BY JOHN K. WILSON
Is disrupting a speaker worse than rape? According to the University of Wisconsin Board or Regents policy passed last week, it is. Only one of them gets mandatory penalties. If a student is accused of rape, and even convicted of sexual misconduct twice, there is no requirement for an automatic suspension, as there is for protesters.
Mandatory penalties are generally a bad idea, as the drug war in America showed us. Mandatory penalties used to selectively target one kind of offender are particularly bad. Mandatory penalties imposed by one political party aimed at targeting an enemy ideology are especially bad.
The language is based on a bill passed earlier this year by the Wisconsin House and awaiting consideration in the Senate. Regents President John Robert Behling told the board that passing the policy “a responsiveness to what’s going on in the Capitol, which helps build relationships.” That’s not a ringing endorsement of a principled position. Fawning obedience to state politicians is not exactly a model of leadership. The only no vote came from State public schools Superintendent Tony Evers, who is running for governor against Scott Walker. Evers declared, “This policy will chill and suppress free speech on this campus and all campuses.” Evers is right, and that’s the purpose of the policy.
The policy declares, “Protests and demonstrations that materially and substantially disrupt the rights of others to engage in or listen to expressive activity shall not be permitted and shall be subject to sanction.” Disruption is a term used by the Supreme Court in Tinker to apply to high school classrooms. Trying to translate it to extramural events at colleges is extremely difficult.
Establishing a right to listen without substantial disruption is a potentially vague kind of rule. No one really knows what disruption means, although most colleges prohibit it in general. Applying it to a right to listen only expands that danger. The University of Chicago, which has one of the most repressive rules of this kind, punishes anyone who affects the “enjoyment” of an event. Let’s hope the Wisconsin rules don’t follow a similar path.
But the UW Board rules get even worse: “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 is an immensely stupid policy. The provisions for mandatory investigations and disciplinary hearings (after a first complaint) are an extraordinary rule unprecedented in the history of higher education. Requiring formal investigations and disciplinary hearings for all formal complaints beyond the first is an extremely repressive policy (and a terrible idea). In the Kipnis case, for example, Northwestern University claimed (incorrectly) that they were required to investigate Title IX complaints, and there was widespread criticism of the repressive effects of an unjustified investigation. But even Northwestern never said they were obligated to hold disciplinary hearings. Now, the UW Board is requiring not only investigations of unjustified complaints, but also full disciplinary hearings. And since anyone is allowed to make a complaint, this means that trolls around the world could simply file hundreds of complaints against any activist students and force the administration to hold endless frivolous hearings. Since the first complaint merely needs to be a complaint, and not upheld, it can apply to anyone.
Even if this trolling doesn’t happen, the use of different standards for investigations and hearings of students involved in political activism is an unconstitutional violation of free speech, and a bad idea as well.
The UW Board policy won’t take effect until administrative rules implementing it are written by the Board and approve by Gov. Walker and the legislature. So what should the UW System administrative rules look like, to minimize the threat to First Amendment rights of protest?
–Define disruption as the actual and intentional prevention of an event, and not merely annoying or obnoxious behavior. If it is reasonably possible to still hear a speaker, then it is not a disruption. And if a speaker refuses to speak as a result of a protest, then it is not a disruption.
–Require that the mandatory minimum crimes must follow a linear process. In other words, if you protest several events in one day and are convicted of two acts of disruption, you do not face mandatory suspension for any act unless it occurs after you have already been convicted of a first offense. In addition, the mandatory minimum counting should only start after these administrative rules are clarified and implemented.
–Include a specific declaration of the right to protest on campus.
–Require special procedural protections for these mandatory minimum penalties, including a campus committee to oversee these punishments.
The University of Wisconsin Board has an opportunity to take a bad policy and make it much better. They can take the standard awful bans on campus disruption and provide clarity to discourage shouting down speakers while protecting the right to protest. But if their goal is to appease politicians who want to suppress free speech, they will ignore all of these ideas.