The Foundation for Individual Rights in Education recommended that Wisconsin mandate sanctions only for substantial, material disruptions of free speech, and avoid defining minimum sanctions in statutes, because “not all disruptions are equal in their severity, and sanctions should be proportional to the offense.” Like zero-tolerance-for-weapons policies that result in expelling grade-school students for water guns or butter knives in a lunch pale, this bill seemed to risk unreasonable outcomes by denying college administrators discretion to exercise judgment and common sense.
That input seems to have significantly improved the final bill. As the amendment report puts it:
The bill requires that the Board adopt a policy that includes a range of disciplinary sanctions for certain individuals who engage in “violent, abusive, indecent, profane, boisterous, obscene, unreasonably loud, or other disorderly conduct that interferes with the free expression of others.”
The amendment modifies the types of conduct for which disciplinary sanctions must be established. Specifically, the amendment provides that there be disciplinary sanctions for “violent or other disorderly conduct that materially and substantially disrupts the free expression of others.”
Many mere disruptions to a speech, like booing a particular line in a speech, or disrupting a speaker’s words while walking out of a talk in disgust, should themselves be considered protected expression by principled advocates of free speech. The amended language seems much less likely to punish or chill protected speech, although the words “disorderly conduct” remain a bit too vague for my taste.
The amended version of the bill also declares that “a student who is subject to a disciplinary hearing has the right to counsel in all circumstances, no matter the nature of the potential penalty,” rather than only when they are facing suspension or expulsion.
But minimum penalties are retained. And the amended version also fails to resolve my next biggest concern: “that any person be permitted to make a report that another person has violated the bill’s provisions” and “that a formal investigation and disciplinary hearing be conducted if two or more reports are made regarding the same person’s violation.”
If I know academia, the potential for abuse, absurd outcomes, and chilled expression is greatly exacerbated by giving everyone the right to file a complaint on a whim.
This power to initiate formal proceedings may well exacerbate two pernicious trends in campus life: 1) the evolution of a culture where harassing innocents with the filing of frivolous complaints is a common feature, forcing victims into time-consuming administrative investigations, often with opaque rules and rampant due process violations; 2) administrative bloat that flows from hiring staff to investigate complaints, carry out hearings, adhere to bureaucratic rules, and demonstrate compliance.