Student Ass'n of University of Wisconsin-Milwaukee v. Baum

ABRAHAMSON, J.

(conewring). The court today holds that the Chancellor could not directly appoint students of his choosing to the Physical Environment Committee and that the Chancellor could not unilaterally determine the structure and mode of selection of student representation on the Segregated Fee Advisory Committee. I concur in these results. Sec. 36.09(5), Stats., grants to the students, not the administration, the right to select student representatives in institutional governance and thus precludes unilateral determination by the Chancellor of the manner in which the students’ right of selection is to be exercised. However, I write this concurring opinion lest the majority opinion be misunderstood and be thought to endorse — which it does not —the Student Association’s complete power to appoint students to committees.

The last sentence of sec. 36.09(5), Stats., provides:

“. . . The students of each institution or campus shall have the right to organize themselves in a manner they determine and to select their representatives to participate in institutional governance.”

*298I cannot agree with the reasoning of the majority that this sentence creates a single right, which it characterizes as the students’ “right to organize themselves as they determined and through the organization select their representatives to participate in institutional governance.” The plain meaning of the sentence is that two rights are conferred and that both are conferred upon the students:

1. The students . . . shall have the right to organize themselves in a manner they determine; and

2. The students . . . shall have the right to . . . select their representatives to participate in institutional governance.

There is no ambiguity here. The briefs of the Student Association concede that there are two student rights and both are given to the students not to student organizations. The legislature could easily have provided for the result reached by the majority, but it did not do so. The rights of selection of representatives and of organization are no doubt interrelated. However, two rights are created in the students, and both must be protected.

The problems in formulating a policy on “student rights” are difficult, as demonstrated by the report of the Merger Implementation Study Committee which drafted secs. 36.09(5), Stats.1 That section was a com*299promise, which, as the instant case demonstrates, left unresolved problems. The rights of organization conferred by the statute contemplated more than the creation of an all-campus student government. Some institutions in the university system have no such government, comparable to the plaintiff in this case. Students clearly can organize into a campus-wide student association if they so desire but the statute also guarantees their right to create other organizations, smaller in size, along the lines of particular areas of interest, academic or *300otherwise, or based upon common residence, or for any other reason that might unite a group of students. So too the nature of committees participating in institutional governance, on which student representation would be appropriate or required, will vary widely. Some will affect the interests of the student body as a whole, while others will relate only to a limited segment thereof, such as one school or academic department.

In oral argument before this court, the Student Association took the position that if there is a student governmental entity on a campus, and if it is elected by all students and recognized as the student government, then it has the power to appoint students to committees. The Student Association delegated to its President the power “to appoint all students to all committees on campus” and “in the case of committees on the department or college level, where department or college student organizations exist,” then the organizations may “submit recommendations to the President for appointment to said committees.” On the other side, the University administration argued that it has the authority unilaterally to adopt the method by which students select their representatives to committees. I find neither position acceptable under the statute.

The administration’s view would make a mockery out of the students’ statutory rights of organization and selection of representatives.

Yet if the Student Association is allowed to usurp the power to determine all student representation on all committees on the campus, the right of students to organize would swallow up their right to select representatives. A reasonable accommodation of the rights of organization and of selection must be sought in each instance; what may be an appropriate method of selection for one committee may not be so for another. The nature of the committee’s responsibilities and powers and the segment *301of the student population whose interests are affected by the committee must be considered. The guiding principle should be that the students who are most affected by the decisions of a particular committee or other entity on which students are represented should have the responsibility for selecting those representatives and for determining the manner in which the selection is to be made.

When student representatives must be selected to a particular committee, the mode of selection and the segment of the student body which should participate in the selection will have to be determined, and the threshold question of who is to make these determinations will be presented. For the reasons already stated, I reject the solutions which would place these questions in the hands of either the Student Association or the Administration. Absent more specific legislative direction, the overall statutory scheme is best served by committing these initial decisions to a committee created for this purpose which is composed of students, faculty and administrative representatives, perhaps similar in process of selection and composition to the Merger Guidelines Committee discussed in the majority opinion.

As the majority opinion notes, the statutes reflect a broad scheme for different entities and persons to share power in the governance of the institution. The primary responsibility for overall governance of the system rests with the Board of Regents, and if problems cannot be resolved at the institutional level, review by the Regents should be sought.

I am authorized to state that Mr. Justice Heffernan joins in this concurring opinion.

“Section 36.09(5) relating to students is new and recognizes the growing concern both for and by students in the educational processes. It provides that students, subject to the powers and responsibilities of the board, the president, the chancellors and the faculty, shall have a role as active participants in the governance and policy development of the institutions and shall have primary responsibility for the creation and review of policies relating to student life and activities. Students in consultation with the chancellor shall also have responsibility for the disposition of student fees where such fees constitute substantial support for campus student activities such as intra-mural sports, theater, student government and the like. Students shall also have the right to organize themselves as they determine.

*299“It is the intent of MISC [Merger Implementation Study Committee] to provide that in those areas where students have their primary interest, that they also have primary but not exclusive responsibility. Thus, the students’ responsibility for participation in governance is limited by the fact that their role is subject to the responsibilities of the faculty, chancellors, president and regents. Likewise in the disposition of student fees for student activities where the student fee provides most of the support for the activity, the students are given a large share of the responsibility. However, they must operate in consultation with the chancellor in the budget process for the allocation of these funds, and the board must finally confirm such allocations.

“Many questions relating to the scope of this particular section and its implementation have been raised. There has been considerable discussion relating to the problem of holding students accountable for their actions in the same way that employees may be so held. Questions relating to student control of a state imposed and state collected segregated fee were also discussed in depth. During this entire discussion student representatives strongly expressed the position that they be given more rights in regard to not only the disposition of segregated fees that they pay but also in the development of the educational process.

“MISC considered all of the questions, positions and arguments brought before it in formulating the proposed section which clearly represents a compromise position in that it deals with many of the desired objectives of the students but also contains limitations. The section as proposed does not represent the unanimous view of the members of MISC and it was adopted by a very close vote. However, as adopted, the section represents the recommendation of MISC for legislative consideration.” Report of the Merger Implementation Study Committee, January 31, 1973, p. 8.