University of Wisconsin Faculty Criticize Proposed Changes to Misconduct Code

October 6, 2008

Last week, the University of Wisconsin (UW) System Board of Regents approved new revisions to the student misconduct policies including "Student Nonacademic Disciplinary Standards" and "Conduct on University Lands." The revisions were sent to a legislative committee for review last Friday. They will be returned to the Board of Regents for a public hearing before being sent to the state legislature for a vote.

The revisions, if enacted, will have serious ramifications for students’ due process rights. The Badger Herald reports:

The revised codes include the universities’ power to discipline students for serious criminal offenses off campus, the shift of the hearing procedure to a more "educational" experience and the lowering for the standard of guilt for sexual harassment and sexual assault offenses.

UW-Madison professor and FIRE friend Donald Downs has noted that, strangely, UW-Madison faculty members were not included in the feedback sessions regarding the proposed changes:

"Madison was left out of this whole process. They had some students, staff and counselors that were involved," Downs added. "But there was no faculty input. I wonder why? We tend to be kind of sticklers on this stuff, and we raise questions."

Downs is President of the Committee for Academic Freedom and Rights (CAFAR) at the University of Wisconsin, Madison. Founded in 1996, CAFAR is a group of faculty members dedicated to defending academic freedom, free speech, and due process. The organization released a statement today asserting that they have "some strong concerns about several important sections of the proposals." The statement warns that "the University must be careful not to sacrifice individual rights that are essential to any principled notion of due process."

CAFAR’s statement lists four concerns:

1. Our first concern is with Section 17.12(4) (a) of the revised proposal for UWS 17, which says that an accused student may bring an "advisor" to the hearing on his or her case, and this language no doubt includes an attorney of the student’s choice. But the new rule does not permit the advisor to speak or to address witnesses unless the hearing examiner so consents. Attorneys are often very useful in asking relevant and revealing questions of witnesses in cross-examination, and this skill is not something that can be readily assumed by a novice. In addition, some attorneys are worried that this provision would also restrict the efforts by attorneys to informally negotiate a fair settlement with campus authoritiesan approach that has traditionally been the most utilized way to deal with cases that are not cut and dry.

2. Secondly, Section 17.12(4) (e) lowers the standard of proof for sexual harassment and sexual assault to a mere "preponderance of evidence." (The old standard was the more demanding "clear and convincing evidence" standard.) This is the lowest standard of proof, requiring only that the weight of the evidence lies against the defendant, however narrowly (50.01% probability suffices). Clear and convincing evidence requires a stronger evidentiary showing, such as a "strong or substantial probability" of guilt. Do we really want to expel or suspend students based on a mere "preponderance of the evidence?"

3. The third problem is with the new proposed sec. 17.13, entitled "Appeal to the chief administrative officer. This section says in part that the officer shall sustain the hearing examiner’s decision unless, among other things, "(c). The decision was based on factors proscribed by state or federal law regarding equal educational opportunities." What does this sentence mean? What state or federal law pertains to "equal educational opportunities?" Or will this be a matter of ad hoc interpretation. Furthermore, who will be the hearing examiners? Can we be assured of their neutrality, or will they be people beholden to the administration?

Does this language suggest that the Chancellor (the old word for "chief administrative officer") and hearing board should take the defendant’s race, gender, nationality, or sexual orientation into consideration in adjudicating culpability? And does this suggest a double standard in adjudication based on the effect of the decision on the "diversity" of the campus? It is not at all clear that this is the case. But the U.S. Supreme Court has declared that diversity is a "compelling state interest," and it is not unreasonable to surmise that this standard could influence the revision committee, hearing board/examiners, or present and future administrative officers. If so, do we really want such considerations to enter into adjudication, of all places?

4. Our fourth and final concern is more general. In certain respects the revision effort exacerbates an existing problem: students receive less procedural protection than faculty or staff. If we truly believe that students are young adults who should enjoy the rights and responsibilities of all adults, does it make sense to afford them less legal protections than the adult faculty and staff? In loco parentis was supposed to have ended in the 1960s, when institutions of higher education began to treat students as actual adults. Adults have rights, but are also fully responsible for their conduct. But the revision effort points to yet another way (speech codes having been another) in which we don’t practice what we teach.

CAFAR’s statement warns that although UW is seeking to make its disciplinary processes "more closely track those of other schools," this motive may be wrongheaded because many universities do not sufficiently protect students’ due process rights. That is, many universities do not have "disciplinary processes that UW institutions should emulate, as many such processes have led to law suits and questionable inquiries." FIRE has been involved in a number of such inquiries, as a brief glance at FIRE’s due process case archive and Speech Code of the Month archive attest. UW should seriously reconsider the wisdom of this motive, especially if it hopes to uphold its constitutional and moral obligations to protect individual rights including due process.

Downs has assured the public that CAFAR will send a representative to the public hearing to express the above concerns. FIRE will be monitoring the situation as it develops.

Schools:  University of Wisconsin – Madison

Cases:  University of Wisconsin: Students’ Due Process Rights