Adam on American University's New Conduct Code: Same Problem, New University

Much of the September 14 issue of the American University student newspaper The Eagle concerns recent revisions to AU's "Student Conduct Code." Of particular concern to AU students is the vague expansion of AU's ability to punish off-campus behavior. It's not hard to see why; the revised regulation simultaneously gives AU more authority to police off-campus behavior and gives AU students less of an idea of what may be punished. According to the new code (with emphasis on "may"):

[T]he university may take disciplinary action for off-campus infractions of the Code when a student's behavior threatens or endangers the safety and well-being of the campus community; when a student is the subject of a violation of local, state or federal law; or when, in the judgment of university officials, a student's alleged misconduct has a negative effect on the university's pursuit of its mission or on the well being of the greater community.

The Eagle has published an op-ed ("Same Problem, New University") by FIRE's Adam Kissel, which draws parallels between AU's new policy and a proposed policy FIRE encountered in the University of Wisconsin system in 2009, which FIRE helped to rectify:

[O]ne of the problems in Wisconsin that deserved FIRE's attention was that the proposed rules gave university officials a huge amount of discretion to enforce vague rules, with the likely result that students in similar situations would not be treated equally. The language that was agreed upon after review made the policy much clearer, more objective, and more definite so that students had a much better idea ahead of time of what was allowed and not allowed off campus.

The problems regarding objectivity, discretion, and clarity look even worse at American University. Not only have AU officials granted themselves great discretion, but they also have described the off-limits, off-campus conduct in extremely vague language.

As Adam rightly points out, what may constitute sanctionable behavior at AU could, "in the judgment of university officials," be almost anything. The University of Wisconsin system came up with a workable compromise, as he notes:

In Wisconsin, punishable student behavior has to involve "serious and repeated off-campus violations of municipal law" or criminal law, whether or not the student is charged. A single instance of being a neighborhood nuisance isn't good enough; the conduct must demonstrate "a pattern of behavior that seriously impairs the university's ability to fulfill its teaching, research, or public service missions." Simply making the neighbors angry on weekends doesn't count.

In its present state, however, AU's Student Conduct Code doesn't make such a distinction, and that has AU students worried. The Eagle's editorial board ("Conduct code changes: ‘Best practice,' or just babying?") likens the changes to "AU think[ing] we need a babysitter," and concludes with the statement that the changes "might help relations in the short-term, but will harm AU students overall in the end."  Another Eagle article ("Student leaders worry about Conduct Code's reach") reflects the concern of several student leaders at AU, including Student Advocacy Center Director Aleksandra Kocelko:

The SAC is concerned about the broadness of the conduct code revisions, Kocelko said. She feels this policy is one of the parts of the conduct code that students are most concerned with, especially those students who have moved off campus hoping to have more freedom.

Because this new off-campus misconduct policy is so general, SAC is not sure exactly how it will affect students.

"We can't help students until we've seen how it will be handled," she said.

The presidents of AU's Student Government and Inter-Fraternity Council—between them representing a wide swath of AU student opinion—share Kocelko's concerns.

Another Eagle article ("Conduct code expanded for neighbor relations, AU says") sheds light on a likely motivation behind AU's recent revisions:

AU is doing more to improve community relations because of the planned presentation of the Campus Plan to the Zoning Commission later this fall.

The Campus Plan is a 10-year plan detailing facilities changes AU wants to make, including the proposed addition of "East Campus" on what is currently the Nebraska parking lot. Administrators consider the adoption of the Campus Plan to be part of "the University's pursuit of its mission."

[Vice President of Campus Life Gail] Hanson said student misconduct has had an effect on neighbor relations, which can affect the Advisory Neighborhood Commissions' endorsements of the Campus Plan.

How much of an effect on "neighbor relations" does AU off-campus behavior have? Perhaps not as much as AU would have people believe. The Eagle staff editorial points out that "Last year there were only 27 complaints. Of those, 15 complaints came from the same neighbor." Even some members of the Advisory Neighborhood Commissions—among those AU is trying to please with its new regulations—are skeptical:

ANC 3D Commissioner Tom Smith, however, said the University would like students to think that the community hates them, but that it is not true.

"The frustration hasn't been with the students," he said. "It's been with the University and their inconsistent statements."

Smith added that the issues raised have not been about student conduct but concern about the University's imminent expansion.

He said that for AU to claim the code was changed in order to shore up ANC support for the Campus Plan is "really disingenuous."

Let's get away from the ten-year plan, though, and back to the here and now, where AU students have plenty to keep them occupied. As Adam's editorial states—and as the rest of the Eagle's coverage makes clear—AU's revisions to the conduct code have left students exposed to abuse by administrators with too much discretion and too little in the way of proper guidelines for separating truly unacceptable off-campus behavior (such as actions that demonstrate a safety risk for AU persons or property) from behavior which merely creates a nuisance (like playing one's music too loud). Such vague policy language puts students' due process rights at serious risk, because it is highly unlikely that such a vague policy can be enforced equally and fairly.

AU claims that its revisions bring its practices more in line with peer D.C. institutions. But here they also fall short, as Adam points out:

Closer to home, George Washington University specifically exempts off-campus activism and requires that the alleged off-campus behavior "pose a serious and substantial danger to self or others" before GWU will intervene.

When AU defended its policy change this spring in a document describing the changes, it wrote, "The revision is consistent with measures taken by other D.C. institutions at the insistence of their neighbors and Advisory Neighborhood Councils." I would like to know which universities AU was referring to, since GWU gives students much stronger and clearer protections in this year's student handbook than AU does.

One AU administrator—Dean of Students Rob Hradsky—makes this important distinction in an interview with the Eagle ("Five Questions with Rob Hradsky"), stating that "Use of the Student Conduct Code to address off-campus misconduct will continue to be reserved for those cases that are egregious or where students exhibit a pattern of repeated misconduct." This is much closer to the solution FIRE helped to engineer with the University of Wisconsin system, but at present it only goes halfway. While Hradsky's statements are reassuring--and you can bet that FIRE will hold AU to them--the next step is for them to be written into the official policy and officially communicated to the student body. Then AU can be confident that the most serious off-campus offenses are dealt with appropriately, and AU students can tell precisely where the line is and be duly informed of the consequences if that line is crossed.