The University Record, November 23, 1992

Regents OK implementation of rights, responsibilities statement

By Jane R. Elgass

In a 6-2 vote last week the Board of Regents approved implementation on an interim basis of "The University of Michigan's Statement of Student Rights and Responsibilities," effective Jan. 1 for one year. It will be reevaluated in February 1994.

Regents Deane Baker and Veronica Latta Smith opposed adoption of the statement.

The vote followed a lengthy discussion in the morning and a series of presentations by students at the public comments session that afternoon. Amendments suggested by several of the Regents were made to the document following the morning discussion.

Both Baker and Smith expressed concerns about freedom of speech and Smith also questioned some of the due process procedures.

"The University of Michigan has suffered since May 1, 1988, under two earlier, unconstitutional codes of student conduct," Baker said in a prepared statement. "The effects of those codes ... was to limit speech, sow distrust in the University community, set group against group, individual against individual and, at the same time, develop profiles of politically correct conduct for students, professors and employees."

Baker said "the president's purpose [in recommending establishment of a third code] appears to be expansion of the University's control over students' lives and [to] control their conduct, change their behavior and make them politically correct.

"It is my view that the administration seeks to expand control of the student's life far beyond the matter of criminal activity. ...While the proposed policy denies it seeks to limit freedom of speech and action, its purposes are otherwise and quite clear. One only has to look at Prof. Carl Cohen's letter of Oct. 28 [printed in the Nov. 16 Record] wherein he pleads that the proposed code 'makes it very clear that expressions of opinions and attitudes are never to be subject to discipline in our University ...'

Cohen, Baker continued, "says the proposed code will have the effect of '...silencing expression and chilling speech in ways that are in conflict with our highest ideals and in conflict with the principles of the United States Constitution.'

"It is my conclusion," Baker stated, "that the case for a code has not been proved; the code will injure freedom of speech; the overall integrity of the University will be injured; after a period of time the code will be found unconstitutional by the federal courts; and politically correct conduct will be expected from the students."

Smith said she shares "the concern for the safety of individuals expressed in the statement and also for civil liberties. An additional concern is that the University promote democracy both for its own sake and as an example for the rest of society."

She noted that on a quick reading, she would "embrace" the document. "...however, on close scrutiny I find it flawed. The only two things I like about the document are the concept of a list of expected student conduct consistent with the law and the possibility of using voluntary mediation, not as an alternative to administrative hearings, but as an alternative to bringing formal charges in a court of law."

Smith said that "the statement calls for a fair trial but does not provide for one. It allows for such unfair procedures that it deserves its criticism that it is a kangaroo court."

Smith detailed several of her concerns, including the fact that "lawyers are not permitted to speak out in most cases."

She was "not satisfied that protest is really excluded. Alleged violence in a protest is subjective." She also stated that she does not "believe in any restrictions on speech. I think that this code can be interpreted to include restrictions on speech."

Expressing support for adoption of the policy, Regent Paul W. Brown noted that it is not a penal code and was not meant to be, then reviewed the portion of the statement that details what the code does not do.

"It does not impinge on free speech ...and speech which is free and protected is specifically excluded and exempted from this code. The University is powerless to prohibit free speech, code or no code."

Brown noted a "long and hard fair process has been followed. There may be challenges. It has been studied by legal counsel and meets the standards of due process. Nothing we do is foolproof, but we have to proceed, we have to give the University a framework. How can anyone concerned with the University believe that these things should not be controlled?"

Regent Neal D. Nielsen, who supported adoption of the statement, did ask that the issue of protection of free speech stated early in the document be restated in the section that details students' responsibilities.

He also expressed concern about possible misuse or misinterpretation of a section that implies a witness could be sanctioned for not participating. "It is not our position, we should not put ourselves in the position of sanctioning witnesses. I don't think it's appropriate. They may have legitimate reasons for not coming forth."

New language in the amended version addressed these two issues and also set the time limit for filing of complaints, which Nielsen had requested, at six months of the date of the violation or discovery of the violation, rather than one year.

Regent Shirley M. McFee noted that "learning to live with one another is another form of the educational process for students. The strength of the statement is that it offers students a judicial process, an opportunity to investigate a person's complaint and to evaluate, and to cast light on what offensive behavior is, on what it is to the recipient, not the person doing it.

"The bottom line," she stated, "is that there are things in the policy that we need to see worked out to see where the glitches are. My concern is that we could discuss [this] ad infinitum. It's appropriate to go forward with a sunset date. We can be very attentive to procedural developments and amendments."

Noting that the proposed statement is a "code of student behavior, not a criminal code," Regent Philip H. Power several times expressed frustration with the legal terminology being used to address concerns. The use of legal terms "fundamentally damages the concept," he said. "It is a set of expectations for behavior and facilitates the educational process. It is not criminal law. It doesn't determine guilt, it determines whether [someone] behaved improperly."

(Editor's Note: Regents Nellie M. Varner and James L. Waters were not present at the morning discussion.)