Who's Teaching Whom?
California Lawyer

Gentler Response to UC Protests Urged

June 19, 2012

The dean of UC Berkeley Law School and the university's general counsel urge UC administrators and police to adopt a gentler response to student protests, including respecting civil disobedience and avoiding blind adherence to rules and regulations, reports the San Francisco Chronicle. Their reccomendation followed a widely denounced police pepper spraying of UC Davis protesters and the beating of their UC Berkeley counterparts.


Who's Teaching Whom?

A group of Berkeley law students turns the tables on university administrators

May 2012


UC Berkeley law students (L-R) Daniela Urban , Thomas Frampton, and Carmen Comsti of the Campus Rights Project. photo by Dale Higgins

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Thomas Frampton vividly remembers the day back in November 2009 when roughly 40 fellow UC Berkeley students had locked themselves inside Wheeler Hall to protest a planned 32 percent increase in student fees. Just outside, hundreds of noisy sympathizers, including Frampton, then a first-year law student, gathered around the barricades manned by club-wielding campus police.

"All of a sudden," Frampton recalls, "the police started swinging and I got hit with a couple dozen baton strikes to the stomach. I didn't come to law school terribly naïve," he adds, "but there's something about getting beaten up by cops that will change how you think about your education. For me, that was kind of a turning point."

Two months later Frampton, along with a handful of other Berkeley law school students, launched the Campus Rights Project (CRP). Their idea was to use the legal skills that they were honing in law school to defend those whom the university was now targeting for disciplinary action.

In the time since, the CRP has either advised or represented more than 100 student activists, most of whom were arrested in a second Wheeler Hall occupation in December 2009. And although some of the accused pleaded guilty in disciplinary hearings in exchange for probation, none were suspended or expelled, and in most cases the charges were dropped altogether.

At one point a couple of students even sued the chairman of one of the school's disciplinary panels for allegedly violating their right to be represented and for refusing to make sessions of the disciplinary proceedings public. An Alameda County Superior Court judge eventually dismissed the case, but not before it cost the university tens of thousands of dollars in legal fees.

"The university and the professor were very, very upset about that case," notes Eleanor Swift, a Berkeley law professor who was one of several unofficial faculty advisors to the Campus Rights Project. "I know the student conduct office hated the CRP," she adds.

Whether it did or not, university officials could hardly be blamed for wishing that the CRP students would just go away and find a nice death penalty case - or some other off-campus project - to work on.

"The CRP has been a thorn in the side of the administration and top-notch in their legal work," says Stephen A. Rosenbaum, a longtime lecturer at the law school who, like Swift, has worked closely with the group. "They represent the finest in the tradition of student activism, going back to the Free Speech Movement of the sixties," he adds.

Rosenbaum isn't the only one who's struck by the historical parallels at Cal. After all, Berkeley's current administrators, just like their predecessors in the sixties, were trying hard to hold the line on order and civility, while student activists chafed over what they viewed as a denial of free speech and due process. At the same time, the dean of the law school, Christopher Edley Jr., also seemed on the verge of being drawn into the controversy. At one meeting in his office early on, he told CRP representatives that he would lend whatever support he could from the comfort of his keyboard. But in the weeks and months that followed, students in the project felt underwhelmed by the backing they actually got.

"Throughout the past three years that I've been here," Frampton complains, "the only time Dean Edley has taken a public stand and called something a moral crisis is when his pension was not going to be increased and he threatened to sue. He's not been on the front lines the way we would have liked on some of the other issues that hit closer to home for students."

Edley did not respond to several requests for an interview for this story.

"The university idolizes the Free Speech Movement, but it uses the same tactics as the administration did in the 1960s," says Nathan Shaffer, a cofounder of CRP who graduated from the Berkeley School of Law last year. "If you do anything besides hold a [protest] sign on Sproul Plaza, there's going to be a problem. And there were instances where people were just holding a sign on Sproul, and there was still a problem."

By the time the Campus Rights Project was up and running, UC Berkeley had been through two particularly tumultuous months of campus protests and arrests over systemwide fee hikes forced by state funding cutbacks. Fewer than ten students made up the CRP's core, and all were enrolled at the Berkeley School of Law.

From the start, the group's members saw themselves not merely as legal aid workers, but as part of a much larger movement fighting to preserve public education and free speech. Many had participated in the 2009 protests on campus, and Frampton had been arrested at a previous demonstration in Oakland.

