For the first time in the history of democracy, a government proposes to classify sanctions against the university community with a code that respects constitutional principles. The Minister of Universities, Manuel Castells, who himself retaliated for the Franco regime in his student years, intends to put an end to the Academic Discipline Regulation of Official Higher Education Centers ―A relic of the dictatorship designed 67 years ago to maintain public order on campus, and which today only applies to students (the staff was excluded in 1985) – with a University Coexistence Law that has been agreed with the rectors and the students. This rule, of which EL PAÍS has acceded to the annexes, advocates more for mediation than punishment, but typifies very serious offenses, such as hazing that undermines privacy or plagiarism in doctoral theses, punishable by penalties ranging from two months to three years of expulsion or cancellation of part of the enrollment.
Castells, who defines himself as an acrat and who settled in Paris in 1962 as a political refugee after riots at the University of Barcelona, wanted in 2020 to repeal the “unconstitutional and obsolete” regulation without replacing it, and the rectors threatened to appeal if he let them without sanction tools, even if they were preconstitutional. Finally, his team, the rectors and the students – the minister is focused on the new university law – have shaped a draft bill that goes to the Council of Ministers this Tuesday and must be approved by Parliament. The endorsement of the conference of rectors (CRUE) and of the university students should pave the way.
The Magna Carta says that “all provisions that oppose this Constitution are repealed” ―free speech and chair or right of assembly―, but de facto there are articles in the Francoist decree whose constitutionality is highly interpretable. It does not regulate the right of defense of the student, the offenses do not expire, it does not consider the basic principles of proportionality and responsibility, and it attributes the power to sanction a court of honor. For this reason, if the student appeals a punishment, the courts agree with him but with a long delay. The Supreme Court presented doubts regarding the constitutionality of its articles in two judgments (1988 and 1989), but it assumed its validity as long as it was not repealed. Successive ombudsmen have warned in 1990, 2008 and 2012 of the need to write a standard adapted to today’s world, but the only serious attempt to approve a text was made by Minister Ángel Gabilondo in 2010 and there was no time, due to the advance electoral.
Although the regulations of the dictatorship clash with constitutional principles, it protects the codes of conduct of the universities, which sometimes resort to their articles on public disorder, lack of probity or defamation to penalize their students. Thus, in 2011 the rector of La Laguna threatened 12 students with expulsion for defamation. From an association, the young people had denounced the loss of 300 scholarships due to the alleged “negligence” of the Faculty of Psychology. A judge and the Superior Court of the Canary Islands took a position in favor of the students who had made a “legitimate criticism of the administration’s actions” without insults. Nine years later, the justice also acquitted, due to lack of identification evidence, five university students who had been expelled from the University of Seville for assaulting its rectory with crowbars and bars in 2002 by emptying the fire extinguishers on the guards. The university students who have participated in the text show their satisfaction. “We are going to have legal guarantees in defense,” says Andrea Paricio, president of the coordinator of student associations (CREUP).
Very serious offenses are punishable by penalties ranging from two months to three years of expulsion from a university (not from all Spanish universities as allowed in Franco’s regulations) or the partial cancellation of enrollment if they are students. The serious ones are resolved with penalties of up to one month of expulsion, which cannot coincide with the exams or with the enrollment period ―so that the absence is not more burdensome for the student―, or the cancellation of the enrollment of the subject affected. And minor fouls are settled with a private warning, never on the board as is now feasible – though not customary – for public derision. Minor and serious offenses can be substituted for community work.
Mediation is the backbone of the rule, as the Government wants punishment to be the last resort. And it focuses on the academic field, not like the Franco regulations that pursue any conduct on campus, since the objective was to maintain order. There are two processes. The “mediation mechanism” is an informal arbitration in which teachers and administration staff and students participate to discuss issues that can be resolved amicably. And a second tool is the “mediation procedures”, in which two bodies act to apply the disciplinary regime: a commission instructs the case and sanctions a second in which there are representatives of the three groups. The law proposes that the university ombudsman preside over this last commission, but the autonomy of the campuses would prevail. For the first time, the university can go with another student to defend himself – the current regulations say that he must do so in writing – and there are certain deadlines so that the procedure does not take forever.
