Berkeley Campus Procedures for Implementing Section 626 of the State Penal Code
Introduction: This statement describes the Berkeley Campus’ procedures for implementing Section 626 of the California Penal Code, as discussed in Chancellor Heyman’s letters of April 24, 1985 and March 21, 1990. Section 626.4 gives the chief administrative officer of a campus (or an officer or employee designated by the chief administrative officer to maintain order on the campus) the authority to exclude disruptive persons from the campus. (Note: Throughout these procedures the term exclude is used in place of the more awkward statutory language to withdraw consent that the person remain on the campus.) This authority has been limited by a State Supreme Court decision (Braxton vs. Municipal), which defines the basis for exclusion and requires that, in many cases, a hearing be held before an exclusion order is implemented. Section 626.4 also provides that an individual entering the campus after being excluded is guilty of a misdemeanor.
Basis for Exclusion. Under Section 626.4, a student, University employee, or member of the public may be excluded from the campus where there is reasonable cause to believe that the individual has engaged in an activity which (1) willfully disrupts the orderly operation of the campus and (2) is illegal under criminal statutes other than Section 626.4. More specifically, the State Supreme Court has determined that the individual’s conduct or words must “. . . constitute, or incite to, a substantial and material physical disruption incompatible with the peaceful functioning of the academic institution and of those upon its campus.” Thus, individuals may be excluded from the campus under Section 626.4 for the following types of behavior when it has resulted in a substantial and material physical disruption: assault, battery, physical disruption of buildings, destruction of property, and physical intimidation of students or employees.
Disruptive individuals whose presence on the campus does not pose a risk of significant injury to persons or property are entitled to a hearing before an exclusion order can take effect. In contrast, disruptive individuals whose presence on the campus does represent a risk of significant injury to persons or property may be excluded before a hearing takes place.
Employees of the Berkeley Campus (in academic, staff, and student positions) are also subject to the University’s policies and procedures governing employee conduct. For example, employees in the Administrative and Professional Staff (A&PS) Program are subject to the provisions of A&PS Policy 170, Corrective Action.
Cases Which Do Not Involve Risk of Significant Injury to Persons or Property. If a senior officer in the Campus Police Department (or other official designated by the Chancellor) determines that there is reasonable cause to believe that an individual has willfully disrupted the orderly operation of the Berkeley Campus (as described in the section headed “Basis for Exclusion”), he or she may recommend that the individual be excluded from the campus. This recommendation should be forwarded with a written report describing the basis of the recommendation (as described in the section headed “Written Report”) to the Vice Chancellor–Business and Administrative Services (or his/her designee), who will conduct a hearing on the recommendation at the earliest opportunity.
A written notice should be delivered or sent by certified mail (with return receipt requested) to the individual recommended for exclusion, informing him or her of the proposed exclusion and the date, time, and place of the hearing (see Attachment B). In the event that the individual fails to exercise his or her right to participate in the hearing, the hearing may proceed in the individual’s absence so long as it is held at least 24 hours after the delivery of the written notice. The hearing officer may reschedule the hearing for good cause.
The exclusion order will not become effective until it has been upheld by the hearing officer. If the hearing officer sustains the exclusion, he or she should determine its duration, which may not exceed 14 calendar days from its implementation. If possible, the hearing officer should notify the individual charged of his or her decision at the conclusion of the hearing; if not, he or she should notify the individual charged about his or her decision as soon as possible by having the notification delivered or sent by certified mail (see Attachment C).
Cases Which Involve Risk of Significant Injury to Persons or Property. If a senior officer in the Campus Police Department (or other official designated by the Chancellor) determines that there is reasonable cause to believe that an individual has willfully disrupted the orderly operation of the Berkeley Campus (as described in the section headed “Basis for Exclusion”) in circumstances under which summary exclusion is necessary to prevent significant injury to persons or property, he or she may immediately exclude the individual from the Berkeley Campus. The individual should be given written notice of the period of exclusion and of his or her right to submit a written request to the Vice Chancellor-Business and Administrative Services (or his/her designee) for a prompt hearing concerning the exclusion (see Attachment D). Copies of this notice and a written report describing the basis for the exclusion (as described in the section headed “Written Report”) should be delivered within 18 hours to the Chancellor, the Vice Chancellor-Business and Administrative Services, and the Vice Chancellor for Undergraduate Affairs; the latter will normally serve as the confirmation officer (whose role is described in the next paragraph).
The Vice Chancellor for Undergraduate Affairs (or other official designated by the Chancellor) must review the written report and confirm or overturn the exclusion order within 24 hours of its implementation. If the Vice Chancellor for Undergraduate Affairs confirms an exclusion order involving a student, he or she will forward copies of the report with his or her confirmation statement to the Vice Chancellor-Business and Administrative Services and the Student Conduct Officer. If the Vice Chancellor for\Undergraduate Affairs confirms an exclusion order involving a University employee, he or she will forward copies of the report with his or her confirmation statement to the Vice Chancellor-Business and Administrative Services and the Vice Chancellor responsible for the unit in which the individual is employed. If the Vice Chancellor for Undergraduate Affairs does not confirm the exclusion order in writing within this period, it will be nullified. If the exclusion order is not confirmed, the Vice Chancellor for Undergraduate Affairs should notify the individual and the Chief of the Campus Police as soon as possible.
