 I want to welcome everybody to this this edition of Campus Conversation. I'm Dan Moguloff from the Campus Office of Communications and Public Affairs, and 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. It seems like yesterday. All right. By the way, is this an attorney-client privilege conversation? It's not, Dan. All right, just check. No. All right, just check. No. Anything that gets posted on the internet is not an attorney-client privilege conversation. Just check it. 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's Systemwide 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 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? There's such different worlds. I was always interested in working in the public sector. So one of the pieces of advice 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. And 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 going to be spent on defense spending versus how much are going to be reinvested in our communities are things that people just don't engage about at all. But whether or not there's going to be a stop sign on their corner is something that they'll spend days and days and days organizing over. And I think it's because of your perceived relationship to your ability to change it, right? And 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. And 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. And 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 similar practice represented, nonprofit low-income housing developers who were developing low-income housing projects and also redevelopment agencies who were doing community reinvestment projects. Usually those entities are controlled by their city councils. So I was doing the kind of work that I was really interested in, but the university is a deep concern in my family. So 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 and Hastings. And 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 do? 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. So and I think that's true for a lot of staff on campus. And it's one of the things that makes it a particularly interesting career for a lawyer or our office has an interesting place sort of in the legal landscape because the practice of law encourages specialization. So you 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. And so it's just your career focus as a lawyer tends to get narrower and narrower and narrower. And I'm a naturally curious person and I think that's true of all of the attorneys that work on the campus. And 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. And so 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 and 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. And we're a service office. So we're driven by the needs of our clients on the campus. So tell us a little 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? So there are two deputy campus councils, Julie Connor and Theresa Leone. And they have both been, like I have been on campus for a while now. When I became the chief campus council, we were able to hire to fill my position that I vacated. And the person that we hired is Leigh Hassett. And she was one of only two campus attorneys at UC Santa Cruz. And she actually served as the chief campus council at UC Santa Cruz for a year. So we have a really deep bench of people who have broad subject matter knowledge with regard to the university's business. And we were really lucky to get leave. And then the public records coordinator, Leigh Ann Wong, also reports to me. And we have one administrative person who manages all of us. Yeah. And how does it work, dude? 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're waiting 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. I get like... I thought it's so you don't have to look at anyone who might need your help. No, I get emails from people saying, I walked right by you today, you were looking at your phone. So 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 intimidating 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. And so 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 or 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. But now in the position that I'm in now as opposed to the rule 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. I'll be here after. We're going to talk about a number of subjects and talk about the California Environmental Quality Act and why we keep getting 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? 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. And that is an issue that I think we led the way on. That is a 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. And 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. And I think that we actually have shown a lot of leadership to Rieslione, 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 in going beyond the minimum, 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 flagships, 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. And 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 and higher education. And it's part of a national trend of disinvestment in public education. And California has been a leader in bouncing back from and overcoming a lot of negative national trends, but this is not one of the ones where we have shown leadership as a state. We're still under-invested in, my kids all went to public school, and we're still under-invested in elementary, middle, and high school education in this state. And we are really pretty horrifically under-invested in higher education in this state. And the quality of the program that the 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. But eventually, you can only use up so much human capacity before the lack of resources is really going to make a difference. So unless that changes, our national leadership and public higher ed will abate, unfortunately. So we're going to circle back and talk a little bit more in depth about the changes in the leadership that you say the university is asserted in the realm of sexual harassment, sexual violence, and policy and practice changes. But just still on a broader level, I remember 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. And I thought I'd get a page of a few lawsuits. Sort of a page. I mean, there were something like 55 or 60 open lawsuits. So is that normal? And is that part of a trend? And how in God's name do we deal with a situation where there may be 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? So we have a risk program on the campus and they're also supported by a system-wide risk program. And 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 and a number of attorneys in Oakland who help us with the employment litigation. 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 system. So 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. So 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. So there is the equivalent of a large law firm in Oakland that I used to be part of, which serves the entire UC system. And 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 in Oakland who can deal with the same issues to the whole UC system over and over again than to replicate that at every campus. And that's a model that has been in place since the 60s and has worked really well as the university has grown tremendously. And 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. So, and the university is self-insured so we're able to manage a lot of our profile. 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. 