Victory for Student Rights in Wisconsin: Regents to Restore Basic Due Process Rights Including a Hearing by Peers and Attorney Representation

May 6, 2009

Due process matters. It can protect a student from being expelled for no good reason or from being tried for an alleged infraction without any of the legal privileges that citizens routinely get in off-campus judicial systems. My statewide speaking tour of Wisconsin in March made clear to me that college students across the state understand the value of their due process rights, and many of them spoke out against the changes that the University of Wisconsin System Board of Regents was considering to UWS 17 and 18, the system-wide disciplinary code. Many of the changes were unobjectionable from a rights point of view, but others were serious diminutions of students’ rights that would have given huge discretion to administrators at the expense of students. My visit apparently paid off, for the Regents announced on May 1 that they were strengthening students’ rights in many of the exact ways that FIRE had recommended.

The restored rights include the option of a hearing before a committee including student peers, attorney representation in the case of serious allegations, and both e-mail and paper notification of proceedings.

In our press release, Greg extols the changes, which buck a trend that has often gone against students’ rights: “The Board of Regents should be highly commended for protecting students’ rights and fundamental notions of fairness across the state. The policy revisions are a victory for due process rights, which have been systematically reduced in higher education over the last few decades. It is very refreshing to see a university system take steps towards restoring procedural protections for students.”

Since 2007, the Board of Regents has been developing a new version of Chapters UWS 17 and 18 of the State Administrative Code, which governs infractions and judicial procedures within Wisconsin’s public universities. A committee of administrators and students suggested many controversial changes that met with strong opposition from FIRE and student groups. The most objectionable changes limited due process rights and afforded a dangerous degree of discretion to administrators. Had it been granted, this discretion would have opened the door to due process lawsuits and the problem of similar cases being treated differently.

On March 13, FIRE, together with the Committee for Academic Freedom and Rights at the University of Wisconsin-Madison, wrote the Regents with seven specific concerns. Almost all of our concerns were addressed satisfactorily by the Regents, who will vote on the final version of the policy on Friday, May 8. Of note, the Regents added a disclaimer at the top of UWS 17: “The University of Wisconsin System is committed to respecting students’ constitutional rights. Nothing in this chapter is intended to restrict students’ constitutional rights, including rights of freedom of speech or to peaceably assemble with others.” The following four changes are most worth noting:

(1) The revision committee had changed the word “shall” to “may” in the provision that “The hearing examiner or committee shall observe recognized legal privileges.” The change to “may” would have taken away a huge swath of legal privileges that had been guaranteed to students, leaving students with no idea, until they actually arrived at the hearing, what the rules of their hearing would be. After FIRE intervened, the Regents restored the original word.

(2) The revision committee had taken away students’ right to have a lawyer or another advisor speak on their behalf. After FIRE intervened, the Regents restored the right to attorney representation for infractions that could lead to suspension or expulsion, and for cases in which the student has already been charged with a crime for the same alleged activity.

(3) The plain language of the revision committee’s proposal made it seem that minor but ongoing punishments, such as a letter of censure in a student’s file, would require a university to withhold the student’s degree. FIRE intervened, and the Regents clarified this language so that only pending cases and uncompleted punishments will hold up a student’s graduation.

(4) The revision committee had proposed that in cases where the possible punishment is not dire, such as suspension or expulsion, students would be entitled not to a hearing committee (which includes at least one student peer) but to just a single hearing examiner. FIRE intervened, and the Regents have given students the choice of having their case heard by either an examiner or by a full committee. Having the option to be heard by one’s peers is a fundamental right with a very long history.

Not everyone is happy about these improvements to students’ rights, however-especially Richard W. Egley, Dean of Students at University of Wisconsin-Platteville, who served on the revision committee. See what Robert has to say in response to Egley here.

Schools:  University of Wisconsin – Madison

Cases:  University of Wisconsin: Students’ Due Process Rights