…a working paper* to spark discussion…
See related post here.
In Fall 2009, direct-action resistance to the UC Regents’ project of privatizing the University of California (“UC”) erupted systemwide. In response, the UC Administration is now punishing students on a mass scale for violating various provisions of the Code of Student Conduct.
Almost invariably, an alleged violation of the criminal law--which, of course, exists independently of the Code of Student Conductunderlies the student conduct charges resulting from the demonstrations and actions in Fall 2009; almost invariably, the UC Administration commenced its student conduct charges against students after receiving a UC Police Department (UCPD) report detailing the student’s alleged violation of a particular law. Thus, students who engage in civil disobedience face significant repercussions from two independent State entities.
First, and most obviously, students confront the State and the possibility of State repression. It suffices to briefly mention that civil disobedience often results in suffering physical harm at the hands of law enforcement (i.e., police brutality), arrest, stints in jail, and citations for violations of the criminal law. The District Attorney can press charges against the students; the prospect of punitive fines and/or prison is real. Second, and less obviously, the University may sanction students for the same activity that the criminal law governs; that is, the University may impose additional punishments on students for their acts of civil disobedience.
A small group of law students working with National Lawyers Guild attorneys have closely monitored and defended students in these University disciplinary proceedings. Such scrutiny from a legal perspective has revealed administrators’ improper application of the University’s disciplinary process in addition to systemic abuses of students’ due process rights guaranteed under both the Fourteenth Amendment to the United States Constitution and students’ contracts with the UC.
The purpose of this piece, however, is not to detail the UC Administration’s various and numerous violations of students’ legal rights. Instead, this piece generally seeks to contribute another opinion to the ongoing discussion of the student disciplinary process at the University. In addition, this article broadly aspires (with attendant modesty) to lay the groundwork for an anti-authoritarian critique of the student disciplinary process. This critique suggests an ultimate solution to the problems posed by the University’s use of its disciplinary process to sanction students for acts of civil disobedience: abolition of the student disciplinary process.
This solution may appear impractical, perhaps utopian, and too long term of a project to have any immediate relevance to the defense of students facing disciplinary charges. Undoubtedly, students facing disciplinary charges need immediate relief, and such long-term plans offer those already subjected to the student disciplinary process little assistance. This piece assumes that the most important objective for any defense-related project is to get the OSC off charged students’ backs. But it is our hope that this critique of the OSC will inform concerned parties as they move forward and formulate strategies to resist the Administration’s draconian effort to neutralize the most active elements in the Student Movement.
As a pragmatic first step, this piece argues for the abolition of the University’s authority to sanction students for conduct that the criminal law governs. Abolition of the University’s authority to sanction students for conduct that the criminal law governs is necessary, at the very least, to ensure that students can operate politically with as least restraint possible within the University context. Otherwise, the University can wield its power to deprive students of their education in order to coerce students to eschew direct-action resistance. Thus, there is an urgency to the abolition of the University’s power to sanction students for activity governed by the criminal law.
The University’s Unjustifiable Right to Discipline Students; The Office of Student Conduct
California law assumes that the University has an implied right—but not a duty—to establish conduct standards for members of the University community that are necessary for the furtherance of the University’s mission—the production, dissemination, and instillation of knowledge. The University of California has long exercised this court-recognized right to regulate its students’ conduct. Today, such regulation is memorialized in a campus’ Code of Student Conduct (“Code”) and supplementary University policies.
A Code of Student Conduct is a collection of proscriptions and regulations establishing ‘community standards’ for students at the University. But the Code does not merely outline the model behavior of a responsible member of the campus community—conformity to the terms of the Code is mandatory, and such conformity is compelled by State power.
The agent of compulsion is the Office of Student Conduct (“OSC”). The OSC, an office of the UC, enforces the Code. To this end of enforcement, the Code grants the OSC penal power and supplies the OSC with an arsenal of punitive sanctions, ranging from a warning letter to expulsion from the University, and includes sanctions taken directly from the penal codes such as restitution and fines. The OSC investigates complaints alleging a violation of the Code, and also charges and prosecutes students for alleged violations of the Code’s terms. The OSC thus serves an investigatory and prosecutorial function.
