Something has to change with the University of Wisconsin's disciplinary process for faculty and academic staff — and nobody seems to dispute that.

But after a special Board of Regents committee agreed on a set of proposed dismissal procedures, faculty groups from across the state are crying foul. Some say the regents' proposal has constitutional flaws and violates due process of the law, and a few even call it an attack on tenure.

As these faculties attempt to loosen the structure of the proposed policy, however, looming in the background are the omnipresent eyes of a Legislature that, at least in part, has not hesitated to meddle in university affairs.

"It's true that part of what's going on here reflects a kind of political imperative," UW law professor Walter Dickey said. "And I think that the idea that the regents would act to preempt the Legislature from having to is true, and I think it's a good idea."

Although comments from some regents have seemed to diminish the severity of the issue, pointing to the fact that the policy would affect only those employees who commit serious criminal misconduct, Dickey, who served on the special regents committee that drafted the proposal, emphasized his own view that critics of the UW are morally justified.

"It's too easily characterized as legislative interference and all that sort of stuff," Dickey said. "I think there's broader concern and interest in this than many people realize."

The regents' proposal comes as a direct response to three highly publicized cases from 2005, in which three UW-Madison professors remained on the payroll even after being convicted of serious felonies.

Only one, former medical physiology professor Roberto Coronado, currently serving an eight-year prison sentence for child molestation, has been removed.

Medical school professor Steven Clark, who is serving a one-year sentence for stalking, and comparative literature professor Lewis Keith Cohen, who served 30 days in jail for child enticement, have not yet been terminated.

One of the main goals of the new policy is to expedite the process to avoid such long delays as seen in 2005. In theory, the current policy would allow an employee to be terminated within 60 days, in an egregious situation.

"We need to assure the public that we're not going to be paying people who are sitting in a prison, convicted of serious crimes," Rep. Robin Kreibich, R-Eau Claire, said. "I'm not talking about issues that occur prior to their hiring — these instances all occurred after they were on the payroll."

While Kreibich called the current regent policy acceptable, he said he already fears current deliberations with faculties and other shared governance groups will alter the policy enough to effectively bring them "back to square one."

"My sense is that it will change dramatically because of faculty concerns, that it will be rejected, and we'll be left right back where we started," said Kreibich, who chairs the Assembly Committee on Colleges and Universities. "In the meantime, the public just shakes it head."

Faculty 'issues'

Since the Board of Regents voted to transmit the proposal to shared governance groups at its February meeting, Regent Mike Spector, who chaired the six-member regent committee that drafted the proposal, has traveled to several UW campuses to meet with their respective groups.

"When we gather all those comments that are coming in now, when our committee meets in April, we will have a good look at the thing," Spector said. "I'm sure we'll be making [some changes]. We'll give strong consideration, at least."

Among the most confrontational of the shared governance groups seems to be the UW-Madison Faculty Senate, which Spector acknowledged was "least specific" in their suggested changes, as he said they opted instead for a general message of "we don't like that."

UW-Madison medical school professor and faculty senator Lawrence Kahan, however, prepared a list of "issues" he and political science professor Donald Downs had with the policy.

"The current proposal that was presented at the Faculty Senate [deals] very broadly with people who had engaged in serious criminal activity," Kahan said. "We'd like to see that pared back to people who were charged with or convicted of a felony."

According to Kahan, this change constitutes a weakening of the standard for triggering the special expedited process. Moreover, he said, the requirement of employees to self-report their commission of any serious criminal activity is a direct violation of the Fifth Amendment.

"If you require people who have engaged in serious criminal activity to report that to the provost, you're requiring them to go in and confess," Kahan said. "You're damned if you do and you're damned if you don't."

While Dickey dismissed any Fifth Amendment concerns over the responsibility to report such behavior, Rep. Spencer Black, D-Madison, who sits on Kreibich's Committee on Colleges and Universities, sympathized with Kahan.

"I see the concern here; it seems to me that the trigger for these activities should be the criminal justice system," Black said. "I can see a requirement to report to the provost if someone is charged in the criminal system, but it seems strange that if someone commits a criminal act that it would be the provost that would be the law enforcement."

Also of concern to Kahan and other faculty is the adoption of a policy allowing employees to be suspended without pay while investigation is underway, and changes in the burden of proof.

According to Kahan, the burden of proof has been changed from clear and convincing evidence to a preponderance of the evidence, which he described as one more inclination toward presuming guilt rather than innocence.

"There are drafting issues, things where getting the right words, problems of expression that are not easy to solve and can be improved upon," Dickey said. "People should talk about what the burden of proof should be."

Although some university officials — including System President Kevin Reilly — have stressed that the spirit of the procedure is to deal with a very small number of employees while still preserving due process, Kahan said he does not take comfort in a "symbolic" understanding of the new policy.

"I don't really understand this concept of symbolic law," he said. "I know the IRS doesn't operate that way. Nothing they say is symbolic — they mean every last word."

But Dickey said there is nothing wrong with symbolic action, which he said can be very legitimate and proper.

"The fact that it's symbolic doesn't necessarily mean it's a bad thing," he said. "You can in a sense restore legitimacy by taking notice of this behavior."

Legislative concerns

Asked if he is sympathetic to the faculty's concerns about some of the provisions in the regents' proposed termination policy, Kreibich said his only sympathy is for the UW as a whole.

"They need to take a step back and look at what's in the best interests of the UW System," Kreibich said. "So as far as sympathetic, I'm sympathetic to the UW because if this doesn't get resolved again — it looks like they can't resolve issues that come up."

In anticipation of a "watered down" policy coming out of the shared governance process in a few weeks, Kreibich said he already has drafted his own bill to prohibit the university from using state funding or tuition to pay the salaries of felonious professors.

"The taxpaying public has spoken loud and clear that they don't want to be paying for that," he said. "We can debate whether to pay them while they're charged, but clearly after they're convicted the state needs to sever ties."

Kreibich's bill is not a foregone conclusion, however. Not all of his colleagues in the Capitol or on his committee agree, and according to Black, a growing number of legislators are growing tired of attempts to micromanage UW.

"I don't think people should be assumed guilty until they're proven guilty," Black said. "People have rights as felons, whether they're Republican legislators or UW professors."

And though Dickey shied away from labeling concern over UW's notorious felon situation as only in the interest of a few legislators, Black called it just that and said he largely sympathizes with the faculty's concerns.

"There's a fair number of people in the Legislature who are starting to be very uncomfortable with a few loudmouths who are bashing the university [at] every opportunity," he said. "You can be sure there will be some people who are going to try to make political hey, and have been making political hey of what's happening on campus."

Spector said he asked all input be returned to the regents by the first of week of April, with his committee slated to meet again sometime later in the month. Barring any setbacks, the full Board of Regents will vote on a finished product at their May meeting.

From there, that policy would be forwarded to legislative committees, including Kreibich's.

"If it doesn't have any teeth in it I can predict that it will be rejected," Kreibich said. "What they [have] crafted now seems to be acceptable, but watering it down further, I don't think there'd be a lot of interest in ratifying something that really doesn't prevent what we saw last summer."