Campus Conversations: David Robinson, Chief Campus Counsel

Campus Conversations: David Robinson, Chief Campus Counsel


– I want to welcome everybody to this edition of Campus Conversation. I’m Dan Mogulof from the campus Office of Communications and Public Affairs. I’m really pleased to welcome
a good friend and colleague, David Robinson, chief campus counsel. As usual, questions are more than welcome. They’re desired and requested. If you know already questions
you’d like to ask of David just throw them down on
one of the index cards on the chairs, hold them
up, they’ll get collected, but also fine to do that in
the course of the conversation. So without further ado. David has been a member of Berkeley’s Office of
Legal Affairs since 2011. Seems like yesterday, right? By the way, is this an attorney-client
privilege conversation? – It’s not, Dan, no.
– All right, just checking. – No.
– Just checking. – No, I think it’s posted on the Internet as not an attorney-client
privilege conversation. – Just checking. Has been a member of the Berkeley’s Office of Legal Affairs since 2011. Before that he spent a decade in the University of California system-wide Office of the General Counsel where he was a leader in its construction, and legislative affairs groups. Prior to joining UC, David was a partner at the law firm of Goldfarb
and Lipman in San Francisco. He attended UC Los Angeles, and is a graduate of UC Santa Cruz, and Hastings College of
the Law in San Francisco. So, good UC background there. So, just to get started I’m just curious what led you from the private
sector into higher education? They’re such different worlds. – I was always interested in
working in the public sector. So one of the pieces of
advise that I give to people who are thinking about going to law school when I talk to them is if you’re approaching that decision I think it helps to think about what kind of law you want to practice. I thought I wanted to be a city attorney. I was really interested in… One of the things that always
interested me was the fact that matters that have a
huge impact on our lives like how much of the taxes that we pay are gonna be spent on defense spending versus how much are gonna
reinvested in our communities are things that people just
don’t engage about at all, but whether or not there’s gonna be a stop sign
on their corner is something that they’ll spend days and
days and days organizing over. I think it’s because of
your perceived relationship to your ability to change it, right? So I was really intrigued
growing up as I did in Santa Cruz where land use fights are
like a really big part of the whole community conversation, and a big part of people’s
identity is wrapped up in how beautiful Santa Cruz is. People have a real sense
of place about Santa Cruz, so I just saw a lot of really
interesting conversation about values happening in
the context of decisions about the built environment, so I thought I wanted to be part of that, and I realized really
quickly that the planners don’t get to be in the room
when the big decisions get made. So I thought I’d be one of the lawyers because I noticed that they
always were in the room. And then that interest
took me to law school, and took me to the law firm that I ended up practicing with because that firm
specialized in the kind of public agency work that
affects the built environment. It’s a firm that represents,
or at the time I was there, and still some more practice represented non-profit low-income housing developers who were developing
low-income housing projects, and, also, redevelopment agencies who were doing community
re-investment projects. Usually those entities are
controlled by their city council, so I was doing the kind of work that I was really interested
in, but the university it’s a deep concern in my family. Both of my parents have
graduate degrees from UC. I’m completely myself a
product of the California public education system. I went to public
elementary and high school, and then attended UC in Hastings. My parents both work for the
university in Santa Cruz, so I just have a real allegiance to the mission of the university, and when the opportunity
presented itself to join the Oakland office and
continue to work on issues that impacted the built environment that’s how I made that transition. – So how do you describe
the job you’re doing? How would you characterize practicing law at a university like Berkeley,
a big research university? Because I know you ain’t dealing with just construction issues anymore. – No, it’s never the
same day twice, right? I think that’s true for
a lot of staff on campus. It’s one of the things that
makes it a particularly interesting career for a lawyer. Our office has an interesting place sort of in the legal landscape because the practice of law
encourages specialization. Basically, your economic
value as a lawyer increases based on your level of specialization, so the more specialized you are as an attorney in private practice, the higher the billable
rate that you can command as a perceived expert in that area. It’s just your career focus as a lawyer tends to get narrower and
narrower and narrower. I’m a naturally curious person, and I think that’s true
of all of the attorneys that work on the campus. I really like learning
about what my clients do. I’m always interested to get
pulled into an assignment where I’m learning from my
clients about what they do. It’s a unique opportunity for a lawyer to both be practicing for all
of us in the legal office. At this campus we’re practicing
at a really high level. We’re dealing with people
who are the kinds of subject matter experts that
I was describing before in terms of who we retain as
legal experts to advise us, but we also get to
continually change the mix of what we’re doing and be
responsive to our community in terms of what the legal needs are. We’re a service office, so we’re driven by the needs
of our clients on the campus. – Tell us a little bit
more about the office. How many attorneys? Who works with you? How do you guys divide up the work? How do you see yourselves? What’s the role of the
office within the context of the campus administration? – There are two deputy campus counsels, Julie Conner and Therese Leone. They have both been like I have been on
campus for a while now. When I became the chief campus counsel we were able to hire to fill
my position that I vacated, and the person that we
hired is Liv Hassett. She was one of only two campus
attorneys at UC Santa Cruz. She actually served as
the chief campus counsel at UC Santa Cruz for a year. We have a really deep bench of people who have broad subject matter knowledge with regard to the university’s business. We were really lucky to get Liv. And then the Public Records
Coordinator, Liane Wong, also reports to me. We have one administrative person who manages all of us, yeah. – How does it work are you
