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BERKELEY CAMPUS CODE OF STUDENT CONDUCT
General Overview
The University of California at Berkeley is a community of scholars committed to maintaining an environment that encourages personal and intellectual growth. It is a community with high standards and high expectations for those who choose to become a part of it, including established rules of conduct intended to foster behaviors that are consistent with a civil and educational setting. Members of the University community are expected to comply with all laws, University policies and campus regulations, conducting themselves in ways that support a scholarly environment. In this context, faculty are guided by The Faculty Code of Conduct, Section 015 of the Academic Personnel Manual, and students by the Berkeley Campus Code of Student Conduct, articulated here.
Accompanying the Berkeley Campus Code of Student Conduct (Code) is an established process to arrive at a clear understanding of the facts and circumstances surrounding any claim of violation of the Code and to respond appropriately when violations are sustained. Students facing a possible violation of the Code are given an opportunity to meet with a member of the Student Judicial Affairs (SJA) staff and discuss both sides' understanding of the facts surrounding the incident in question. Ideally, claims can be resolved informally through discussions with SJA staff. If necessary, SJA will conduct an investigation and gather further information relevant to the complaint. Students may also provide any additional information to clarify the facts. If the investigation yields insufficient evidence or if the investigation shows that there was no Code violation, the case may be dropped or a Notification issued with no further action. If the investigation yields evidence of a Code violation, SJA will propose a resolution and students will again be given the opportunity to resolve the case informally. If the student chooses not to accept informal resolution or SJA determines it necessary, the case will be handled formally through an administrative hearing process.
Once the formal process begins, students can expect to be scheduled for a hearing at which they may provide information to a hearing panel composed of faculty, staff and students. SJA staff will present witnesses and evidence to support the case for the campus and students will have the opportunity to testify, present witnesses and evidence on their behalf and cross-examine the campus' witnesses. The hearing panel will determine whether it is more likely than not that students violated the Code, and if so, will recommend an appropriate sanction to the Dean of Students. If a sanction is imposed, students have the right to appeal their case to the Vice Chancellor of Student Affairs.
Because this is an educational process, students are expected to speak for themselves. They may, however, seek the advice of another person to assist them in either the formal or informal process. In the event that the student chooses not to participate in the hearing process, the hearing panel may choose to proceed in his or her absence.
Sanctions in both the formal and informal processes are intended to have the effect of discouraging violations of the rules of conduct and educating students about appropriate behavior within the community. Sanctions often include such elements as community service, letters of apology, counseling or additional coursework to encourage students to learn from their prior behavior and educate others about the standards of the campus community.
I. STUDENT RIGHTS
Students charged with violations of the Berkeley Campus Code of Student Conduct (Code) are advised of their due process rights when they meet with Student Judicial Affairs staff, and throughout the process, they are entitled to the following procedural protections:
A. Notice of the Charges
If Student Judicial Affairs determines that a student must be charged with violations of the Code, a formal notice is sent to the student within 30 days after a complaint is filed or initiated by Student Judicial Affairs. The Notice of Charges identifies those sections of the Code the student is charged with violating and includes a brief explanation of the facts supporting the charge(s). Click here for a Timeline of the disciplinary process.
The University may bring charges against a former student, for offenses committed while a student, within six months after termination of student or student organization status. This limitation does not apply to cases that involve academic dishonesty or fraud affecting the acquisition of a degree, over which the University maintains indefinite jurisdiction.
B. Presumption of Innocence
It is presumed that a student charged with a violation of the Code is not responsible for such violations unless it is proven otherwise or the student admits responsibility. (See Burden of Proof)
C. Choosing not to Participate
The judicial affairs process works best when students and staff collaboratively come to resolution of cases. Students may choose not to participate in the resolution of their case, however, the hearing panel may elect to proceed in their absence. When a hearing is held in a student's absence the decisions of the hearing panel and the Dean of Students will have the same force and effect as if the student had been present. Students may also choose to remain silent during any portion of the judicial process and no inference will be drawn from their silence.
