Wisconsin Students’ Right to Legal Representation Diminished in Ambiguous New Draft of Conduct Code

I reported last month that the University of Wisconsin System Board of Regents had announced the restoration of fairly strong due process rights for students in the May 2009 draft of UWS 17 and 18, the statewide code of nonacademic student conduct. The restored rights include the option of a hearing before a committee including student peers, attorney representation in the case of serious allegations, and both e-mail and paper notification of proceedings.

After protests from some deans of students and judicial officers, the Regents agreed to make some final tweaks to the changes they had announced, with a final vote on the final draft (PDF; see pp. 128 ff.) scheduled for this Friday, June 5. The most significant change is an additional final sentence regarding representation by an attorney or another advisor in the most serious cases:

In cases where the recommended disciplinary sanction is identified in UWS 17.10(1)(i) or (j) [suspension or expulsion], or where the student has been charged with a crime in connection with the same conduct for which the disciplinary sanction is sought, the advisor may question adverse witnesses, present information and witnesses, and speak on behalf of the student. In accordance with the educational purposes of the hearing, the student is expected to respond on his or her own behalf to questions asked of him or her during the hearing. [Emphasis added.]

This new sentence unnecessarily introduces glaring ambiguities, highlighted above. Apparently the intention is for the attorney or other advisor to be allowed to speak on behalf of the student at all times except when the charged student is asked a direct question. That's not quite what the sentences say, taken together. Do they mean that only educational questions should be answered directly by the student ("So, what have you learned from these expulsion proceedings?")? Moreover, I believe this is the only time that "expected" appears in the whole UWS 17 document; normally the verb is either "shall" or "may." Does this expectation mean that the student must speak on his or her own behalf when asked, or not?

After all this work on UWS 17, I hope that the Regents will accept some friendly amendments on Friday so that these ambiguities are cleared up.

Substantively, as Erica Perez reports me saying in Wednesday's Journal Sentinel (Milwaukee), this change slightly diminishes students' rights in the most serious cases. Following the new draft, when a student is charged with a crime, he or she must choose between directly answering a question about the crime—essentially rendering moot the Fifth Amendment right against self-incrimination—and refusing to answer the question, thus risking the consequences of failing to respond at the university hearing. All told, however, the Regents have admirably restored most of the due process rights that had been in jeopardy in last October's draft.