just taking incoming calls, or are you on the lookout
and you’ll notice something, this seems wrong I better call that dean, or department chair,
or call the chancellor. I mean, normal law office you’re not being too proactive, right? You wait for your client calls, but how does the office
work here on campus? – Well, the stereotypical
image of me on the campus is walking around looking at my phone. That’s how everyone always sees me. – [Dan] I thought it’s so you
don’t have to look at anyone that might need your help. – No, I get emails from people saying I walked right by you today
you were looking at your phone. I like to go to where my clients are. I like to see where they’re
doing the university’s business. And I also think that
us going to our clients helps to convey the message
that we’re a service office. I think law is mysterious and
intimating to a lot of people, and it doesn’t necessarily
stop being mysterious, and intimidating even
when you have a lawyer that you work with all the time. So it really is important
to me to try to convey that our business is to further and advance the business of the university. To answer your question more directly I do spend a lot of time
responding to email. That’s a very frequent way that I both have a request
for service and respond to it. People do call me on the
old-fashioned telephone sometimes that does actually happen. I say that the best way to reach me is not to leave a message
on my desk voicemail because I’m not there that
often, and I forget to check it. And now in the position that I’m in now as opposed to the role that I had before I became chief I’m in a lot of meetings, so I’m scheduled pretty heavily, but I still try to make time. I was wondering, actually, if any of my clients would come here today because I owe them an answer on something, and they knew that I would be here so they could corner me
either before or after, but nobody got me before, so. I’ll be here after. – Yeah, we’re gonna talk
about a number of subjects, and talk about the California
Environmental Quality Act, and why we get keeping sued about that, and the way Title IX has changed, but stepping back even
further you’ve been doing university law for about 20
years now, what’s changed? What sort of trends have you seen over the course of those two decades? – You mean in higher ed law? – [Dan] Yeah, in the
kind of work that you do what crosses over the trends, and the kind of challenges
that the institution faces, the kind of litigation we get involved in? – Well, I’d say at a macro-level
in terms of higher ed law probably the biggest sea change
that I’ve seen to the campus has to do with sexual violence
and sexual harassment, specifically with regard
to the way colleges, and universities are responding
to sexual harassment of, and sexual violence towards students. That is an issue that I think we led the way on. That is kind of a Berkeley thing. Our community our students are
empowered here to speak up, which I think is one of the things that makes Berkeley a leader. So when issues emerge in
the higher ed community whether they emerge out
of the student community, or whether they emerge out of the faculty we tend to be in the lead. I think that we actually have
shown a lot of leadership. Therese Leone, who has
been lead on those issues for our campus is now a
very sought after speaker, and recognized as a national expert with regard to compliance, but going beyond compliance, which is something that our campus, I, again, think that
we really led the way, and going beyond the minium, going beyond just what the law required in terms of being part
of a conversation around making a necessary change
in the higher ed community. I would say that in terms of things that have changed at the university I would say the biggest change is the maturity of the campuses other than UCLA and Berkeley. When I first started in
2001 in the UC system there was still a sense
that the campuses other than UCLA and Berkeley were
still coming into their own, still needed sort of a lot
of support from the flagship, still needed a lot of support from the office of the president. And now when I’m involved
in system-wide conversations there’s much more of a sense
of all of the other campuses except Merced feeling like they have really reached maturity, and they are now playing
in the leagues themselves of being top flight public
research universities, highly nationally ranked
each and every one of them. That’s changed the role of
the office of the president. And it’s changed the
way they see themselves, and the way that we as a
community interact with them. And then, of course, the
biggest by far change I think for this campus and all the campuses, has been the disinvestment of
the state in higher education. It’s part of a national trend of disinvestment in public education. California has been a leader
in bouncing back from, and overcoming a lot of
negative national trends, but this is not of the ones where we have shown leadership as a state. We’re still under-invested. My kids all went to public school, and we’re still
under-invested in elementary, middle and high school
education in this state. We are really pretty
horrifically under-invested in higher education in this state. The quality of the program that
university is able to offer the students of the state
is going to decline, arguably already has declined. There have been heroic efforts, I think, on the part of people to resist that. Eventually, you can only use
up so much human capacity before the lack of resources is really gonna make a difference. Unless that changes
our national leadership in public higher ed will
abate, unfortunately. – We’re gonna circle back, and I want to talk a
little more in depth about the changes in the leadership
that you say the university has asserted in the realm
of sexual harassment, and sexual violence, and
policy and practice changes, but just still on a broader level I know when I first started working here the person who was chief
counsel at the time said, “Would you like to get
every month a review “of the litigation we
have, active litigation?” And I said, “Sure, that
would be interesting to see.” I thought I’d get a
page and a few lawsuits. – [David] It’s more than a page. – I mean, it just, there were something like
55, or 60 open lawsuits. Is that normal? Is that part of a trend? How in God’s name do we
deal with the situation where there may be sort of 55
open suits at any given time, and what’s that all about? – We deal with it with a
lot of human resources, and a lot of human capital not all of which is supplied
by my office, right? We have a risk program on the campus, and they’re also supported by
a system-wide risk program. They deal with management
of a lot of the litigation that is within the risk program. And we also have resources in