“The law is on the right track. It has a more real sense of what the University has to be. Having a code of coexistence is a priority, but the key is mediation, that there are alternative processes to mere sanction “, argues José Antonio Mayoral, rector of the University of Zaragoza and president of the General Secretariat of the CRUE, who states:” There will be non-administrative actions that are a crime and, perhaps, someone must be expelled because it is unavoidable ”. For example, when there is a sexual assault, it is always brought to the attention of the Prosecutor’s Office. It will be each university that develops its regulations. “The law of coexistence will be a general regulatory framework and each institution will go down to the ground,” continues the rector.
Rafael Orden, a university defender in the Complutense, like the majority of his union is committed to arbitration: “A sanction is imposed on the parties by a third party and, therefore, it is an imposition that separates them, while in mediation there is room for possibility of agreement between the parties and approximates them. It promotes the values of dialogue, understanding of the other, conciliation and, at the same time, it serves as learning to reinforce peaceful coexistence ”.
Plagiarism is punishable as a very serious offense if rifle the text of another person without citing him in the final degree or master’s degree thesis or in the doctoral thesis. In the rest of the cases it is classified as a serious or minor offense. “A culture of intellectual property is lacking. You do not see an infringement when you take advantage of the creativity of others because it is something immaterial, ”Javier Díaz de Olarte, head of the legal department of Cedro (Spanish Center for Reprographic Rights), lamented a few days ago in this newspaper. The cases of plagiarism, difficult to prosecute under the current regime, are the subject of debate. The former minister Carmen Montón, who plagiarized her final master’s degree project, or the Deputy Minister of Concerted Education of Madrid Concepción Canoyra, who copied others in her thesis, resigned due to the political scandal.
At the beginning of the year, the rectors pray that hazing cases that tarnish their image do not jump to the media. Rather than persecute them – there are not only in the senior colleges, but also on the campuses with first-year students – what they try to do is make young people aware of their virulence in many cases. It is classified as a “very serious” offense when it undermines the integrity of the person, and if there are indications of criminality, the Prosecutor’s Office will act, as in other cases.
There are many examples of savage hazing on record, such as forcing the newcomer to senior college to climb onto the attic of the closet and forcing him to go out to strike the hours – like cuckoos – while predicting the weather; if this is rainy they pour water on it. There are also recorded examples of girls being forced to simulate fellatio with a banana placed on a boy’s fly.
Copying in an exam will be punished as a “serious” offense (expulsion of up to one month) when it is premeditated; that is to say, making use of technical means that have been perfected over the years. The copy looking at the partner is a minor fault. It is also considered a serious offense to be fraudulently involved with the content of tests, exams or knowledge controls.
“Altering, falsifying, stealing or destroying academic documents, or using false documents before the university” will be punished with up to three years of expulsion. On everyone’s mind is the former Madrid president Cristina Cifuentes who was forced to resign, but who has emerged from the trial unscathed. The teacher who falsified the certificate and the one who mediated to simulate a defense of the final master’s thesis that did not exist were convicted.
Physical and mental violence
Acts of sexual violence or because of sex, sexual orientation, gender identity, national origin or disability are labeled as very serious offenses. Universities will have to include prevention measures against harassment in their rules of coexistence.
The Equality Law classifies offenses for sexual harassment, but they are raised in the workplace and some universities also apply the rule to students. An ad hoc legal umbrella was missing.
Crimes against health
Up to three years of expulsion can fall to a member of the university community who seriously threatens the health of the university. Last September, a group of students from the Autonomous University of Barcelona denounced a denialist professor who taught without a mask and the following month 40 students from the Basque Country had to isolate themselves after a teacher who did not cover his mouth was infected .
“To impersonate a member of the university community in their own work” is a very serious and very common offense in these times of pandemic, in which part of the teaching and exams have moved to the Internet. On the internet it is easy to find Ads in which someone applies to replace a university student in a test. “Do you need someone to help you with an exam? I will help you in engineering and ADE [Administración y Dirección de Empresas] of university ”, is explained in an advertisement.
Escraches and access
Any procedure to prevent rector or cloister elections is classified as a very serious offense, while it is considered serious to prevent a conference from taking place – famous are the images of criticized politicians – or to burst a class, as happens with pickets when there is a strike on campus. Serious is also accessing computer systems without permission and minor accessing facilities through a prohibited passage.
The penalties for theft or destruction of assets range from very serious to minor offenses. One of the penalties (if it is not very serious) can be replaced by restoring the damage to the previous state or compensating the university if the damage is irrecoverable.
Ministry sources estimate that the law will reach Congress and trust that it will be approved in January 2022, when it would enter into force.
Eddie is an Australian news reporter with over 9 years in the industry and has published on Forbes and tech crunch.