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Nineteen students and former students at UC Davis have filed a federal lawsuit charging the university’s chancellor, chief of police, and other officials of violating their civil rights in the November 18 pepper spray incident that made headlines around the world.
The lawsuit argues that “campus policies and practices” that led to the incident “offend both the state and federal constitutional guarantees of the rights to free speech and assembly.”
Five of those named in the suit are Davis administrators, including Chancellor Linda Katehi and Chief of Police Annette Spicuzza. The suit alleges that the five promulgated an unlawful dispersal order and failed in their duty to properly train the campus police in handling peaceful protests. It further alleges that the five were negligent in hiring and retaining campus police officer John Pike, who was “unqualified” for his job.
The nineteen plaintiffs are seeking monetary damages and an injunction barring similar responses to student protest in the future.
Thirteen of the plaintiffs say they were pepper sprayed on November 18 “without legal cause or justification.” Four say they were physically mistreated in other ways. Eight say they were wrongfully arrested, and one says he was denied medical assistance while in custody.
Some highlights of today’s court filing:
- Seventeen of the nineteen plaintiffs in the case were UC Davis students last November. The other two were recent graduates, one of whom was teaching classes at Davis at the time. (The other was visiting the campus.)
- Eight of the ten protesters arrested at Davis on November 18 are parties to the lawsuit.
- The plaintiffs claim that the pepper spray used on the students carries a manufacturer’s recommendation that it be used from a distance of at least six feet. The lawsuit estimates that the students were sprayed from a distance of 1-2 feet.
- The suit alleges that “neither the University nor the police provided adequate medical attention on the scene to any of the students who had been sprayed.” It further claims that one defendant was taken to a hospital in an ambulance for treatment of the effects of the spray.
- Fifty-one campus police officers are cited in the suit, of whom all but John Pike are unnamed.
- The lawsuit alleges violations of the plaintiffs’ First, Fourth, and Fourteenth Amendment rights, as well as their rights to free speech and assembly, medical care when in police custody, and freedom from arrest without probable cause, under California law.
Update | Key quote: “In prior years, Defendants … as well as their predecessors in their positions, permitted assemblies, demonstrations and protests on campus which included the erection of structures such as tents and domes, when the message and speakers were less controversial. In contrast, Defendants and each of them took the actions to disperse the lawful assembly on November 18, and to pepper spray and arrest students because of the demonstration’s message and who was delivering it.”
Also: “Certain plaintiffs were targeted by the police for forcible arrests based on their past political activism and associations at the University.”
And this: “The pepper spraying and arrest of peacefully assembled students on their college campus was so clearly in violation of established state and federal law that no inference other than that the Defendants acted maliciously with intent to injure and to deprive plaintiffs of their constitutional rights can be drawn.”
Second Update | The ACLU of Northern California is assisting with the lawsuit. Their press release can be found here.
A federal appeals court gave a conservative Christian counseling student’s lawsuit new life last week, ruling that Julea Ward’s case against Eastern Michigan University could go forward.
Ward was expelled from EMU’s graduate counseling program in early 2009. As I wrote at the time, Ward asked to be reassigned off the case of a gay counseling client. In a letter she read during her disciplinary hearing, Ward said she believes that “God ordained relationships between men and women,” and that people should “strive to cultivate sexual desires for persons of the opposite sex.” She is, she said, “morally obligated … to express the biblical viewpoint regarding proper sexual relationships” in the course of her counseling work.
When asked by the school why she would feel comfortable counseling someone who was contemplating abortion, but not someone who was in a gay relationship. “With abortion,” she said, “you have options which you can offer. With a client that’s struggling with homosexuality … it’s just, ‘OK, this is who you are, so we’re only going to deal with helping you feel comfortable with who you are.’ You cannot discuss any other treatment plans that would bring them out of that particular lifestyle.”
The Ward case has become a cause celebre for the Christian Right, who see her expulsion as a violation of religious freedom and as evidence of the politicization of the counseling profession’s ethics codes. Although the American Counseling Association does not explicitly bar so-called conversion therapy intended to “cure” homosexuality, it notes that such therapies have no proven record of effectiveness. More importantly, as I wrote in 2009, it bars therapists from suggesting such approaches in the absence of a client-initiated request.
