At the University Council September 20, Provost Stanley Chodorow asked for the views of members and of observers who had been involved in the drafting of the Proposed Charter of the University of Pennsylvania Student Disciplinary System and Proposed Code of Academic Integrity," published For Comment in Almanac September 19. With the reminder that he welcomed all feedback by October 6 , the Provost answered questions about the meaning of specific passages but, with Moderator Will Harris, indicated that the Council session would be used to gather advice and opinion rather than to debate to conclusion. This one-page synopsis is condensed from the more detailed transcription by the Office of the Secretary for the Council Minutes.--Ed.

Council: Issues Raised re the Draft Student Disciplinary Charter

Preamble: The Provost said that no system can be developed that meets everyone's concerns, but the goal this process was to produce a fair, effective, and open system for handling student disciplinary matters; to make it readable rather than legalistic; and to emphasize mediation over adjudication. While there is a difference between academic integrity cases and conduct cases, he added, the disciplinary hearings for such violations do not differ appreciably from one another. He also noted that those graduate students who fall under the disciplinary guidelines of their individual school would not be subject to these proceedings.

Discussion: To Dr. David Hildebrand's question on the extent to which the new charter would necessitate an additional administrative entities, the Provost said it would not change the fundamental size or structure of the Judicial Inquiry Office, but would create a new mediation service which might be more professionally managed than the current system, and it would reorganize the process for selection and constitution of hearing panels--a major problem in the current system. He said it also creates two student boards to provide members of hearing panels and to engage in educational activities for fellow students. Any new bodies that are created as a result of the new system largely replace existent bodies.

On behalf of the student committee that has been working with the Provost, Wilton Levine described the current draft as a workable and simple document, but he listed as the committee's concerns:

... a lack of general oversight by student and faculty members on cases which are not closed; he suggested that the jurisdiction now shown as held by the Director of the Office of Student Conduct in consultation with the Provost and Office of General Counsel be extended to some degree.

... that the Provost appoints most individuals to the major positions; he suggested that the Disciplinary Hearing Officer and Disciplinary Appellate Officer be appointed by the Faculty Senate.

... that the hearing procedure as written remains prosecutorial and unfair, with the student/respondent against the OSC and University, whose case is likely to be made by a lawyer--unfairly placing student against specialized training. (Ms. Laurie Moldawer reiterated this point later.)

... that a committee recommendation--that the Office of Student Conduct present their case in writing to the Hearing Board--is not included.

... that the Chair of the Hearing Board should be in charge of the hearing rather than the Disciplinary Hearing Officer.

... that the Hearing Board does not make a finding of fact and sanction, but merely a recommendation of sanction to the Provost.

... that in the conduct of hearings, if the respondent waives his/her rights to a closed hearing, the University should not require the agreement of all concerned parties for an open hearing; the respondent's willingness to waive his/her own privacy should be sufficient, except in matters where state/federal law require the complainant to be a party to the case.

... that although the student committee agrees that the Provost should be able to remove from the Honor Council students who fall out of good academic standing, the Charter should require internal review by the involved students and faculty and a subsequent vote to remove members of the Council for nonperformance of duties.

To Christian Hensley's query on how students would be made aware of a new Charter and procedures, the Provost said the document would be online, and each student would receive a copy upon entry to the University. He also foresees an active program of education led by the Student Conduct Council and the Student Honor Council.

Victor Prince asked if the committee had looked at judicial systems elsewhere, and Mr. Levine reported that the committee researched them at some 20 similar institutions. The Provost added that the committee also examined a "model charter" drafted by lawyers familiar with legal issues in higher education. Mr. Prince also asked about the Provost's power of intervention, and Dr. Chodorow said no system can invariably serve its purpose and the University's mission; as a result, a representative of the institution's mission--such as the Provost-- needs to be able to "reach in" and fix what might be broken. Mr. Prince suggested that some specifics of the Provost's oversight be provided in the charter including the reasoning behind it and the process that such an intervention might follow.

Lance Rogers called the proposed judicial charter unacceptable to undergraduates; comparing issues of the Provost's oversight in the students' Charter with those in Faculty Senate proposals [on sanctions for just cause], he suggested a similar compromise giving the Provost the power to reduce sanctions, but not to increase them. The Provost said he stands behind the reasoning for this element of the Charter in that (1) he is delegated the ultimate responsibility for upholding the mission of the University, and (2) he is the person who must defend the action. He said an increase in penalty, or intervention, would be rare.

Dr. Anthony Tomazinis expressed concern about the method by which differences of opinion will be adjudicated. Mr. Levine noted that the proposal provides for a third person to direct the hearing, but emphasized that the third party is appointed by the Provost as is the person presenting the case for the University--adding that while the Provost should have the ultimate authority, the system should give more ownership to students and faculty.

Dr. David Hackney made a number of suggestions, some of them parallel to those of the students--such as one that the DHO be chosen by the Faculty Senate, and another that the Charter clarify the criteria under which a Provost may intervene. To his comment on the Disciplinary Appeal Officer's being subordinate to the Provost, the latter replied that the DAO as a tenured faculty member would not necessarily be subordinate in that position. President Rodin later noted that there are several instances in which institutional authority is granted to individuals (e.g. the Ombudsman) who have represented the interests of the University community "with the necessary dispassion, fairness, and effectiveness. That a person is appointed by the provost is not de facto evidence that the person cannot represent the interests of the wider community."

Among the additional questions and suggestions by Dr. Hackney:

... the Charter does not state explicitly that once an individual is found not to be responsible the case is closed. (The Provost replied that this was not the intent, and that once a student is found innocent or not responsible, the case is concluded.)

... the requirement that the respondent or witnesses provide a written statement must be qualified in that there are certain situations for which such statements would be legally unwise (i.e. if the student were facing legal challenges outside the University, statements could be subpoenaed). As the Charter is now written, a student refusing to provide a written statement would necessarily be in violation of the charter; language should be added specifying situations under which a student legitimately cannot or should not make statements to the hearing panel or the OSC.

... the [confidentiality agreement] is unclear: Would a respondent be permitted to contact an attorney when the attorney would not be permitted to appear on behalf of the respondent? The Provost responded that the respondent does have the right to consult an attorney, and any discussion that surrounded a meeting would be protected by attorney- client privilege.

... the Charter places the decision as to whether an attorney is excluded from a disciplinary hearing with the prosecutor/Office of Student Conduct; suggestion made that the Disciplinary Hearing Officer might be a better person to make that decision.

... the requirement for a respondent to sign a release to permit the judgment to be made public is perplexing. The Provost replied that the provision was included with applications to graduate and professional schools in mind, in order to comply with the Buckley Amendment.

... the 7-day window during which a student may file an appeal with the Disciplinary Appeal Officer should have its opening point altered. By holding a meeting three days after the conclusion of the hearing which notifies the respondent of the decision, there would be no ambiguity as to when the 7-day window begins (i.e. when the respondent received the notification of the result, when it was mailed, etc.). The student and the student's advisor would be invited to that meeting and would not necessarily be required to attend, but the time at which the window begins would be clear for all parties involved.

Next Steps: Asked to elaborate on the process from this point to the arrival at a final document, Provost Chodorow said he would collect all comments on the draft, hold a conversation with the student committee including discussion of the comments and the language of the draft, and make a decision on the final version of the charter after these consultations.