But even with those credentials, it took a little while for the CRP volunteers to win the trust of the students they hoped to represent. After all, weren't would-be lawyers just junior members of "the establishment"? To break the ice with protesters facing discipline, Shaffer put it to them this way: "Look, we're being trained at being adversarial assholes, so if you want us to be adversarial assholes on your behalf, we'd be happy to do that."

A lively discussion followed over tactics. One of the students facing charges recommended that they refuse to engage in the disciplinary process altogether. Another suggested that they disrupt the hearings by taking turns reading aloud passages from Franz Kafka's The Trial. Eventually less existential heads prevailed, and by a vote of 49 to 1 the students elected to appear before the university's disciplinary panels with CRP volunteers by their side.

Once the disciplinary hearings got started, however, it became clear that neither the CRP members nor even sympathetic law professors would be allowed to speak in support of the accused. Lecturer Rosenbaum, for one, was ejected from the room for being "disruptive" after he tried to speak on behalf of student Zachary Bowin, who faced suspension for his participation in campus protests near the chancellor's residence. Rosenbaum recalls the proceeding as more like England's "infamous Star Chamber than the birthplace of the Free Speech Movement." And though the university eventually dropped all of its charges against Bowin, concerns over the fairness of the disciplinary process festered.

Even within the administration, some thought that the university's longstanding ban on representation for students in conduct proceedings was a tactical error. Among them: Michael R. Smith, who until his retirement in May 2010 was the university's chief campus counsel. "This is one of the few legal matters on which I disagreed [with the administration]," he confides.

Still, Smith insists that from a legal standpoint, the university's position was entirely sound. "The courts have not clearly held that students are entitled as a matter of due process to the active representation by legal counsel in college and university student conduct hearings," he says.

One of those facing disciplinary action around this time was a journalism student named Josh Wolf. Wolf had already made headlines in 2006 when he spent more than 200 days in jail for refusing to give police a video recording he had made of a street demonstration in San Francisco in which a protestor is manhandled by police. Now he once again found himself in trouble after shooting video of the student takeover of Wheeler Hall.

Like the other student defendants, Wolf was prohibited from having a volunteer from the CRP represent him when his case came before the Office of Student Conduct. But in early 2010 the CRP and other lawyers helped Wolf and one other student file a small claims suit against the chairman of the disciplinary panel, optometry professor Robert DiMartino. In their suit the plaintiffs contended that both DiMartino and the university had a contractual obligation to follow the institution's own due process rules and let one of the CRP members speak for Wolf (Wolf v. DiMartino, No. BS10545200 Alameda Super. Ct. (Sm. Clms. Div.)).

Enter a local team of defense lawyers from Schiff Hardin. Called in by the University to make the suit go away, they quickly got it removed from small claims court - after objecting, ironically enough, that small claims rules wouldn't allow the professor to be represented by counsel. A superior court judge then dismissed the case, ruling that DiMartino enjoyed immunity from legal action because he operated as a quasi-judicial officer for the university. (See DiMartino v. Superior Court, No. RG10553853 (writ issued Apr. 22, 2011).)

For its five months of legal work on the case, the law firm billed the university $85,223.

"We thought that case had the potential to really undermine the entire student disciplinary process," explains Christopher M. Patti, the current chief campus counsel for UC Berkeley. "If faculty members and others who served on those boards knew they could be hauled into small claims court any time they made a ruling that was adverse to a student, nobody would be willing to serve."

By early 2011, university officials were really starting to feel the heat. And so the Office of Student Conduct decided to finally let Frampton speak at a public hearing on behalf of a UC student accused of a variety of campus conduct violations stemming from his involvement with the 2009 Wheeler Hall occupation. The hearing stretched long into the night of February 28, with Frampton cross-examining campus police officers and fielding suggestions from other CRP students over his laptop on what arguments to make. But it wasn't until well past midnight, after the second day of hearings, that the disciplinary panel rendered its verdict, finding the defendant not guilty on all charges. (A few weeks later a second student represented by Frampton was also acquitted of conduct charges.)