Last week’s decision is not a ruling against EMU on the merits of the case, but a reversal of a lower court’s granting of what’s known as “summary judgment” in the university’s favor. The court declared that because, under the most generous reading of the evidence available, “a reasonable jury could conclude that Ward’s professors ejected her from the counseling program because of hostility toward her speech and faith,” the previous decision to throw out the case before it reached a jury was mistaken.
The issues in play here are important ones. A fundamental question is that of the EMU (and ACA) policy on referral in situations in which a counselor is unable to meet a client’s therapeutic needs — Ward claims that such referrals are explicitly authorized by the ACA ethics code, and the appellate court ruling is sympathetic to that position.
As I’ve written in the past, however, the ACA code only anticipates client referral on a case-by-case basis, not a counselor’s rejection of an entire class of clients. And while Ward’s stance may seem reasonable on the surface, the fact is that a client’s homosexuality will not always be made known to a counselor in advance of the establishment of a therapeutic relationship. For a counselor to establish such a relationship and then break it off upon learning that her client is gay would, EMU rightly perceived, represent a profound betrayal and a violation of the counselor’s ethical obligations.
More on this as the case goes forward.
Ten Muslim students from the University of California were found guilty of misdemeanor charges Friday after a 2010 incident in which they disrupted and delayed a speech by the Israeli ambassador to the United States on the UC Irvine campus. The students, who could have faced jail time, were sentenced to probation and community service.
The university had previously suspended the Irvine Muslim Student Union in connection with the incident, and many observers — including Erwin Chemerinsky, the dean of the UC Irvine law school — criticized the decision to bring criminal charges.
I agree with those who are dismayed by the verdict. The interruptions of Ambassador Oren were brief and non-violent, the students didn’t resist ejection, and the ambassador was eventually able to give his speech in full. Clearly the students were disruptive, but they did not have the intent nor the effect of preventing Oren from speaking.
As a person who speaks on campuses with some regularity, I’d certainly be appalled if such an incident ever led to criminal charges against someone who was critical of anything I had to say — the idea that the disruption of a campus speaker would leave a student with a criminal record, and relying on the forbearance of a judge to avoid jail time, is astonishing.
But as I told the Chronicle of Higher Education yesterday, the most important thing to underscore here is that this prosecution stands as part of a larger recent pattern of criminalization of non-violent student protest throughout California, and in the UC system in particular.
Again and again over the last few years, university officials in California have directed law enforcement to end protests by arresting students, including in circumstances in which those protests were neither violent nor substantially interfering with the functioning of the university. In many cases those arrests led (as here) to overreaching prosecutions, while in others the arrests themselves had a disruptive effect on legitimate protest.
It’s the university’s prerogative to set limits on student protest (subject to their First Amendment obligations to permit free speech and assembly), but those powers should be used with restraint and discretion. When the university finds itself deploying mass arrests of non-violent student protesters as a matter of course, as the University of California has in the last several years, something is seriously out of whack.
By contributing to the criminalization low-level non-violent protest as they have, UC administrators, police, and prosecutors have cowed some student activists while radicalizing others. They’ve fostered a charged, tense atmosphere in which students have chained themselves together on the high ledge of a Berkeley campus building and in which a UC San Francisco police officer pulled a gun on a group of protesters, all within the last twelve months.
The Irvine 11 were among some 250 California student activists arrested during the course of protests during the 2009-2010 academic year. That’s a mind-boggling number, and evidence that student-administration relations have gone profoundly off the rails.
Charlie Webster, the state chair of the Maine Republican party, has produced documents claiming to show that over two hundred of the state’s college students have committed fraud by voting in Maine while paying out-of-state tuition.
This is a lie. It’s an evil lie. It’s just … jeez.
Here’s the deal. If you move to Maine for college, you have to pay out-of-state tution your first year. And your second. And your third. And your fourth. And your fifth. You have to pay out-of-state tuition forever, in fact, until you demonstrate that you have “established a Maine domicile for other than educational purposes.”
