December 15th, UO Constitution Day

December 15 is UO Constitution Day. The UO Constitution lays out the division of responsibilities between the UO President and the UO Faculty, and the procedures for resolving disputes. It was adopted by the UO Faculty Assembly on December 7th 2011, and signed by UO President Richard Lariviere on December 15th.

In honor of the event I am posting a history of the Constitution, from the pseudonymous “Old Man”. As prelude, here is the video from the Assembly meeting. The introduction by Senate President Robert Kyr (Music) is followed by Susan Gary (Law), John Bonine (Law) and Peter Keyes (Architecture) giving excellent explanations of what the constitution means:

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I had no involvement in writing the constitution or its adoption. I would appreciate it if those who did would post comments and corrections.

The History of the UO Constitution

(and the Policy on Policies)

as Recalled by the Old Man­­­

Introduction: This document recounts the loss of the University’s century-old tradition of faculty governance, enshrined in its Charter, and events leading to its recovery through the creation and adoption of the Constitution of the University of Oregon.

University of Oregon Charter

“The President and professors constitute the faculty of the University, and, as such, shall have the immediate government and discipline of it and the students therein…”

Oregon Revised Statutes (ORS) § 352.010; originally section 14 of Law No. 9, Oregon Laws 1876

The Good Old Days

In 1876, the Oregon State Legislature charged the faculty of the University of Oregon (i.e., the president and professors) with the immediate government of the University. From that time, decisions were made regarding issues of academic relevance in public session by an “Assembly” of professors presided over by the University President. Faculty participation in the Assembly was encouraged by the agreement to not schedule classes or other events for Wednesday afternoons — the time reserved for Assembly meetings. Issues brought to the Assembly for approval originated as a recommendation from one or another Committee or from an Assembly Member. Then, an elected faculty Senate would study the issue and bring it, along with the Senate’s degree of approval, to the Assembly for a vote. The President had the power of veto but used it rarely, if ever. This process ensured faculty governance in its simplest form.

The Decline

In time, however, events eroded faculty participation in Assembly meetings. The prime factor was increased enrollment, which caused a shortage of classroom space, prompting the University to discontinue the historic ban against scheduling Wednesday-afternoon classes. The resulting decline in Assembly attendance allowed, according to the testimony of a thoughtful observer, an ideology-driven minority of Assembly members to take control of the Assembly, thereby daring the University President to exercise “politically incorrect” vetoes. One may surmise that this wake-up call prompted the President to protect himself from further such episodes by charging the Faculty Advisory Council (FAC) with finding a way to fix the problem. The “fix” ultimately consisted of transferring all governance authority of the troublesome Assembly to the Senate. The effort was labeled simply as “[preparing] specific legislation on the reform of the system of faculty governance.”

“The Faculty Advisory moves that it, in consultation with the President of the University Senate and the University Senate Executive Committee, appoint an ad hoc faculty committee to prepare specific legislation on the reform of the system of faculty governance…The committee shall make its final recommendations to the University Assembly prior to the end of Winter Quarter 1995.” Assembly Minutes May 4, 1994.

The Reform

An unexplained perceived need for “reform of the system of faculty governance” might never have been sufficient reason for the Assembly to relinquish its authority. In the new governance document (“Senate Charter”) and in the Minutes of the Assembly meetings we get a hint of how the Assembly was persuaded to kill itself. For the first time since its passage, 20 years earlier, the Oregon Public Meetings law was claimed by the Administration to apply to the internal governance of the University. My discussion with a committee member indicates that the University General Counsel advised the Committee that a 50% quorum requirement associated with that law applied to the Assembly. A perusal of the Assembly Minutes reveals that a confused Faculty was more-or-less convinced that the Assembly was legally stuck with that impossible quorum requirement, although the minutes do not show either the Committee or the newly appointed President making that claim.

The unwillingness of the Assembly to let go of its authority completely was expressed by a last-minute addition to the Senate Charter, which grants the Assembly the right to meet, with full legislative power, by petition. However, the possibility that such an Assembly might act against presidential interests was diminished by the inclusion in its membership of all Officers of Administration, a class that was soon magnified by the President, who arranged to have Office Managers reclassified as Officers of Administration. The Assembly appeared to be safely caged and faculty governance was now vested in the Senate.

The Dark Ages

The newly created Senate, which had a minor membership of constituencies other than professors, was crippled from the start. Its charter gives no indication as to its purview or the manner in which it was to negotiate with the President. The President took advantage of this omission and ignored a State Board directive that required him to define the scope of faculty authority, leaving him free to set limits on apparently ad hoc basis. Further, he let it be known that any action taken by the Senate was, at best, a recommendation to the President, which could be ignored at will. These abuses of the State Charter revealed that a protocol was needed to resolve, in a constructive manner, the inevitable disagreements that would arise between professors and president.

The sorry state of faculty governance became public when the Senate was presented a motion to oppose the US invasion of Iraq. When the President privately informed the Senators, in effect, “that’s not in your purview”, the Senate agreed, and, in so doing, publicly admitted its own impotence. An Assembly to debate and vote on that issue was then called by petition. In what was possibly the largest Assembly meeting in University history, approximately 500 members registered, late on a rainy Friday afternoon. From the podium, the President announced that, for lack of a quorum, the gathering was not an Assembly and forthwith left the podium. (For a brief, somewhat over-the-top review of the massacre of faculty governance see http://eugeneweekly.com/2008/11/20/news.html .)

With the Assembly caged and the Senate at sea, was anything left of faculty governance? The Administration declared that the Committees were the heart of faculty governance. However, the Committees, which never had governance authority, now did not even have a faculty body to whom they could entrust motions for change. Their accomplishments, of which there may have been many, rarely became visible. They submitted annual reports to the Senate, where they were duly filed.

