Guest post about governance by Professor James Engell

This comment addresses issues of University governance.  The current policy of discipline (“sanctions”) for students entering the College this fall was never voted by the Faculty and cannot be regarded as legitimate.  Any policy regarding discipline (“sanctions”) or prohibitions against certain behaviors should be voted by the Faculty.  This is clearly stipulated by the University Statutes (especially the 5th and 11th Statutes).  This includes any determination to phase out student membership in USGSOs (or other organizations) and effectively to prohibit such membership as a precondition of being a member of the College.  No administrator—Dean or President—has the inherent statutory power to make or change any policy of discipline or sanction.  This power belongs to the Faculty.  If the Faculty permit this particular power to be exercised by some other body or by any administrator without expressly delegating it, then the Faculty will forever cede an important power and will diminish their own standing to effect or change any policy.  Furthermore, any policy that has not been voted and adopted by the Faculty, and thus does not appear in the Handbook for Students, would almost surely be subject to legal challenge if that policy were enforced.  Despite this, even this current website declares, "The President will make the final decision."  This is not shared governance.  Such an assumption of presidential power further diminishes the power of the Faculty.  As such power is further eroded, members of the Faculty will inevitably take less interest in matters that they feel–that they are told--they cannot decide.  Already many colleagues believe that Faculty meetings are too orchestrated and consistently assume a preordained outcome. The Committee on Unrecognized Single-Gender Social Organizations (the committee) co-chaired by Dean Khurana and Professor Clark is nota faculty committee and should not be called a faculty committee.  It is an administration-faculty-student committee.  (Or it may be called, as the ROTC committee of similar composition was called in the early 1990s, simply a committee.)  I have never heard a committee with such a composition ever before referred to as a “faculty committee.”  Calling it that gives the false impression that all or almost all its members belong to the teaching faculty.  I believe that the report of the committee never refers to the committee itself as a faculty committee.  Of twenty-seven members, eleven are tenured faculty, two are untenured faculty, two Allston Burr assistant deans, six are administrators appointed by various deans or other administrators, and six are students apparently selected by administrators and not elected or selected by their peers as representatives.  This mix of members may be desirable.  However, a committee so composed is not a faculty committee.  In fact, teaching faculty are in a minority unless the Allston Burr assistant deans are counted as teaching faculty (the masthead of the committee does not indicate a teaching appointment for either).  Even if they are counted, then Faculty are in the barest majority.  Despite all this, according to the Crimson (July 21, 2017), a spokesperson for Dean Khurana, Rachael Dane, in an email to the Crimson referred to the committee as “the faculty committee.” As reference to my remarks at the December 6, 2016, FAS Faculty meeting will indicate, the current policy of sanctioning students, which is a policy of discipline, cannot be regarded as institutionally legitimate.  By extension, despite its good will and work, the Implementation Committee is also illegitimate.  All disciplinary policy and its enforcement comes directly by a vote of the Faculty unless the Faculty delegates it to some other body or person by a vote, or unless in very rare cases there is strong evidence that a student has violated the University policy on Rights and Responsibilities.  That is what the Fifth and Eleventh Statutes of the University clearly and unambiguously state. The Faculty have never taken a vote on the current policy.  The Administration never presented that policy to the Faculty for a vote, despite several opportunities. The recommendation of the committee as issued constitutes a form of discipline, too; or if it is argued that it does not, then it forms a sweeping change in the manner in which the College will police and dictate the social lives of students and take action against students (discipline them) if they violate the policy.  Such a change should be voted by the Faculty. For Dean Smith to say in his charge to the committee that, “Any recommended change to our current policy must be approved by the President of the University” is to abrogate without warrant or precedent whatever mode of shared governance we enjoy.  It also further ensconces the “current policy” as legitimate when it is not. Dean Smith also stated at a Faculty meeting this spring that the manner in which we are proceeding is what “we have always done.”  With forty years experience on the Faculty and attendance at nearly every FAS Faculty meeting during those decades (when I was not on leave), as well as membership in over three dozen faculty committees (including Faculty Council, twice, and its Docket Committee), as well as committees with students and administrators as equal voting members, including the Committee on College Life in the 1980s at the time when the University and the male final clubs parted ways, I disagree. In press reports late in 2016, Senior Fellow Lee is quoted as saying, “I think rather than getting into a struggle over who has the right to do what, I think what [Faust] said is we have a shared responsibility to solve these issues.  