D. Hearing
Students charged with violations of the Code are encouraged to fully explore informal resolution of their case. They may, however, elect to have formal resolution of the case through a hearing.
E. Appeal
Students have a right to appeal the decisions of the hearing committee and the Dean of Students. See Appeal of the Hearing Panel and Dean of Students' Decisions for a description of the appeals process.
F. Advisors
Students must speak on their own behalf but may be accompanied by one advisor at any stage of the proceedings, at his or her own expense. An advisor's role in the student conduct process is to provide students with assistance in preparing for and conducting meetings and hearings. In meetings prior to the commencement of a formal hearing process, students are encouraged to fully participate but may be assisted by an advisor who, with the written permission of the student, may interact directly with Student Judicial Affairs staff and may meet on behalf of the student to seek an informal resolution. In a formal hearing, the student may consult with his or her advisor throughout the proceedings, however, advisors may only participate directly if the hearing panel, in its discretion, believes such participation would benefit the proceedings. The extent of such participation will be determined by the hearing panel.
II. DISCIPLINARY PROCEDURES
The Office of Student Judicial Affairs is responsible for administering the Code on behalf of the campus. Student Judicial Affairs handles complaints of both academic and non-academic violations of the Code. Faculty members may resolve academic violations separately or in conjunction with Student Judicial Affairs. (See Faculty Informal Resolution of Academic Violations) Each case is handled individually and, while due process is always provided, every procedure outlined in the Code may not be employed in a particular case. The timelines set forth in this document may be extended in unusual circumstances as determined by the Dean of Students.
A. Filing a Complaint and Investigation of Allegations
1. Filing a Complaint
Most cases begin with a complaint alleging that a student has committed an academic or non-academic violation of the Code. Any member of the faculty or staff, a student or any other person may file a complaint with Student Judicial Affairs. Complaints alleging violation of certain campus policies, such as the Sexual Harassment Policy, must be filed within time limits prescribed in those policies. Student Judicial Affairs may also independently investigate information concerning student misconduct from any source, such as police and/or press reports, even where no formal complaint has been filed.
2. Sexual Harassment Complaints
In cases involving sexual harassment and/or gender discrimination, the investigation of specific allegations will be conducted by the Title IX Compliance Officer or other officer designated by the Chancellor in accordance with the Berkeley Campus Policy on Sexual Harassment and Complaint Resolution Procedures or the Student Grievance Procedure. In cases involving a complaint of rape or sexual assault, the investigation of specific allegations will be directed by the Title IX Compliance Officer and conducted by Student Judicial Affairs. The Title IX Compliance Officer will decide whether sexual assault and sexual harassment cases should be pursued by Student Judicial Affairs.
3. Complaints Relating to University Housing
Students residing in University-owned and/or operated housing facilities who violate the Residential Code of Conduct may be adjudicated under the process outlined in the Residential Code of Conduct or referred directly to Student Judicial Affairs.
B. Investigation of Misconduct
Student Judicial Affairs will conduct an investigation of complaints or reports of misconduct and determine whether sufficient evidence exists to pursue charges against the accused student. One of the following actions will then be taken:
1. Not Pursued
a) Insufficient Evidence
If Student Judicial Affairs determines that there is insufficient evidence to support a charge of violation of the Code, charges against the accused student will not be pursued.
b) Notification
Instead of pursuing charges against a student that has allegedly violated the Code, Student Judicial Affairs may issue a written notification to a student that his or her alleged behavior may have violated University policy, campus regulations or the Code and that, if repeated such behavior will be subject to the disciplinary process. The Notification does not result in a formal disciplinary record and may be issued without conducting a formal hearing. However, in order to enhance the sanction, the prior alleged behavior as detailed in the Notification may be introduced in a subsequent disciplinary action for the purpose of establishing that the student has been warned about such behavior.
