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Minutes & Agendas

2000-2001


University of Hawaii at Manoa Faculty Senate, September 20, 2000

Law School Classroom 2

Contents

Chair's Report
     New SEC
     Work on core continued over summer
     Hawaiian/Second Language waiver issue seems resolved
     Inadequate Manoa representation in Presidential Search
     Administration reorganized CRDC CDS/UAP, Public Health
SVP Legal Affairs - Walter Kirimitsu
     Administration views on University Autonomy amendment
     UHPA vs Administration - difference on wording
     History of case law on university autonomy
     What is statewide concern?
     Legislature changed bill over question of ceded lands
     Pay lag
     UHPA's position - Joan Peters
     UHPA's counsel - Tony Gill rebuts Kirimitsu
     Faculty senate passes motion opposing constitutional amendment at it stands
Committee Reports
CAPP
     Resolution on Assessment
     Resolution on Home Schooling
     Resolution on suspension of differential admission requirements for some students
     Resolution on how grade point averages are calculated

SENATORS PRESENT:
Belinda Aquino, Barry Baker, Hazel Beh, Horst Brandes, Kent Bridges, Craig Chaudron, Jerome Comcowich, Robert Cooney, Joanne Cooper, John Cox, Thomas Craven, Martha Crosby, Jim Dator, Sandy Davis, Ernestine Enomoto, Carl Evensen, Andrea Feeser, David Flynn, Michael Forman, Richard Frankel, Pamela Fujita-Starck, Donna Fukuda, Michael Garcia, Carolyn Gotay, William Haning, Manfred Henningsen, Karen Jolly, Robert Joseph, Merle Kataoka-Yahiro, Irvin King, Ed Laws, Bruce Liebert, Glenn Man, Susan Miyasaka, Ralph Moberly, Wendy Pearson, Teresita Ramos, Philip Rehbock, John Rieder, Gerard Russo, Francis Sansone, Gwen Sinclair, Martha Staff, John Stimson, Charles Weems, Joel Weiner, Sylvia Yuen

SENATORS EXCUSED:
Iqbal Ahmed, Meda Chesney-Lind, Marilyn Dunlap, Patricia Fryer, Emily Hawkins, Nanette Judd, Peter Kim, Laurence Kolonel, Robert Paull, Brent Sipes,

SENATORS ABSENT:
Elaine Bailey, John Hardman, Joy Marsella, James Marsh, John Melish, Jane Moulin, Charles Mueller, David Sanders, Frank Walton, Kelley Withy, Ming-Bao Yue

ADMINISTRATORS PRESENT:
Thomas Bopp, Mona Chock, Judith Inazu, Barbara Polk, David Robb, Dean Smith, Kenneth Tokuno

OTHERS SIGNED IN:
Lance Collins, Tony Gill, Kenneth Kipnis, Joan Peters

Chair Barry Baker opened the meeting at 3:06 PM.

The Minutes for the Faculty Senate meeting of May 10, 2000 were accepted unanimously, without modification.

Chair's Report

Chair Baker gave the following Report:

The SEC was busy over the summer, meeting every week except one in July. It met as an enlarged group with both the 1999-2000 and 2000-01 Senate Executive Committee members.

Senate committee assignments were made in late May. The new SEC organized during first meeting in June. Members are:

New SEC

John Cox Vice-chair and SEC liaison to Committee on Athletics. Committee chair Edward Laws.

Joanne Cooper SEC liaison to the Committee on Administration and Budget. No committee chair.

Jim Dator Faculty Senate and Congress Secretary and SEC liaison to the Committee on Faculty Service. Committee chair Emily Hawkins.

Sandy Davis SEC secretary and SEC liaison to the Committee on Academic Policy and Planning. Committee chair Manfred Henningsen.

Ralph Moberly Senate parliamentarian and SEC liaison to the Committee on Student Affairs. No committee chair.

Charles Weems SEC liaison to the Committee on Professional Matters. Committee chair Bob Cooney.

Summer activities of the SEC were as follows:

Work on core continued over summer

General Education Core and Manoa Graduation Requirements as adopted by the Senate were sent to the BOR in mid May. Additional information requested by the BOR was forwarded in June. The core revision was approved by the BOR on 21 July. Administration and governance of the core is now the responsibility of the Manoa Faculty Senate. A Manoa Administration working group headed by Mary Tiles worked on the implementation of the new core over the summer as did another faculty group from CAPP--Manfred Henningsen, Karen Jolly, and Matt McGranaghan. The latter issued a final draft of an implementation plan entitled Faculty Governance of Manoa General Education. Proposed deadline is 31 December 2000 to allow implementation in Fall Semester 2001

Hawaiian/Second Language waiver issue seems resolved

The resolution of the Hawaiian/Second Language graduation requirement waiver policy had been outstanding, but it now appears resolved. During the first week of the duty period, on 16 August, a meeting of the Faculty Congress was held. Faculty expressed their views on the waiver policy resolution passed by the senate in April, and a vote by all faculty members was called for. This was held, and 57% of the votes cast supported the resolution while 43% were opposed. The election results were certified by the SEC on 18 September and the resolution now goes to CAB to craft language to change the charter and bylaws to conform to this new governance requirement. Byproducts of the process were questions raised regarding election procedures and the ability of all eligible faculty members to receive ballots and be able to vote.

