Legislative Rulings by the University Committee on Rules and Jurisdiction
[Numbering indicates the month and year in which the ruling was made, i.e. April 1964 = 4.64A (A means 1st ruling that month.]
Formal rulings have been made as follows in response to requests for interpretation of Senate legislation where there has been no subsequent legislative or Regental action:
- Except for the requirements of due notice, approval by the specified majorities, and prior consideration of proposed curricular changes by the Faculties concerned, [renumbered to Bylaw 150 (B)] imposes no limitations on the power of a Division to establish any desired procedures for the enactment, amendment or repeal of legislation.
- Regulations 792(B) and 800(A) empower each Divisional Committee on Courses (or its equivalent) to determine what endorsements by Senate agencies (including reviews by Divisional committees) must be obtained by University Extension before a suggested X300-X400 course may be presented with a proposed instructor in charge. Approvals by the Dean of University Extension and the department, college, or school concerned are necessary, but they are sufficient only to the extent that the Committee on Courses determines.
- It is the opinion of the Committee on Rules and Jurisdiction that:
- There is no basis in the Academic Personnel Manual for interpreting service in an acting capacity as part of the two-year term specified for each appointment at the rank of Assistant Professor.
- The dismissal of an Assistant Professor before he has completed two years' service at each step in that rank should only be for good cause and after opportunity for a hearing.
- This opinion relies primarily on the view that both the Standing Orders 103.10 and the Academic Personnel Manual (Section 52-20) encourage the individual faculty members in the expectation that during each period of appointment as an Assistant Professor he has two full years in which to establish his merit, and that his opportunity to do this will not be interrupted save for good cause as formally established in the course of a hearing. (CC Apr 15 74)
- Only the grade Not Passed may be assigned to a student whose work is not of passing quality in a course in which he was enrolled on the basis of Senate Regulation 782 [Passed or Not Passed grades].
[4.67 superseded by 12.75] (Rp Dec 4 75)
- The right to vote in department meetings as specified in 105.2(c) of the Standing Orders of the Regents is limited to those members of the department who are also members of the Academic Senate. Neither the Standing Orders nor Senate Bylaw 188 [renumbered to 55] authorize the extension of this voting privilege to persons who are not members of the Senate.
- Divisional authority to select alternate Representatives in the Senate Assembly. Senate Bylaw 50(D) (renumbered to 105.A.4) states in part "... Each Division [of the Senate] determines its own method of choosing its Representatives [in the Senate Assembly]..." Under this Bylaw each Division may select alternates for its Divisional Representatives in the Assembly, subject to the following conditions:
- The selection and use of alternates must be specified in Divisional Bylaws;
- Persons ineligible under Bylaw 50(D) to be Representatives may not serve as alternates; and
- Alternates may serve only in the absence or disability of their principals.
- The Standing Orders of The Regents guarantee to each member of the Academic Senate "the privilege of a hearing by the appropriate committee or committees of the Academic Senate on any matter relating to personal, departmental or University welfare." ( Standing Order of The Regents 103.2) The Standing Orders also guarantee "the opportunity for a hearing before the properly constituted advisory committee of the Academic Senate" prior to the "termination of a continuous tenure appointment or the termination of the appointment of any other member of the faculty before the expiration of his contract." (Standing Order of The Regents 103.10) While a "hearing" is guaranteed in these instances, the Standing Orders are silent as to the precise nature of the hearing, and also as to the Senate committee which is to afford the hearing. However, the Senate's Bylaws [SBL 112, renumbered to 113, then to 335, then to 334] fill part of this gap. Bylaw 112(C) provides that "Proceedings for the dismissal, suspension, or demotion of members of the Academic Senate or officers of instruction shall be conducted before a Divisional Committee on Privilege and Tenure," and Bylaw 112(C)(2)(e) lays down certain procedures which must be followed in such a hearing. Further, Bylaw 112(D) provides that "Any member of the Academic Senate or officer of instruction who believes his privileges or tenure have been violated may complain to the Committee on Privilege and Tenure of his Division. If such a person makes a reasonable showing of such a violation, the Divisional committee shall make such further investigation of the facts as it deems proper and notify the appropriate administrative officer that the complaint has been filed ... [and] may, in its discretion, after due notice to the parties, hold a hearing as prescribed in (C)(2)(e) of this Bylaw..." (Emphasis added) In short: the Standing Orders guarantee the right of a hearing before a Senate Committee in a broad range of cases, but do not specify the precise nature of the hearing, or the committee which shall conduct it. The Senate Bylaws provide that in certain types of cases a hearing conducted under specified procedures must be held by the Divisional Committee on Privilege and Tenure and that in other cases the Divisional Committee on Privilege and Tenure may in its discretion afford such a hearing.
- The procedures to be followed by Divisional Privilege and Tenure Committees in exercising its discretion under Bylaw 112(D) [renumbered to 335(D), then to 337] in determining whether to afford a hearing of the type specified by Bylaw 112(C), are not specified in the Manual of the Academic Senate. However, contemporary standards of due process indicate that in determining how to exercise such discretion, the Committee shall at a minimum: (a) accord the complainant, on written request, a timely opportunity to appear in person before it and state his grievance; and (b) provide the complainant, within a reasonable time, a written statement reporting the Committee's disposition of his grievance and the reasons therefore.
- No Division may enact legislation which limits the jurisdiction or discretion granted to the Divisional Committee on Privilege and Tenure under Senate Bylaw 112.
- The Senate Committee on Privilege and Tenure has been specifically charged with responsibility for advising the Senate and its Divisions on general matters of policy involving the privileges or tenure of all members of the Academic Senate or officers of instruction (Senate Bylaw 112(B)). Therefore, this Universitywide committee must be consulted before any marked deviation from accepted procedures in these matters is legislated.
- While decisions in individual cases arising under Bylaw 112 may not be appealed on the merits to any other Senate agency, a Divisional Committee on Privilege and Tenure may be asked, under Senate Bylaw 8(A), [renumbered to 40.A] by the Assembly, the Division, or a Faculty of the Division to describe its procedures and policies. Such procedures and policies may be reviewed for conformance with item 2 above and with other applicable sections of the Code of the Academic Senate.
[5.75A Privilege and Tenure -- Hearings superseded by 12.80]
- Under Standing Order 105.2 departments may not deny the right to vote to anyone whose right to vote in the Academic Senate under Standing Order 105.1(a) derives from the fact that he is a Senior Lecturer with Security of Employment, Lecturer with Security of Employment, an Instructor or Instructor in Residence of two or more years' service, Assistant Professor, Assistant Professor in Residence, Associate Professor, Associate Professor in Residence, Acting Associate Professor, Professor, Professor in Residence, or Acting Professor.
- Those who have retired and upon whom emeritus status has been conferred do not have the right to vote in department meetings unless the voting members of the department extend the right to them. (CC Dec 4 75)
- Only members of the Academic Senate may vote in Senate agencies when those agencies are taking final action on any matter for the Academic Senate, or giving advice to University officers or other non-Senate agencies in the name of the Senate. Persons other than Senate members may be given the right to vote on other questions, such as those that involve only recommendations to other Senate agencies, but only by explicit Bylaw provisions.
- Under Bylaw 113 [renumbered 335, with relevant portions now subsumed under 334, 335, and 337] Divisional Committees on Privilege and Tenure are designated the sole Senate Agencies to hold hearings, and make findings of fact, conclusions, and recommendations on complaints that the privilege or tenure of a Senate member has been violated. Under SOR 103.9 the Divisional Committees on Privilege and Tenure shall also provide an opportunity for hearing those cases involving the termination of the appointment of a Senate or non-Senate member of the faculty before the expiration of his or her contract. The extension of the hearing rights of non-Senate academic personnel beyond this point is outside Senate jurisdiction. The administration may appoint members of a Committee on Privilege and Tenure to an administrative committee to conduct such hearings, but these members would not be exercising Senate jurisdiction in doing so. Other Senate agencies may consider and make recommendations about the general conditions out of which complaints arise, but they may not adjudicate individual cases.
- The authority of the Academic Senate over courses and curricula, derived from Regental Standing Order 105.2, entails, inter alia, the authority to discontinue academic programs. No delegation of this authority other than to agencies of the Academic Senate is authorized by Regental Standing Orders.
2.85 Baccalaureate Credit in English Composition [superseded by the 23 May 96 Assembly amendment of Senate Regulation 761]
- Under Academic Senate Regulations 636 and761, no student may receive baccalaureate credit for any work in English composition taken prior to completing the Subject A requirement. A Division is not precluded from offering a composition course which awards workload credit for work taken before satisfying the Subject A requirement and baccalaureate credit for work taken after completing the requirement.
