Let me start by saying I’m not someone who refuses to compromise on rights.
Rights are a good thing, but they’re also incredibly expensive and can be corrosive to community cohesion, thus potentially disabling the machinery of real social and policy development. Insofar as we can balance concern for individual rights with effective institutions which further the general welfare, we have an obligation to do it.
Having said this, I have to go on to say something simply has to change about the proposed revisions to UWS Chapter 17. It is, to say the least, a proposed change which carries with it the potential for absolute, unchecked power over individuals with almost no identifiable net benefit for our community. At best, these changes are a foolhardy mistake; at worst, they are a malicious attempt to circumscribe the rights of students.
This code deals with “Student Nonacademic Disciplinary Procedures” and sets up the procedures for due process in the adjudication and discipline of nonacademic misconduct. In other words, this code lays out the procedures the University of Wisconsin System uses to punish students for trouble students get into off campus, even, say, in their hometowns. Suppose you accumulated noise violations or a DWI while on spring break. UWS 17 delimits the system’s ability to make you pay for that both in the justice system and in school. For over a decade, the code went unrevised, but now the Board of Regents has decided it is going to “update” the rules.
First, the review committee has proposed several changes to the right to a hearing and appeal of disciplinary actions. Under the new rules, when some sanctions are sought, a hearing by only one individual hearing examiner is required. More minor hearings are final by definition in the new code. More serious trials involving a sanction of suspension or expulsion only get an appeal at the discretion of the Board of Regents!
Second, the review committee has proposed several rule changes regarding the right to representation. In the proposed changes, students under examination have only the right to be “accompanied” (not represented) by an advisor who may “only counsel the student and may not actively participate in the hearing, except at the discretion of the hearing examiner or committee.” But lawyers are specifically trained to help navigate the storm of accusations and procedural traps, and without this representation, the student is clearly at a disadvantage. Also, in one of the more laughable yet unsettling passages, the revision simply states, “The hearing examiner or committee may observe recognized legal privileges.”
Last, the committee plans to change the standard for proving sexual harassment from the current “clear and convincing” evidence standard to a 51percent standard where a conflict barely has to go beyond “he said, she said” to end up in a ruined life.
In some ways, the record of expulsion could carry more consequences than the disciplinary actions of the civil justice system. To put the responsibility for determining guilt, administering a punishment, and granting appeals entirely in the hands of a few people is antithetical to our American ideal of the rule of law, which, at a very minimum, requires those responsible for adjudication be bound by the law and not given the discretion to decide when due process will be afforded. We should be willing to make tradeoffs with our rights for a better society/campus, but this just isn’t a square deal.
There is no doubt that the people responsible for this proposed revision are good people who probably can be trusted to be empathetic and to allow as much due process as possible in most circumstances — in fact, I’ve heard from a few of them and have found them to be genuinely dedicated to service for our community. But that is hardly satisfying for anyone with an appreciation for history. Due process of law is a concept designed to address the very fact that circumstances change, good judges leave, and panic happens. Especially in the wake of the recent fraternity rape story, we ought to question rule changes which would dramatically re-introduce the groupthink element to justice. Suppose someone in particular were to be accused. Would we be comfortable subjecting that person to these minimal standards of due process?
Luckily, these rules haven’t gone through yet. The Board of Regents is still accepting public comments until 4:30 p.m. on March 13, after which it will send its final revisions to the state legislature for approval. There is no constitutional case to be made here; if these revisions are going to be stopped, it is going to have to be by public mobilization. You can submit your comments on the revisions by the above date and time to [email protected].
Dan Walters ([email protected]) is a graduate student studying political science and law.