I think the first major step was the policy,” meaning the current policy of disciplinary sanctions. The Senior Fellow of the Corporation, a lawyer, thus stated that it is not worth deciding who, or what body, in the University, has the right to do what.  Taken at face value, imagine what that statement means.  He does not reference the Statutes.  They do not favor his view.  The Statutes do not struggle on this matter.  The Statutes are clear.  Only the Faculty as a body has the power to act in this matter.  Yes, we have a shared responsibility to solve these issues.  Yet, the actual power to discipline—“power” is the word in the Statues—is vested in the Faculty.  Mr. Lee thinks the first step should be certain disciplinary sanctions, and that is his opinion.  But such power unambiguously rests with this Faculty.  Otherwise, the Faculty might as well never meet again and simply do whatever the Dean, the President, and the Senior Fellow of the Corporation say should be done, no matter what issue is at stake.  Not even power over the curriculum is granted Faculty privilege in the Statutes equal to the power of the Faculty to determine discipline. Mr. Lee said, “I think rather than getting into a struggle over who has the right to do what . . . we have a shared responsibility to solve these issues.” Yes, we have that responsibility.  So, why worry who or what body or person has the right to act or to set any policy?  In a weird mirror image of what sometimes—and perhaps even now—occurs in our national polity, why indeed worry?  Why not let the executive do what it wishes—especially if the executive deems that it alone has ultimate power to determine how to “solve these issues”?  As Dean Smith told the committee, “Any recommended change to our current policy [itself a policy never voted upon] must be approved by the President of the University.”  Who cares about precedents, process, Statutes, or the constitutional fabric?  Why not summarily strip flag burners of citizenship and students of fellowship eligibility?  Why bother with written Statutes and honored principles?  Why deliberate?  Why vote? It is said by some that a vote will come—though perhaps it will be cast procedurally as simply a vote on relatively brief language, perhaps involving multiple changes, in the Handbook, and reserved, as such a vote usually is, for the last FAS faculty meeting of the year, May 2018.  What we need is a vigorous Faculty debate on the current policy of sanctions and on the recommendations of this committee.  We need that debate sooner rather than later. Town Halls and meetings outside regular Faculty Meetings are no substitute for Faculty debate in Faculty meetings.  Town Halls may be useful, but Town Halls also permit one to say that Faculty have been consulted and heard without actually calling anything to a debate or vote of the Faculty. The Administration has done much maneuvering to keep Faculty votes from occurring.  Rules of Faculty Procedure were violated in the December 2016 meeting more than once.  That meeting was even adjourned contrary to the Rules of Faculty Procedure.  Professor Haig’s motion this past spring was referred to the committee in a manner extremely rare and only at the behest of the Docket Committee.  His motion concerning oaths (affirmations, pledges—a part of the recommendations of the committee) pertains to the actual though illegitimate current policy, which remains in force, but the committee appears to fail to address directly Professor Haig’s motion in any context other than, it seems, to advocate that the recommendation of the committee not be embodied in an explicit pledge or oath but in language contained in the Handbook. Finally, if the account of the committee votes and voting procedure given in the Crimson (July 21) is accurate, then there is no basis to believe that a majority or even the largest plurality of the committee voted in favor of what was stated as the recommendation of the committee.  This is deeply disturbing.  Even if one eliminates the four options that received no votes, voting on 6 options when several have significant overlap, and permitting each committee member to vote for more than one option though not at the same time stipulating the exact number of votes that each committee member must cast (two, for example, or three), produces unclear results.  At best the process of voting was so irregular and botched as to be inconsequential or nugatory, giving only the most general impression of committee views; certainly, the process of voting in the committee cannot be regarded as determinative nor as a genuine measure of the varied views of the committee members.  If it is argued that it was “approval voting,” then committee members should have been told that.  And, despite its advocates, approval voting cannot measure the degree of preference that members may have between one option they view as preferable to the status quo versus another option they also view as preferable to the status quo.  At worst, the process of voting may have been designed to obfuscate and make elastic the very act of voting itself in order to permit the declaration of a recommendation that had been determined beforehand by one or both the co-chairs of the committee who knew that such a recommendation had at least some support.  Moreover, neither of the two options that received the most votes became the recommendation of the committee. James Engell Professor, FAS (Updated August 17, 2017 to match final version of the text posted to the FAS Wiki)