- Under Bylaw 125(B)(4) and 125(B)(5) (formerly Bylaw 80 and renumbered to 125.B.5-6), the provisional authority of the Academic Council to act for the Assembly ceases 60 days prior to the scheduled meeting of the Assembly. At such time, all matters referred to but not approved by the Council under the above-cited provisions shall automatically revert to the Assembly.
3.93A Applicability of Senate Bylaw 335 [now 334, 335, 336, and 337] and the Faculty Code of Conduct to Administrators
- Standing Order of the Regents 105.1(a) specifies those persons who are members of the Academic Senate by virtue of appointment either to certain administrative titles or to certain instructional titles, including the professorial title or its equivalent and the title of Lecture or Senior Lecturer with Security of Employment. Both categories of members have all the same rights, privileges, and responsibilities of Senate membership, including the privilege of a hearing by the appropriate committee of the Academic Senate, "on any matter relating to personal, departmental, or University welfare," as provided by Standing Order 103.2. Standing Order 100.4(c) requires the Chancellor to consult with a properly constituted committee of the Academic Senate before taking any action, including some actions disciplinary in character, that would affect a person holding one of the instructional titles that confer membership in the Academic Senate under Standing Order 105.1(a), but there is no such provision for actions affecting a person holding one of the administrative titles that confer membership in the Academic Senate.
- Senate Bylaw 335 [now 334, 335 and 336] establishes Divisional Committees on Privilege and Tenure or, under certain circumstances, another committee constituted for the purpose by the University Committee on Privilege and Tenure, as the sole committees of the Academic Senate authorized to consider cases of grievance by or disciplinary action against a member of the Academic Senate.
- Appendix IV of the Manual of the Academic Senate, incorporated also as Section 015 in the Academic Personnel Manual, sets forth the "University Policy on Faculty Conduct and the Administration of Discipline." Section I of the policy defines the disciplinary sanctions that may be imposed upon a faculty member and summarizes the provisions of the Standing Orders and of Senate Bylaw 335 [now 336] for the administration of discipline. Section II, subtitled "The Faculty Code of Conduct," summarizes the professional rights of the faculty, sets forth standards of professional conduct, and recommend the establishment of campus procedures for the administration of discipline.
- Appendix IV, including the Faculty Code of Conduct and campus disciplinary procedures implementing it, applies only to those members of the Academic Senate who hold one of the instructional titles specified in SOR 100.4(c), and only to the extent that any proposed disciplinary sanctions affect the status of the person charged as a member of the faculty holding one of the titles specified in SOR 100.4(c).
- Under Standing Orders 100.2, 100.4(c), and 100.6(a), the suspension or dismissal of an administrator from an administrative title or appointment is reserved to the Regents, the President, and the Chancellors, with no requirement for consultation with the Academic Senate. An administrator whose title confers membership in the Academic Senate may, however, invoke the privilege of a hearing guaranteed by SOR 103.2. In that case, the Divisional Committee on Privilege and Tenure or another hearing committee constituted as provided for in Senate Bylaw 335.C [now 336] shall consider the case and render its advice prior to the imposition of discipline. Since Senate Bylaw 335.F(1) [now 336.B(1)] uses the term "member of the Academic Senate," the procedures outlined in Senate Bylaws 335.F and 335.G [now 336.B and 336.D] must be followed, but other procedures established for discipline of faculty under the Faculty Code of Conduct need not be applied. In the absence of any proposed sanction involving demotion, suspension, or dismissal from one of the titles listed in SOR 100.4(c), and in the absence of an appeal to the privilege of a hearing, the Administration is not required by the Standing Orders to consult with the Academic Senate prior to the imposition of discipline upon an administrator, whether or not the administrative title confers membership in the Academic Senate, although such consultation may very well take place.
- A disciplinary action against an administrator who also holds an instructional title may proceed in two steps, one involving the proposed removal of the administrative title under procedures established by the Regents and the Administration, and a second stage involving the proposed censure, demotion, suspension or dismissal from a professorial title or its equivalent, under the procedures for discipline established in accordance with Appendix IV and the Faculty Code of Conduct.
- In accordance with Standing Orders 100.1(b), 100.2(a), 100.2(b), 100.2(c), and 100.2(d), in the event that the person upon whom it is proposed that a discipline be imposed is a Chancellor, Vice-President, Director, or the chief admissions officer in the Office of the President, from whom such title has not been removed, the role in procedures for discipline ordinarily reserved to the Chancellor shall be assumed by the President. The President is responsible directly to the Board of Regents.
- The kinds of conduct specified as unacceptable and subject to disciplinary action in the Faculty Code of Conduct are as unacceptable in the behavior of an administrator holding a faculty appointment as in that of any other faculty member. Section I of Appendix IV explicitly distinguishes, however, between willful misconduct and incompetence. Administrative incompetence does not in itself constitute a violation of the Faculty Code of Conduct.
- Senate Bylaw 335 provides a separate set of procedures whereby any member of the Academic Senate may complain to the Divisional Committee on Privilege and Tenure that the member's rights and privileges have been violated. SBL 335.A [now 334.A] characterizes grievances and disciplinary actions as "distinct categories of cases" and this distinction must carefully be observed. Among other differences, grievances may be brought before the Committee by any member of the Academic Senate, whereas disciplinary proceedings come to the Committee as a consequence of actions proposed against a member of the Academic Senate by the chancellor.
3.93B Campus Procedures for Discipline of Faculty
- Standing Order 100.6(a) vests the responsibility for the discipline of each campus to the Chancellor of that campus, subject to the requirement of Standing Order 100.4(c) that the Chancellor shall consult with a properly constituted advisory committee of the Academic Senate before taking any action that would affect a member of the Academic Senate holding a professorial title or its equivalent. Senate Bylaw 335 [now 334 and 336 ] establishes divisional committees on Privilege and Tenure or, under certain circumstances, another committee constituted for the purpose by the University Committee on Privilege and Tenure, as the sole committees authorized to hold evidentiary hearings and to advise the administration prior to the imposition of discipline. Consistent with SOR 100.6(a), Senate Bylaw 335 [now 336 ] specifies that disciplinary proceedings before the Committee on Privilege and Tenure shall be initiated by the Chancellor. Appendix IV of the Manual of the Academic Senate entitled "University Policy on Faculty Conduct and the Administration of Discipline," also published as Section 015 of the Academic Personnel Manual, outlines the circumstances under and the general procedures by which disciplinary charges against members of the Faculty are initiated and investigated. Appendix IV is intended as an implementation of the Standing Orders and of Senate Bylaw 335 and in Section I >explicitly states that nothing contained in the policy is intended to change the various authorities and responsibilities vested in the Regents, the Administration, or the Academic Senate as set forth in the Standing Orders of the Regents and the Bylaws of the Academic Senate. Section I also states that while the Faculty Code of Conduct contained in Section II of the policy is the official basis for imposing discipline on members of the faculty for professional misconduct, its Part III consists solely of suggested guidelines and recommendations to the Divisions of the Academic Senate and the campus administrations. Campus procedures that are consistent with the suggested guidelines and recommendations of Part III of the Faculty Code of Conduct are therefore also consonant with the Code of the Academic Senate, which incorporates the Faculty Code of Conduct, but nothing in Part III of the Faculty Code of Conduct may be construed as limiting the authority for discipline vested in the Chancellors by the Regents. In the case of any apparent inconsistency between Part III of the Faculty Code of Conduct and the Standing Orders of the Regents, the Bylaws of the Academic Senate, or Section I of Appendix IV, the provisions of the latter shall prevail.
- Under Appendix IV, Section I, the procedures under which allegations of a violation of the Faculty Code of Conduct are initiated and processed need not, with the exception of the procedures for formal hearing provided for by Senate Bylaw 335 [now 336], be identical on every campus; but all must be consistent with the Standing Orders of the Regents and with the Bylaws of the Academic Senate, and no discipline may be imposed except in accordance with established procedures. Appendix IV, Section I, specifies that it is the responsibility of each Chancellor to establish procedures for the administration of discipline on the campus, in consultation with the campus Division of the Academic Senate and such other advisory groups as are appropriate. While Part III of Section II of Appendix IV recommends that "each Division, in cooperation with the campus administration, promptly develop procedures dealing with the investigation of allegations of faculty misconduct," the sole authority for this recommendation is the Assembly of the Academic Senate, and it does not confer on the Divisions a role that is more than advisory nor does it supersede the ultimate authority for the establishment of disciplinary procedures vested in the Chancellor by the Standing Orders and affirmed in Section I of Appendix IV. No disciplinary procedures may therefore be established, through divisional legislation or by any other means, except with the approval of the Chancellor and, as provided for in Section I of Appendix IV, the concurrence of the President. Since procedures need not be identical on every campus, it follows that a Chancellor may reasonably withhold approval of a proposed procedure, even if such a procedure would be consonant with the Code of the Academic Senate, would be consistent with the Standing Orders of the Regents, and may be in effect on another campus. Standing Order 100.6(a) defines the Chancellor's decisions in the administration of the campus, including the administration of discipline, as "final," subject only to the authority of the President and the Regents. Any Division that believes the Chancellor to have unreasonably withheld approval of proposed disciplinary procedures consonant with the Code of the Academic Senate and consistent with the Standing Orders of the Regents or to have established procedures that deny to the faculty the meaningful participation in campus discipline guaranteed under Appendix IV, Section II, Part I.4(c) may appeal the Chancellor's decision through a Memorial or a Resolution as provided for in Standing Order 105.2(e) and Senate Bylaw 90.