the office of the president a number of attorneys in Oakland who help us with the
employment litigations. So that’s a good opportunity
for me to just mention how we’re organized in terms of
the delivery of legal services within the UC systems. Every campus has at least one attorney. Some have a lot more than one. Some have a lot more than Berkeley, who are resident at the campus, and we are sort of
understood within the way the legal function is organized
to be the generalists. We spot issues. We manage relatively low-level issues that can be handled without
additional resources. And then we’re the
conduit for plugging into a greater set of resources. There is the equivalent of
a large law firm in Oakland that I used to be part of, which serves the entire UC system. The way that is conceptualized
is those folks are all subject matter experts, so it’s more efficient
for the university to have subject matter experts at
Oakland who can deal with the same issues through
the whole UC system over and over again, and then to replicate
that at every campus. That’s a model that has been
in place since the ’60s, and has worked really well as the university has grown tremendously. Then we also, obviously, rely on outside counsel for litigation. A little bit of litigation
is done in Oakland, but most of it is done
through outside counsel, and we have very efficient
procurement processes to make sure that we’re getting good value with regard to what we’re
spending on outside counsel. The university is self-insured, so we’re able to manage
a lot of our profile. – [Dan] What does that mean? That means that instead of
having an insurance company that comes in and pays to
defend all of our lawsuits we have a self-insurance
program that allows us to manage the defense of lawsuits ourselves. – [Dan] So we have to
pay for them ourselves? – We do, so that’s basically
paid for internally by the equivalent of a tax on operations instead of paying premiums to a carrier. – [Dan] Are you allowed
to say how much we spend on average here? – I’m probably allowed because it’s a matter of public record, but I don’t know what it
is, so I have to look it up. – [Dan] He’s so good at this. – What I would actually say about the volume of our litigation,
Dan, is that it’s low. You have to keep in mind, the University of California
is the second largest employer in the state of California
after the state itself. We’re a vast organization, and Berkeley alone is a vast organization. And not only is it an
enormous organization it’s an organization that’s delivering an incredible variety of services, right? So there’s just really,
really a broad spectrum of what kind of business activity the university is participating in. Across that entire
spectrum of potential risk, and potential litigation we have the number of cases that we have, but I think if you look at
organizations of comparable size we probably have less litigation
than you would expect, and I attribute that to
the quality of our staff. People don’t tend to
litigate when they feel like their issues are being
addressed appropriately, and fairly through the processes that exist internally to address them. My experience has been
over and over again that UC has really robust processes
to deal with complaints. Berkeley has especially robust processes to deal with complaints. I know that seems like
agony to a lot of people who have to deal with the complaints, but a lot of people leave those processes satisfied with the process even if they were not
satisfied with the outcome. They don’t feel like if they just continue to live their live through this conflict by taking it to court that that’s gonna be a
productive thing for them to do. So I give our staff a lot of credit not just at the basic
customer service level, but even at the level of things that have become very contentious
and are very difficult by staying in there and helping people feel like they’re being heard we avoid a lot of litigation. – Interesting. So let’s circle back to the
issue of sexual harassment. You talked about that
we asserted leadership. Broadly, without sort of going
into the granule of details of policy changes how
would you describe that? What changed here? – Our processes changed around
the way we manage complaints. There were changes that this campus made before the system made changes. These changes were made to
our student code of conduct directly in response to
input that we received from survivors of sexual assault about why the process
was not working for them. A lot of those changes were
adopted and expanded upon when the system adopted system-wide policy that we then implemented as a campus. We also made organizational changes in terms of adding more resources to the Office for the
Prevention of Harassment and Discrimination that is charged with actually investigating these complaints. We’re still not where we want to be in terms of the ability to
process complaints quickly. Investigations are complicated
and they take a lot of time. They take more time than I think people can really appreciate. It’s nice to have somebody who doesn’t understand how
complicated investigations are say this should happen within 60 days, or this should happen within 90 days, but a lot of the time for reasons that are completely beyond the
control of the investigators that’s just not possible, but we did increase
the amount of staffing. And then the other thing
that we did was we provided a lot more resources,
confidential resources to people who have survived sexual
violence and sexual harassment, students specifically to
make better informed choices about what they want to do. I definitely believe that it’s
not incumbent upon somebody who has survived that kind of experience to take responsibility for holding the person who
wronged them accountable. It’s a completely legitimate choice to just focus on self-healing
and moving forward. It doesn’t make you responsible for what that person
does to somebody else, but for people who are willing to stand, and demand accountability they need to understand what
all is involved with that, and what choices are involved with that, what the implications of
that might be for them. Need to understand what our
retaliation policies provide for so that they can invoke them. We’ve really done a lot to
increase services around that, so that’s been, I think, something where our campus has
really shown leadership. – So from a legal perspective
what do you say to people who have the position that
what the heck are universities doing investigating and adjudicating? It’s far beyond the mission, far beyond the institutional competency, core competency of the institution. It’s something that the judicial system, and the law enforcement
system both struggle with, and now a university is taking this on. I mean, what’s your response to that? – My response is that
