Though the ASUC Senate did not take formal action against the Berkeley College Republicans at the senate’s emergency meeting Sunday, individual students could file charge sheets against the group — but formal punishment for the group is fraught with technical, procedural and legal difficulties.
The senate unanimously passed “A Bill in Support of Respectful ASUC Student Group Conduct,” which makes note of the fact that the ASUC has the authority to revoke sponsorship for a student group through the ASUC Judicial Council. The bill stresses the council’s responsibility to “review charges of violation” of the constitution and bylaws.
In other words, the senate left the door open to punitive action against the campus Republicans’ group while declining to take action at the meeting.
While no senators stated their views as to whether the campus group would be formally punished, other ASUC officials suggested that it could. ASUC President Vishalli Loomba said in an email Saturday it was possible the campus group would get its funding revoked. Last year’s ASUC Attorney General Nathan Rahmanou, who is currently a law student at UCLA, said “it’s very possible that (the campus Republicans’ group) could lose (its) ability to have ASUC sponsorship.”
Punitive action against a student organization can be referred to the council in two ways, according to the ASUC bylaws. The first is for the senate to vote to file charges by a two-thirds majority. The second is for a UC Berkeley student to file a charge sheet. The senate is declining to exercise its authority to recommend that charges be pursued, according to Student Action Senators Shahryar Abbasi, Connor Landgraf and Aviv Gilboa. However, individual students have threatened to file charges against the Berkeley College Republicans, according to Landgraf.
After the council considers the charges, it can do one of four things: find that the campus Republicans’ group is not guilty of wrongdoing under the ASUC constitution and bylaws, issue a formal reprimand, issue a suspension or revoke ASUC sponsorship of the group.
If the council considers the charges filed against the group, it will find itself in a quandary, as two relevant portions of the ASUC constitution and bylaws are inconsistent with one another. The bylaws state that sponsorship can be revoked if a group “discriminates in its method of recruitment and acceptance for membership.” Even if the group were to be found guilty of discriminatory conduct, it would not be guilty of discriminating with regard to member selection.
However, the ASUC constitution, in what may be a typo, states “the Senate shall not fund any activity or group which discriminates against any student… in its method or recruitment and acceptance for membership.” Students who may file charges against the group may be able to exploit this specific language and argue that the group’s “method” of expression is discriminatory.
Currently, the Judicial Council is not equipped to pursue charges against the group, as several spots on the council are vacant and no Attorney General has been confirmed, according to Abbasi. Until a successor is appointed, Rahmanou is technically still the Attorney General but is unlikely to be involved in any action because he is no longer a UC Berkeley student, he said. An Attorney General and Judicial Council members have been nominated by Loomba but will not be confirmed until later this week, according to Abbasi.
There may also be state or federal constitutional issues associated with punitive action against the group. Multiple members of the campus Republicans’ group who commented during Sunday’s senate meeting said that formal punitive action against the group would violate its right to freedom of speech. According to UC Berkeley School of Law Professor Daniel Farber, if the group actually sold cupcakes at different prices to students of different races, then their conduct would not be protected under the First Amendment because “a general rule against racial discrimination in commercial transactions should be valid.” However, Farber cautioned that the ASUC cannot legally “cut off funding just because they don’t like the group’s viewpoint.”