Former UC Berkeley graduate student appeals student conduct sanction

After being found responsible for conduct violations stemming from his coverage of the November 2009 occupation of Wheeler Hall, a former UC Berkeley student journalist appealed the decision Wednesday, calling for a reversal of the finding of responsibility.

The appeal — filed by Josh Wolf, a recent graduate of the campus Graduate School of Journalism — states that Wolf’s hearing panel failed to follow its own standards of evidence in finding Wolf guilty of three violations of the campus Code of Student Conduct. It continues to say the panel’s actions were not lawful under state law as well as the U.S. Constitution.

“I would like to see a response to this appeal that addresses each of these points, because I think there’s a valid case here,” Wolf said. “The university has an ethical obligation to address these issues in a transparent manner.”

One of the issues brought up in the appeal was the standard of evidence used by the panel during Wolf’s hearing. According to the appeal, an incorrect standard of evidence was applied in determining each of the alleged violations.

The appeal continues to state that there was a lack of evidence that Wolf was properly charged and asserts that Wolf’s hearing was held in violation of the code’s timeline and UC Office of the President policy — violations that should result in a reversal of the panel’s rulings.

The appeal also calls for a reversal of the panel’s findings under the U.S. Constitution, stating that under the First Amendment, “the government has an obligation to ensure the press is unencumbered in its mission to report the news.”

Another issue brought up in the appeal was alleged bias by hearing panel chair Robert DiMartino, a campus professor of clinical optometry.

In November, Wolf filed a small claims lawsuit against DiMartino, alleging that DiMartino did not hold Wolf’s student conduct proceedings in accordance with outlined student conduct procedures. The lawsuit was relocated to the Appellate Division of the Alameda County Superior Court following a petition by DiMartino to dismiss the case and was eventually dismissed in a March 15 ruling.

At his April hearing, Wolf brought up the issue of potential bias and asked that DiMartino recuse himself. However, the hearing panel ruled that no bias existed.

According to a hearing report, DiMartino filed an affidavit with campus counsel before the hearing which detailed his lack of bias toward Wolf based on the fact that even if Wolf had been successful in his legal efforts, DiMartino would not be personally liable for any damages.

Wolf’s appeal, however, argues that DiMartino’s claim of not being biased should be dismissed because DiMartino’s affidavit was not made known at the hearing.

Following Wolf’s April 27 hearing, DiMartino filed a Memorandum of Costs with the Superior Court on May 3 seeking to recover a $1,060.12 reimbursement from Wolf.

As the prevailing party in the suit, DiMartino is entitled to recover from Wolf the filing costs and costs of serving Wolf with papers related the action, according to court documents submitted by DiMartino.

No decision has been made yet by the court regarding the reimbursement.

The appeal states that the affidavit is “meaningless in light of DiMartino’s recent decision to pursue a monetary claim against Wolf.”

DiMartino declined to comment, stating in an email that it would be inappropriate to comment on a student’s ongoing conduct proceeding.

The campus has 15 days to address the issues brought up in the appeal, according to the code.

According to Nathan Shaffer, a recent UC Berkeley School of Law graduate and member of the Campus Rights Project who has been advising Wolf, the hearing process was “incredibly flawed and biased” against Wolf and as a result will require “some very creative mental acrobatics … to summarily dismiss (Wolf’s) appeal.”

He added, however, that he would not be surprised if the appeal was denied, given the nature of the conduct proceedings.

“If the (campus) decides not to fairly consider the appeal and overturn the responsibility finding, I at least hope that (Vice Chancellor for Student Affairs Harry Le Grande) and all of the Student Conduct staff take some time to seriously reflect on what kind of University they would like to create and whether or not even the slightest bit of respect for students will ever be a part of it,” said Shaffer in an email.

Aaida Samad is the lead higher education reporter.