colleges and universities have always taken it on. The way in which they’ve
taken it on, and the degree that they’ve taken
responsibility for it has varied, but it’s always been something that colleges and
universities have addressed. The reason it’s addressed is because particularly with students this conduct is extremely impactful. It really affects their ability
to perform academically, and succeed with regard to
their academic pursuits, so it has a direct effect on their ability to be successful as students. The criminal justice system is set up for a particular purpose which is to hold people
accountable in a particular way, with a particular very high
set of standards of proof. That is not something that is gonna work for everybody whose
impacted in the community, so navigating that is what we’re in the
process of figuring it out, and until we eliminate
misogyny in our society, which I think we’re still a
pretty long ways away from, unfortunately, this is
something that colleges, and universities are gonna
have to continue to deal with because this is not to say
that it doesn’t have impacts on people who don’t identify
as women it definitely does, but it continues to be an issue that is predominantly impacting women, and impacting their
ability to be successful, so if you care about your students you’re gonna care about addressing this. – Again, from a legal
perspective what’s the response? There have been claims, and some of them have
emanated from Washington from the Department of Education that in the university
adjudication process is sort of set up that
the rights of the accused were not being sufficiently
protected or acknowledged, and there need to be
attorneys and hearings, and all of the rest of it. What do general counsel like
yourself what’s the sort of opinion reaction to
those claims and charges? – Well, as you might imagine, all of the policies that we’ve adopted have been very thoroughly
vetted by attorneys. We’re very confident that they do provide for adequate due process
when we publish them. We also sometimes know that there are areas where
courts might disagree. Obviously, the lawyers tell the people who make these decisions. The lawyers don’t make the decisions about what policies to adopt, but the lawyers do tell the people who adopt those policies where we think that there could be some
vulnerability and risk. Then they have to balance all of that in making the decisions
about what they think will be in the best
interest of our community. Because the impact on the people who are held responsible is very different than the impact of being
found guilty of a crime the due process that
somebody is entitled to is really different, but one of the things that
makes holding people accountable for their behavior something where there’s a
potential conflict of values no matter whether it’s sexual
assault and sexual harassment, or some other kind of misconduct there’s a clash of values, right? Because on the one hand
there’s a really strong value around holding people
accountable for their behavior, and making sure that when people
act in an inappropriate way there are consequences. That’s important for deterrence, and it’s important for the community making a statement about its values. On the other hand, everybody
in our community, I think, really does believe really
strongly in due process, so sometimes there are places
where those values conflict, and that border needs to be navigated. When the courts say that we found the wrong place
in navigating that border then we listen to them,
and we change the policies. – I’m gonna shift
subjects, legal subjects. Before I do just a reminder
if you do have questions fine to write them down now in the course of the
conversation on the index card. Hold them up, they’ll be collected. So let’s change subjects, and talk about the city of Berkeley. I think a lot of folks here
are aware we’re being sued, but what are we being sued for? And from your perspective
what’s it all about? – Okay, the very first thing
I want to say about this is that this campus actually has a very good, and strong relationship
with the city of Berkeley. In spite of the fact that
we’re in litigation with them I think that they have
tried and we have tried during that litigation to not have that strong relationship suffer because I think that’s
really important context to start with when leading
into a conversation about what we don’t agree about. – [Dan] Absolutely. – Okay, so the litigation that we are in with the city right now is over the Upper Hearst project. Part of what we did as
a campus when we adopted the approval of the Upper
Hearst project was we looked at the Long Range Development Plan that the campus adopted in 2005. You might wonder why we did that. The reason that we did that was because that Long Range Development
Plan was based on assumptions about what was going to happen, and I’ll talk about what
an LRDP is in a minute. And not totally surprisingly since 2005 not everything has gone the way that is was anticipated in that plan. That document is the document that we use as sort of our planning constitution, so when we adopt projects
we have to go back, and look at the version of
that document that exists. And what we did when we did that for the Upper Hearst project, which was a significant
campus project was we decided that this was the first
significant campus project that the campus had approved,
or was going to approve, or was planning to approve that had occurred after
the university was required by the system to assume
much more enrollment growth than we had contemplated
and that we had planned for. I think everybody on campus knows that we got more students
than we planned for. That’s been a big issue for the campus, but in terms of what that
document said it was an issue in terms of what the
planning assumptions were. What a Long Range Development Plan is, this is like a question that you know requires a long answer. A Long Range Development
Plan is a document that the university is
legally required to adopt. It analyzes the impact of what
the university plans to do over a planning horizon, so our basic planning
horizon for that document was about 15 years. And what we were looking at was where we thought we were going
to change our facilities, grow our facilities, how much enrollment we
thought we were gonna add, how many staff we thought
we were gonna need to support that enrollment, so, basically, a whole
description of our program. Then as a public agency
like all public agencies we’re required to look at
what the environmental impacts of that program will be on the community. – [Dan] When you say environmental impacts would that be like air quality, traffic, what does that mean? – This is to answer your
question what is CEQA that you alluded to before. There’s a law called the California Environmental Quality Act, and that law requires the preparation of an environmental document which is for a Long Range Development Plan
