanding OSC. One student described her experience with OSC as “infantilizing”—imagine some self-described student-conduct professional lecturing an adult student about “appropriate” behavior at the university. Another student described the disciplinary process as “Kafka-esque” in that the student is subjected to a quasi-judicial process but can never get straight answers about the charges or their meaning from OSC; the student does not know what she is defending herself against, only that OSC is prosecuting her. Critical reflections on OSC also frequently allude to totalitarianism, as OSC explicitly engages in the project of re-educating students to the values of obedience to authority and submission to the rule of private property. And, like inquisitors, the student-conduct professionals seek to elicit confessions from the accused—the imposition of punishment does not completely satisfy the purpose of the disciplinary process; rather, the process ultimately demands the intellectual transformation of the student into obedient subject of the administration.

 The Collaboration of Police and the Office of Student Conduct

Experience from the past two years has shown that police and OSC collaborate to penalize student activists, although the full extent of their inter-workings remains unknown. At its most basic, this collaboration takes the form of information sharing. Such information sharing is evident when UCPD forwards police reports to OSC so that OSC may then prosecute the students identified in the reports and use the information in the reports as incriminating evidence. Disturbingly, it’s not just UCPD that funnels information to OSC; police agencies all around the Bay Area (and perhaps beyond) pass along information about UCB students to OSC. It’s also noteworthy that UCPD will forward informational reports to OSC even when there’s been no arrests and the police have no belief that a crime has been committed. In other words, UCPD officers surveil and report on non-criminal activity that the Code of Student Conduct categorizes as a “ground for discipline.” UCPD thus enforces the Code of Student Conduct. And UCPD has proved to be an effective informant for OSC, as UCPD officers have regular in-person contact with campus activists and so are able to identify activists in the field. Indeed, without UCPD voluntarily assuming the role of informant, OSC’s penal machinery would lie idle because OSC has no information-gathering system.

The evidence we’ve seen so far indicates that the information flow between UCPD and OSC is uni-directional, in that the police are the ones funneling information to OSC. So far, we haven’t found evidence that OSC supplies information to the police. But it should be expected that OSC has or will aid police in criminal investigations.2 We should be on guard against the materialization of this possibility

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Endnotes

1. Sanctions include warning letters, probation, suspension, and expulsion.
2. Always remember that the district attorney can subpoena OSC’s files and notes on student activists.