- The Chancellor's ultimate authority for the administration of discipline and for the initiation of formal proceedings before the Committee on Privilege and Tenure notwithstanding, the initiation of a disciplinary complaint against a member of the faculty is not dependent on or exclusively reserved to the Chancellor or, by delegation, other officers of the campus administration. While a Chancellor or other administrative officer administers disciplinary sanctions, disciplinary complaints against a member of the Faculty can be initiated by individuals and groups other than administrators, including students, other members of the faculty, and members of the university community. The procedures for investigating and processing complaints against a member of the faculty shall be as specified in campus procedures for discipline, as recommended in Appendix IV, Section II, Part III.4. In the absence of such procedures on the campus, allegations of professional misconduct against members of the faculty shall be delivered in writing to the Chancellor.
- In accordance with the recommendations of Appendix IV, Section II, Part III.4, and III.8, campus procedures may include a preliminary investigative process whose purpose is to determine whether there is "probably cause." "Probable cause" is established if it is determined that a person of ordinary prudence would be led to believe and conscientiously to entertain a strong suspicion that there has been a violation of the Faculty Code of Conduct. The investigative process may be conducted by an officer of the Administration, by a committee of the Academic Senate, or through another mechanism established for the purpose of accordance with disciplinary procedures in effect for the campus. While Appendix IV, Section II, Part III.7 recommends involvement of members of the faculty in the investigation of allegations of misconduct, campus procedures may or may not include such a provision. In the absence of any specific procedures on the campus, the responsibility for investigating allegations of professional misconduct against members of the faculty rests with the Chancellor.
- Under Standing Orders of the Regents 100.4(c) and 100.6(a) and Senate Bylaw 335.F.1 [now 336.B.1], the responsibility for determining at the conclusion of the investigative phase whether or not formal disciplinary sanctions against a member of the faculty should be proposed and charges lodged with the Divisional Committee on Privilege and Tenure rests with the Chancellor of each campus or, in the event that the accused person is the Chancellor, with the President. Under disciplinary procedures established for the campus, the Chancellor may or may not delegate this authority to another officer of the administration, to a committee of the Academic Senate, or to some other person or committee designated for the purpose under campus procedures for discipline.
- SBL 325 authorizes the Divisions to establish Standing Committees, including Committees on Rules and Jurisdiction. SBL 80C, 205A, and 206A presume the existence of a Committee on Rules and Jurisdiction in each Division, charged, under the supervision of the University Committee on Rules and Jurisdiction, with the preparation of the Divisional Manual, including the bylaws, regulations, and such other legislation as the Division may have adopted. Senate Bylaws do not specify what additional responsibilities, if any, the Divisional Committees on Rules and Jurisdiction shall exercise. It is therefore left to the discretion of each Division to adopt such bylaws and procedures governing Committees on Rules and Jurisdiction as shall seem most appropriate to the organization of the Division. The preparation of the Divisional manual does, however, imply at a minimum the responsibility to review Divisional legislation and to assure its consonance with the Code of the Academic Senate. In addition, the facts that Divisional committees operate under the supervision of the University Committee on Rules and Jurisdiction, that chairs of Divisional committees may request Legislative Rulings interpreting the Code of the Academic Senate from the University Committee on Rules and Jurisdiction, and that at least two members of the latter committee must be chairs of Divisional Committees on Rules and Jurisdiction imply that Divisional committees shall normally be expected to exercise functions within the Division analogous to those exercised by the University Committee on Rules and Jurisdiction for the Academic Senate as a whole.
- The functions of Divisional Committees on Rules and Jurisdiction shall therefore include, but need not be limited to, the following responsibilities.
- To examine all legislation proposed for adoption by the Division and to advise the Division as to the consonance of the proposed legislation with the Code of the Academic Senate and with existing legislation within the Division.
- To advise the Division on all matters pertaining to the interpretation of the Divisional bylaws, regulations, or other legislation incorporated into the Divisional Manual.
- To hear, upon petition of no fewer than five members of the Division, challenges to any action of a Divisional committee alleged to be contrary to the Code of the Academic Senate or to the Manual of the Division. Prior to reporting its findings, the committee should give the parties to the case an opportunity to present their views, either orally or in writing.
- To respond to informal requests from members, officers, or committees of the Division for information regarding the Code of the Academic Senate or the legislation of the Division, summarizing all such correspondence in the annual report.
- SBL 206.A authorizes the University Committee on Rules and Jurisdiction to issue Legislative Rulings interpreting the Code of the Academic Senate. SBL 206.A further defines such rulings as having the status of legislation unless and until modified by subsequent legislative action of the Assembly or of the Regents. Divisional bylaws may or may not similarly authorize the Divisional Committee on Rules and Jurisdiction to issue Legislative Rulings having the status of Divisional legislation. Where Divisional bylaws do authorize the issuance of Legislative Rulings, the bylaws should also provide for some procedure analogous to that of SBL 206.A, whereby the committee, prior to the issuance of such Legislative Ruling, submits its position as to what the Legislative Ruling should be for comment, to the legislative body of the Division, to the Executive Committee of the Division, or to such other Divisional agency as may be provided for in Divisional bylaws. The findings of a Divisional Committee on Rules and Jurisdiction may not have the status of legislation without both specific language to that effect in the Divisional bylaws and some procedure for preliminary publication and comment. A provision whereby proposed Legislative Rulings are published in the call to the next meeting of the legislative body of the Division and become final unless superseded by action of that body satisfies this latter requirement.
- Both the University Committee on Rules and Jurisdiction and its counterpart agencies within the Divisions frequently render advice, offer opinions, and report findings articulated other than in the form of Legislative Rulings. SBL 206.C specifically charges the University Committee on Rules and Jurisdiction to respond to informal requests for information about the Code of the Academic Senate and to summarize all such requests in the annual report. Most Divisional bylaws provide similarly. Much of the business conducted by the University Committee on Rules and Jurisdiction and its Divisional counterparts consists of such advice. Unless issued as a Legislative Ruling and in accordance with the appropriate procedures, such advice or finding does not have the status of legislation and is therefore nor formally binding on the Senate officers and agencies to whom rendered. The advice, opinions, and findings of UCRJ and its counterpart agencies within the Divisions should nevertheless be considered authoritative in the sense in which that term is defined in Webster's New Collegiate Dictionary-- "entitled to obedience, credit or acceptance." They represent the considered judgment of a committee charged with preserving the integrity of the Code of the Academic Senate. In addition, they suggest the likely outcome should an action taken contrary to this advice be challenged before the Divisional Committee on Rules and Jurisdiction or before UCR&J, or should a Legislative Ruling be requested on the issues involved.
- The advice or findings of a Divisional Committee on Rules and Jurisdiction may be appealed to the University Committee on Rules and Jurisdiction, to the extent that the matter raises issues of the interpretation of the Code of the Academic Senate as a whole. If the issues involved arise specifically from Divisional legislation, the advice or findings of the Divisional Committee on Rules and Jurisdiction may be appealed to the legislative body of the Division. Where Divisional bylaws have empowered an executive committee or similar agency to act in cases of sufficient urgency on behalf of the legislative body of the Division in the interim between meetings, such agency has the authority to suspend the effect of the advice or findings of a Divisional Committee on Rules and Jurisdiction -- other than Legislative Rulings in their final published form, in those Divisions where the bylaws have authorized such rulings -- until the time of the next regular or special meeting of the legislative body, at which time the issues under dispute shall be submitted to the legislative body for resolution. The advice and findings of the University Committee on Rules and Jurisdiction, other than Legislative Rulings in their final published form, may be appealed to the Assembly of the Academic Senate.
- A proposed Legislative Ruling, whether of UCR&J or, where Divisional bylaws have provided for such rulings, of its Divisional counterparts, prior to its final publication, falls in the category of advice.
- Legislative Rulings of Divisional committees may be appealed to the University Committee on Rules and Jurisdiction. Legislative Rulings of the University Committee on Rules and Jurisdiction, once published in their final form, may be superseded and rendered ineffective by subsequent legislative action of the Assembly.