2. Case Charged
a) Notice of Charges
The written notice of charges advises the student of: the University Policy or campus regulation the student is charged with violating; the factual basis for the charges including, wherever possible, the date, time, and location of the alleged offense; a statement that the student may be accompanied by an advisor at any stage of the disciplinary proceedings at his or her own expense; the opportunity to meet with a staff member of Student Judicial Affairs to discuss resolution of the charges pursuant to Informal Resolution of Charges of this Code; the right to a hearing to contest the allegations; and Student Judicial Affairs' intent to proceed to hearing unless the student meets with Student Judicial Affairs staff and informally resolves the charges. Click here for a Timeline of the disciplinary process.
Notice to student organizations will be addressed to the president, principal officer, student group signatory or other students designated by the group to act as an agent on behalf of the group.
b) Advisory Review Committee
Student Judicial Affairs may seek the advice of an Advisory Review Committee with respect to pursuing or charging a case or with sanctioning pursuant to an informal resolution. Hearing panels may also seek the advice of an Advisory Review Committee for the purpose of determining an appropriate sanction. This committee will also conduct any hearings required in connection with an Interim Suspension. Advisory Review Committees will be formed on an as-needed basis from the members of the Committee on Student Conduct and will include three members: the faculty chair or faculty chair designate, one student and one staff member. Advisory review committee members responsible for making decisions related to pursuing or charging a case will not be seated on the hearing panel for that case.
C. Resolution of Charged Cases
Students may choose to resolve their cases either informally through meetings with Student Judicial Affairs staff or formally through the hearing process. In either case, a student may request a copy of his or her own disciplinary file from Student Judicial Affairs. Student Judicial Affairs must provide a copy within three days of such requests. The release of such information may be subject to limitations imposed by state and federal law. (See Berkeley Campus Policy Governing Disclosure of Information from Student Records for further information.)
1. Informal Resolution of Charges
a) Student Judicial Affairs Informal Resolution
Students charged with Code violations are offered the opportunity to meet with Student Judicial Affairs to resolve their case without a formal hearing. Cases may be resolved informally if the charged student, at any time prior to the hearing, admits violating the Code as charged or otherwise accepts an informal resolution. Informal resolutions generally include Disciplinary Sanctions combined with enhancements such as community service, additional educational requirements, written assignments, etc. If the Student Judicial Officer and the student reach a mutually acceptable agreement regarding sanctions, no hearing will be held. A student agreeing to an informal resolution must understand that by accepting the informal resolution he or she is waiving his or her rights to a hearing and any further appeal. If no agreement is reached, the matter will proceed to a hearing. (See also Faculty Resolution of Academic Violations)
b) Faculty Informal Resolution of Academic Violations
(1) Generally
Faculty members may choose to informally resolve incidents of academic misconduct or may refer such complaints to Student Judicial Affairs. All faculty dispositions will be reported to Student Judicial Affairs, either for adjudication (as described in Resolution of Charged Cases) or for record-keeping purposes. If the student has a prior history of misconduct at the University, Student Judicial Affairs may adjudicate the matter after consultation with the instructor or faculty member.
(2) Initial Investigation
Instructors or faculty members attempting to settle academic matters will discuss allegations of academic misconduct with the student directly and, if appropriate, others involved in the suspected academic violation. If the student maintains innocence of the violation and the instructor or faculty member determines that no such violation occurred, he or she may cease investigating the complaint.
(3) Faculty Determined Disposition
If, upon discussion, the student admits the violation, the instructor may impose an appropriate academic sanction after confirming with Student Judicial Affairs that the student has no prior history of academic misconduct. If the student does not admit to the academic misconduct or consent to the sanction proposed by the faculty member, the matter will be adjudicated through Student Judicial Affairs. Academic sanctions may only be imposed by faculty members and include but are not limited to resubmitting assignments and grade adjustments. Faculty members may not impose sanctions as listed in Disciplinary Sanctions. All faculty dispositions will be reported to Student Judicial Affairs for record-keeping purposes.
(4) Referral to Student Judicial Affairs
If the instructor or faculty member is unable to, or elects not to resolve the complaint with the student, he or she will report the alleged violation to Student Judicial Affairs.
