Conduct hearing begins for graduate student

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Correction Appended

The April 4 conduct hearing for a UC Berkeley graduate student was fraught with contention, with the student alleging that the panel chair - who the student sued in November - may possess bias due to the lawsuit and acted outside of his authority when he prohibited the use of Twitter during the hearing.

More than a year and a half after the November 2009 occupation of Wheeler Hall, the hearing for Josh Wolf - a campus student at the UC Berkeley Graduate School of Journalism charged with misconduct for his involvement in filming the demonstration inside the hall - lasted more than six hours with no resolution, according to Wolf.

Wolf is charged with four violations of the campus Code of Student Conduct, including unauthorized entry into or use of any university equipment and resources, conduct that threatens the health and safety of a person, participation in a disturbance of the peace or unlawful assembly and failure to comply with the directions of a university official in the performance of his or her duties on campus.

Though the hearing was closed to the public, The Daily Californian obtained a recording from Wolf.

"There were over a hundred classes, 3,800 students not able to attend their courses in Wheeler ... Josh contributed and helped to cause this direct impact to the educational mission of the university," said Jeff Woods, assistant director for the Center for Student Conduct and Community Standards, at the hearing. "It's more likely than not that Josh ... even though he was acting as a journalist, was responsible for violating the policies in question or aiding and abetting others in terms of committing such violations."

At the hearing, the three-member panel addressed procedural issues raised by Wolf, heard opening statements by both Wolf and the Center for Student Conduct and Community Standards and heard testimony from witnesses.

Chief among the procedural issues Wolf raised were his request that his adviser speak on his behalf, his request that his hearing be made open and his request that the panel chair, Robert DiMartino, a campus clinical optometry professor, recuse himself because of "bias or the appearance of bias," Wolf said.

In November, Wolf filed a small claims lawsuit against DiMartino alleging that DiMartino was contractually obligated to hold Wolf's student conduct proceedings in accordance with outlined student conduct procedures, but did not, resulting in a breach of contract. In February, the lawsuit was relocated to the Superior Court Appellate Division of the Alameda County Superior Court following a petition by DiMartino to dismiss the case.

In a March 15 ruling, Judge Gloria Rhynes granted DiMartino's petition, dismissing the small claims suit.

Due to the ongoing and private nature of the hearing, DiMartino may not comment on the specifics of the case, campus officials have stated.

According to the argument presented by Wolf in the hearing, because of the lawsuit there was a "reasonable expectation" of bias.

"The mere perception of bias is enough to call into question the outcome of any decision made by this panel," Wolf said during the hearing.

With DiMartino abstaining, the panel voted that DiMartino would remain the chair.

While the hearing was closed to the public at the discretion of the hearing panel, about halfway through the hearing, the panel was notified that a member of the student's party had been posting updates on Twitter about the hearing.

While Wolf said there was not an issue with the hearing being reported on Twitter since the only privacy concern in the hearing was his own, DiMartino ruled that posting on Twitter during the hearing was not permissible.

"During this hearing it will remain confidential," DiMartino said in the recording. "After the hearing if you want to broadcast it to the world that's your opinion, but right now this is a closed hearing and it will remain that way."

In addition to the halting of the Twitter use, issues also arose when at the end of the hearing, Wolf asked DiMartino whether he would be able to speak about his hearing.

"I'm a journalist and I feel that I should be entitled to talk about what went on in my hearing, but in essence we have a hearing that's on pause by your logic here, how does this work?" Wolf said at the hearing.

DiMartino responded saying that the hearing was "still confidential" and should be treated that way.

When Wolf questioned DiMartino's "authority to restrict (his) free speech abilities," DiMartino responded stating that Wolf could "choose to ignore it if he wished."

According to Christina Gonzales, associate dean of students, the Code of Student Conduct does not provide the authority "to instruct anyone once they're out of a hearing what they can and can't do."

She said that, in general, if a hearing is closed "it doesn't mean that it's confidential and if the student wants to share that information they are free to."

"At the end of the day, it really doesn't make a difference if there was tweeting occurring during or after a hearing if the student was OK having someone in that room tweeting in a closed session," Gonzales said, speaking broadly about student conduct procedures.

She added that sometimes issues arise because of a panel chair's interpretation of the idea of a closed hearing as well as the "poorly written" nature of the campus code.

"Honestly, part of the issue is that panel chairs also don't always know what is acceptable and what's not," she said. "That doesn't mean that it's OK, but it's probably a good reason why we're doing a revision of the code."

Wolf's hearing is slated to resume April 27.


Correction: Friday, April 22, 2011
A previous version of this article incorrectly identified the Center for Student Conduct and Community Standards as the Center for Conduct and Community Standards.

The Daily Californian regrets the error.

Aaida Samad covers higher education. Contact her at [email protected]

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