is typically something called an Environmental Impact Report. So you have your Long
Range Development Plan that talks about what your program is, and then you have your
Environmental Impact Report that talks about what
the environmental impacts of that program are gonna be. Environmental impacts for
CEQA purposes are defined as the physical impacts. The classic environmental impact that is analyzed under CEQA is a housing developer plans to build a new subdivision of 200 homes in an area that is right
now farmland, right? And that is gonna have
an environmental impact on the surrounding community
primarily in terms of traffic. So what you would typically see in an EIR for a project like that
is the volume of traffic is going to increase on the
streets around this project, so in order to avoid having
traffic become gridlocked, and come to a standstill improvements will need to
be made to those streets. They’ll need to be widened. They’ll need to have
traffic lights installed. Those would all be considered
to be environmental impacts of this subdivision project. CEQA requires that the public agency, which in our case would be the regions that’s approving a project like this analyze what all of those
physical impacts are. Now for a campus traffic
is really a big one. It’s one of the main
things that we look at, but we also look at things like impact on sewer capacity, right? So if we’re gonna be
increasing the number of people who are gonna be on the campus plant, or living in our housing then
we’re gonna be increasing the amount of water that we’re using which is gonna increase
the impact on the sewer. These are the kinds of physical
impacts that we look at. Getting all the way back to
the Upper Hearst project. What did we find when we did
an environmental analysis of the impact on the student enrollment in order to update our baseline that we were planning the
Upper Hearst project for? We found that we were much
more environmentally efficient than anybody would have reasonably
expected in 2005, right? This is a different world
than it was in 2005. People’s assumptions in
2005 about how much energy an individual person would
consume at work, or at their home are very different than what
turned out to be reality. Same thing with traffic,
same thing with water use. We’re just much more
environmentally efficient than we thought we were going to be. For a specific example
that is very impactful because traffic is one
of your big CEQA impacts if we had predicted in 2005 that we would be as
successful as we have been in reducing single occupancy
vehicle trips to the campus as we have actually been nobody would have believed us, right? We’ve been much more successful
in having people car pool, ride bikes, take public
transportation to campus then would have seemed reasonable for planning assumptions in 2005. – So, in other words, all
those sustainability policies that lead some to sort of roll
their eyes about greenwashing they actually had a
pretty significant impact it sounds like. – Yeah, I mean, they had a
huge impact on the degree to which the campus was impacting
the city’s infrastructure, and impacting the life of
people who live in the city. We had negotiated as a result
of a lawsuit that was filed over the last LRDP with the
city mitigation payments. Our analysis showed that if anything we were overpaying the city for the impact that we
were having on them, and they did not agree
with us, big surprise. Their analysis is not based
on contradiction of our data. – [Dan] Unpack that for a second. – It’s very lawyerly. – Their analysis is not based
on data is what you’re saying. – Their analysis is based on
a different set of premises. They’re basically looking at their budget, and they’re saying this is
what our city budget is, and to their credit they
have a balanced budget, which is great, and they’re
saying of our city budget we have some analysis of
the things that we think are directly attributable to you. Most of them are not
related to infrastructure. – [Dan] Exactly? – The big thing that we disagree
with them about is housing. Their spokespeople have
said that the campus has had a dramatic impact on the
availability of rental housing, and that our growth in enrollment has been a significant contributor
to homelessness in the city. I mean, among the impacts that
were not what was foreseen in 2005 are we thought
that we would grow staff as we grew students back in the day when we actually had state
support for higher education at the level that we were accustomed to we reasonably assumed that as we added students we’d add staff. Well, actually, our staffing
levels have stayed flat as you all know, I think, while we’ve added all those students. Those are people that are
not living in Berkeley, but also their analysis kind of assumes that every student that we
added in the enrollment increase is living in Berkeley, which,
of course, is not true. I mean, a lot of our students would love to live in Berkeley, but it’s not affordable to them, so what we’re really in our view facing is a regional housing crisis. It is something that is affecting all of the cities in the Bay Area. Berkeley is a very desirable place to live for those of you who are lucky
enough to live in Berkeley. It has not only all of
the cultural amenities that are offered by the
university, but, also, the co-program that comes from having an educated community like Berkeley, things like having Berkeley Rep, and, also, there are three BART stations in the city of Berkeley, which makes it an incredibly
attractive place to live if you want to take public
transportation to work in San Francisco or Oakland. We don’t believe that we are the primary, or even actually the significant
driver of the declining availability of rental
housing in Berkeley, and that’s something that we
have been discussing with them. The conversations have been
constructive and positive, and I like a lot of other
people are optimistic that we will resolve this without having a litigation
go on for years and years. In the meantime, ironically,
the Upper Hearst project, which is largely a housing
project is stalled. – Connected, cause and effect, the housing project is stalled why? – Increasingly we are needing to rely on private-public partnerships in order to build our housing projects. And our private partners are
not willing to take the risk of going forward with a project that is being subjected
to litigation under CEQA. People who want to stop our projects for whatever reason know that, and we know that this is gonna be a strategy to stop our project, so what we’re doing is we’re
trying to plan for basically litigation time in our
project approval schedule so that if we get these kinds of hostage taking type lawsuits, I’m not saying that’s what