- Standing Order of the Regents 103.2 guarantees to any member of the Academic Senate "the privilege of a hearing by the appropriate committee or committees of the Academic Senate on any matter relating to personal, departmental, or university welfare." The Standing Orders do not define the nature of the hearing so guaranteed nor do they specify the committee or committees by whom such hearing is to be afforded. It is therefore left to the Academic Senate to define the nature of the hearing and to specify the committee or committees which shall afford the privilege of that hearing.
- Legislative Rulings 5.75 and 12.80 and Senate Bylaw 335 [now 334] have specified Divisional Committees on Privilege and Tenure or, in certain cases, another committee constituted either by the Divisional Committee or by the University Committee on Privilege and Tenure as the sole Senate agencies authorized to grant to a member of the Academic Senate the privilege of a hearing in disciplinary cases, cases of early termination, and grievances in which a member of the Academic Senate alleges that the member's rights or privileges have been violated. Senate Bylaw 335 [now 336] specifies the circumstances and the procedures under which the committee shall hold a formal hearing in disciplinary actions or cases of early termination. In grievances, Senate Bylaw 335.E [now 335.B] provides that in any case "the complainant shall have the right to appear before the committee," but requires a formal hearing only if the committee determines that "the complainant has made out a prima facie case of violation of a right or privilege" and only if the committee is unable to effect an informal settlement of the controversy.
- The privilege of a hearing guaranteed by SOR 103.2 is not limited to formal hearings or informal appearances before Committees on Privilege and Tenure. Such hearings or appearances discharge the privilege primarily in matters relating to "personal welfare." Except for those cases covered by SBL 335 [now 334], however, and except that SBL 60, 120.D.5, and 315.E grant to each member of the Academic Senate the privilege of the floor, with voice, at any meeting of the Assembly or of the member's Division or its Assembly, Senate Bylaws nowhere guarantee to members of the Academic Senate the right of personal appearance or of voice before any universitywide or divisional committee.
- Except as may otherwise be provided in Divisional bylaws, therefore, the Bylaws of the Academic Senate have limited the privilege of personal appearance and voice to appearances before the Committee on Privilege and Tenure in those cases covered by SBL 335 [now 334] and, in other cases, before those committees authorized to adopt or amend legislation -- namely, the Assembly of the Academic Senate and the Divisions or their Assemblies. The Academic Senate has accordingly defined those committees in which legislative authority has been vested as "the appropriate committee or committees" under SOR 103.2 by whom the privilege of a hearing, in the strict sense of personal appearance and voice, must be afforded in matters other than those cases covered by SBL 335.
- Other committees of the Academic Senate may afford to members of the Academic Senate the privilege of a hearing, in a less formal sense, on matters of "departmental or university welfare" within the purview of the committee. A member of the Academic Senate wishing to exercise that privilege should address the issue in writing through the Chair of the Academic Council in the case of universitywide committees or the Chair of the Division for Divisional committees. Under SBL 110.A.3 and similar provisions in the bylaws of the Divisions, it is within the discretion of the Chair of the Academic Council or the Division to determine within which committee's purview the matter properly belongs. Since the Academic Senate has limited the privilege of personal appearance to appearances before Committees on Privilege and Tenure and before those committees in which legislative authority has been vested, it is left to the discretion of other committees of the Academic Senate to determine whether or not to grant to any member of the Academic Senate the privilege of personal appearance and voice before the committee.
- Among the senses of the word "hear" in Webster's Third International Dictionary is "to receive a message or letter." Except as provided in SBL 60, 120.D.5, 315.E, and 335 [now 334] , the privilege of a hearing may be afforded entirely through the medium of written communication.
- The charge to a standing committee of the Academic Senate or of a Division of the Academic Senate is contained in the bylaws that establish the committee. Neither the Assembly, nor a Division, nor the Legislative Agency of a Division may supersede the charge to a standing committee as contained in the bylaws except by a two-thirds majority vote of the appropriate legislative agency to amend the bylaws.
- Under SBL 40.C each committee of the Academic Senate, including Divisional committees, is responsible to the agency establishing it. Such responsibility is normally construed as meaning that the committee must fulfill its charge as contained in the bylaws or other action by which the committee was established and must reports its actions to the establishing agency, as provided in SBL 40.B. The establishing agency retains the right to supersede, amend, or set aside the actions or recommendations of any of its committees. Exceptions to this rule are provided explicitly in SBL 70 for findings on the merits of an individual case by a Committee on Privilege and Tenure and implicitly in SBL 40.C for recommendations in a specific case by a Committee on Academic Personnel or its equivalent. These exceptions aside, SBL 65 and 75 provide procedures for superseding the actions of universitywide committees either by appeal to the Academic Council and the Assembly or by referendum through the vehicle of a mail ballot. Similar provisions and procedures are to be found in most Divisional bylaws.
- Under SBL 40, 65, and 75, the authority of the establishing agency over its committees is limited to stating the charge to the committee in the bylaws or other action establishing the committee, to receiving reports from the committee, and to accepting, rejecting, or modifying the committee's actions and recommendations. The establishing agency may not set the agenda or direct the deliberations and actions of any committee except through the bylaw or other action by which the committee has been established. When the Assembly, a Division, or the legislative agency of a Division refers a matter to a standing committee, the committee has an obligation to place the matter on its agenda and give it due consideration. The committee is entitled, however, to conclude that the matter under referral cannot successfully be pursued within the committee and so report to the referring agency.
- It is permissible for either the Assembly or a Division to exclude some Senate members from serving in some Senate offices by virtue of their holding certain administrative appointments. Any such exclusion must be set forth in the Bylaw that establishes the office.
- Legislation enacted by the Assembly that is subject to Regental approval shall take effect and be incorporated into the Manual of the Academic Senate as of the date of the action by the Assembly or approval by the Regents, whichever comes later, provided however that any later date contained within the legislation for implementation of any or all of its provisions shall remain in effect.
- If the Regents fail to approve any such legislative action by the Assembly or adopt policy at variance in whole or in part with any legislative action of the Assembly, that legislation, including all provisions adopted by the same vote, shall be considered of no effect, and any previous legislation shall remain in force, until such time as the Assembly has taken further legislative action on the matters in question.
3.06A Emergency Meeting of The Assembly
- In general, if the Chair of the Assembly wishes to call an emergency meeting of the Assembly pursuant to Bylaw 110.A.3.d, and a majority of the Academic Council votes to concur, then the Council can only block the meeting if a majority votes to withdraw their concurrence and communicates the withdrawal to the Chair before the Chair calls the meeting. Once a call for an emergency meeting is made, the meeting cannot be cancelled.
3.06B Removal of An Officer of the Assembly
- The Assembly has the power to remove an officer of the Assembly with a two-thirds vote under Bylaw 35.D.5. The Assembly should only remove an officer for valid reasons, and the Assembly should provide for adequate notice to the accused officer, a fair hearing, the right to counsel, and a reasonable opportunity for the officer to present a defense. Nothing in the current bylaws specifies the standards or procedures to be used for judging what constitute valid reasons for removal of an officer, adequate notice to the accused officer, a fair hearing, the right to counsel, or a reasonable opportunity for the officer to present a defense; therefore, the Assembly must decide these questions. The Assembly has both the authority and the responsibility for these decisions.
- Consistency of the Academic Senate Regulation 904 with the Code of the Academic Senate UCR&J maintains that Senate Regulation 904 is consistent with the Code of the Academic Senate. Any Division wishing to assume responsibility for the disqualification of graduate students must submit a request for a variance to Senate Regulation 904, in accordance with Senate Bylaw 80.D.
7.06 Concerning Procedures for Senate Voting on non-Senate Instructional Faculty Personnel Actions
- In matters delegated to the Academic Senate, an academic department acts as an agency of the Academic Senate. Since authority over and supervision of courses and curricula is delegated to the Academic Senate by Standing Orders of the Regents 105.2(b), it is the right and responsibility of the Academic Senate members of an academic department to provide the administration with advice on the instructional performance of non-Senate faculty. In accord with Academic Senate Bylaw 35.C, and re-affirming Legislative Ruling 12.75, only members of the Academic Senate may vote on the departmental recommendation in a merit action involving non-Senate instructional faculty. A department may solicit a recommendation or vote from non-Senate instructional faculty to be used in its deliberations.
- Explanation of Ruling 7.06 Concerning Procedures for Senate Voting on non-Senate Instructional Faculty Personnel Actions
- UCR&J was asked a series of questions. The questions and our answers are as follows:
- Question: Does the Code of the Senate (including the Standing Orders of the Regents) give the Academic Senate the right and duty to provide definite advice to the Administration on the instructional performance of non-Senate personnel?
