A Matter of Due Process: How the Disciplinary System Works
California Lawyer

A Matter of Due Process: How the Disciplinary System Works

May 2012

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Like many universities, UC Berkeley has established a conduct system that's separate from the criminal law system and designed to enforce internal university standards of student behavior. Law enforcement on campus is the responsibility of sworn police officers who report to university authorities and can cite students for violations of the University Code of Student Conduct. Campus police can also file reports with the district attorney if they believe a criminal violation has been committed. When arrests are made by UC campus police, the arrestees are either processed and released at the scene, or transported to the county jail for processing. Unless requested, there is generally no involvement by the local Berkeley police department or other law enforcement agencies.

Most Berkeley students arrested during protests in recent years have been charged with violations of the student code, which means that their cases are processed by the university's Center for Student Conduct and Community Standards (campuslife.berkeley.edu/conduct). Students alleged to have violated the code are sometimes given a chance to resolve the matter informally; otherwise, such cases are handled either by an administrative hearing officer or by a panel comprised of members of the Committee on Student Conduct. This hearing body usually consists of university officials, faculty members, and some students.

The legal burden of proof for Code of Conduct cases is based on a preponderance of the evidence, the same standard required in most civil cases. Indeed, although the proceedings do not entail full-blown litigation, the parallels are striking: The code speaks of "due process" and includes a presumption of innocence, the right to remain silent, and the right to an appeal.

One of the more contentious aspects of this process centers on the right to counsel. Attorneys can serve as advisors to students throughout the conduct hearings, but usually they are not allowed to participate directly in the hearing process or to speak for their clients. In fact, the Campus Code of Conduct specifically states that "[b]ecause this is an educational process, students are expected to speak for themselves." The hearing panel may, at its discretion, grant permission for more direct participation by the student's advisor, but it is under no obligation to do so.

UC Berkeley officials contend that this policy reflects an appropriate balance for an educational and not overly legalistic process that still protects the due-process rights of students. And they note that the policy has withstood legal scrutiny in a number of court cases involving other educational institutions across the country.

One of those cases is Jaksa v. Regents of Univ. of Michigan (597 F. Supp. 1245, 1250 (D. Mich. 1984), aff'd 787 F.2d 590 (6th Cir. 1986)). "While a university cannot ignore its duty to treat its students fairly, neither is it required to transform its classrooms into courtrooms," that court declared. Or, as Circuit Judge Richard Posner observed in Osteen v. Henley (13 F.3d 221, 22526 (7th Cir. 1993)), "We are reluctant to encourage further bureaucratization by judicializing university disciplinary proceedings, mindful also that one dimension of academic freedom is the right of academic institutions to operate free of heavy-handed governmental, including judicial, interference."

But, as the ACLU has been quick to point out, there are contrary rulings to cite as well. (See Johnson v, Collins, 233 F. Supp. 2d 241, 248 (D.N.H. 2002); North v. W. Va. Bd. of Regents, 233 S.E. 2d 411, 417 (W. Va. 1977).) At the very least, schools are in an awkward position when they advocate lofty principles yet deny student defendants a basic right guaranteed under both state and federal constitutions, as well as in administrative contexts. "It is shocking that the officials of a state educational institution, which can function properly only if our freedoms are preserved, should not understand the elementary principles of fair play. It is equally shocking to find that a court supports them in denying to a student the protection given to a pickpocket," the Fifth Circuit declared in Dixon v. Alabama State Bd. of Educ. (294 F.2d 150, 158 (5th Cir. 1961)). In that 50-year-old due process case, the students were represented by a lawyer named Thurgood Marshall.

The debate rages on.

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