If the student, in discussion with the instructor or faculty member, maintains innocence of the alleged violation and the instructor or faculty member believes a violation did occur, he or she will report the alleged violation to Student Judicial Affairs. If a student is found responsible for academic violations of the Code academic sanctions may be imposed by the faculty member (see Faculty Determined Disposition) and non-academic sanctions imposed by Student Judicial Affairs or the hearing panel. (See Disciplinary Sanctions)
When an instructor or faculty member reports an alleged academic violation to Student Judicial Affairs, a course grade of "I" (Incomplete) will be noted on the grade sheet pending resolution of the allegation. When the alleged violation is reported to Student Judicial Affairs, it will be handled as outlined in Resolution of Charged Cases.
(5) Notice of Final Disposition
The instructor or faculty member will, in all cases, be informed of the disposition of the allegations by Student Judicial Affairs to the extent permitted by applicable law and University policy.
2. Formal Hearing Process
Cases will be heard by hearing panels comprised of members of the Committee on Student Conduct unless resolved informally (see Student Judicial Affairs Informal Resolution) through either Student Judicial Affairs or a faculty disposition (see Faculty Informal Resolution of Academic Violations). Both the student and the Office of Student Judicial Affairs will have an opportunity to present witnesses to the hearing panel for questioning and cross-examination (see Presentation of Evidence). The student may request a copy of his or her disciplinary file at any time in order to prepare for a hearing. Student Judicial Affairs must provide copies within three days of such requests. The release of information pursuant to this section may be subject to limitations imposed by state and federal law. (See Berkeley Campus Policy Governing Disclosure of Information from Student Records).
a) Pre-Hearing Conference
The chair or chair designate of the Committee on Student Conduct will conduct a pre-hearing conference with the charged student and Student Judicial Affairs to discuss evidence and procedure in the hearing.
(1) Exchange of Evidence
Prior to any hearing the student and Student Judicial Affairs will provide the chair of the Committee on Student Conduct with copies of all evidence to be presented in the hearing. Early access to these materials allows the hearing panel to review the facts of the case and prepare questions for witnesses. The student and Student Judicial Affairs will also have access to this information in advance of the hearing in order to prepare.
Student Judicial Affairs
No later than five days before the hearing Student Judicial Affairs must provide the chair of the Committee on Student Conduct with two copies of: 1) the student's disciplinary file including all documentary evidence to be presented at the hearing; 2) a list of witnesses to be presented in support of the charges; and 3) a brief written report summarizing the facts of the case to be heard. (Click here for Guidelines for summary reports ) If Student Judicial Affairs wishes to argue any pre-hearing evidentiary or procedural matters, a written summary of such matters must also be included. The release of information pursuant to this section may be subject to limitations imposed by state and federal law. (See Berkeley Campus Policy Governing Disclosure of Information from Student Records).
Charged Student
No later than five days before the hearing the charged student must provide the chair of the Committee on Student Conduct with two copies of: 1) a list of witnesses to be presented in support of the student; and 2) documentary evidence to be presented at the hearing. The student is encouraged to also include two copies of a brief written report summarizing the facts of case. (Click here for Guidelines for summary reports ) If the student wishes to argue any pre-hearing evidentiary or procedural matters, a written summary of such matters must also be included.
The chair of the Committee will keep one copy of all submissions and provide the other to the student and Student Judicial Affairs, respectively. Any evidence received by the accused student or Student Judicial Affairs after compliance with the rules regarding the exchange of evidence described above, will be provided to the other party as soon as possible prior to the hearing. Any evidence received within five days of the hearing will be admissible at the discretion of the chair or chair designate of the Committee on Student Conduct.
(2) Procedural Matters
The chair or chair designate of the Committee on Student Conduct will review arguments and rule upon any procedural questions that arise prior to the hearing.
b) The Hearing
Disciplinary hearings will be held when the case is not resolved informally. Student Conduct hearings begin within 45 days from the date the notice of charges was mailed to the charged student by Student Judicial Affairs. Written notice of the date, time, and location of the hearing will be sent to the student via certified or registered mail at least ten days before the hearing. See Notice.
