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October 9, 2008

Due Process Fades In Wisconsin

By Donald Downs

The Board of Regents and officials of the University of Wisconsin system have recently proposed two sweeping changes to the system's student misconduct codes. The first change is a new code covering student misconduct outside of university property (UWS 18). The second involves some major changes in the present Student Nonacademic Disciplinary Code, UWS 17.

There is nothing inherently wrong with periodic revisions of codes, for institutions need to adapt their rules to deal with changes in their environment. And no one argues that universities must abide by the same rigorous procedural standards as the criminal justice system. As the Supreme Court has consistently maintained over the years, the extent of due process depends upon the institutional setting.

That said, critics have raised some points that merit serious attention, especially about UWS 17. These concerns address both specific provisions in the reforms as well as broader questions about the state of universities today. Let me address just three of the specific concerns first.

One section of UWS 17, for example, limits the right to have one's "advisor" (or attorney) speak in the hearing unless the hearing examiner so consents. This provision grants the hearing official more power to control attorneys for the defense. But attorneys are often indispensable to asking poignant questions of witnesses in cross-examination, a skill no novice (especially a nervous student) can pull out of a hat. 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 frequently used to attain justice in cases that are not cut and dry.

Another section 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 in adjudication, requiring only that the weight of the evidence lie 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. Is it really a good idea to expel or suspend students based on a mere "preponderance of the evidence?" And does gender correctness haunt this provision? Why else is this lower standard applied only to these politically preferred cases?

Then there is the new section entitled "Appeal to the chief administrative officer." (This is the chancellor of each university in the system.) This section says in part that the officer shall sustain the hearing examiner's decision unless, among other things, "The decision was based on factors proscribed by state or federal law regarding equal educational opportunities." This language is not exactly clear, but one reasonable interpretation is that the chancellor and hearing board should consider the impact of the decision on the diversity of the campus. (The Supreme Court ruled in 2003 that racial and ethnic diversity are "compelling state interests" justifying the use of race as a criteria in admissions.) If so, is it proper to consider such things as race, gender, or sexual orientation in determining individual culpability?

More generally, UW leaders endorse the reforms by pointing out that they would draw the University's procedures closer to those of other campuses. This would be a laudable reason if most other campuses provided meaningful procedural protections for students who face sometimes life-altering sanctions for their misconduct. But legal scholars have shown that most institutions of higher education provide very watered-down protections, usually because they want to give administers substantial discretion and because, as educational institutions, they desire to make hearings more "educational" than "adversarial." (The latter rationale is espoused by the UW Board of Regents.) But no matter how you cut it, hearings over serious charges are not simply "educational" for defendants. To them, the hearings are inherently adversarial and stressful.

For a variety of reasons, many of the political trends in higher education over the course of the last twenty years have led to a watering down of student rights in order to promote preferred moral agendas. Speech codes have proliferated in the name of promoting sensitivity on grounds of race, gender, sexual orientation and the like, as have mandatory student and faculty sessions that brow-beat individuals into conforming to reigning campus orthodoxies. While basic sensitivity is a worthy end, the big question is the means by which it is achieved. Moral bullying and restricting rights is the wrong way to go in a liberal democracy. Some of the reform proposals for UWS 17 appear to be inspired by this kind of political correctness, especially those dealing with sexual harassment/assault and diversity considerations in adjudication..

If we truly conceive of students as young adults, this means that we should bestow upon them the same rights and responsibilities as adults. Historically, the University of Wisconsin has been among the nation's leaders in providing due process protections. But UWS 17's reforms raise serious questions about our commitment to this legacy. We need a vibrant public discussion about where we are heading.

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Donald Downs is a professor of political science, law, and journalism at the University of Wisconsin, Madison. He specializes in issues involving law, politics, and society, as well as political thought, and has recently published Restoring Free Speech and Liberty on Campus



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