The Road to Recovery

As the Senate struggled to get a life, it sought ways to circumvent the 50% Assembly quorum-requirement alleged by the President. Enabling the Assembly might open a door for changes in the Senate Charter that would breath some life back into faculty governance. When queries to the UO General Counsel resulted in no useful responses, the 2007-2008 Senate President addressed the query directly to the Oregon Department of Justice (DOJ). On November 8, 2008, the DOJ responded. The response concluded that the Assembly had no quorum-requirement unless the Statutory Faculty were to impose one. In an important BTW, the DOJ noted that the UO governance bodies and procedures defined by the Senate Charter of 1996 violated the UO Charter (quoted at the top of this article). Because The University’s governance bodies (Assembly and Senate) included non-Faculty, the DOJ declared a requirement for oversight on these bodies by the legally responsible body, the Statutory Faculty. However, the Senate Charter provided for no such oversight, and, was, consequently, an inadequate governance document.

The 2008 DOJ letter was a game-changer. In requiring the University to modify its internal governance, it opened the door for change that would restore the meaning of “faculty governance”. The Statutory Faculty took advantage of this opportunity to create a proper Constitution – a contract between the President and the Professors as to the manner in which they would cooperate in matters of internal governance. The pathway for doing so was already cleared by State Board Internal Management Directives which (a) required the President to define the scope of Faculty authority and (b) specifically allowed that authority to be enshrined in a contract.

The Restoration

The UO Constitution in its present form was completed following about three years of work, which produced several short-lived documents. Final stages involved constructive negotiations between the Committee and President Lariviere. The negotiations were conducted by shuttle diplomacy, executed by the President’s Senior Assistant. At least one important contribution (the manner in which the Assembly should meet, discuss and vote) was made from the Floor at a meeting of the Statutory Faculty. The final document, accordingly amended and rewritten, was unanimously accepted at a well-attended meeting of the Statutory Faculty in MacArthur Court on December 7, 2011, and was ratified by President Lariviere on December 15, 2011.

The UO Constitution has the following essential features:

The Statutory Faculty conferred its governance authority upon the Senate.

The Senate has representatives from constituencies other than the Statutory Faculty, in keeping with the belief that input from the broader community would contribute to the Senate’s effectiveness.

The Senate would exercise its authority in the form of Legislation, Policy Proposals and Resolutions.

To avoid the possibility that Senate actions might be ignored, time-lines were established for Presidential response to those actions.

For legislation, there was also the condition that a bill passed by the Senate would become “Law” by default if the President failed to respond according to those time lines.

Throughout this process, open discussion and negotiation allows the Statutory Faculty (as represented by the President and the Senate) to create broadly satisfactory laws and policies.

Because the Senate contains members that are not Statutory Faculty, the Assembly retains oversight on the Senate (as called for by the DOJ letter of 2008). Since routine Assembly meetings for oversight would draw little interest, the Constitution requires the Assembly to exercise its oversight responsibility when the Senate fails in its shared governance responsibilities as manifested by the inability of the Senate and the University President to reach agreement on a matter of Legislation or Policy. These Assembly meetings would allow the entire Statutory Faculty to weigh in on the contested issue, after which the President could either accept or veto the Senate motion. To assure a responsible, representative Faculty participation, a live Assembly Meeting for discussion would be followed by online discussion and then by online voting.

During the drafting of the Constitution, there were several notably sticky points, some within the Committee and some between Committee and President. In the early stages, a push within the Committee for two Senates, one dealing with “strictly academic matters” and the other with “anything else” was beaten back on the grounds that these two categories were bound to overlap and that much time and effort would be wasted on questions of purview. Another sticky issue dealt with the President’s view that the Senate should confine itself to “academic” matters. The Committee was on board with that but unwilling to prepare a “laundry list” of such matters. Their concern was that anything not on the list might be understood to be nonacademic and, hence, outside the Senate’s purview. Such an interpretation would surely cripple the Senate’s ability to execute the responsibility given it to govern the University. All agreed that the Senate would be unlikely to speak on which trash-hauling company would get the UO contract, but that there were many academic issues of importance to university governance that did extend beyond the details of classroom teaching — for instance, the role of budget in shaping the curriculum. To finesse the question of exactly which issues were academic in nature, the Committee offered and the President accepted the present language: “Sole faculty governance authority at the University of Oregon resides in the Statutory Faculty. This authority extends to all academic matters as commonly understood in higher education.”

Policy on University Policies

The history of the “Policy on Policies” is short and obscure. It appears that the Administration put forth such a policy proposal and the Senate reacted by creating an ad hoc Committee (November, 2011) to respond. I failed to find a record of the membership of that committee or any evidence that it brought its efforts to the Senate for adoption. I surmise that, when Lariviere received his dismissal notice­­­­­­­ soon thereafter, the Senate Executive, recognizing the importance of having such a policy in harmony with the Constitution, chose to ignore Senate protocol in the interests of getting Lariviere’s signature on their amended policy. On December 15, 2011, the President ratified both the Constitution and the Policy on Policies at a small signing ceremony in his office. (The full Senate did get to act on the Policy when it was brought to the Senate in March, 2015, for a minor revision.)

Does the Constitution have a Future?

It is to the University’s advantage that proposed actions and policies involving academic matters be widely discussed and understood. The strength of our Constitution is its ability to deal with controversial issues in an agreed upon, open manner that honors the UO State Charter. Both the Senate and the President have responsible roles in this process. If they carry out their Constitutional roles faithfully and with confidence, the Constitution will serve the University well for a long time.

Corrections and comments are welcomed. Please add them to the comments on this post.

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