As a bureaucratic institution motivated by self-preservation, OSC also has a perverse incentive to justify its existence by sanctioning students. For it is by subjecting students to the disciplinary process that manufactures the illusion that OSC is a necessary agency in a public institution of higher education.
There is also strong evidence that the OSC is exercising its power to enforce the Code in an unprecedented, aggressive manner. Indeed, the OSC’s own statistics show a dramatic rise in the number of students subjected to the student disciplinary process for non-academic violations of the Code. For example, in the 1999-2000 academic year, 239 students were referred to the Office of Student Conduct; in the 2006-2007 academic year, the number was 657.1 We can attribute OSC’s intensified enforcement of the Code both to the bureaucratic impulse for survival and expansion and Dean of Students Jonathan Poullard’s entry in May 2006 followed closely by Director of Student Conduct Susan Trageser’s hire in January 2007.
But there is also a political agenda behind the OSC’s enforcement of the Code. The OSC describes the student disciplinary process as ‘educational’ and ‘developmental.’ In the OSC’s worldview, students make ‘mistakes,’ whether they be fratboys with alcohol problems or students who lock themselves in a building for political purposes. Student conduct officers (bureaucrats at the OSC) help students identify their ‘mistakes’. The OSC, therefore, presumes that any violation of the Code lacks any political or ideological meaning; indeed, the OSC presumes the opposite, for framing the violation of the Code as a ‘mistake’ implies that a student recognizes the legitimacy of the Code and desires to conform to its standards and obey its proscriptions.
The language of ‘education’ also belies the OSC’s ideological, political purpose: delineating acceptable forms of protest, and penalizing those students whose tactics stray beyond the borders of the Administration’s definition of legitimate protest in order both to ‘educate’ students who employ so-called ‘illegitimate’ tactics in ‘proper’ forms of civic protest and to send a strong signal of deterrence to those in the campus community considering acts of civil disobedience. In this sense, the OSC, functions as an institution of political and ideological education and re-education. The OSC does not attempt to conceal this; in fact, the Office of Student Conduct proudly advertises its coercive, totalitarian objective in their motto: “Campus Life & Leadership guides the learning journey of students as they explore leadership and social change in their communities.”2
Perversely, the ‘educational’ process applied by the OSC is blatantly discordant with the general mythology surrounding the U.S. system of higher education. Today, society tells youth that economic success and thus social membership is regulated through the University. To enter society and contribute as an equal, we are told, our thoughts, ideas, and skills have to be rubber stamped with a college diploma. UC Berkeley subscribes to this vapid story of merit and social worth. Yet here, the educational process practiced by OSC is being used to exclude students from the University, supposedly an essential element of their social worth.
In short, there is nothing ‘educational’ about the Code of Student Conduct’s disciplinary process, unless we understand ‘education’ in a totalitarian tradition. On the one hand, the UC’s disciplinary process serves to strangle students’ development as individuals committed to pursuing social change. There is nothing ‘educational’ about ca UC office enforcing conformity to the Administration’s notion of permissible dissentthis is base coercion. The Administration also fails to admit the rank hypocrisy inherent in the ‘educational’ disciplinary process: the OSC’s ‘educational’ sanctions of suspension or expulsion from the University (or the threat thereof) deprives the student of an education.
The Current Debate: Reform or Abolition
The UC Administration’s subjection of politically-active students to the University’s disciplinary process and the revelation of the significant and troubling defects in the Administration’s application of the University’s disciplinary process is generating debate about student discipline at the University among the diverse and numerous groups interested in some level of leftward change at the UC. The debate essentially reduces to a question of reform or abolition of the University’s student disciplinary process: can we impose some sort of reform in order to make the student conduct process fairer to politically-active students; or, must we abolish the University’s power3 to discipline students for political activity?4
Our position is straightforward: the University has no legitimate basis on which to regulate student .political activity or action. There is an immediate and practical solution to the problems posed by the OSC’s persecution of politically-active students: obviate the University’s power to repress student political activity. In order to do so immediately, we therefore demand the abolition of the Office of Student Conduct’s jurisdiction over students’ conduct that is governed by the criminal law.