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. Are you allowed to say how much we spend? I'm probably allowed because it's a matter of public record value. I don't know what it is so I have to look it up. He's so good at this. But what I would actually say about the volume of our litigation Dan is that it's low. So, 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. So there's just really, really a broad spectrum of what kind of business activity the university is participating in. And 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. And my experience has been over and over again that you see has really robust processes to deal with complaints. Berkeley has especially robust processes to deal with complaints. And 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. And they don't feel like if they just continue to live their life through this conflict by taking it to court that that's going to 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 and broadly without sort of going into the granular details of policy changes how would you describe that? What changed here? Our processes changed around the way we manage complaints. So there were changes that this campus made before the system made changes and 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 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 and 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 and 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 should we 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 and the reason it's addressed is because you know particularly with students this conduct is extremely impactful. It really affects their ability to perform academically and succeed with regard to their academic pursuits. And so it has a direct effect on their ability to be successful as students. And 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. And that is not something that that is going to work for everybody who's impacted in the community. And 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 going to 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 you know it continues to be an issue that is predominantly impacting women and impacting their ability to be successful. And so if you care about your students you're going to care about addressing this. And what do you 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 and 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 the rest of it. What do you know general counsel like yourself what's the sort of opinion reaction to that to those claims and charges. Well as you might imagine all of the policies that we've adopted have been very 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 and you know 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 and then they have to balance all of that and making the decisions about what they think are you know will be in the best interest of our community and 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 is 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 and so sometimes there are places where those values conflict and that border needs to be navigated and when the courts say that we found the wrong place in navigating that border then we listen to them and we change the policies shift subjects legal subjects before I do just a reminder if you do have questions find a 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 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 and so 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 so because I I think that's really important context to start with when when leading into a conversation about what we don't agree about absolutely okay so the litigation that we are in with the city right now is over the upper hearse project and part of what we did as a campus when we adopted the approval of the upper hearse project was we looked at the long-range development plan that the campus adopted in 2005 and you would you might wonder why we did that and 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 it was anticipated in that plan and 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 hearse 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 in that we had planned for and 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 so we went back and did 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 and 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 going to add how many staff we thought we were going to need to support that enrollment so basically a whole description of our program and 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 now we say environmental impact should be like air quality traffic what does that mean so 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 and 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 going to be and environmental impacts for CEQA purposes purposes are defined as the physical impacts so 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 and that is going to have an environmental impact on the surrounding community primarily in terms of traffic and 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 and those would all be considered to be environmental impacts of this subdivision project and so CEQA requires that the agency the public agency which in our case would be the regents 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 going to be increasing the number of people who are going to be on the campus plant or living in our housing then we're going to be increasing the amount of water that we're using which is going to increase the impact on the sewer so these are the kinds of physical impacts that we look at so getting all the way back to the upper hearse project what did we find when we did an environmental analysis of the impact in the student enrollment in order to update our baseline that we were planning the upper hearse 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 so for a specific example that is very impactful because traffic is one of your big sequel 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 carpool 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 yeah I mean that 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 so our analysis showed that we're we had negotiated as a result of a lawsuit that was filed over the last LRDP with the city mitigation payments and 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 so that's a big surprise so and their analysis is not based on contradiction of our data so they're not we'll have to unpack that for a second so wait it's very lawyerly their analysis is not based on datas 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 and the big thing that we're the big thing that we disagree with them about is housing so they have been 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 you know 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 well 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 and 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 sort of co 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 so you know 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 and the conversations are have been constructive and positive and I like a lot of other people are optimistic that we will resolve this without having the 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 and so you know people who want to stop our projects for whatever reason know that and we know that this is going to be a strategy to stop our projects so what we're doing is we're trying to plan for basically litigation time in our project approval schedules so that you know if we get these kinds of you know hostage taking type lawsuits I'm not saying that's what the cities was but just if we get that kind of litigation that will be in a position to respond to it and wait it out without having to have the project get completely put under water and our developers 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's been talking about is part of the plan to address the crisis or on hold right now no there are different funding models for those projects they're not all subject to the same funding model and some of them would be sort of more exposed to that kind of a strategy than others and how normal what we're seeing and you know you I know you go to meetings you talk to other general counsel