the city’s was, but just. If we get that kind of litigation then we’ll be in a
position to respond to it, and weight it out without
having to have the project get completely put under water. Our developer is still working with us, so if we’re able to resolve
this lawsuit with the city we’re hopeful that we will be able to get that project restarted quickly. – So does that mean that
all the housing projects that the chancellor has been talking about is part of the plan to address the crisis are on hold right now? – No, there are different
funding models for those projects that are not all subject
to the same funding model. Some of them would be sort of more exposed to that kind of a strategy than others. – How normal what we’re seeing I know you go to meetings, you talk to other general
counsel from other campuses how often is litigation
sort of an inherent part of the town-gown relationship, or is this part of a uniquely
contentious relationship this university has with
this city over the years? – There are other cities
that have frequently sued the campus that they host over the Long Range Development Plans. It doesn’t happen in all of the cities where you see has a campus, but there are some
where it seems to happen over and over again. – [Dan] And we’re in one of those. – We’re in one of those. – [Dan] That’s what I thought. – But, I mean, one of the
things that’s positive, I mean, you’re always looking for the
bright side in everything. One of the things that positive about this litigation is there
have been a lot of meetings between city staff and campus staff about the problems that we face together, so this is potentially an
opportunity to find common ground, and then really amplify
our effort to work together to solve the problems
that are not of either the university’s making
or the city’s making, but that we do need to address together. – So let’s shift gears to
another sort of simple, uncomplicated subject free speech. Stepping back and just
sort of thinking about the last few years starting
with the arrival of Milo Yiannopoulos in
February or January of 2017. What was your whole takeaway
in terms of free speech, the chancellor has talked about it’s not a thing it’s a process, and that some of us see free speech as being a self-evident truth, but it’s become a matter
of contention for others. From a legal perspective how do you think about
all that’s gone on here in the free speech realm in recent years? – Well, I’ll start by giving a plug. There is a really good, very
concise, easy to understand, I think, I mean, I read it as somebody who already understands a lot of it, but I think it is easy
to understand book called “Free Speech on Campus” that was written by Dean Chemerinsky, and Chancellor Gillman
of the Irvine campus that really does a deep dive into the question that you just asked, but at a level where I think
everybody can understand it. It’s an easy read so I do recommend it. I think that what we’re
dealing with in the most recent version of the free
speech controversies is there are a couple of
different societal trends that I think we’re responding to. One is my kids were raised in a culture where bullying was not okay. I was not raised in that
culture, by the way. Not all right to call people names. Really not socially acceptable behavior to intentionally needle
people and make them upset that there’s just kind of like a taboo around that being like
an okay thing to do. Those young people are coming
into adulthood on campuses, and facing people who
want to provoke them, and want to make them feel bad. Don’t want to necessarily
challenge their ideas, or the things that they think by having a constructive
conversation about how people have different values, or they have common values, but get to that place in common values through a different way
of thinking about things, but really sort of want to
say you’re wrong, I’m right, and have this sort of
very confrontational, and sort of hostile kind of conversation. Some of the people that
were invited to this campus say just really horrible
noxious awful things, and they’re things that are
intended to be upsetting. They’re trying to make people upset. That’s tough for us all to navigate, particularly when there’s an
overlay of violence on this. People have actually been
seriously injured and killed as a result of the conflict
that has erupted out of having this kind of really negative
confrontational expression. None of us really want to
promote that kind of way of talking to each other, but on the other hand,
one thing that we know, and that I think as a community
are all really wedded to, particularly at Berkeley is
that having the government be the party that decides
what’s on which side of the line is a really, really difficult thing to do. Nobody really feels comfortable having the government be the arbitrator of what is appropriate to say
in public, and what isn’t. So, again, it’s one of those things where we have this conflict of values, and there can be friction and difficulty in working out the conflict of values. Legally this is actually
relatively straightforward, and the courts have been
pretty clear and consistent in the last couple of years of litigation around what you could refer
to as free speech issues, and what they consistently say is that the courts are very suspicious of public colleges, and universities erecting roadblocks to
speaking engagements for people even if they are actually
well-intentioned. Even if they’re actually
coming from good places. – [Dan] You mean the people speaking the people putting up the roadblocks. – Exactly, that even if they are intended
to serve good purposes, if they have the effect of
squelching noxious speech that the courts are gonna look
really negatively on them. What we don’t want to have
is a situation where we have like a judge in San Francisco,
or a judge in Oakland, managing when and where people
can speak on our campus. That’s the kind of result we
don’t want to have in court. We want to maintain the ability, and maintain the control to manage. If we have to have people coming to campus who are gonna say things that are gonna make a lot of people upset, or are gonna draw a protest, we want to have the flexibility
to manage those situations as best we can internally to provide for the safety
and security of the campus, and to provide support for
people who are being attacked, and who are the intentional
targets of this kind of really negative hostile speech. – So here’s something we
get asked a lot about, and would welcome your
sort of input and opinion, again, from a legal perspective. The campus was a very strong defender, again, these may be sort of
really odious points of view, but the law is very clear,
the constitution is clear. We can’t get into issues around sort of perspective
based rules and policies, and there was some talk about
