The following is an open letter from The Badger Herald Editorial Board to UW System Board of Regents President Mark Bradley:

We understand that Dean of Students Lori Berquam, professor Jacqueline Hitchon, Associate Dean of Students Ervin Cox and various student members of our misconduct panels are petitioning the Board of Regents to reject code of conduct changes making it possible for students to be vocally defended — not merely advised — by an attorney at serious misconduct hearings. While our campus administration has the right to speak for students’ interests, as do any students who wish to join them, we object to the petitioners’ implication that most students agree with their position. We especially object to the text of a recent letter obtained by The Badger Herald, in which Hitchon told you, “Our campus supports a return to the October 2008 draft revision.”

Campus does not support the position taken by Hitchon in her letter. As the Editorial Board of The Badger Herald, a voice for student concerns for more than 40 years, we would be very surprised if the vast majority of students opposed permitting direct attorney representation at misconduct hearings. Students are more aware when their rights are threatened than our administrators usually suppose. And Hitchon should be ashamed for attempting to convince you campus is on her side. Hitchon does not speak for campus. We wonder how many other times our administrators have erroneously informed you that we agree with them. In this case, we do not. We are proud that we do not.

Hitchon et al. are concerned direct attorney representation would create an “adversarial” climate not conducive to the rights of victims, and professors and victims might refrain from bringing legitimate code of conduct accusations if they fear being interrogated by an accused student’s attorney. These objections are identical to those posed by opponents of our criminal justice system — and indeed our Bill of Rights — over the duration of American history. There will always be people who argue our legal concepts — the right to representation by an attorney, “innocent until proven guilty,” “beyond a reasonable doubt” — put undue stress on victims seeking justice for themselves. There will always be those who disguise institutional assaults on due process as sincere quests for truth and reconciliation. We urge the Board of Regents to recognize that as emotionally and structurally inconvenient as our legal values sometimes are, they are necessary for preserving basic rights.

We are not so na?ve as to assume the system of judging misconduct on college campuses is identical to our criminal justice system. But we believe the University of Wisconsin should be at the forefront of recognizing essential similarities between the two. As receiving a college education becomes more and more an imperative for realizing the American dream, the opportunity cost of being suspended or expelled from UW is greater than it has ever been. We have reached the historical point where one’s basic rights — life, liberty and the pursuit of happiness — are the functional equivalents of the right to pursue a college education. As such, we believe those whose enrollment at UW is jeopardized are constitutionally guaranteed the right to direct attorney representation under these circumstances. Moreover, we are comfortable assuming that lawyers representing their clients at misconduct hearings will still have to abide by the other judicial requirements of the university.

Since U.S. jurisprudence has not settled this constitutional question, the UW System Board of Regents has a responsibility to interpret the Constitution in lieu of established jurisprudence. Our administrators are fond of citing Osteen v. Henley (7th Cir. 1993) to justify permitting only attorney presence at misconduct hearings. This is a gross misinterpretation of an important judicial decision where the judges intentionally constrained themselves to the case at hand. We urge the Board of Regents to consult the original text of the Osteen decision if they have not already done so. In that decision, the Seventh Circuit Court of Appeals merely concluded the right to council in disciplinary hearings depended upon the individual circumstances and opportunity costs to the student in question. Although the court did not find that Osteen himself had a due process claim — it implied conceivable circumstances in which he would have this constitutional right.

We interpret Osteen to say universities cannot proscribe direct attorney representation for students under all circumstances, and must at least treat the issue on a case-by-case basis. We take a more liberal constitutional position than Osteen, but we are willing to accept that decision as precedent provided the UW System recognizes the true implications of the ruling. Since by definition, the criteria for a case-by-case basis cannot be determined ahead of time, the Board of Regents should err on the side of providing excess constitutional rights, instead of too few — as has been recommended by the Supreme Court on cases of individual rights for many decades. The bottom line here is that even considering current case law, a uniform ban on direct attorney representation is unconstitutional. At best there is no coherent precedent with which Hitchon and her colleagues can defend their policy. It is disingenuous for legal standards to be misrepresented to the campus community, in hopes nobody will think to look at the original court texts.

Furthermore, our views on this constitutional question do not change because UW itself lacks the resources to provide representation to all students. It would be a serious mistake to deny students their constitutional rights because the legal infrastructure does not exist to guarantee those rights. We do not encourage the UW to be reticent about recognizing constitutional rights on pragmatic grounds, and indeed policymakers will properly disagree about how to overcome these pragmatic challenges. The Constitution is the issue here, and it should be enforced not merely when it is convenient to do so, but also when it is logistically-inconvenient or even impossible. In the same respect, UW’s interest in making the misconduct process “educational” does not trump their constitutional requirements.

Our opponents on this issue do not speak for our Editorial Board, or for The Badger Herald. They do not speak for the opinion of the majority of students at the University of Wisconsin. They speak only for ambiguous legal principles this country has never stood for — and for a muted, incomplete enforcement of students’ rights. We are confident the Board of Regents will make the correct decision on this issue.