Statement by the Committee for Academic Freedom and Rights at the University of Wisconsin

By October 6, 2008

Student Disciplinary Reform at the University of Wisconsin System

The following statement is from the Committee for Academic Freedom and Rights at the University of Wisconsin, Madison, an independent group of faculty members who have advocated and supported academic freedom, free speech, and due process since 1996.

The Board of Regents and legal officials of the University of Wisconsin system have proposed changes to student misconduct codes UWS 17 (Student Nonacademic Disciplinary Standards) and UWS 18 (Conduct on University Lands). It is natural for institutions to change policies as years pass by, and the University must be duly empowered to secure the safety and security of the academic community. We do not quarrel with the desire to reconsider the student misconduct codes in light of security concerns at the University.

That said, we have some strong concerns about several important sections of the proposals that are going to be considered by the public in a later hearing and subsequently by the State legislature. In revising the conduct codes, the University must be careful not to sacrifice individual rights that are essential to any principled notion of due process. In addition, we should bear in mind that the University of Wisconsin system has enjoyed a long-standing national reputation for protecting the due process rights of students, staff, and faculty in disciplinary hearings-rights that have made us national leaders in the struggle for academic freedom. One motive stressed in the new proposals is the desire to make disciplinary processes at UW institutions more closely track those of other schools. We would encourage citizens of the University and the State to think very seriously about the advisability of changing fundamental aspects of due process, lest we compromise both individual rights and the historical legacy of this institution. We should also remember that other institutions do not necessarily have disciplinary processes that UW institutions should emulate.

Below we discuss four concerns that merit concerted attention. This list does not necessarily exhaust the set of concerns that merits public scrutiny, but it does contain the issues that have attracted our early attention.

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 authorities-an 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 fewer 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 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 advocate.

Student misconduct is a serious matter that justifies appropriate procedures to punish those who misbehave. But in addressing this concern, we must be careful to protect students’ rights, and treat them as adults. In so doing, we honor the legacy that has made the University of Wisconsin a leader in protecting academic freedom and due process rights. We encourage all members of the vast University of Wisconsin System to honor the University’s classic commitment to the "sifting and winnowing of ideas" by contributing to the public discourse about this important issue.

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