Due Process Matters, or, Why I’m On Tour in Wisconsin

Due process matters. Just ask Hayden Barnes, who was expelled from Valdosta State University by means of a note slid under his door—without any hearing or any chance to respond to the "evidence" (a Facebook.com collage) against him. Or ask Professor Donald Hindley at Brandeis, whose provost put a monitor in his classroom over a misapplication of the university's harassment policy—and then cut off the appeal of his punishment by simply declaring the matter "closed."

Or ask "The Coalition of Some Dudes," two male students at Colorado College who were found responsible for sex-related violence because of a poster they put up as a parody of a gender studies newsletter. Yes, they got a hearing, but it was a three-hour shaming session  commandeered by the gender studies folks, who were allowed to barrage the students with irrelevant questions like, "How many gender studies courses have you taken?"

The right to due process is a constitutional right enjoyed by every American citizen. As such, it applies fully to public universities like those in the University of Wisconsin System.

In Wisconsin, the Regents are holding a public hearing on Thursday on proposed changes (PDF) to Chapters UWS 17 (PDF) and 18 of the Wisconsin Administrative Code. UWS 17 in particular has been controversial because the changes diminish the standards of due process for students. In fact, this controversy is why I am spending several days in Wisconsin this week to advocate against these changes on behalf of FIRE.

In short, UWS 17 is unacceptable because it opens the University of Wisconsin System up to lawsuits based on failures of due process. Let me enumerate the changes and why they are so problematic.

(1) Part 17.12(4)(b) changes the word "shall" to "may" in this sentence: "The hearing examiner or committee may observe recognized legal privileges." (Emphasis added.) This one-word change takes away a huge swath of legal privileges that used to be (and should be) guaranteed to students. Under the new rule, we see that the judge or judges have all the discretion when it comes to the legal privileges that are not already specified in UWS 17. The judges may, or they may not, observe the legal privileges that used to protect students' rights. Worse, the optional "legal privileges" are not spelled out, so students will have no idea, until they actually get to the hearing, what the rules of their hearing will be. UWS 17 provides no guarantee that students will receive prior notification of the rules that will be made up at the discretion of the judges.

This language opens the door to the due process violation of treating similar cases differently. Moreover, it is especially a problem for a hearing committee composed of faculty members and students who have no actual training in the law or even in campus judicial proceedings. Absent clear rules and guidelines, this change is a recipe for due process disaster.

(2) Part 17.12(4)(a) is similarly troubling. Students no longer will have the right to have a lawyer speak on their behalf. This in itself is problematic, for the real-time cross-examination of witnesses could be crucial to a case, and a student might have no real hope of demonstrating that a witness is not credible if a lawyer is not present to do what is necessary. As UW-Madison professor Donald Downs and UW's Committee for Academic Freedom and Rights have pointed out, there are many cases where a lawyer can ask the kinds of probing questions that a student does not have the training or wisdom to ask. Especially when a case could lead to expulsion, the case is far from the realm of a simply "educational" process, as the proposal's "explanation" argues.

But the problem is worse than that. Whether or not a student gets the benefit of a lawyer speaking on his or her behalf is again left to the discretion of the judge or judges. Let me suggest an amendment: In cases where the punishment is severe and not simply educational, such as cases that could lead to suspension or expulsion—or indeed, in all cases where a substantial liberty or property interest is at stake—UWS 17 should explicitly state that students may have an attorney or other advisor speak on the student's behalf. Leaving all this up to the discretion of the judge or judges just opens the door to the due process violation of treating similar cases differently—and thus opens the door to due process lawsuits.

(3) I find Section 17.16 particularly disturbing. It changes the rules to require that the university must withhold a student's degree if he or she is "subject to a disciplinary sanction" or is under charges—for anything at all. If you're a student, so long as you are still under punishment, however minor, you can't get your degree. Thus, you can be denied your degree even if you are facing punishment for the most minor of offenses. These include failing to register your bicycle, molesting any "bird, animal, or fish life" (does this include insects?), or letting go of your dog while it is on a leash on university property. If an investigating officer thinks you're guilty and is going to schedule a hearing, you're not going to get your degree until the matter is resolved. If UW wants to maintain such a troubling policy, let me suggest another small amendment: Students who are charged with minor infractions (that is, when the expected punishment is minor) should have every expectation that their hearing will be expedited so that they can graduate on time.