- UCR&J Response: Yes. The Standing Orders of the Regents (SOR 105.2 (b)) state clearly that “The Academic Senate shall authorize and supervise all courses and curricula offered under the sole or joint jurisdiction of the departments, colleges, schools, graduate divisions, or other academic agencies approved by the BOARD…” As part of that supervisory responsibility, the Academic Senate has both the right and the duty to provide advice to the Administration on the instructional performance of non-Senate faculty.
- Question: Do academic departments act as committees of the Senate when giving advice on the instructional performance of non-Senate personnel?
- UCR&J Response: Yes. Academic Senate Bylaws 20 and 45 clearly indicate that an academic department is an agency of the Academic Senate. As indicated in your letter, an academic department serves two functions—one as an administrative unit, and the other as a committee of the Academic Senate. It is in the latter role that the academic department derives its authority and responsibilities over courses and curricula.
- Question: Is voting on a departmental recommendation in a merit action involving non-Senate instructional personnel limited to members of the Academic Senate?
- UCR&J's Response: In cases where final action is to be taken on matters falling within the authority and responsibility of the Academic Senate, only Academic Senate members may vote. Academic Senate Bylaw 35.C. states: “Only members of the Academic Senate may vote in Senate agencies and their committees when those agencies or committees are taking final action on any matter for the Academic Senate, or giving advice to university officers or other non-Senate agencies in the name of the Senate. Persons other than Senate members may be given the right to vote on the other questions, such as those that involve only recommendations to other Senate agencies, but only by explicit Bylaw provisions.”
- Question: If departments consult with non-Senate instructional personnel regarding the personal actions of departmental non-Senate instructional personnel, may the department letter report the results of this consultation in the form of a vote distinct from the vote and recommendation of Senate members of the department?
- UCR&J’s Response: No, SOR 100.4 Duties of the President of the University, states:
“The President of the University, in accordance with such regulations as the President may establish, is authorized to appoint, determine compensation, promote, demote, and dismiss University employees, except as otherwise provided in the Bylaws and Standing Orders and except those employees under the jurisdiction of the Secretary, Treasurer, and General Counsel of The Regents. Before recommending or taking action that would affect personnel under the administrative jurisdiction of Chancellors … When such action relates to a Professor, Associate Professor, or an equivalent position; Assistant Professor; a Professor in Residence, an Associate Professor in Residence, or an Assistant Professor in Residence; a Professor of Clinical (e.g., Medicine), an Associate Professor of Clinical (e.g., Medicine) or an Assistant Professor of clinical (e.g., Medicine); a Senior Lecturer with Security of Employment, or a Lecturer with Security of Employment, the Chancellor shall consult with a properly constituted advisory committee of the Academic Senate.”
- UCR&J’s position is that non-Senate instructional faculty have the right to have their opinions presented to the Administration; but such opinions should be submitted separately from the departments’ letter containing the vote and recommendation of Senate members. Of course, copies of any written material submitted to the department by non-sentate instructors should be forwarded to the administration.
10.08 Jurisdiction of Divisional Privilege and Tenure Committees
- A divisional P&T committee has jurisdiction to hear the grievance of an Academic Senate member asserting retaliation in violation of the University's Whistleblower Protection Policy, provided that "the allegations as stated in the written grievance, if true, would constitute a violation of the faculty member's rights and privileges." [Senate Bylaw 335.B.2]If no faculty right or privilege would have been violated, then P&T does not have jurisdiction to hear the grievance.
- Inasmuch as having an at-will administrative appointment is neither a right nor a privilege of Academic Senate members, a divisional Privilege and Tenure Committee does not have jurisdiction to hear a grievance that is asserted with regard to the loss or withdrawal of such an appointment.
- However, if the grievant were to allege that concomitant with the loss/withdrawal of his/her at-will administrative position there was a violation of that person's faculty rights or privileges and gave adequate indication in the written grievance of the respect in which this were so, then P&T would be required, as with all other complaints, to consider "whether or not the grieving Senate member has made out a prima facie case" [Senate Bylaw 335.B.2] and to proceed accordingly.
3.09 Scope of variance to SR 764 limitation on number of special study courses for which an undergraduate may receive credit
- SR 764 provides: “Credit in special study courses for undergraduates is limited to five units per term.
- Assembly approved variance A.6.5.4, for Santa Cruz, provides: “Ordinarily a student may include no more than one course 49 or 199 in his program in any term. But with the permission of their College or Board of Studies, students in go[o]d standing may undertake an independent study project 199 equivalent to two or three courses in one quarter . . . Except in special circumstances and for students of outstanding demonstrated ability, only one such augmented (block of two) or full-time (block of three) 199 may be taken during a student’s undergraduate career. . . .”
Question: Does SR 764 apply only to upper division tutorials (course 199) or to all categories of individual studies courses including those enumerated in SCR 6.5.1? Does the Santa Cruz variance apply to all categories of individual studies courses?
Which of the following categories are covered by SR 764 and which categories are covered by the variance?
- 93 Lower Division Field Study
- 193 Upper Division Field Study
- 198 Independent Field Study
- 99 Lower Division Tutorial
- 199 Upper Division Tutorial
- 195 Senior Thesis
- UCR&J Response: SR 764 covers all of the above categories. The variance applies only to upper division tutorials (course 199).This follows from the fact that the variance notes the existence of both courses 49 and 199, yet explicitly allows an exception only for 199. Further, the exception does not apply if course numbers are not in use, since the variance is explicitly just for course 199.
If it is desired to have a variance apply to situations not explicitly addressed in an earlier provided variance, then it is necessary to apply for a new variance.
Question: Does the phrase in the variance, "Except in special circumstances and for students of outstanding demonstrated ability" mean that both conditions have to be satisfied for a student to be allowed to take multiple augmented/full-time blocks of 199 courses (or depending on the answer to the previous question, all individual study courses)? Or is either condition sufficient?
UCR&J Response: UCR&J members are of divided opinion as to whether both or only one of the two stated conditions need(s) to be satisfied. The variance was not precisely worded and it could be interpreted in either way. The variance could have been worded "Except in special circumstances affecting a student who..." to show that both conditions are needed, or it could have been worded "Except in special conditions or for a student who..." to show that only one condition is needed. Either one of these phrases would be clear and unambiguous.
6.09 Regarding the locus of authority for approving credits for enrolled, continuing students who take courses at other institutions
- Question: UCR&J was asked to clarify SR 474 regarding the locus of authority for approving credits for enrolled, continuing students who take courses at other institutions, as requested by UCD. Council considered the ruling and declined to comment.
- UCR&J Response (Legislative Ruling 3.10): Regulation 474 only applies to transfer credit for entering students, not for students who have already matriculated. This is evident from the title of Chapter 4 of the Regulations, "Admission to Advanced Standing." The charge for the Board of Admissions and Relations with Schools (BOARS) in Bylaw 145.B is restricted to entering students; any policies regarding transfer credit approved by BOARS or any delegation of authority to implement such policies only applies to entering students. As per Bylaw 311.D and 312.A.1 read with Bylaw 311.C, decisions regarding curricula offered within the jurisdiction of only one Division are supervised by that Division. With a narrow exception for courses prefixed XCal, even courses offered by University Extension that earn UC transfer credit require approval by the corresponding Divisional Committee on Courses of Instruction or equivalent according to Regulation 792 and 790.
Thus decisions regarding transfer credit for students who are already enrolled in the University (such as students in the Education Abroad Program) clearly rest with the individual Divisions and their appropriate committees, which may delegate this authority as they see fit. The customary practice in many Divisions, where the evaluation of transfer credit for previously enrolled students is done through departments, colleges or Registrars and not Admissions, is consistent with this.
2.10 Regarding Faculty Misconduct Charges
By a unanimous vote of five ayes and zero nays, the Committee on Rules and Jurisdiction of the Academic Senate of the University of California (UCR&J) renders the following Legislative Rulings, based on the two-pronged test of faculty misconduct delineated in the Academic Personnel Manual (APM) 015.Preamble (The Faculty Code of Conduct), APM 015.II (The Faculty Code of Conduct: Professional Responsibilities, Ethical Principles, and Unacceptable Faculty Conduct) and the policy accepted in APM 035-0.a (Affirmative Action and Nondiscrimination in Employment):
- For purposes of determination of the validity of the faculty misconduct charge outlined in APM 015.II.C.5, “Discrimination, including harassment, directed against University employees…” incorporates the broader definition of “any person employed or seeking employment with the University of California” when the person subjected to the alleged misconduct is engaged in the performance of University activities related to employee selection and recruitment.
- For purposes of determination of the validity of the faculty misconduct charge outlined in APM 015.II.C.4, “harassment of another member of the University community…” includes “any person employed or seeking employment with the University of California” when the person subjected to the alleged misconduct is a)an employee or candidate for employment at the University and b) engaged in the performance of University activities, including those related to employee selection and recruitment.