As the controversy dragged on, the Campus Rights Project drew more and more attention from the outside world. Even the ACLU of Northern California felt obliged at one point to send a strongly worded letter to UC Chancellor Robert Birgeneau, detailing what it considered to be significant due-process flaws in the university's approach to student discipline. At the same time, more than 140 faculty members signed a letter challenging the fairness of both the conduct charges against the students and the disciplinary process. But it was the CRP itself that brought the matter to a head when it helped draft a letter to the university demanding that charges against the remaining defendants arrested at Wheeler Hall be dropped. Should the university fail to respond, the letter warned, attorneys from Oakland-based Siegel & Yee would be "forced to vigorously and fully investigate each client's legal options."

On April 22, 2011, the University, without comment, dropped all of the remaining charges stemming from the Wheeler occupation. The students had won. Yet even in victory some of them still felt that the university had let them down. "During the disciplinary hearings, the university kept saying, 'We just want the students to be able to learn from the experience,'" says CRP member Daniela Urban. "Well, the students consciously engaged in protest and for them, that's their lesson. The university just didn't recognize that as a legitimate decision."

Since then, the administration has implemented a number of changes in the student code. It set a more rigorous time line for disciplinary cases, and perhaps most significantly provided for an independent hearing officer who can serve as a kind of judge in more serious student conduct matters. The university's Office of Student Conduct also saw a major turnover in staff.

"We're very hopeful that the independent hearing model will create a process in which both sides will have additional confidence," says Patti, the campus counsel.

Whether or not these reforms will satisfy the university's most vociferous critics remains to be seen. One unresolved matter is a federal class action that pits the institution against six Berkeley students who were arrested by campus police during one of the protests. The plaintiffs maintain that they should have been released after they were cited rather than taken to jail and held for as long as 48 hours until arraignment (Maidhof v. Celaya, No. 11-CV-4971 (N.D. Cal. filed Oct. 7, 2011)).

And so the spirit of the 1960s lives on at the Berkeley campus. And for those who are old enough to know what it was really like back then, it's difficult not to be at least a little nostalgic. Eleanor Swift, for one, can remember the student protests she witnessed more than four decades ago at Radcliffe and Yale. Oakland attorney Dan Siegel, who represents the six students in the federal case, was president-elect of the student body at UC Berkeley in 1969 when antiwar clashes at nearby People's Park turned violent. Even Smith, the university's retired chief campus counsel, has a few stories to tell. Back in '64, while enrolled at Boalt Hall, he got roughed up and arrested by police during a Free Speech protest. "When I became a campus lawyer, I thought it would be easy to make changes," he says. "But over the years, I did see a repetition of the same problems. There's an ongoing debate about what the administration should do and what role the police play, and that hasn't really changed."

In any number of ways, the law school students graduating this month face a more uncertain future than the aspiring lawyers who graduated in the turbulent sixties. But no matter where they end up, those who came to the defense of the Wheeler Hall student protesters will no doubt view that work as a defining experience.

"I can't imagine a better context to receive a legal education," says Frampton, who is among this year's graduates. "It's been a productive and fruitful place to be."

Tom McNichol is a San Francisco-based, freelance reporter.

Reader Comments

a - May 14, 2012
This might be the article you are looking for.
Broke Triton - May 18, 2012
Thank you for an informative, mercifully balanced and captivatingly written article on this issue that is so crucial for the working/middle classes. However, I must correct the erroneous premise of one early statement: "By the time the Campus Rights Project was up and running, UC Berkeley had been through two particularly tumultuous months of campus protests and arrests over systemwide fee hikes forced by state funding cutbacks." Do not accept the premise--it is an administration lie. State funding was a small percentage of UC revenues. The cut in state funding did not force tuition hikes, which had been ramping up for about a decade to pad the UC system's credit so they could build more commercial installations on campus. The political and economic climate of California has little effect on UC tuition, except to the extent that our society's radical right turn has allowed the profit motive to drive the educational debate and delegitimized the idea of state services accessible to the public. Check your facts. In 2009, the University of California received record revenues. State law only allows UC and CSU to charge as much as they need to keep the lights on and the departments staffed, but the sweethearts of governors past (AKA the Board of Regents) have imposed a radical reinterpretation of this law since 2002 or earlier. They have sanctioned the use of illegal force against nonviolent demonstrators (including one notorious incident where a professor in a wheelchair was protected & served right off a third-floor balcony). They have demanded illegal tuition and further defied state law by closing the decisive meetings to students, who they are required to include (not just invite to watch); and the public, who they are required to invite to watch. They have stated brazenly in their bond prospectus that they are a reliable commercial investment because they can raise tuition at will without public accountability. These criminals were not for

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