The reformist camp believes certain remedial measureswhether they be an oversight board, a deletion of the more odious provisions of the Code, or the creation of judicial bodies composed of students (peer courts)can cure the rampant abuses of the University’s administration of the student disciplinary process. Before we critique particular reforms, however, it is necessary to critique the assumption on which any reform rests. The assumption underlying all the reformist camp’s measures is that the University has legitimate authority to discipline students for political activity; that the University may legitimately set parameters for students’ conduct; that the University has the power to sanction students who fail to conform to the campus’ Code of Student Conduct. Thus, reformists necessarily accept the legitimacy of the University using its power to deprive students of their education in order to compel students to conform to certain norms established by the Administration. The very existence of that power is illegitimate; the University’s exercise of that power is even more repulsive.
Since the University’s exercise of this power is itself an abuse, even the most fairly administered Code of Student Conduct will operate to oppress politically-active students. So long as the University wields this power, there will be coercion. Our call, therefore, is not for a more rational, more equitable use of the Office of Student Conduct’s power over the political student body; our call is for the abolition of that very power. It is not a legitimate function of the University to establish a model of ‘permissible’, ‘legitimate’ student expression. Instead, the form the Student Movement assumes, the strategies it develops, and the tactics it employs, should be the autonomous and unfettered decision of students and their comrades. We are not arguing that students should be immune from the consequences of their political actions; rather, we merely contend that the price of engaging in political activity and civil disobedience should not be the deprivation of one’s education.
Administrators who have heard this critique respond that students must accept ‘responsibility’ for their acts of civil disobedience. This is, however, a red herring. The students who engaged in civil disobedience do not contend that they should be immune from the consequences of their acts of resistance by virtue of being politically active. Instead, the question for which the Administration has no convincing answer is why the University should have the power to sanction students for conduct that the criminal law proscribes. We provide a simple answer: students should not face sanctions from two organs of the state simultaneously, the ‘People’ on the one hand in a criminal court and the University Administration in a quasi-judicial kangaroo court on the other.
Conclusion: “Let our watchword be ‘abolition,’ not ‘reform’”
The very existence of the student disciplinary processso long as students are subject to it because of their political activityis a tool with which the Administration will attempt to repress student voice and agency. Reform of the student disciplinary process, therefore, is not a tenable solution.
We demand a University in which the Administration has neither the power nor the right to regulate students’ political activity; a University in which the Administration does not hold students’ right to an education hostage in order to compel students to excise civil disobedience from the Student Movement’s repertoire of tactics.
Therefore: Let our watchword be ‘abolition,’ not ‘reform.’
* Subject to ongoing revision. Please leave suggestions in your comments.
1 Student Conduct Case Statistics 1998-2008, available at http://students.berkeley.edu/osl/sja.asp?id=4435.
2 http://students.berkeley.edu/osl/osl.asp?id=2721 (emphasis added).
3 There are at least two non-mutually exclusive approaches to accomplish the goal of the abolition of the University’s power to discipline students for political activity. One would target the courts; the other would target the University (the most effective strategy may be to employ both). We can eliminate the University’s right to discipline students by destroying the court-recognized right of Universities to establish and enforce standards of conduct for the University community. Or, we can pressure the University to relinquish voluntarily its authority to sanction students for political activity. How exactly either of these approaches will take concrete form is beyond the scope of this paper.
4 Of course, at some point we must address whether abolition of the student disciplinary process in its entirety is appropriate. This question is not technically outside the scope of this piece; indeed, this question is perhaps the most fundamental issue in the debate: should the University have the power to regulate any student conduct? This piece contends that resolving this fundamental issue is unnecessary in order to score relatively immediate positive gains for politically-active students. In order to abolish the OSC’s jurisdiction over activity governed by the criminal law, we do not need to concurrently abolish the OSC’s jurisdiction over academic-related violations of the Code of Student Conduct.