- For purposes of determination of the validity of faculty misconduct charges related to APM 015.II.D, and with specific regard to APM 015.II.D.2, “Discrimination, including harassment, against faculty…” incorporates the broader definition of “any person employed or seeking employment with the University of California” when the person subjected to the alleged misconduct is a) a candidate for academic appointment at the University and b) engaged in the performance of University activities related to faculty selection and recruitment.
Rationale for the ruling:
UCR&J found that, in the formulation of allowable faculty misconduct charges, the RCC and RCR&J adopted distinct but strict constructivist (i.e., literal) interpretations of the Academic Code of Conduct inconsistent in whole or in part with its intent and means of amendment, as well a subsequent, superseding article of the APM. Their restrictive interpretations were understandable given the destructive nature of the charges and likely sanctions, if proven true, and the importance of assuring the fundamental due process rights of the defendant. However, the errors suggested an over-reliance on caution related to the perceived ambiguity of the Code. These interpretative difficulties must be resolved to allow the proper application of the Code as subsequent cases arise.
The legislative acceptance by the Academic Senate of The Academic Code of Conduct (APM 015.Preamble and APM 015.II) endorsed the evolution of consensus-driven professional standards, not a precisely charted academic “criminal code”, to govern the actions of the faculty (both members of the Academic Senate and non-represented academic appointees with recourse to Academic Senate grievance and disciplinary procedures) in teaching, scholarly, University, collegial and community duties related to their University service. The Academic Code of Conduct established a two-pronged test whereby an action of a member of the faculty, while in the service of the University, that was 1)”not justified by the Ethical Principles” and that did 2)“significantly impair the University’s central functions as set forth in the Preamble” constitutes misconduct. Intentional disruption of activities, harassment, and discrimination are examples of misconduct. If guilt of such alleged misconduct is determined by due process (SB 336), the offender is subject to disciplinary sanctions.
The status of the person subjected to the alleged misconduct, a candidate for academic appointment who was engaged in the University’s faculty search process, was the central issue in this case. APM 015 explicitly provides illustrative examples of general types, not strictly limited qualifications that designate specific acts, of faculty misconduct. UCR&J found that it is permissible to expand the scope of the given examples of misconduct in The Academic Code of Conduct in view of subsequent Academic Senate legislation, including items accepted into the APM, when such revisions meet both qualifications of the two-pronged test and are appropriate to the circumstances encountered. The Rulings demonstrated the application of this method to the present case, and were not meant to be completely restrictive in nature. A broader latitude of interpretation, when consistent with the two-pronged test and the Preamble of APM 015, may be justified as subsequent cases arise
The relevant University policy for the present case is APM 035-0.a, duly accepted by the Academic Senate, whereby the members of the faculty are pledged to “not to engage in discrimination against or harassment of any person employed or seeking employment with the University”. The underlined phrase is the key amendment of APM 035-0.a to APM 015.II.C.4, APM 015.II.C.5 and APM 015.II.D.2, as it enlarges the scope of the “University community”, “University employees” and “faculty” from the examples given. This expansion is clearly consistent with the intent of APM 035-0.a, which eschews discrimination and harassment in a fashion similar to the misconduct examples of APM 015.II.C.4 in regard to the persons qualified by membership in the University community, APM 015.II.C.5 in regard to the persons qualified by University employment and APM 015.II.D.2 in regard to the persons qualified by University faculty appointment. It is particularly important for faculty members of the Academic Senate to act in accord with all of these policies when participating in collegial selection and evaluation, a central academic function in the shared governance and management rights of the University. Willful noncompliance with these policies in their amended form would support misconduct charges under the two-pronged test of The Academic Code of Conduct because such wrongful acts, if proven, are “1)not justified by the Ethical Principles” and would “2)significantly impair the University’s central functions as set forth in the Preamble”.
In regard to the second prong of the test, the objective of The Academic Code of Conduct under the circumstances described in this case is to protect the functions of the University and faculty colleagues. The University could not fulfill its stated, legal obligations as an Equal Employment/Affirmative Action employer if APM 035-0.a was indeed flouted. Such misconduct, if proven, would seriously damage the integrity and credibility of professional judgment expected and required of faculty colleagues. While desirable in certain respects, any “protection” afforded by this ruling to a candidate for a faculty position would be entirely co-incidental. The Academic Senate has no authority to address “pre-employment rights” and associated grievances of candidates for faculty appointments or any persons seeking employment at the University. The University has generally held that the hiring of members of the faculty, like the hiring of other employees, is a fundamental management right not subject to grievance or arbitration.
UCR&J notes that APM 035-0.a lists unlawful bases of discrimination and harassment, while APM 015.II.C.5 and APM 015.II.D.2 include two further unethical bases for discrimination and harassment (“other arbitrary or personal reasons”). It is consistent with the intent of the amendment supported by this ruling to continue to consider both unlawful and unethical bases of discrimination and harassment as potential bases for academic misconduct charges. It is proper for members of the faculty to refrain from unlawful discrimination and harassment during the course of their academic duties, and to abstain or recuse themselves from academic personnel actions where “other arbitrary or personal reasons” present a real or apparent conflict of interest.
In light of these outcomes, it is the particular duty of the Divisional Charges Committee to serve as the first line of academic peer review of judicial checks and balances ensuring due process for the accused. The Divisional Charges Committee must address the issue as to whether such misconduct charges are indeed appropriate to the circumstances encountered. The present case involved alleged discrimination and harassment directed against a candidate for faculty appointment while that person was engaged in University activities. Furthermore, the alleged subject of discrimination was engaged in a temporary, uncompensated but “quasi-employment” relationship with the University during this process, as travel expenses would customarily have been eligible for institutional reimbursement. Finally, the alleged subject of discrimination was an invited, albeit temporary, member of the University community selected to participate in the faculty recruitment process. Thus, charges would be permissible under APM 015.II.D.2 (the candidate was seeking faculty appointment at the University), APM 015.II.C.5 (the candidate was seeking employment as a member of the faculty at the University), and APM 015.II.C.4 (the candidate was a member of the University community while engaged in conventional faculty selection activities).
Some issues related to the ruling:
- SB 336 disciplinary procedures for faculty misconduct are not strictly bound by legal procedures or rules of evidence. However, the issue of multiple overlapping charges is raised because, in the present case, a single act of alleged misconduct could have resulted in multiple (four) valid charges (APM 015.II.C.1, APM 015.II.C.4, APM 015.C.5 and APM 015.D.2). There would have been three distinct levels of burden of proof associated with these charges (intentional disruption, harassment and discrimination/harassment, respectively) in both Divisional Charges Committee and Divisional Committee on Privilege and Tenure hearing committee phases of the disciplinary procedure. In the interest of prosecutorial discretion, UCR&J found it permissible for the overlapping charges to advance to the hearing committee for determination of guilt or innocence on each charge supported by suitable probable cause. Reduction of the number of charges may be required depending on the outcome of the hearing committee. For example, if all four charges advanced, a guilty finding on APM 015.II.D.2 would have overshadowed guilt on the other three charges. In the interest of fairness to the accused, sanctions should be applied only for APM 015.II.D.2, and the other charges dropped, in such an event.
- Distinct acts of alleged faculty misconduct should be pursued as separate charges. Temporally distinct acts of a similar nature should be pursued as multiple counts of the same charge.
- A Divisional Charges Committee finding of an invalid charge eliminates the necessity to further address probable cause for that charge.
- While not invalidated, the finding transmitted by the RCC in this case was technically flawed in several respects (SB 336). Of first importance, its report, including the summary finding statement, contained no clear specification of the administrative charges supported by the evidence. Second, the Divisional Charges Committee, but not the hearing committee subsequently established by the Divisional Committee on Privilege and Tenure, is the principal investigative instrument for the faculty determination of academic misconduct. In essence, the Divisional Charges Committee acts as an investigative grand jury with a standard of proof based on evidence of probable cause, while the hearing committee acts as a decisive petit jury with a standard of proof based on evidence of a clear and convincing nature. Third, the Divisional Committee on Privilege and Tenure and its hearing committee have no authority to generate or append new charges in a new or ongoing misconduct case. However, the hearing committee can address reduced charges based on administrative prosecutorial initiative related to informal or mediated resolution of a misconduct case.
Separate but concurrent opinion of member 4:
I concur with the Rulings: APM 15.II.C and 15.II.D are clearly applicable to this case. The alleged behavior fails the two prong test of APM 15.II (explained in detail in sections 1 and 2 of the Preamble).
The Charges' Committee's concern about the precise meaning of examples APM 15.II.C.4, C.5 and D.2 is misplaced: section 2 of the Preamble and the opening remarks of Section II clearly explain that matching the examples is not necessary or sufficient for behavior to be subject to discipline. (Correspondingly, the individual examples are not separate counts for imposing discipline; each subsection of APM 15.II is a single unit.)
