What are rights without remedies?

By Thomas Frampton, The Daily Californian

Imagine the following scenario: a UC Berkeley administrator doesn’t care for a particular student group -— say, the Cal Students for Liberty — and decides to pursue trumped-up disciplinary charges against the organization’s active members. The university official even goes so far as to submit false evidence against our young libertarians.

After threatening the students’ academic futures for over a year, the university finally affords them a formal hearing, but thankfully an independent adjudicatory panel sees through the charade. Meanwhile, though, the students have suffered real harm: their grades have dropped, they’ve spent countless hours missing work while fighting to save their educational future and their names have been dragged through the mud. Certainly the university’s grievance procedure — which exists to provide relief for students who are the victims of inappropriate applications of university policy — offers some remedy for these exonerated students, right? Wrong.

That was the position announced Sept. 14 by university officials, who issued an initial ruling rejecting parts of a formal grievance filed by graduate student Aakash Desai. Mr. Desai was active in the anti-austerity movement that exploded in Fall 2009, and received disciplinary charges stemming from campus protests.

Despite regulations requiring that formal disciplinary hearings be held within 45 days, university officials waited 14 months to convene a tribunal, offering Mr. Desai no explanation for the unprecedented delay. When he finally received his day in court, Mr. Desai alleges that Jeff Woods, the assistant director for the Center for Student Conduct, engaged in gross misconduct: knowingly withholding exculpatory information, submitting plagiarized police reports into evidence and affirmatively lying to the hearing panel to bolster the university’s case.

In the end, after eight hours of hearings, it took the three-judge panel (chaired with commendable even-handedness by EECS professor Ron Fearing) just 18 minutes of deliberation to clear Mr. Desai on all charges. Mr. Desai filed his grievance shortly after the verdict.

Most troubling about the university’s announcement — aside from the ironic fact that it was authored by Sheila O’Rourke, an administrator in the university’s Division of Equity & Inclusion — is that it presumes Mr. Desai’s factual allegations are entirely true.

The university didn’t find that there was no discrimination based on political belief in Mr. Desai’s case, nor that university officials actually testified truthfully, nor that the grievance was untimely. Rather, the university explained that Mr. Desai simply failed to allege “facts which, if true, would constitute a violation of law or University policy.”

This is something one might expect from a Berkeley official in 1963 but not 2011. It’s a position that should be repugnant to everyone in the university community, regardless of their political affiliation.

For those who have been following Berkeley’s disciplinary proceedings against student activists — which have garnered repeated condemnations by the American Civil Liberties Union — last week’s endorsement of discrimination and harassment will come as little surprise.

Ms. O’Rourke’s ruling is stunning not so much for the novelty of the policy announced but for the bluntness with which it endorses the on-the-ground reality that student activists have encountered for the past two years. The quiet (and long overdue) departure this summer of Susan Trageser, former head of the Student Conduct office, seemed a promising indication that the university was prepared to turn a new leaf. But Ms. O’Rourke’s tortured defense of Jeff Woods comes as a sobering reminder: the university continues to disregard the basic rights of students engaged in political activity on campus.

If university officials expect to be seen as honest brokers and have credibility with their students, they should reverse Ms. O’Rourke’s position on Mr. Desai’s grievance and take action against those responsible for violating students’ basic rights.

Thomas Frampton is a third year student at Berkeley Law and co-founder of the Campus Rights Project at UC Berkeley. 9/22/2011