Misconduct Information for Attorneys
The University of Wisconsin-Madison, in common with all institutions of higher education, has the right and obligation to discipline students for behavior that violates the standards of the academic community as detailed in UWS Chapters 14, 17, and 18. The information below is intended to assist attorneys who may be working with students who have allegedly violated University policy and are going through the process detailed in UWS Ch. 14 or 17.
The disciplinary process is independent of any criminal charges and may go forward without regard for timelines and/or outcomes of criminal proceedings. The differences in the criminal and student disciplinary processes are many and have been supported by numerous court decisions:
“... the attempted analogy of student discipline to criminal proceedings against juveniles and adults is not sound. The nature and proceedings of the (campus) disciplinary process…should not be required to conform to federal processes of criminal law, which are far from perfect, and designed for circumstances and ends unrelated to the academic community. By a judicial mandate to impose on the academic community and student discipline the intricate, time-consuming, sophisticated procedures, rules, and safeguards of criminal law would frustrate the teaching process and render the institutional control impotent…”
- 44 F.R.D (142) (W.D. Mo.) General Order on Judicial Standards of Procedures and Substance of Student Discipline in Tax-Supported Institutions of Education
Disciplinary Process
The University of Wisconsin misconduct system provides a fundamentally fair process when students are alleged to have violated policy. Students are afforded due notice and a right to be heard by an investigating officer and ultimately in a hearing. Some information about the specifics of our process follows:
Burden/Standard of Proof: For cases resulting in a sanction less than suspension or expulsion, decisions are made using the preponderance of the information made available to the investigating officer (Assistant Dean) or hearing body. For cases where the sanction sought is separation from the University, the level of proof must be “clear and convincing” that the violation occurred.
Information Allowed: In the criminal system, there are strict rules of evidence. However, the University misconduct process allows all reasonable information, including hearsay.
Witnesses: Students have a right in a hearing to hear any adverse testimony against them and confront the information such witnesses may provide by directly asking questions of those witnesses. Students may also present witnesses of fact to aid in their presentation to the hearing body. Character witnesses are not allowed.
Note: In a case involving a sensitive matter such as assault, the University may, in consultation with any alleged victim, choose to make alternate arrangements for the alleged victim to offer information and for the accused student to hear/respond to that information. Such accommodations may include, but are not limited to, receiving information over the phone, from behind a screen, or via video teleconference from another location (including moving the accused from the hearing room to another location while the alleged victim provides information in person to the hearing body).
Right to an Advisor: Students may be advised by a person of their choice when they are alleged to have violated University policy. However, their advisor may not speak for them during the investigation, nor can they take a direct, active role in a formal hearing.
The language in UWS Ch. 17.06(4) says the student has the right to be “represented” during a hearing. However, the University of Wisconsin has defined this section in practice to mean “advisor,” as is the common practice in higher education. The courts have consistently upheld the right of institutions of higher education to restrict the role of an attorney to advisory only. A good case for review is Osteen v. Henley, 13 F.3d 221 (7th Cir. 1993).
Disciplinary Philosophy: Disciplinary sanctions are designed to be both educational and punitive, often both at the same time. For example, a student involved in repeated, serious alcohol related violations may be suspended (punitive) for a period of time, during which they are asked to complete assessment/counseling for alcohol abuse. They may be required to write a personal reaction paper on what they learned (educational) from their treatment prior to being readmitted to the University.
Right to Appeal: There is a process for hearing review by the Chancellor, but this review is only available if the sanction is suspension or expulsion, and is solely based upon on the record of the hearing.
Settlements: At the discretion of the Investigating Officer and agreement of the student, the disposition of a case may be mutually agreed upon. Settlements are often used in cases where the student agrees to a period of suspension, waiving their right to a hearing.
Reading on Higher Education Disciplinary Processes
Kaplin, William A. & Barbara A. Lee. (1995). The law of higher education, (3rd ed.). San Francisco: Jossey-Bass.
Kaplin, William A. & Barbara A. Lee. (1997). A legal guide for student affairs professionals. San Francisco: Jossey-Bass.
Bickel, Robert D. & Lake, Peter F. (1999). The rights and responsibilities of the modern university: Who assumes the risk of college life? Carolina Academic Press.
Mercer, Wanda L, Ed. (1996). Critical issues in judicial affairs: Current trends in practice. New Directions for Student Services. No. 73.
Paterson, B.G. & Kibler, W.L. (1998). The administration of campus discipline: Student, organizational, and community issues. Asheville, N.C.: College Administration Publications, Inc.
Picozzi, James M. (1987) University Disciplinary process: What’s fair, what’s due, and what you don’t get. The Yale Law Journal. Vol. 96: 2131.
Court Cases Involving Student Misconduct Processes
Dixon v. Alabama State Board of Education, 294 F. 2d 150 (5th Cir. 1961)
Esteban v. Central Missouri State College, 415 F. 2d 1077 (8th Cir. 1969)
Osteen v. Henley, 13 F. 3d 221 (7th Cir. 1993)