New Wisconsin Regents policy has problems and promise

On Oct. 6, the University of Wisconsin System’s Board of Regents adopted a policy intended to promote free speech on campus. The policy explains the System’s commitment to the robust free exchange of ideas and seeks to curb attempts by some to stifle the expression of others. We are happy to see the Regents take action to preserve freedom of speech, but have some reservations about how the policy approaches this important task.

The most controversial aspect of the policy is language that would subject those “who engage in violent or other disorderly conduct that materially and substantially disrupts the free expression of others” to formal investigation and mandatory minimum sanctions. The policy states:

A formal investigation and disciplinary hearing is required the second time a formal complaint alleges a student has engaged in violent or other disorderly misconduct that materially and substantially disrupted the free expression of others. Any student who has twice been found responsible for misconduct that materially and substantially disrupted the free expression of others at any time during the student’s enrollment shall be suspended for a minimum of one semester. Any student who has thrice been found responsible for misconduct that materially and substantially disrupted the free expression of others at any time during the student’s enrollment shall be expelled.

This provision was patterned on the language of state Rep. Jesse Kremer’s Campus Free Speech Act, which cleared the Wisconsin State Assembly after being amended and is currently pending in the Wisconsin State Senate. Critics of the bill and this newly adopted policy argue that the bill will unconstitutionally clamp down on the right to protest. But if the “material and substantial disruption” standard is applied properly and in good faith to events in reserved spaces — and FIRE will watch closely to make sure that it is — it should protect the expressive rights of speakers, audience members, and peaceful protestors alike. The provision must only be construed to reach conduct that intends to or succeeds in preventing people from speaking, hearing a speaker, or attending an event. Walking out of a speech, holding a sign outside an event, chanting outdoors, brief heckling — none of these types of expressive activity should be found to constitute material and substantial disruption.

We do have serious concerns about the manner in which this policy seeks to address the “heckler’s veto.” Our objections, as we have previously explained, are twofold. First, we are concerned that mandatory minimum punishments will lead to unduly harsh punishments that don’t always account for the degree of a student’s culpability. Institutions should have broader latitude to impose sanctions that make sense in the specific context of each case.

Our second concern is that the policy requires formal investigations and hearings the second time a complaint is lodged against a particular student. Without having a mechanism to decline to investigate frivolous complaints, this provision invites abuse. Students will now have the ability to trigger investigations into their political adversaries simply by lodging multiple complaints.  

Given our reservations about this policy, we hope the Board of Regents will be open to making modifications. We applaud the Regents for taking their responsibility to protect free speech on campus seriously, and stand ready to help them perfect their efforts.