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Dear �鶹��ý Community,

As many of you are aware, the College received a letter from a number of legal groups expressing concern about the suspension of our students in connection with the Carnegie Hall protest and occupation. As the letter was publicly released, I am sharing our response.

Very best,

Gabi

VIA E-MAIL
(kanwalroops@asianlawcaucus.org)

Kanwalroop Kaur Singh
Staff Attorney
Asian Law Caucus
55 Columbus Ave.
San Francisco, CA 94111

Re: Response to November 13, 2024, Letter Regarding Carnegie Hall Disruption

Dear Ms. Singh:

As follow-up to our November 20, 2024, email, we write with respect to the concerns raised in your November 13, 2024, letter about the suspensions of a group of �鶹��ý students that took part in a protest that occupied Carnegie Hall.

We have carefully reviewed your correspondence and the claims made concerning purported violations of rights to (i) freedom of expression and (ii) fair process implicated in the suspension of these students related to the events of October 7, 2024. The College agrees that both rights are essential under law and the College’s policies, and the College remains steadfast in its protection of free speech on our campus, and the implementation of fair process; our client believes, however, that for the reasons set forth below, your letter contains incomplete facts and other materially inaccurate statements that result in incorrect application of the relevant law. We appreciate the opportunity to substantively respond and hope that you will give this careful review.

To Date, No Students Have Been Charged or Disciplined for Alleged Vandalism, Assault, or Intimidation

In challenging the propriety of the College’s actions, your letter asserts that the College has:

• “not provided any evidence showing that any of the students you suspended committed any act of violence or bodily harm, destruction of property, or intimidation.”
• “punished students based on a theory of guilty-by-association [which] is unconstitutional.”

Your letter devotes a significant amount of legal argument to these incorrect assertions; these arguments are factually unsupported, as the College has not disciplined any students for the reasons above. First, the only conduct charges to date involve disruption to the College’s academic operations, a violation of the College’s Student Code. In various communications to these students during the investigatory process, the College did include a context-setting reference to damage to the building and the subjective response of those students and faculty who were in classroom and academic environments when the protest march moved inside. As an educational institution, the College believes it is important for everyone charged with policy violations related to the protest to understand the broader impact of the events within Carnegie that day, but has also been clear in setting forth the specific, limited charges – none of which relate to the violence and damage you inaccurately suggest are the basis of the student discipline.

Regarding the second assertion, as further discussed below, the College has not sanctioned any students based on “guilt-by-association.” Instead, given that the overwhelming majority of the protestors were masked and intentionally concealing their identity during the building takeover, the College has relied on a variety of individualized, student-specific data, including authenticated network connection information — placing the suspended students in Carnegie for an extended period of time that day, for a protest that displaced ongoing and scheduled academic classes, and disrupted other students, staff and faculty studying and working in the building. As the College makes clear in its policies¹, no individual has the right to disrupt academic classes, let alone in the manner that occurred on October 7 when over one hundred student protestors continued an outdoor march - which was not restricted in any way by the College - into an academic building, displacing and/or disrupting classes for several hours.

California’s Leonard Law is Not Implicated by the College’s Response to the Conduct Preventing and/or Materially Disrupting Academic Operations including Classes in Session

The College concurs in recognizing the important First Amendment authority you cite but believes that this significant body of law is inapplicable to the factual circumstances at issue here: a disruptive takeover of an academic building at a liberal arts college by more than one hundred masked and/or blocked students while academic classes were in session or were scheduled to take place. Your letter does not and cannot identify any legal authority that obligates institutions to look the other way while academic operations are effectively incapacitated and the rights of other students to pursue their coursework are intruded upon.

The College is a community of learning and, consistent with California’s Leonard Law, has a long history of supporting rights to free expression, including peaceful protests. However, under longstanding precedent, schools that are subject to the First Amendment have a special interest in regulating speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” Grayned v. Rockford (1972) 408 U.S. 104, 118, 120; Tinker v. Des Moines Independent Community School Dist. (1969) 393 U.S. 503 (“conduct by [a] student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is ... not immunized by the constitutional guarantee of freedom of speech.”). Most significantly, as the College is a private institution, the Leonard Law only prohibits disciplinary sanctions when speech otherwise protected by the First Amendment or Section 2 of Article 1 of the California Constitution is the sole basis for the discipline. Cal. Educ. Code, § 94367, subd. (a).

The College’s response to the October 7, 2024, takeover of Carnegie Hall, one of the College’s most well-known academic buildings, does not implicate protected free expression/association.² The focus of the subject discipline relates to the targeted disruption of the College’s ability to properly conduct scheduled classes in a well-established academic setting. The protestors’ individual and collective presence overwhelmed the academic programs then taking place, negatively impacting the education of hundreds of Pomona and Claremont Colleges students, and materially blocking the College from meeting its obligations. All this was in direct violation of the College’s lawful policies, including the Demonstration Policy and the (“Student Code).³

The College notes that some students have claimed that they either did not know that Carnegie was an academic building or that they did not know that the march into Carnegie was not an approved event. The College’s position is that it is reasonable to conclude that anyone entering Carnegie: (1) knew or should have known that it was an academic building (the majority of protestors displaced an ongoing scheduled academic course, taking over a classroom for their own teach-in), (2) knew or should have known of the resulting disruption of other classes in session when over one hundred student protestors rushed into the building, and (3) knew or should have known of the disruption of later scheduled classes when they remained present in that limited space for an extended period of time and did not disperse. The Demonstration Policy makes clear that “[i]gnorance of this policy or lack of intent to violate this policy is not an acceptable justification for violating it.”

