U.C. Berkeley settlement lets anti-Israel protesters off hook

After initially bandying about talk of suspensions and even expulsions, U.C. Berkeley last Friday reached a settlement with 31 pro-Palestinian students that imposes no suspensions, fines or even an admission of wrongdoing.

The students had participated in an April 9 sit-in at Wheeler Hall, sponsored by Students for Justice in Palestine, in which 78 demonstrators demanding U.C. divestment from Israel were arrested.

Legal haranguing between the university and students' lawyers drew the process out for months and forced the abrupt cancellation of last fall's student conduct hearing for protester Roberto Hernandez, who had been accused of biting a police officer during the incident.

Subsequent hearing dates for Hernandez were repeatedly canceled. A Feb. 14 cancellation, coupled with the belated granting of Hernandez's undergraduate degree last month, was a clear sign that the university was negotiating a settlement.

"I'm very glad this has settled," said Dan Siegel, one of several National Lawyers Guild attorneys who defended the students. "It has been 10 months and after a while it gets to be like dead fish."

Though the exact terms of the settlement are confidential, Siegel said there would be no suspensions, no money exchanging hands and no admissions of any guilt, wrongdoing or violation of the Student Code of Conduct.

Hernandez's settlement is distinct from the other 30 students, but Siegel would not say whether it was harsher. "Since it's not really a punishment settlement, it's kind of hard to say," he said.

Hernandez, now a U.C. Berkeley graduate student in ethnic studies, could not be reached for comment. Phone calls were not returned from Mike Smith, the assistant chancellor for legal affairs; John Cummins, the vice chancellor; and Karen Kenney, the dean of students.

The April 9 takeover marked the second-straight year pro-Palestinians had occupied Wheeler Hall. University officials told the Bulletin that in the days and weeks before the demonstration, leaders of Students for Justice in Palestine were explicitly warned that occupation of an academic building would carry harsh consequences.

But any hopes the university had of imposing stiff punishments against Hernandez and the others were dashed when Alameda County Deputy District Attorney Stuart Hing granted the protesters factual findings of innocence, which sealed their arrest records.

Hing has since testified that he only intended for the young protesters to keep their arrest records clean, but he may not have realized at the time that only 41 of the 78 protesters were students. The move rendered much of the evidence inadmissible for those students who had pending conduct hearings.

Berkeley Hillel's executive director, Adam Weisberg, was out of town last week and could not be reached for comment. But he had previously credited campus administrators for doing all they could in the matter and blamed Hing for ruining the university's case.

"The truth is, I think the university has pursued this quite thoughtfully," Weisberg said in January. "Yet they find themselves in a position where the legal context the DA's decision has placed them in has left them with little access to the evidence they need to really prove their point."

Siegel credits Hing's findings as a major factor in the university's decision to settle. But he points out that the university was also taken to task over the composition of the adjudicating panels at the student conduct hearings as well as questions over the students' right to counsel.

All told, the resultant lawsuits and major delays worked in the protesters' favor.

"The biggest factor was…the passage of time. I think the university obviously has other concerns right now — lots of other concerns — and is less publicly concerned about what happened last April," said Siegel.

"I don't believe the university ever found itself in a situation where it had to face such a strong level of opposition by people in the legal community. We were able to tell the university that we had enough attorneys to take on the cases, having individual hearings with an individual lawyer for every student."

The university's heavy-handedness came back to haunt it, according to Siegel.

"I do think the university moved in an arrogant and clumsy manner," he said.

"They had some staff people there who either didn't know what they were doing or didn't care what they were doing."

The task of facing 31 of such hearings may have contributed to the university's decision to settle, Siegel added.

This week, the university announced intentions to rewrite the Student Code of Conduct, enabling organizations to be held accountable for actions as well as individuals; the move that was met with some hostility by student groups.

According to Siegel, however, the Wheeler Hall matter is finished.

"This is over. This one's over."

Joe Eskenazi

Joe Eskenazi is a columnist at Mission Local. He is also former editor-at-large at San Francisco Magazine, former columnist at SF Weekly and a former J. staff writer.