I’ve seen it before in Wisconsin, and I’m seeing it in D.C. today. Back in 2008 and 2009, local communities, especially in Milwaukee, wanted the University of Wisconsin to crack down on students’ off-campus conduct. The police had more important things to do than show up to cite students for breaking a noise ordinance, and area residents wanted the universities to force their students to be good neighbors.
In 2009, I spoke before the Board of Regents of the University of Wisconsin System to express several concerns about due process protections for students accused of off-campus misconduct. The result, after much discussion and negotiation among the Regents, student representatives and the communities involved, was a pretty reasonable definition of the kind of off-campus behavior that could lead to university discipline.
In Wisconsin, punishable student behavior has to involve “serious and repeated off-campus violations of municipal law” or criminal law, whether or not the student is charged. A single instance of being a neighborhood nuisance isn’t good enough; the conduct must demonstrate “a pattern of behavior that seriously impairs the university’s ability to fulfill its teaching, research, or public service missions.” Simply making the neighbors angry on weekends doesn’t count.
I work at the Foundation for Individual Rights in Education (FIRE), where student conduct — as opposed to speech — is normally beyond our purview. Yet, individual rights kick in as a matter of due process. Thus, one of the problems in Wisconsin that deserved FIRE’s attention was that the proposed rules gave university officials a huge amount of discretion to enforce vague rules, with the likely result that students in similar situations would not be treated equally. The language that was agreed upon after review made the policy much clearer, more objective, and more definite so that students had a much better idea ahead of time of what was allowed and not allowed off campus.
The problems regarding objectivity, discretion, and clarity look even worse at American University. Not only have AU officials granted themselves great discretion, but they also have described the off-limits, off-campus conduct in extremely vague language.
AU, according to new rules this year, “may” take disciplinary action “when, in the judgment of university officials, a student’s alleged misconduct has a negative effect on the university’s pursuit of its mission or on the well being of the greater community.”
Can any AU student predict with any accuracy what some AU administrator will judge as having “a negative effect” on “the well being of the greater community?” Will the complaints of a merely ornery or vindictive neighbor count as having such a “negative effect,” however slight? Does embarrassing the University by, for example, writing a negative op-ed count as having “a negative effect” on the University’s pursuit of its mission?
Wisconsin resolved such issues by clarifying that the alleged behavior must be “serious and repeated.” Closer to home, George Washington University specifically exempts off-campus activism and requires that the alleged off-campus behavior “pose a serious and substantial danger to self or others” before GWU will intervene.
When AU defended its policy change this spring in a document describing the changes, it wrote, “The revision is consistent with measures taken by other D.C. institutions at the insistence of their neighbors and Advisory Neighborhood Councils.” I would like to know which universities AU was referring to, since GWU gives students much stronger and clearer protections in this year’s student handbook than AU does.
Due process is not served at AU when students do not have clear, objective, definite rules to follow. What students think might be innocent and none of AU’s business off campus, AU might choose, in its wide discretion, to punish. Does AU care more about the neighbors than its own students? Wisconsin came to a good compromise, and I think AU has room for similar improvements.
Adam Kissel is Director of the Individual Rights Defense Program at the Foundation for Individual Rights in Education in Philadelphia.