I do not think that reinterpreting the examples, instead of reiterating their incompleteness and the two prong test, is needed. It may not even be desirable: it would make the Charges Committee's misconception that the examples are exhaustive more likely in the future, and invite requests for further reinterpretation to make them so. However, I agree that the extended language in these Rulings is completely in accordance with APM 15.
Separate but concurrent opinion of member 5:
The original letter from Prof. Norman states: "I write today to ask the system-wide Committee on Rules & Jurisdiction for an interpretation of APM 15.II.C.5."
This paragraph is presented in the APM as an example of a type of unacceptable faculty behavior subject to University discipline. Furthermore earlier in the APM it is noted that "the examples of types of unacceptable faculty conduct . . . are not exhaustive." Thus it is not apparent to me that this paragraph requires further interpretation per se.
Certainly, APM 15.II.C.5 should not be invoked as indicating that such conduct towards a person who is not a "University employee" (sensu stricto) is thus, necessarily, "acceptable" and not "subject to University discipline."
My reading of the APM leads me to believe that, indeed, discrimination against (in the sense of the APM) and/or harassment of a person applying for a faculty position at the University would constitute unacceptable faculty behavior subject to University discipline.
It is not clear to me that we need to suggest a revised text for the APM at this time. If we do not, then I am comfortable with our ruling that such behavior against a person seeking employment at the University would be unacceptable.
If, however, we choose to propose revised text, I feel we need to ask if the examples should be rewritten with a broader definition that will include all appropriate "victims" for whom such discrimination against and/or harassment "significantly impairs the University's central functions as set forth in the Preamble".
6.11.A Definition of Residence
The Committee on Rules and Jurisdiction of the Academic Senate of the University of California renders the following Legislative Rulings in regard to the interpretation of “residence” as defined by Senate Regulation 610 (SR 610, “Residence in any regular term is validated by a program of courses or other exercises approved by the Faculty of a student’s college or school. For undergraduates this shall be at least six units of resident courses of instruction. Graduate Students validate residence with programs of instruction or research approved by the appropriate Graduate Council.”(EC 15 Apr 74)(Am 9 Mar 83; Am 6 Mar 85)). At issue are requirements for physical presence and close interactions between faculty and students on sites of campus and approved off-campus instruction and research.
- By a vote of three ayes and two nays, UCR&J determined that the definition of “residence” endorsed by the Academic Senate Special Committee on Remote and Online Instruction and Residency (residency determined by course approval by the relevant Faculty and Senate governing entities of the University of California, not linked to the physical presence of a student on campus) is consistent with SR 610. The majority opinion was based on a liberal interpretation of SR 610, which may permit on-line, off-campus instruction when courses have been duly reviewed and approved by Faculty and Senate governing entities. The minority opinion was based on a literal interpretation of SR 610, where a requirement for the physical presence of a student at on- and off-campus sites may limit or even exclude on-line, off-campus instruction regardless of review and approval by Faculty and Senate governing entities.
- By a vote of five ayes and zero nays, UCR&J determined that the interpretation of “residence” employed by SR 610 in its present form is sufficiently ambiguous, and of such significant consequences, that the issue should be taken under consideration by the Assembly of the Academic Senate of the University of California. The issue should be resolved finally by legislative amendment of SR 610 to reflect explicitly either, but not both, of the liberal or literal interpretations of “residence” proffered by the preceding Legislative Ruling. This recommendation is consistent with Academic Senate Bylaw 205.B.2, whereby it is the duty of UCR&J “to prepare and to report to the Assembly or to any of the Divisions such changes and additions to the Bylaws and Regulations as may seem to it advisable”.
SR 610 states that residence for undergraduates will require "at least six units of resident courses of instruction". Senate Regulations do not define the term "resident courses" anywhere, but I believe it was intended to mean courses where a student is physically present at a campus of the University. While definitions can adapt in the presence of new technology, allowing "any course approved by the appropriate Divisional Committee, regardless of the mode or location of delivery" is too big a change to be accommodated by the wording of SR 610.
Such an interpretation would also render meaningless SR 694 which places strong restrictions on "off-campus graduate instruction", including SR 694.2 "No more than one-half of the total unit and residence requirements for the degree of Master of Arts or Master of Science may be satisfied by off-campus graduate study." How can online courses approved by the appropriate Divisional Committee be less restricted than off-campus courses (including those that are approved by the appropriate Divisional Committee)?
6.11.B Eligibility of an associate dean to serve as a member of the Assembly
The Committee on Rules and Jurisdiction of the Academic Senate of the University of California (UCR&J) renders the following Legislative Ruling in regard to the interpretation of Academic Senate Bylaw 105.A.4 (ASB 105.A.4, “Membership...Forty Divisional Representatives chosen from other than chancellors, vice chancellors, deans, chief administrative officers of colleges and schools, and members of the University Committee on Rules and Jurisdiction…”). The particular question involves the eligibility of an associate dean for appointment to represent the Division in the Assembly of the Academic Senate.
By a vote of three ayes and two nays, UCR&J determined that ASB 105.A.4 does not explicitly exclude associate deans from service in the Assembly. The majority opinion was based on a strict, literal reading of the Bylaw, which excludes deans but contains no mention of associate deans or comparable academic administrative officers. The appointment process of each Division was seen as adequate to weigh potential conflicts of interest between the academic administrative and Faculty roles of colleagues during the course of their selection. The minority opinion was based on the ease of delegation of decanal authority to associate deans (the term “dean” is often understood generically to mean anyone holding a decanal title, with or without an associate prefix), which presents de facto the same conflict of interests underlying the explicit exclusion of the deans, and is consistent with the spirit if not the letter of the Bylaw. It was the unanimous opinion of UCR&J that there is no constitutional impediment to the legislative amendment of ASB 105.A.4 to explicitly extend the exclusion list to include associate deans and comparable academic administrative officers.
In response to the specific question posed by the request for this Legislative Ruling, the associate dean duly appointed to the Assembly by the Division is eligible for this service.
6.11.C Scholarship requirements for undergraduate students
The Committee on Rules and Jurisdiction of the Academic Senate of the University of California (UCR&J) renders the following Legislative Rulings in regard to the interpretation of Senate Regulation 900.C.2 (SR 900.C.2, “Undergraduate students in particular schools or colleges may be subject to more stringent norms with respect to academic probation or disqualification, but only on the basis of regulations adopted by a Division of the Senate and approved by the Assembly of the Senate.”). At issue is the constitutionality of proposed revisions of program requirements for an undergraduate degree.
- By a unanimous vote of five ayes and zero nays, UCR&J determined that the proposed revisions of degree program requirements cannot be implemented without the approval of both the Division and the Assembly of the Senate consistent with the final oversight clause of SR 900.C.2.
- By a unanimous vote of five ayes and zero nays, UCR&J determined that the stated purpose of the proposed revisions, enrollment management of an undergraduate major, is an insufficient justification in regard to educational merit so as to be consistent with the provision of more stringent norms with respect to academic probation or disqualification permitted by SR 900.C.2.
- By a unanimous vote of five ayes and zero nays, UCR&J expressed concern that the more stringent norms of the proposed revisions according to SR 900.C.2 may result in cases of academic probation or disqualification (not simply transfer to a less demanding major) for students who meet the minimum qualifications of the University as delineated in Senate Regulations 634 (“Except as provided in Senate Regulation 782 for the grade of Passed/Not Passed, to receive a Bachelor's degree a student must obtain a grade-point average of at least 2.00 for all courses attempted in the University.”) and 900.A.1-2 (“The following minimum provisions or their equivalents, as ratified by the Assembly, govern the scholastic status of undergraduate students as indicated in strictly internal University records. 1. Academic Probation. An undergraduate student is normally subject to academic probation (a) if at the end of any term the student's grade-point average for that term, or the student's cumulative grade-point average, is less than 2.0 (C average) computed on the total of all courses undertaken in the University (however, see paragraph (E) below); or (b) by other provisions approved by the Assembly. 2. Academic Disqualification. An undergraduate student is subject to disqualification for further registration in the University (a) if at the end of any term the student's grade-point average for that term is less than 1.5 (however, see paragraph (E) below), or (b) if the student has completed two consecutive terms on academic probation without achieving a cumulative grade-point average of 2.0 as provided above.”). At minimum, a variance would have to be obtained before implementation of the proposed revisions in order to eliminate this inconsistency.
- UCR&J advises amendment of the proposed revisions including, perhaps, systematic employment of a “pre-major” and clear due notice statements of the more stringent degree program requirements before entry into the major to reduce or mitigate the discrepancy noted above in Legislative Ruling 3. This approach should provide for adequate enrollment management consistent with the recommendations of the Committee on Educational Policy (UCEP) of the Academic Senate of the University of California in their “White Paper on Impacted Majors” of 8/5/09.