Moreover, I truly do not understand how the express language of "subject to a disciplinary sanction" can be applied in cases where the disciplinary sanction is permanent, such as an open-ended "denial of specified university privileges," one of the possible student punishments. A common-sense reading of 17.16 suggests that so long as you are subject to that punishment, forever, you will not get your degree. The only way for the university to let you graduate is to attach a time limit to your discipline with words like "this denial of privileges will end immediately before your graduation." It is troubling that such qualifications are not expressly written into UWS 17.

(4) Appeals to the president (the "chief administrative officer") throw the entire process into yet more confusion. According to 17.13(2), if the president decides that "established procedures were not followed," he or she "may invoke an appropriate remedy of his or her own." (Let's presume that "established procedures" encompasses all legal requirements of due process, even though that's not quite the same thing.) The president can decide that no new hearing is required, but can use his or her discretion to end the case and decide a punishment then and there. Once again the wide latitude of discretion here opens the door wide open to failures of due process.

(5) Following section 17.12, if the punishment is not major, like suspension or expulsion, students under the new rules will not be entitled to a hearing committee, just a single hearing examiner. Disciplinary probation and mandatory conditions for remaining a student are serious consequences, but under the new rules a student will not have access to a hearing committee to determine whether such punishments are appropriate. This rule is especially troubling in cases where the hearing examiner is not a neutral party in the case. At the very least, let me suggest that UWS 17 mandate that hearing examiners should have as little prior involvement in the case as possible.

(6) One particularly controversial change, (17.12(4)(e)(3)), is that in sexual harassment and sexual assault cases UW proposes to rely on a "preponderance of the evidence" standard, or basically a 51% standard of proof. The reason given for changing this evidentiary standard is that "The U.S. Department of Education (DoE) has held that in cases of sexual harassment and sexual assault, the disciplinary standard of proof must be a preponderance of evidence." I think that UW is relying on a letter from the DoE in 2003, which draws on an earlier letter from 1995. This letter pretty clearly states that a school is not in compliance with Title IX if it uses the higher "clear and convincing" standard rather than a "preponderance" standard for professor-to-student sexual harassment cases.

But does this standard really apply to peer harassment cases where the alleged misconduct arises from student speech? First Amendment protections of student speech are very strong. For instance, the DoE letter stated above argues that you could be found guilty of harassment if you have the "purpose" of harassment—even if you fail to succeed in harassing someone. Yet the federal court in the precedential (for the Third Circuit) case DeJohn v. Temple University found that a university may not, consistent with First Amendment rights, punish student speech for merely seeming to have the "purpose" of harassment.

The lesson here is that just because the DoE (or the EEOC, which also uses "purpose" in its harassment guidelines) states a policy, that does not mean that the agency's policy may trump a student's constitutional rights. Something immediately starts looking wrong when sexual harassment cases are given special treatment among the many offenses for which a student may be suspended or expelled. All of this is complex, and I encourage the Regents and the UW System to go over this issue again before sending UWS 17 up to the state legislature.

(7) Finally, students are particularly upset over a new provision that explicitly gives UW the power to punish students for "misconduct occurring on or outside of university lands" (17.08). I am told by senior UW student government leaders that this provision has been added due to pressure from citizens of Milwaukee who live near the UW-Milwaukee campus and want the university to help crack down on noisy students who break the city's noise ordinances during raucous parties.

Students should take heart that the provision only may be invoked when "the conduct adversely affects a substantial university interest." That is, the conduct must constitute "a serious criminal offense," the conduct indicates a threat to health or safety, or the conduct "demonstrates a pattern of behavior that seriously impairs the university's ability to fulfill its teaching, research, or public service missions." (Emphasis added.)

Any reasonable student reading this provision would not imagine that so-called noise violations would be "serious" enough infractions that they would "seriously" impair the university's ability to fulfill its missions. U.S. courts have ruled that in determining whether rules such as 17.08 are impermissibly vague, the rules must be read as a reasonable student would interpret them. If UW is really intending to use this rule to prosecute students for noisy off-campus parties, then lawsuits may follow.

All of this is to say that UWS 17 still has a long way to go if UW wants to avoid a multitude of problems in the future. The bottom line is that due process matters.

For more on due process, see FIRE's free online Guide to Due Process and Fair Procedure on Campus.