(1) Presentation of Evidence
Hearings are not conducted according to formal rules of procedure and evidence. Unless otherwise determined by the hearing panel, Student Judicial Affairs will present witnesses and other evidence in support of the charges first and the charged student will present witnesses and evidence thereafter. All witnesses brought before the hearing panel will be questioned first by the members of the panel.
Once the hearing panel has completed it's questioning, Student Judicial Affairs and the student will each be given the opportunity to ask any remaining questions for purposes of either direct or cross-examination. The student must choose one of the following methods for all follow-up questioning: either 1) all follow-up questions are asked by the student and the Judicial Affairs Officer, or 2) all follow-up questions are submitted by the student and Student Judicial Affairs to the panel in writing as they arise during the course of the hearing. No later than three days prior to the hearing, the student will elect their questioning method in writing. The student's choice of questioning method is also binding upon Student Judicial Affairs and applies throughout the hearing. The student and Student Judicial Affairs will each be given an opportunity to make both opening and closing statements. (Click here for FAQs about the hearing process )
(2) Rulings during the Hearing
The hearing panel will rule on all questions of procedure and evidence, including but not limited to the order of presentation of evidence, admissibility of evidence, applicability of regulations to a particular case, and relevance of testimony. If a challenge arises concerning the constitutionality or legality of an application of any such regulations or policies to a particular case, the hearing will continue and the challenge may be submitted by the hearing panel in writing to the Vice Chancellor for Student Affairs, who will seek legal advice from the Office of Legal Affairs.
(3) Question and Answer
No person is required to testify against him or herself in any disciplinary proceeding. Testimony is admissible when the opposing party is afforded the right to confront and a reasonable opportunity to cross examine the witness. See Presentation of Evidence. However, if a witness is unavailable or declines to attend, the hearing panel will determine whether written or other recorded statements of such witness will be admitted.
(4) All Evidence Presented at the Hearing; Hearings in Absentia
The hearing panel's decision will be based only upon evidence introduced at the hearing in the presence of the charged student unless the student: (a) fails to appear after appropriate notice has been given or (b) otherwise waives his or her right to be present. Neither the charged student nor Student Judicial Affairs may communicate information regarding the merits of the case or its disposition to the hearing panel without the other party being afforded an opportunity to respond. However, if the student does not appear at the hearing, the hearing panel may choose to proceed in the student's absence and the decision of the hearing panel will have the same force and effect as if the student had been present.
(5) Burden of Proof
Student Judicial Affairs bears the burden of proving the charges by a preponderance of evidence. A preponderance of evidence is generally defined as "greater than 50%" or alternatively "more likely than not."
(6) Admissibility of Evidence
Admissible evidence is the sort upon which responsible persons are accustomed to rely in the conduct of serious affairs, and is not restricted to evidence admissible under the strict rules of evidence of a court of law. The hearing panel will not consider evidence that it determines has been obtained by fundamentally unfair means.
(7) Prior Discipline Record
The hearing panel will take into account the student's prior discipline record, if any, only for purpose of determining an appropriate sanction unless the hearing panel considers the information to be relevant to the charges.
(8) Evidence in Cases of Sexual Assault or Rape
The privacy interests of the parties will be considered by the hearing panel in making decisions about the introduction of evidence. In cases involving allegations of sexual assault or rape, testimony regarding an individual's sexual history and practices will be admitted into evidence only when the hearing panel determines that it is directly relevant to the claims and essential to fair resolution of the matter.
c) Hearing Panel's Recommendation and Dean of Students' Decision
The hearing panel's decision will be memorialized in a report that includes findings of fact and a determination of whether the student has violated the Code of Student Conduct. The hearing panel will also recommend to the Dean of Students specific sanctions to be imposed if it finds the student in violation of the Code. A copy of the report prepared by the hearing panel will be sent by U.S. mail to the student and delivered to the Dean of Students and Student Judicial Affairs within ten days of the hearing.
