The Arizona Desert Lamp

Dark lining on a silver cloud: the problems with a Code of Conduct hearing

Posted in Campus, Politics by Evan Lisull on 29 September 2009

Chalk is Speech (Palm & Second)

A meeting with ASUA Legal Services (a very helpful service, although one that I would have gladly paid for with a user fee) has assured me that now that the case has gone to the intra-university judicial system, I am at liberty to discuss any and all aspects of the case.

For now, I’ll refrain from discussing a full-fledged, factual account of events – that’ll be published on this site later, in the form of a written testimony to the Dean of Student’s conduct officer. For now, though, feel free to peruse the UAPD’s side of the story, spelled out in their police report [PDF]. Instead, I’d like to clarify earlier remarks I made to the Wildcat (among other media outlets) as to why the issue still isn’t entirely resolved.

While deciding to dismiss these charges is a definite blow for liberty, transferring the case to the Code of Conduct hearings unveils new problems that may in fact increase the possibility that sanctions will be handed down for such expression.

The most important issue is the burden of proof. Had this case gone to criminal court, the University would have to prove “beyond a reasonable doubt” that accused was marking up the base of a statue near the Administration building; and further, that the “base of a statue” is not actually considered the ground, as per A.R.S. Given the fact that the case as detailed by the police depends on the inference – rather than the direct observation – by a witness, it would be rather hard to convince a jury to rule in their favor.

No such standard, however, exists for those charged in a Code of Conduct hearing. Instead, the Dean of Students must merely determine that “it is more likely than not that a violation of a Student Code of Conduct has occurred” (5-403 (C) (6)). Effectively, this equates to a 50+% probability of guilt, and comes down to the flip of the coin in a “he-said, she-said” situation. In a case where the word of an undergraduate is cast against the word of an employee, the prospects look even less promising. In spite of this low standard, the Code of Conduct hearings offer no chance for appeal, unless the sanctions involve suspension or expulsion. Barring such an outcome, the Dean of Students is quite literally the judge, jury, and executioner of all Conduct violations.

When it comes to procedures, the process is further hindered by the lack of the chance to confront the witness. In both “chalking” cases, the informant’s information has been redacted – although perhaps the threat of being “chalked and feathered” by an unhappy populace is reason enough. Yet in justifying the charge , the police report offers this:

While driving in the area, [redacted] saw LISULL writing on the sidewalk near the economics building (1110 E. James E Rogers) and Maricopa Dorm (1031 E. James E Rogers). LISULL noticed [redacted] and began to walk away westbound. [Redacted] had previously cleaned the chalk from the Administration building and therefore felt the writings were consistent with each other.

This is crucial – without [redacted]’s inference, there is no reasonable justification for the citation. Had this case gone to a criminal court, the Sixth Amendment guarantees that [redacted] would be required to un-redact him or herself, were the charge to go through. The accused could raise questions about this inference, wonder openly why there was a five hour gap in chalking incidents, ask how the witness could be so sure that he saw the accused at the Administration building, why the witness didn’t try to stop the suspect before calling the police, and so on. Yet because it is now an intra-university matter, we will never know who [redacted] was, or why chalking was such a noteworthy offensive as to require repeated contact with the UAPD; and it’s not easy to fight Anonymous.

Even beyond the Dean of Students office, the main issue – that of civil liberties – still remains: will a university “committed to defending, celebrating and hosting free expression” continue to issue Code of Conduct violations against students who use chalk on the sidewalk (in other words, does the Code of Conduct prohibit expression in the form of chalk)? Does President Shelton actually believe that he can declare, based a citation that failed to make it to court, that the behavior of the two students was “illegal”  (in other words, is he aware of the concept that the accused is innocent before being proven guilty)? Will any administrator come forward to explain why exactly it is was so essential to clean up a flowering of expression for America’s most lauded liberty, rather than letting the chalk disperse away naturally? While chalking days may be over, this is the same University that attempted to force out Horowitz via “security deposit” fiat – eternal vigilance, unfortunately, is required to ensure against future regressions.

All that having been said, there is still a glimmer of hope – as of publication, no messages regarding Code of Conduct hearings had been received from the Dean of Students’ office. It’s odd to look to the Dean of Students for a victory for freedom, but stranger things have already happened.


2 Responses

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  1. Lucy Blaney said, on 29 September 2009 at 6:50 pm

    It’s a shame that the university seems to have sent out janitors in the hot sun to clean up the chalk as quickly as possible all day yesterday, making them (apparently) bitter at the job they ended up doing and (seemingly) inclined to call the police every time they saw a possible chalker. We have to ask ourselves why it was so urgent that these chalk drawings be ‘cleaned up’, or perhaps better said, ‘wiped out’ so quickly, provoking this reaction.
    Isn’t chasing someone around with a wet mop also a manner of suppressing chalk-speech?

  2. Evelyn B. Hall said, on 3 October 2009 at 10:25 pm

    “And then there were two” you said – remember? – back in the days when the Defender was only a tin-hat brigade. In your honor, we have re-titled our Jacob Miller post “The Jacob Miller / Evan Lisull affair” with a reminiscence of your “then there were two.” Comments are pushing 50. And we’re pushing for you. Look for it in “September.” Tempus fugit.

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