And as long as you’re attending college full-time, you’ll be “presumed to be in Maine for educational purposes and not to establish a domicile.” Again: Forever.
You can arrive in Maine fresh out of high school, move into your own place, live there 365 days a year. Work there, spend summers there, get married there. Finish your undergraduate degree, go on to grad school. But as long as you’re still a student, you’re “presumed to be in Maine for educational purposes and not to establish a domicile,” and the burden of proof is on you to show otherwise. (“No one factor can be used to establish domicile,” by the way. “All factors and circumstances must be considered on a case-by-case basis.”)
Paying out-of-state tuition isn’t evidence that you don’t live in Maine, in other words. It’s not evidence of anything at all. Out-of-state tuition is a revenue stream for the university and the state, and as such, it’s designed to put every possible burden on the student who’s looking to get out from under it.
Which brings us back to Charlie Webster.
What Webster is doing here is deploying a state regulation designed to deprive Maine’s college students of their money as a mechanism to deprive them of their votes. There’s no other way to describe it. Take their money, take their votes. Justice, fairness, and the Supreme Court of the United States be damned.
It’s really that simple.
The Department of Education recently issued new guidelines on campus policies on sexual assault, including a directive that judicial bodies investigating sexual assault allegations employ the “preponderance of the evidence” standard in their deliberations.
“Preponderance of the evidence” is the standard commonly used in resolving civil cases — lawsuits — in the United States. It basically means that the question at hand will be resolved by a determination of which party’s version of events is more likely to be true. (“Beyond a reasonable doubt” is the standard of guilt used in criminal cases in the US, and there are other standards used in other circumstances, too.)
I don’t yet have an opinion on the DOE’s directive, and I think it’s an important question, so I’ve been reading up on it. And I just noticed something really weird.
As I noted above, “preponderance of the evidence” basically means that the judicial body will determine which side of the case, based on the evidence, is more likely to be in the right. If they come down on the side of the complainant, even hesitantly, the defendant is found guilty. It makes no difference, in other words, whether they’re completely convinced or have major doubts — whichever side they think is more likely to be in the right is the side that wins.
A common way of explaining this is to say that preponderance of the evidence means that if even 51% of the evidence presented supports one party, that party gets the decision. It’s an arbitrary number, of course — there’s nothing magical about 51% as opposed to 55% or 50.623% — but it gets the concept across. Whoever has the stronger evidence wins. Period.
So you see the 51% thing a lot. It’s all over the place — the number 51 appears in about a quarter of all web hits for the phrase “preponderance of the evidence.” But occasionally you see other numbers, like 50.1%, or even 50.000001%. And here’s where it gets interesting.
The number 50.1 appears only rarely in Google hits on “preponderance of the evidence” — a few times per thousand. But in pages in which the word “rape” or one of its variants appear as well, 50.1 shows up almost three times as often. You see a similar bump for 50.01, 50.001, etc.
Those numbers aren’t that big. It doesn’t seem to be a complete glitch — the numbers go in the opposite direction when you add “civil law” to the search instead of “rape,” for instance — but the magnitude isn’t huge.
Check out what happens when you substitute “campus sexual assault” for rape, though. The number 50.01 shows up three times as often as you’d expect, and 50.0001 shows up nearly seven times as often. Plug in “Title IX,” the campus sex-discrimination law on which the ruling was based, and 50.0001 shows up more than fifteen times as often as it should.
What does all this mean?
Well, one thing it doesn’t mean is that a campus assault case in which 50.0001% of the evidence supports the complainant is going to result in a conviction. The very concept of “50.0001% of the evidence” is meaningless — the idea that you could quantify the evidence in a sexual assault case to a precision of two parts in a million is absurd.
And that, of course, is why “50.0001%” is a figure of speech that you hardly ever see in discussions of this legal standard. It’s not coherent. It’s not meaningful. It’s not illuminating of the issues at stake.
And that is precisely why it keeps coming up in discussions of Title IX and campus sexual assault. Because “preponderance of the evidence means the side with 50.0001% of the evidence wins” is a lot scarier than “preponderance of the evidence means that the relevant body looks at all the evidence and rules for the party it thinks has the stronger case.”
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