Based upon the findings of the hearing panel and the panel's recommendation for sanctioning, the Dean of Students will determine the sanction to be imposed. A written statement of the Dean of Student's final decision on sanctioning will be sent by U.S. mail to the accused student within ten days of receiving the hearing panel's report.
d) Recommendation to Revoke Degree Previously Conferred
(1) If the hearing panel determines that a student has committed an act of academic dishonesty or fraud affecting the acquisition of his or her degree, the Dean of Students may forward a recommendation that the degree be revoked to the Committee on Courses of the Academic Senate. A Notice of Intent to Recommend Revocation of Degree will be sent via U.S. mail to the accused student with the written statement of decision, as described in Hearing Panel's Recommendation and Dean of Students' Decision.
(2) The Dean of Students' recommendation will not be forwarded to the Committee on Courses until expiration of the time to file a written appeal as described in Appeal of the Hearing Panel and Dean of Students' Decisions, or until determination that the appeal by the Vice Chancellor for Student Affairs has been completed.
(3) The Committee on Courses makes the final decision as to revocation of the degree. This determination is not appealable to the Vice Chancellor for Student Affairs as described below in section Appeal of the Hearing Panel and Dean of Students' Decisions.
e) Consolidation of Hearings
Cases in which more than one student is charged with violating the same Code section(s) and which depend on common evidence may, at the discretion of Student Judicial Affairs, either be considered jointly in a single consolidated hearing or be assigned to separate, individual hearings. All charged students must waive their rights to confidentiality before the hearing may be consolidated. See Berkeley Campus Policy Governing Disclosure of Information from Student Records.
f) Record of the Hearing
Student Judicial Affairs will make an official recording of the hearing, a copy of which must be made available to the accused student upon request. The student may, at his or her own expense, use the services of a professional stenographer during the hearing.
g) Hearings Generally Closed to the Public
Hearings are closed unless the accused student and the hearing panel mutually agree to open the hearing to the public. The student must submit a written request for a public hearing to the chair of the hearing panel seven days in advance of the scheduled hearing date. If the request for an open hearing is denied, the chair of the hearing panel will provide a rationale in writing. In a consolidated hearing, all accused students must waive their rights to confidentiality and to a closed hearing before it may be opened to the public. In all hearings, accused students may have a non-participating observer present. The hearing panel may close any hearing to the public when necessary to maintain order or to protect the rights of the participants including the privacy rights of student witnesses. In cases concerning allegations of sexual misconduct or other allegations involving important privacy interests, the hearing panel may close a hearing upon determining that the privacy rights of a party or witness may otherwise be jeopardized.
D. Appeal of the Hearing Panel and Dean of Students' Decisions
Appeals of the hearing panel and the Dean of Students' decisions must be addressed to the Vice Chancellor for Student Affairs or his/her designee.
1. Timeline for the Appeal
Within ten days of the mailing of the written notification of the Dean of Students' final decision, either the charged student or Student Judicial Affairs may submit a written appeal to the Vice Chancellor for Student Affairs or his/her designee. When such an appeal is timely submitted by a party, the Vice Chancellor must promptly send a copy of the appeal to the other party. Within five days of receiving the copy, the other party may submit a written response to the Vice Chancellor.
2. Suspension of Sanctions Before the Appeal
The filing of a timely appeal suspends the imposition of sanctions until the appeal is decided, but interim action may be taken as determined by the Dean of Students. Grades or degrees may be withheld pending conclusion of the appeal.
3. Basis for Appeal
An appeal must be based on newly discovered evidence that was not available at the time of the hearing, significant procedural error, or upon other evidence or arguments which, for good cause, should be considered.
4. Final Determination of Appeal
The Vice Chancellor for Student Affairs, or his/her designee, will make the final determination of all cases appealed under these regulations. Except in cases where the appeal is based upon newly discovered evidence, the Vice Chancellor or his/her designee will review the record of the hearing and will not consider evidence that was not part of that record, other than the student's prior discipline record, if any. The Vice Chancellor for Student Affairs or his/her designee may approve, reject, or modify the decision and sanction in question, or require that the original hearing be re-opened. Where the appeal is based upon new evidence, the case may be referred back to the hearing panel for further consideration. The action taken will be communicated in writing to the student and Student Judicial Affairs within fifteen days after receipt of the appeal and related documents.
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