6.11.D. Ex officio member voting rights.
The Committee on Rules and Jurisdiction of the Academic Senate of the University of California (UCR&J) renders the following Legislative Ruling in regard to the interpretation of ex officio member voting rights as defined by Academic Senate Bylaw 50.C (ASB 50.C, “Each Faculty shall elect the Chair of the Faculty and members of its Executive Committee. The chief academic administrative officer of the college or school shall be an ex officio member of the Executive Committee but may not serve as Chair of the Faculty or the Executive Committee.”). The particular question involves the ex officio member voting rights of the chief academic administrative officers (typically deans) in the associated Faculty Executive Committees (FECs).
By a vote of four ayes and one nay, UCR&J determined that in and of itself, ASB 50.C implicitly allows voting rights for chief academic officers in the associated FECs. The majority opinion is based on ASB 35.C.3 (“…ex officio members have the same powers as other members unless otherwise specified.”), ASB 45 (“…the membership of each Faculty is defined by the bylaws of the Division to which it is responsible, or by the Bylaws of the Senate for those Faculties directly responsible to the Assembly. Membership in a Faculty is limited to the following Senate members: the President of the University, the Chancellor, the chief academic administrative officer of the school or college, all members of the Academic Senate who are members of departments assigned to that school or college (Academic Senate members who have retired and transferred to emeritus/a status retain departmental membership.), such other Senate members as are specified in Divisional Bylaws or these Bylaws. Only voting members of the Senate may vote in Faculties of which they are members.”) and the provision of ASB 50 for the ex officio membership of the chief academic administrator in the associated FEC. The majority opinion is concordant with the usual description of ex officio member voting rights as described in Sturgis’ Standard Code of Parliamentary Procedure. However, UCR&J finds no constitutional impediment for an explicit nonvoting ex officio membership category in these and comparable committees based on duly approved bylaws, as shown in the current Bylaws of the Academic Senate and the Divisions. The minority opinion is based on ASB 128.H (“Members holding an administrative position higher than department chair may not serve as members of Assembly committees.”), the de facto function of FECs as comparable standing committees of the Faculty of a School or College, and concern for potential conflicts of interest between academic administrative and Faculty roles of such chief officers.
In response to the specific questions posed by this request for Legislative Ruling:
Question 1: Does UCR&J concur regarding the inherent conflict of interest between decanal administrative authority and faculty authority, and, if so, can (and will) UCR&J remedy the matter with a legislative ruling?
Response: This Legislative Ruling of UCR&J provides an interpretation of ASB 50.C that does not directly address the issue of inherent conflicts of interest between decanal administrative authority and Faculty authority on FECs. Pursuant to its majority opinion, UCR&J will not at this time seek to remedy the issue by Legislative Ruling or propose relevant amendments of Academic Senate Bylaws for consideration by the Academic Assembly. However, UCR&J finds no constitutional impediment for an explicit nonvoting ex officio membership category in these and comparable committees based on duly approved bylaws should the Divisions or the Faculties of the Schools and Colleges employ this means of addressing the issue.
Question 2: If deans should be excluded from voting on FECs, what, if any, are the implications of other administrative ex officio members of other Senate Committees? Should they also be excluded from voting?
Response: This Legislative Ruling of UCR&J finds that deans have implicit voting rights in FECs (a baseline of voting ex officio membership) unless these voting rights are constrained by explicit exclusion through duly approved bylaws (a constitutionally defined category of nonvoting ex officio membership). By extension of the principle, administrative ex officio members of other Divisional and Faculty committees have implicit voting rights except when these rights are explicitly excluded in the bylaws that establish the committees and/or their parent organization(s).
6.11.E. Relationship of the Academic Senate with the Faculties of schools and colleges offering postbaccalaureate, first professional degree programs leading to the award of M.D., D.D.S., D.V.M., D.Pharm. and J.D. degrees.
The Committee on Rules and Jurisdiction of the Academic Senate of the University of California (UCR&J) renders the following Legislative Rulings in regard to the interpretation of Standing Order of the Regents 105.2 (SOR 105.2, “The Academic Senate, subject to the approval of the Board, shall determine the conditions for admission, for certificates, and for degrees other than honorary degrees” (SOR 105.2(a)) and “The Academic Senate shall authorize and supervise all courses and curricula offered under the sole or joint jurisdiction of the departments, colleges, schools, graduate divisions, or other University academic agencies approved by the Board, except that the Senate shall have no authority over courses in the Hastings College of the Law, San Francisco Art Institute, in professional schools offering work at the graduate level only, or over non-degree courses in the University Extension. No change in the curriculum of a college or professional school shall be made by the Academic Senate until such change shall have been submitted to the formal consideration of the faculty concerned.” (SOR 105.2(b))). At issue is the constitutional relationship of the Academic Senate and Faculty of exceptional “graduate degree programs”, particularly postbaccalaureate, first professional degree programs leading to the award of M.D., D.D.S., D.V.M., D.Pharm. and J.D. degrees.
- By a unanimous vote of five ayes and zero nays, UCR&J determined that the 8/29/08 statement of the Coordinating Committee on Graduate Affairs of the Academic Senate of the University of California (CCGA), as approved on 7/23/08 by the Academic Council of the Academic Senate of the University of California (“CCGA is reinstating its plenary role in the approval of new M.D., D.D.S., D.V.M., Pharm.D., and J.D. degree programs effective immediately. It leaves the discretion of oversight of established degree programs to their campus Graduate Councils or their designees.”), is consistent with SOR 105.2(a) and (b), and defines the exceptional nature of Academic Senate authority for these degree programs only. Under normal circumstances, the academic oversight of these degree programs is delegated to the Faculty of the Schools wherein the programs are located, consistent again with the cited CCGA statement (“…CCGA concurs that ongoing oversight is best left to professional schools offering these five degree titles pursuant to Standing Order of the Regents 105.2(b)…”).
- By a unanimous vote of five ayes and zero nays, UCR&J determined that the academic oversight of all other graduate and undergraduate degree programs and courses is governed through the Faculties, Divisions (Graduate and Undergraduate Councils) and Senate by means of the regular Bylaws and Regulations of the Academic Senate as per SOR 105.2(a).
- By a unanimous vote of five ayes and zero nays, UCR&J determined that in circumstances where a School or academic unit operates degree programs included in both Legislative Rulings 1 and 2 above, M.D., D.D.S., D.V.M., Pharm.D., and J.D. degree programs will be governed pursuant to Legislative Ruling 1 and all other degree programs and courses of the School or academic unit will be governed pursuant to Legislative Ruling 2.
Given the unanimity of UCR&J opinion in these Legislative Rulings, recusal of Member Mattey was not requested.
The following responses pertain to the direct questions posed in this request for Legislative Ruling:
Question 1: What criteria determine whether a professional school offers work at the graduate level only?
Response: For present purposes, only the exceptional academic programs noted above (M.D., D.D.S., D.V.M., Pharm.D., and J.D. degree programs) meet the criteria as determined above by Legislative Ruling 1. These are all postbaccalaureate, first degree professional degree programs. They consist of two parts: a taught academic component supervised by practicing and/or non-practicing Faculty and, usually (elective in some J.D degree programs), a “clinical” experience component closely supervised by practicing Faculty. Unlike regular graduate degree programs governed by broader Senate authority as determined above by Legislative Ruling 2, there are no requirements for satisfactory completion of examinations (i.e., qualifying and/or comprehensive examinations), production of original creative work (i.e., “research”) and successful defense of this original creative work. The exceptional degree programs are all subject to regular and substantial academic review by professional accrediting agencies, and graduates must pass significant examination requirements before entering into practice.
Question 2: If a professional school meets the criteria for offering work at the graduate level only, does it have sole jurisdiction, without Senate approval beyond that of the faculty of the professional school, over its courses, grading policies, and/or degree programs?
Response: Under normal circumstances, Faculty in the Schools offering the exceptional degree programs (M.D., D.D.S., D.V.M., Pharm.D., and J.D.) have authority delegated by the Academic Senate and its Divisions for the academic oversight of these degree programs including courses, grading policies and degree program requirements as determined above by Legislative Ruling 1.
Question 3: If a professional school does not meet the criteria for offering work at the graduate level only, how does this fact affect the sole jurisdiction that it has? Does only the portion of the curriculum involving non-graduate level work fall under broad Senate authority, or does such authority extend to all matters, so that the exception in SOR 105.2(b) does not apply to it at all?
Response: The exceptional authority related to the M.D., D.D.S., D.V.M., Pharm.D., and J.D. degree programs is independent from the offering of other academic programs by the same Faculty or academic unit as determined above by Legislative Ruling 1 and 3. The unexceptional authority for all other academic programs proceeds as determined above by Legislative Ruling 2.