If the excluded individual requests a hearing, it must be held within seven calendar days of the hearing officer’s receipt of the written request. The Vice Chancellor-Business and Administrative Services (or his/her designee) should promptly notify the excluded individual in writing of the time, date, and place of the hearing (see Attachment E).
Written Report. Whenever a senior officer in the Campus Police Department (or other official designated by the Chancellor) has excluded an individual from the Berkeley Campus, he or she should submit to the Chancellor, the Vice Chancellor-Business and Administrative Services, the Vice Chancellor for Undergraduate Affairs, and the Student Conduct Officer (in cases of Berkeley students) a written report containing the following information:
- A description of each individual excluded, including the person’s name and (if available) his or her local address and telephone number;
- A statement of the facts that justify the exclusion. This statement should describe the specific disruptive conduct of each individual, cite the pertinent section(s) of the Penal Code that the individual allegedly violated, and report any action taken by the police with respect to issuing a citation or making an arrest.
The Hearing. The purpose of the hearing is to determine whether the evidence supports the individual’s exclusion from the Berkeley Campus. Exclusion can be justified only if both of the following criteria are satisfied:
- There is reasonable cause to believe that the individual has engaged in activity which willfully disrupted the orderly operation of the Berkeley Campus. More specifically, the individual’s conduct or words must have constituted, or incited to, a substantial and material physical disruption incompatible with the peaceful functioning of the Berkeley Campus, its students, or its employees.
- There is reasonable cause to believe that the individual has engaged in activity which is illegal under criminal statutes other than Section 626.4. The hearing should include the following due process elements: an individual may have a person of his or her choosing as a representative at the hearing, and the University may also be represented; the University has the burden of proof and will begin the hearing by submitting evidence to support its case; cross-examination and rebuttal will be allowed by both sides; no individual will be required to testify against him- or herself; the hearing officer will determine all issues of procedure (including issues of joinder of parties) except with respect to legal issues or challenges, which should be submitted in writing to the Chancellor, without adversely delaying the conduct of the proceedings; and all hearings will be closed to the public, although each party may have a non- participating observer. Within this framework, the hearing should be conducted in an informal manner. The decision of the hearing officer will be final with respect to the validity of the exclusion.
Termination of Threat. If at any time during the period of exclusion, information is presented to the Vice Chancellor for Undergraduate Affairs that demonstrates that the individual who has been excluded no longer constitutes a substantial and material threat to the orderly operation of the campus, the Vice Chancellor should lift the exclusion order. The Vice Chancellor should notify the excluded individual and the Chief of Campus Police of this action as soon as possible.
Delegation of Authority. Under existing campus policy, the Chancellor, as the chief administrative officer of the Berkeley Campus, has delegated authority both to recommend exclusion and, in cases which involve risk of significant injury to persons or property, to exclude individuals to the following individuals in the Campus Police Department: the Chief, the Assistant Chiefs, and the Lieutenants. The Chancellor has designated the Vice Chancellor for Undergraduate Affairs (or, in his absence, the Assistant Chancellor-Executive Assistant) to serve as the confirmation officer. The Chancellor may designate another official to serve as the confirmation officer as needed. The Chancellor has designated the Vice Chancellor-Business and Administrative Services, the Associate Vice Chancellor-Physical Resources, and the Assistant to the Vice Chancellor-Business and Administrative Services to serve as hearing officers. The Chancellor may designate other officials to serve as hearing officers as needed.
Penal Code Section 626.6. Section 626.6 of the California Penal Code applies to individuals who are not students or employees of the Berkeley Campus; Section 626.6 also applies to individuals who are enrolled as students at other colleges and universities. Under Section 626.6, a senior officer in the Campus Police Department (or another official designated by the Chancellor) may direct a person who is not a student or employee of the Berkeley Campus to leave the campus for a period of up to seven days where there is reasonable cause to believe that the individual is committing an act likely to interfere with the peaceful conduct of campus activities, or has entered the campus for the purpose of committing any such act (see Attachment
F). Individuals excluded from the campus under Section 626.6 have no right to a hearing concerning the exclusion. Section 626.6 provides that an individual entering the campus after being excluded is guilty of a misdemeanor.
Interim Suspension. Independent of the procedures established pursuant to Section 626 of the California Penal Code, Section V of the University of California at Berkeley’s Student Conduct Regulations provides that the Vice Chancellor for Undergraduate Affairs or his/her designee (usually the Dean of Student Life) may place a student charged with violating University policies and campus regulations on interim suspension until a hearing on the charges can be held. A student may be suspended from part or all of the Berkeley Campus when there is reasonable cause to believe that the student’s participation in University activities or presence at specified areas of the campus will lead to physical abuse or any conduct that threatens the health or safety of an individual, or other disruptive activity incompatible with the orderly operation of the campus. The student should be restricted only to the minimum extent necessary, and a hearing on the charges should be held within 14 calendar days of the date of suspension, if possible. The interim suspension should be reviewed by the Chancellor or his/her designee (usually the Vice Chancellor for Undergraduate Affairs) within 24 hours of its imposition.