The College Conducted a Multi-Stage Process That Complied with Fair Procedure Principles in Investigating and Disciplining Its Students for Their Disruption of the College’s Academic Operations

Your letter raises a variety of concerns about the fair procedure process that the College utilized for investigating and disciplining its students. The College believes your letter was drafted well prior to the completion of the College’s investigation and disciplinary process, as the facts you assert are incomplete and inaccurate. Premised on incomplete information about the College’s full process, which did include appropriate notice of the College’s allegations and multiple opportunities to respond to same, your legal arguments lack factual support.

With respect to procedural elements required for student discipline, your letter acknowledges the California Supreme Court’s recent Boermeester decision which stands for the proposition that “courts should not attempt to fix any rigid procedures that private organizations must ‘invariably’ adopt...private organizations should ‘retain the initial and primary responsibility for devising a method’ to ensure adequate notice and a meaningful opportunity to be heard.” Boermeester v. Carry (2023) 15 Cal. 5th 72, 90.

The Initial Suspension Action Followed the College’s Student Code

The group of suspended Pomona students charged with violations of the Demonstration Policy and the Student Code have been provided with a process that complies with Boermeester.

These suspended students were initially placed on interim suspension in light of the serious disruption to the College’s academic operations as a result of the building takeover. In conformity with the extraordinary authority delegated to the president by the Board of Trustees, these cases were not required to be subject to discipline by the Judicial Council. Rather, as laid out in the Student Code, these cases followed the Extraordinary Authority procedure reserved for events that meet three conditions:

• they threaten safety of individuals on campus,
• involve the destruction of College property, and
• the disruption of Pomona’s educational process.

Earlier this month, President Starr shared with the College campus community her rationale for the differing judicial paths for Pomona students:

The Code clearly describes the kind of events that make them register as extraordinary (disruptive, unsafe, and destructive). However, in making my decision, I also weighed the institutional scope of these events. The takeover of Carnegie affected more than 600 current students, scores of faculty and staff, as well as two groups of minor-age students visiting our campus. This is the context in which I evoked extraordinary authority. Please note that per the Code this decision is based on the triggering events; it does not mean that each individual case under consideration will result in charges based on all of those conditions.

Pursuant to the Student Code, all students on interim suspension then had the immediate opportunity to provide new information to the Preliminary Sanctions Review Board (PSRB) via an appeal process wherein they might on appeal deny the charges outright or raise extenuating circumstances. They might also include letters of support from other members of the community. All of this information was carefully weighed on an individual basis.

The PSRB is composed of two students and two staff. The PSRB reviewed the facts of each case to ensure neither lack of information nor bias have contributed to the interim suspension. A small number of students with interim suspensions were allowed to return to campus as the result of this process. Most important, neither the president’s decision to issue the interim suspension, nor the PSRB appeal result is a finding of ultimate responsibility for the student.

Suspended Students Were Provided with Notice of the Allegations and Related Evidence and Provided with a Further Opportunity to Respond

Following the initial suspensions, these students were provided a detailed notice of the allegations, along with related supporting evidence. Again, they were informed that individualized, authenticated Wi-Fi data⁴ was used to identify these individuals who participated in the takeover of the Carnegie building.

Students were provided with an opportunity to provide a written response to same, and consistent with the College’s Student Code, earlier this month, President Starr invited suspended Pomona students, along with a representative of their choice, to meet individually with her, the Dean of the College, and the Dean of Students in person to hear from them about their case. All but one student accepted the meeting. All students received individualized decisions that considered the circumstances of their responses to the allegations, as well as the available evidence. For students that were found responsible, the College has issued a range of sanctions that vary case-by-case.

* * *

While the College understands that this process has been difficult for the students that were suspended, please know that the College has focused its efforts on maintaining its academic environment, one that has been visited by deep polarization. While the suspended �鶹��ý students may disagree with the outcomes, the College believes that they are appropriate and tailored to the circumstances of an extremely disruptive takeover of an academic building where the students in question were present in the building for an extended period of time and individually contributed to displacement of a number of classes already in session or scheduled for later that afternoon.

Very truly yours,

HIRSCHFELD KRAEMER LLP

Derek K. Ishikawa

DI/mb
cc: Glen Kraemer, Esq

¹ See, e.g., the and (“Demonstration Policy”).

² It is worth noting that your letter references the student protests that day involved a walk-out demonstration; videos of the walkout demonstrate that it grew to include well over one hundred students and proceeded to block a public street intersection (6th Avenue and College Way) and a gathering outside of Carnegie—none of which was the subject of any restriction nor resulted in any conduct charges.

³ Article III, section 10 of the Student Code prohibits “Conduct which interferes with or prevents the normal operations of �鶹��ý, the Claremont Colleges, or TCCS, or which improperly infringes on the rights of other members of the college community.”

⁴ Administrative metadata collected in accordance with the College’s and used solely to establish facts related to presence in the building)