the sticks and stones idea. After all it’s only speech. Everybody suck it up and let’s move on, but at the same time
it seems in other areas the law recognizes that speech can harm, libel, harassment, incitement. So how do we understand
that for those of us who aren’t attorneys or
scholars of constitutional law why is it okay to come
onto a college campus, use rhetoric that pretty
clearly will damage, and upset, and inflict some level of
harm on part of the community, and we say, no, they
have a right to do that. In other areas you use a
certain kind of language you’re probably gonna get
fired, and hauled off to court. – Because the context is different, right? So it makes a difference
legally what the context is. The better way to think about it, the more legally correct
way to think about it, I don’t know if this is
the better way or not, but this is the way the law
requires that we look at it is as Dan is fully aware, but many of you may not be aware, we have many speakers
who come to this campus who express points of view that are on the right side
of the political spectrum. It happens all the time at this campus without much attention, right? There is this sort of narrative out there that if somebody who
expresses a right wing view comes to Berkeley that there’s
gonna be something happening like what happened the first
time Yiannopoulos came. And that’s not the case, I mean, we have people who come here
and express right wing views all the time and it attracts
no attention at all. It’s this particularly
noxious intentionally hateful, intentionally mean kind of speaking that creates this really
strong negative reaction, but we need to treat, basically, all public lecture events the same. So it doesn’t matter
if somebody is coming, and giving a public lecture
about a nonpolitical topic, or giving it about a
political topic in a context that everybody in this room would agree is happening within boundaries
of appropriate discussion amongst serious people who are
talking about serious topics, or if the person is just like
a rabble-rouser coming to say really obnoxious mean-spirited things in order to try to provoke a reaction we basically have to treat
all lectures the same. – So we had an event policy
was the subject of litigation, a major event policy. As part of the settlement
the event policy was changed. – [David] A little tiny bit. – Well, talk a little bit. Was that an indication that we didn’t have things set up right? Because that got a lot of attention, and I think people may still
be somewhat uncertain about where we stand and where
our policy stand in terms of legal and public scrutiny and criticism? – This is another area where Berkeley led the way I will say. Again, another area where we
were lucky enough to be first in terms of these kinds of
people coming to campus. My predecessor, Chris Patti, was one of the primary authors
of the major events policy. We did litigate it, and
we settled that litigation for a very nominal amount of money because the court basically
upheld our entire policy. The only thing that we changed
was we adopted a schedule instead of being unintentionally
actually vague about what kinds of student events
actually require security. So completely outside of
the context of free speech we had written language
into the policy that said certain kinds of student
events require security, and those kinds of events will have their normal security charges. That was interpreted by people who were intended to be
skeptical of our commitment to free speech as meaning
that we were gonna try to laden special security requirements onto speaking engagements of
people that we didn’t like. That was never the intention, so what we did was we clarified
what we had meant all along which is, for example, if
you’re having what when I was college age we used to call it a dance, and I am now informed that
this is called a social for any of you who did not know. When you have a social and
we defined what that meant, and it’s actually kind of funny
if you read the definition it’s like people moving in rhythm, or swaying to live or recorded music. It’s a very lawyerly definition
what constitutes a social. – [Dan] I object. – If we have that kind of event you have to have security for the event. If you’re a registered
student organization, and you’re putting on that kind of event we have certain security that’s required. So we clarified that that’s
what we were talking about, and we adopted, actually,
a special schedule. And then the other thing we did is that we made it more clear if you’re having an
event as an organization, you’re promoting an event, and you want to have
security at your event the campus can provide
that security for you, but if you want it and
you’re asking for it then you have to pay for that as opposed to if the campus
thinks that it needs to provide a lot of security in order to
protect the campus community then the campus is going to pay for that consistent with First
Amendment principles. – So before we wrap up I have
one more question for you, but there was a question
that came from the audience. – [David] Only one question, come on. There’s no more questions. – That’s because I had too many. I was like sucking all
the air out of the room. – [David] Nobody have any questions? Pass those cards up. – Who wants to stop the UC project, specifically the Upper Hearst project? – That’s a good question. We actually have two lawsuits. We have a lawsuit from
a neighborhood group. They call themselves Save
Berkeley Neighborhoods, and we also have a lawsuit from the city. I think if you ask the leadership
of the city they would say that they are not intending to stop the Upper Hearst project specifically. What they’re really
finding fault with is that updated environmental
analysis that I described. The reality of what they’ve
actually pled in court is that they are challenging
the project specifically. I take them at face value. I know that this is complicated legally. My clients often don’t understand
all of the legal minutia of the positions that we
take as an institution. I take the city leadership
at face value when they say that they would like to see the Upper Hearst project go forward, but they want their larger
concerns about the impacts of the university on the
community to be addressed, but those are the two challenging groups. Actually, even if we settle with the city we will have to deal with the lawsuit from the neighborhood group. The neighborhood group, also,
is similarly to the city professing that they don’t
oppose the project per se, although, they’re a little
bit more specific about saying that they think that the
project is too dense, they’d like to see it be smaller. The kinds of things that
typically neighbors will say in response to a more dense
project being located near them. – So another question
just came in which is– – Yay.
