“College students are supposed to be trained to be the leaders of this country,” said Ronald McGuire, Malo’s attorney in a pending civil suit and long-time CUNY (City University of New York) activist, in response to a verdict that has deepened concerns about the future of student activism on CUNY campuses. “They should be taught to question and challenge, not arrested for holding up a sign.”

Malo’s actions were not unusual within an historical context. Protest and dissent have long been part of the culture of CUNY schools, as its students, often drawn from low-income and minority households in New York City, have fought to keep their education affordable and accessible.

But student activism at CUNY’s 18 campuses have been in decline in recent years, despite the fact that many of the schools continue to be threatened by budget cuts, tuition increases and financial aid rollbacks. And the Malo verdict highlights how aggressive policing on CUNY campuses has transformed student life, and protest, over the past decade. No school better illustrates this shift in political culture than Hostos Community College.

“I am convinced there has been a conscious attempt to reverse the political culture on campus,” says retired Hostos professor and participant in the “Save Hostos Movement” of the 1970s Gerald Meyer. “There is no place in CUNY that had more political culture than Hostos. Here we are at a time of great influx of Spanish immigrants in New York, there is no better time for a school that has a bilingual mission, and this is when the serious budget cuts begin?”

Malo, 35, came to the United States nine years ago and soon began attending Hostos, where he could study computer science, develop his English and work toward a degree. Malo, who is a father of two and works full time, has been in and out of school over the past seven years as his schedule and ability to fund his tuition fluctuated, but his commitment to his education has remained constant.

After a year in college, Malo’s interest shifted from computers to social work. Through his involvement with the Ecuadorian Club, he became more interested in student politics and was soon elected to the Student Government as Vice President.

“I wanted to learn how the system worked at CUNY,” Malo said in Spanish awaiting a jury’s verdict at the Bronx Criminal Court on Oct. 24. “I wanted to learn how the system worked in general.”

Malo was about to get a serious lesson in just that. In May 2001, student demonstrators, including Malo, forced Hostos President Dolores Fernandez to rescind plans to eliminate two key ESL (English as a Second Language) courses. However, the security concerns raised by on-campus protests would reverberate throughout the summer, and ultimately play a crucial role in the arrest of Malo three months later.

On the day of Malo’s arrest, Hostos Security Chief Arnoldo Bernabe was prepared. He had heard rumors that students might protest against the college’s plan to require students to pay a $300 fee for special language training. Students aware of the change were concerned that the Spanish language foundation of Hostos was being phased out. Bernabe was armed that morning with new rules against protest in “undesignated areas.”

Drafted the night before, they were posted in English on entrances to the school as well as distributed by hand to some students entering the school. A new set of rules wasn’t Bernabe’s only back up; he’d also brought in some muscle. Around noon on that first day of registration, arrest teams were deployed when Malo began passing out leaflets to registering students alerting them to the new fee they would be expected to pay, and encouraging them to boycott registration in protest.


What happened next would become the focus of two trials (argued by three lawyers), one civil suit and more than fifty court appearances stretched over the course of four years. According to Bernabe and the testimony of other officers present that day, Malo was asked to leave the registration area as it had not been designated for protest. When he refused, an officer attempted to place him under arrest, but Malo ran from custody into a wall, falling face down on the floor and then flipping over on his back and “kicking and flailing,” resulting in hand and groin injuries sustained by two arresting officers.

Student and faculty eyewitnesses have consistently countered that Malo was descended on by a large group of officers who forcefully subdued and arrested him. Malo and his defenders have also claimed that it was he who sustained injuries from officers who used excessive force and that any harm to officers was a result of their own actions, not Malo’s.


These discrepancies were not settled easily – or swiftly. Malo’s first trial in Dec. 2003 ended in a mistrial, when McGuire (his defense attorney at the time and now representing him in a pending civil suit) declared himself incompetent to defend Malo. His case was then picked up by renowned radical defense attorney Lynne Stewart, but was again put on hold when Stewart was convicted of aiding terrorism in her work for another client.

In the long-delayed second trial, which began this Oct. 17, Malo was defended by Karen Funk who has represented some of the 1,800 defendants arrested in protests against the 2004 Republican National Convention.

Malo, at this point extremely practiced in navigating court appearances, showed up early every day of his trial. Short and stocky, with an easy smile, heavily accented English and a formal shirt and tie, Malo seemed cheerful as he made a point to shake hands and thank any supporters or media that showed up to follow the trial each morning. “I am confident everything will work out okay,” he said repeatedly.

The trial opened in a crowded, halogen-lit courtroom in the bottom floor of the Bronx Criminal Court, about ten blocks away from the Hostos campus. Assistant DA Terry Gensler opened by arguing that Malo’s was the case of “a man who went too far.” Gensler went on to claim that Malo tried to “create chaos, disruption and disorder which resulted in attacking and injuring peace officers.”

Funk countered Gensler, stating that Malo was fulfilling his obligation to fellow students by providing them with important information that directly affected their lives. Funk went on to argue that no disruption occurred until peace officers decided to arrest Malo, and that the charges against him were greatly exaggerated.

During the week-long trial, student and officer eyewitnesses were called on to testify. Peace officer testimony largely mirrored that of Bernabe’s, repeating again a scenario in which Malo fled police custody and thrashed through an arrest during which he intentionally struck officers. All eyewitness not a part of CUNY security maintained that Malo was descended upon by a large group of officers who forcefully restrained and arrested him.

In the end it was a jury’s decision: acquitted of intentional assault in the 3rd degree; convicted of reckless assault in the 3rd degree along with disorderly conduct.

“Sometimes I feel there is a mentality in the U.S. that Latin Americans are here to work in the service industry but not to get an education or a real career,” Malo had said earlier that morning when asked why he thought the authorities had been so committed to pursuing his case over the past four years. “But I’m confident,” he added later, looking up from the bench outside the courtroom door where he was positioned, “that everything will work out okay.”


Malo isn’t the only CUNY student who has found himself on the wrong side of the law recently. On Oct. 18, five activists were arrested for a non-violent anti-torture protest at Hunter. Last March at City College, three students were arrested during a protest of military recruiting on their campus.

“CUNY campuses have always reflected the political culture of the times,” says Meyers, “and now is no exception. Everywhere there has been a collapse of enthusiasm and conviction on the left, which has caused people to withdraw support for protest and dissent.”

Malo’s sentencing has been set for December. The harshest sentence he could receive would be a year in prison, though it would be unusual for a first-time offender to face prison for a class-A misdemeanor.

The sentencing judge has already received over 40 letters of support asking that Malo not receive prison time. “At each moment, each time these things happen, I am understanding more about this system,” says Malo, drinking coffee at a bright and crowded café across from Hostos the day after the verdict, “and I think there is no justice.”

Malo has vowed to appeal the verdict.