Student Disciplinary Board Punishment

In the case of the Madison University (MU) student, Mark, a punishment is being imposed by the Student Disciplinary Board (SDB) for "conduct inappropriate for a student." the specific conduct involved, receiving a larger number of parking tickets, has never before been treated by the SDB as a violation of the student disciplinary rules now being invoked.

The first question is whether the SDB's decision should be reversed. MU is a federal institution and is in a state that has adopted the 1981 MSAPA (Model State Administrative Procedure Act). According to the decision in NLRB V. Bell Aerospace (416 U.S. 267 [1974]), agencies are generally free to use their own judgment in deciding whether to make new law by rule or by order, and their discretion in choosing one over the other is limited only by any special statutory requirements or agency rule or by the APA prohibition on any agency action that is an "abuse of discretion." As a rule, the federal courts do not find an abuse of discretion with respect to an agency's choice of lawmaking modality. In the MU case, therefore, the modality cannot be challenged, and in addition, the action was undertaken with the appropriate notice an comment procedures.

In deciding whether an abuse of discretion has occurred, certain elements are considered: 1) whether the case is one of first impression or turns on a prior case; 2) whether the new law represents an abrupt departure from well-established practice or merely attempts to fill

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phrase, and the court found that he could do this under current law: No such rule having been made to proscribe the kind of conduct charged against petitioner, there was no legal ground on which to revoke his license. . . In Soglin v. Kauffman (418 F.2d 163, 168 [7th Cir.1969]), cited in Megdal, the decision also seemed to require the agency to create discretion-limited standards by rule, but Soglin required due process because the proceedings involved were viewed as penal. Megdal is a departure from this so that administrative actions are also brought under the due process requirement. Due process was not followed in the MU case because the rule did not spell out the conduct that would fall under it. The case of NLRB Labor Relations Board v. Wyman-Gordon Co. (394 U.S. 759 [1969]) was one in which the NLRB ordered Wyman-Gordon Co. to furnish contesting unions a list of the names and addresses if its employees who could vote in an election to choose an exclusive bargaining representation or to choose to be represented by no union at all. In doing this, the NLRB cited the earlier case of Excelsior Underwear, Inc. where the Board had made the general rule that such a list must be provided but had declined to apply its rule t

Category: Government - S