Notes from the Underground: Legislative Hearing on UC Protests

By Joe Kiskis, assisted by Eric Hays

December 14, 2011

Joint informational hearing

Senate Committee on Education and Assembly Committee on Higher Education-- UC and CSU policies, Procedures, and Responses: Campus police and on campus Demonstrations

Chairs Senator Lowenthal and Assemblymember Block

The hearing was scheduled for two hours but lasted about four and a half hours---non-stop.

There were four panels and a public comment period. Please see the agenda for details.


Panel 1:

From the testimony of Michael Risher (ACLU), it seemed clear that there is plenty of established law concerning the police use of force and pepper spray. Permissible use of force in general and pepper spray in particular is supposed to be evaluated in relation to threat to officers, whether a felony or misdemeanor is suspected, and flight risk. He also emphasized that excessive use of force is intimidating to others and has a chilling effect on the legitimate exercise of free speech.

A counter-intuitive point made later by UC Council Charles Robinson is that in considering the level of justified force, linking arms is considered active (rather than passive) resistance on some campuses. (Why this should vary by campus is unclear to me.) Another later point that fits here is related to the legal basis for the use of pepper spray.

Tom Hayden was the first speaker in the public comment period. He emphasized that there has never been adequate research done to establish the safety of pepper spray, and that it became legal and widely accepted for both police and personal use through mis-steps in the legislative process.

Yudof promised to get UC to do any needed research.

Barbara Attard is a police practices consultant. She emphasized the benefits of transparent civilian review boards. Of UC campuses, only Berkeley has one. There was a comment to the effect that it may be a bit weaker than is typical because it is limited to generalities rather than specific instances.

A point made by Calvin Handy, former UCD chief of police, is that a primary responsibility of campus police is to protect the rights and assure the safety of demonstrators. In Handy's view, the pepper spraying at UCD was an "aberration" in an otherwise exemplary history of police behavior. This was later refuted by students who cited other well-publicized instances of excessive force being used by UC police.

Panel 2:

This included Yudof and Robinson from UC and from CSU EVC/CBO Quillian and Nate Johnson, Chief Law Enforcement Officer.

For the most part, Yudof repeated comments that he has already made in public. In answer to a direct question about possible conflicts of interest for Kroll, he was emphatic in saying that there "There are zip, zero conflicts, and I'm a lawyer." I can imagine that he might be correct in a narrow legal definition of conflict of interest. A better question might be whether Bratton/Kroll are burdened by an overweight bag of biases.

It's worth noting that as of the hearing day, CSU was not going to have the benefit of an outside investigation of the CSU board meeting. The CSU police guy gave an account of those events that was later sharply disputed by several speakers.

Panel 3:

During this panel, the attention of the committee and the press was focused on Chancellor Katehi. Much of her opening presentation is already in the public record. She reiterated that she did not order the use of force or of pepper spray. When asked if VC Meyer did so, she declined to answer. She emphasized that she plans to be more directly involved with student protesters in the future. Toward the end of her prepared remarks, she addressed the underlying issues.

"We will not do justice to our university or to our state if we allow the events of Nov. 18 to mask the reasons students have been protesting in the first place."

"While the images of pepper spray sparked justifiable outrage, the underlying issues go far beyond that one highly regrettable incident. Our students are increasingly frustrated and angry about reductions in state support for higher education. They are frustrated and angry about repeated tuition increases. They are worried about how they will repay their loans and find jobs when they graduate."

"They are justifiably frustrated and so am I."

"I do not mean to diminish the significance of the pepper spray incident, but we all need to work together to make higher education more affordable and accessible, or there will be continued frustration from students: Both from those who protest, and from those who only want to go to class without distraction."

I think this was the best statement by any of the segment representatives. In later testimony, the students were very strong and effective on the point.

When asked what she would do differently if she could go back in time to Nov. 18, she said that if she knew the tents could not be removed peacefully, she would not remove them. On the other hand, a series of questions from Senator Bob Huff (R-Diamond Bar) implied he is worried that UC has been insufficiently prompt and consistent in enforcing rules, e.g. those prohibiting camping.

Panel 4:

This was the students. They were very effective and were even more direct than Chancellor Katehi in stating that unless there are improvements in university funding, student frustration, anger, and protest will continue. As already noted, they convincingly refuted the CSU version of events at the CSU board meeting. They also emphasized that the Governor's tax initiative contains no dedicated funding for CSU or UC.

Public comment:

In addition to Tom Hayden, there were about ten speakers. Several were students, who reiterated points made during the student panel. As the hour was very late, I just briefly stated faculty support for students, remarked on the futility of imagining that policy and procedure improvements will result in protests that follow the rule book, and repeated the theme that the problems can be effectively addressed only through restored funding for public higher education.

There were a number recurring themes during the hearing.

1) How the chain of command should work and what the role of a chancellor should be. Katehi was clear in stating that she does not believe that tactical decisions should be in the hands of chancellors, but if that were to become the expectation, then chancellors would need additional training. Handy's view was that the ultimate responsibility for police tactics lies with the campus chancellor.

2) Another question was whether rules for protest and for police engagement should be the same for students and non-students and on and off campus. A few committee members had a clear preference for uniformity. I do not recall that anyone argued the opposite side.

3) Should UC policy and procedures governing protest and police be uniform over the system or vary by campus? Yudof commented that more centralization might be desirable.

4) My sense was that the policy already in place may be carefully thought out, but is not as well understood as might be desirable on the highest and lowest links in the chain.

5) My sense was that many were looking for a set of civilized rules for protest that would define everyone's roles and would be willingly and consistently followed. To me, this seems like a wish for scripted, sanitized protest that becomes no protest at all.

6) Both Yudof and Katehi were pressed on the timeline for the various investigations. With regard to Kroll/Reynoso, both stuck to the expectation of Kroll finishing around Jan. 1 and Reynoso finishing by the end of Jan. I.e. they neither slipped the timeline nor inserted caveats. Since then, I have heard that the private word is otherwise, and that the timeline might slip substantially.

In raising questions about the timeline for investigations, committee members were clear in their intent to have at least one additional hearing after the reports are available. As another indicator of legislative engagement, Assemblyman Anthony Portantino (D-La Cañada) requested that UC meetings to discuss proposed policy changes be publicly noticed. Yudof agreed.

7) University funding: In their opening remarks, some of the committee members recognized that university underfunding was the underlying cause of student unrest. However, the hearing was about policy and procedure, and most of the discussion concerned those issues. After Katehi revisited the causes and then the students emphasized it, it received more focus. As nearly as I could tell, the view of the Democratic legislators was that increased funding for higher ed is contingent upon increased state revenues.