from other campuses the 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 there are other cities that have frequently sued they're 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 and we're in one of those we're in one of those but I mean one of the things that's positive I mean you're always looking for the bright side and everything one of the things that's 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 universities making or the cities 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 you know the arrival of Milo Yiannopoulos in February or January 2017 what was your whole takeaway in terms of free speech and the extent to you know the chancellor has talked about it's not a thing it's a process and that you know we 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 so 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 Gilman of the Irvine Campus that that really does a deep dive into the question that you just asked but at a level where I think everybody can understand it and it's it's an easy read so I do recommend it I think that what we're dealing with in the you know 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 you know my kids were raised in a culture where bullying was not okay it was not all right 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 thing to do um and those those young people you know 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 you know some of the people that you know were invited to this campus say just really horrible noxious awful things and they're things that are intended to be upsetting they're they're trying to make people upset and so that's that's tough for us all to navigate particularly when there's an overlay of violence on this so you know people have actually you know been seriously injured and killed with as a result of the conflict that is erupted out of having you know this kind of really negative confrontational expression and so 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 we I think as a community you're 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 and nobody really feels comfortable having the government be the arbiter 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 and there can be friction and difficulty and 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 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 are actually coming from good places you mean 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 going to look really negatively on them and 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 like that's 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 going to say things that are going to make a lot of people upset or are going to draw protests 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 you know the campus was very strong defender again there 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 you know issues around you know sort of perspective based rules and policies and there was some talked about you know the sticks and stones idea after all it's only speech everybody you know 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 going to get fired and hold 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 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 the political spectrum and it's it happens all the time at this campus without much attention right so that there's this sort of narrative out there that if somebody who expresses a right-wing view comes to Berkeley that there's going to be something happening like what happened the first time Yiannopoulos came and that's 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 you know 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 non-political topic or giving it with about a political topic in a context that everybody in this room would agree is happening within boundaries of appropriate discussion among 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 you know the same so we had an event policy it was a subject of litigation a major event policy as part of the settlement the event policy was changed was that in a little tiny bit well talk a little bit was that an indication that we didn't have things set up right what because that got a lot of attention and I think people may still be somewhat uncertain about where we stand and where our policies stand in terms of legal and public scrutiny and criticism so this is another area where Berkeley led the way I will say we again another area where we were lucky enough to be first in terms of these kinds of of people coming to campus my predecessor Chris Patty 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 and 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 going to 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 dance and I'm now informed that this is called a social front of you who did not know when you have a social and we defined what that what that meant and it's actually kind of funny if you read the definition it's like you know people moving in rhythm or swaying to live or recorded music this is a very lawyerly definition if we have that kind of event you have to have security for the event if you're a registered student organization you're putting on that kind of event we have certain security that's required and 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're 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 only one question come on there's no more questions that's because I had too many I was like stuck in all the air nobody has any questions pass those cards up who wants to stop the UC project specifically the upper Hearst project that's a good question so 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 that they 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 so you know 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 so but those are the two challenging groups and actually even if we settle with the city we will have to deal with the lawsuit from the neighborhood group and the neighborhood group also is similarly to the city professing that they don't oppose the project per sale though they're a little bit more specific about saying that they think 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're done yeah yeah okay sorry I'm saying great another question right they didn't come pouring in but one more that's okay come in yeah what do you see as our legal growth areas and I'm assuming the person means by that areas of litigation and legal contention that maybe it may not be too predominant right now but are likely to grow over time okay I'll give two answers I think that 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 multidisciplinary multi-institutional and multinational 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 as 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 and 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 and so what we need to do is an institution and what I think we're going to need to do is 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 you know continuing to make the paradigm more robust in terms of litigation I think we're going to 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 I knew you were going to say 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 and 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 so I think that this place has just extremely competent dedicated people and if we didn't I probably wouldn't sleep as well yeah so before I thank David just to 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 great guide for those who have met him 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 Morantz who wrote extensively about the campus during our free speech circus days and has a new profound powerful book out called Anti-Social about basically how the internet is breaking democracy but overlapping with free speech issues and then we'll be here tomorrow night at 7 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