– Sorry you done can I ask it? – [David] Yeah, yeah, I said
yay to another question, right. – They didn’t come pouring
in, but one more did come in. What do you see as our legal growth area? I’m assuming the person means by that areas of litigation and legal contention that may not be too predominant right now, but are likely to grow over time. – Okay, I’ll give two answers. The great majority of the work that our office does on the campus is supporting the mission with regard to the actual initiatives that are being undertaken
by staff and faculty, and increasingly those initiatives
are multi-disciplinary, multi-institutional, and multi-national. So there’s increasing levels
of complexity being associated with delivering the core
research mission of the campus, and our academics
because they are leaders, every single one of them at a place like Berkeley is a superstar are on the cutting edge
of where science is going, and where science is going
is what I just described. It’s not happening in one place. It’s happening all over the world. It’s happening at the same time. It’s happening simultaneously
in a bunch of different labs that are in different
locations all over the planet all working on solving the
same basic research problem. There’s a lot of complexity around the intellectual property issues, and the potential
monetization of technology, and all of these issues
are complicated now by multiple institutions working on the same problem together. And the scientists, which is awesome, only care about the science. They just want the science to happen, and the rest of it they
see as irritation, noise, bureaucracy that’s impeding the science. So what we need to do as an institution, and what I think we’re gonna need to do as a legal organization is
keep getting much better at supporting the researchers
and carrying out the science so that they can be proactive
in going after the knowledge, and that they will not
feel like the institution is lagging behind and putting
roadblocks in their way as they do that continuing to
make the paradigm more robust. In terms of litigation
I think we’re gonna see more and more litigation from
students who are challenging their grades and their
dismissals on the basis that they were not properly accommodated with regard to their disability. We’re seeing some of
those cases coming in now, and I think it’s just the
tip of the legal iceberg. I think there are a
lot of reasons for that that don’t really have
time to go into here, but I think that that will
be sort of the emerging issue for students in higher ed. – Last question, what
keeps you up at night? – I sleep well at night, actually. – [Dan] I knew you were gonna say you do. – I do, it’s a self-care thing. I recommend that everyone
try to sleep well at night. I actually really have a lot of confidence in the staff of the university. I think most of the staff
feel the way that I do, which is that we’re all here to further the mission of the academics. They’re the ones who
deliver the real program, which is the research and the teaching. The staff here are just
incredibly competent, and incredibly dedicated. I mean, the degree to
which we saw that last week was just astounding, the
problem-solving, the ingenuity. Sometimes people need to
be reined in a little bit on the compliance side, but we
get that taken care of, too. People see that and they
raise their hand here, and we deal with it before
it becomes a crisis. I think that this place has
just extremely competent, dedicated people, and if we didn’t– – [Dan] You wouldn’t be sleeping so well. – I probably wouldn’t sleep as well, yeah. – So before I thank David, just a note that our
next Campus Conversation will be on Wednesday, November 20th, where we will all have an opportunity to meet Eugene Whitlock, who is the new chief
human resources officer, assistant vice chancellor
for human resources. A great guy for those of
you who haven’t met him will be really interesting. I also want to take the opportunity to put in a little plug
for an event tomorrow night particularly for those of you who are interested in free speech issues. Chancellor Christ, and the dean
of the School of Journalism, Ed Wasserman, will be in conversation with “New Yorker” reporter, Andrew Marantz, who wrote extensively about the campus during our free speech circus days, and has a new profound powerful
book out called “Antisocial” about basically how the
Internet is breaking democracy, but overlapping with free speech issues. They will be here tonight
night at seven p.m. There’s more on the events page. And then without further ado I just want to thank David
Robinson for an excellent hour. Thanks.
– Thanks, Dan. (applause)