These matters will be forwarded to CAB and CFS for consideration.

Inadequate Manoa representation in Presidential Search

In June, the SEC and the Council of Dean's and Directors expressed concern regarding what we considered inadequate Manoa participation on the BOR-appointed Presidential Search Advisory Committee. A letter expressing this view and requesting additional Manoa faculty representation was sent from Senate Chair Barry Baker and Council Chair Chuck Hayes to the Board. No response has been received. At the BOR's request, on 15 September three faculty names were forwarded for selection to serve on this important committee.

In mid July the SEC sought advice from Professor Jon Van Dyke of the Law School on the proposed state constitutional amendment on UH autonomy, and in addition was addressed by attorney Tony Gill and J N Musto representing UHPA.

In late July, several resolutions from CAPP were received regarding changes to Manoa admissions requirements.

Also in late July, the SEC sent a letter to President Mortimer regarding lack of campus input, particularly from students, on the football team name and logo change, and in administrative changes in the processing of all extramurally-sponsored awards through RCUH.

In early August, the SEC met with Pauline Sheldon, interim dean of the School of Travel Industry Management to discuss the future of TIM, its relationship with the College of Business Administration, and to offer our support in maintaining TIM as an independent, stand-alone academic unit. This matter was also brought up in a 15 August meeting with EVC Smith.

Administration reorganized CRDC CDS/UAP, Public Health

Also in early August, the UH administration implemented an approved reorganization of the Curriculum Research and Development Center, and the Center on Disability Studies, University-affiliated programs to the UHM College of Education, as well as the approved reorganization for the School of Public Health programs to the UHM John A, Burns School of Medicine.

In mid August, a Manoa Budget Advisory Committee was formed. Senate members are John Cox and Barry Baker. The committee will be considering long-term budget planning from 2001 through 2007 and the biennium budget for fiscal years 2001 to 2003.

A 15 August meeting of the SEC with President Mortimer and EVC Smith discussed the status of collective bargaining, autonomy, extramurally funded awards, athletics department issues, the proposed Manoa chancellorship, and the CBA/TIM relationship.

Also in mid August at the SEC's request, President Mortimer forwarded a letter enumerating the responsibilities of the recently appointed Special Advisor to the President, Mr. Harold S. Masumoto.

Over the course of the summer the SEC has received numerous requests for faculty names to serve on committees; the CFS has acted or is acting on these requests. One important committee is the WASC Accrediting Advisory Committee, Barry Baker as chair and John Cox serve on this committee. Student leaders were dissatisfied with their participation on this committee and they prevailed upon EVC Smith to enlarge the committee to include more students and additional faculty who they believe would better represent their interests.

A Manoa chancellorship committee has met to advise EVC Smith on that issue and of particular interest is a new Manoa administrative structure that it appears will include a dean or vice chancellor for undergraduate education, in response to previous faculty recommendations.

In September, the SEC participated in a retreat with Manoa administrators and deans and directors that was fruitful, with a frank exchange of views on many subjects of interest to faculty.

There will be a testimonial for David Yount and a reception at 4:30 pm Thursday 28 September in the TIM Sunset Resource Center.

On 13 September the SEC received a request to review a proposed College of Engineering reorganization plan that was to be presented to the BOR this week. The request had an impossible deadline of 18 September. The request has been forwarded to CAPP for consideration, however it will likely become a fait accompli before CAPP can act.

SVP Legal Affairs - Walter Kirimitsu

Chair Baker then introduced Mr. Walter S. Kirimitsu, Senior Vice President for Legal Affairs and University General Counsel, who presented the views of the UH Administration concerning the Constitutional Amendment on University Autonomy that will be on the ballot at the next General Election on November 7.

Administration views on University Autonomy amendment

Kirimitsu said there were two major changes in the wording on University governance in the present State Constitution (Article X, Section 6) and that of the proposed amendment.

One concerned the elimination of the phrase "as provided by law" that restricts the power of the Board of Regents to "formulate policy and to exercise control over the university.. ." In its place was inserted the sentence, "This section shall not limit the power of the legislature to enact laws of statewide concern." About the desirability of this change, there was never any dispute between the University Administration and the University of Hawaii Professional Assembly (UHPA, the faculty union), Kirimitsu said.

It was the second change that is controversial, though even UHPA initially did not object--this was a last-minute addition by the Legislature at the end of the previously-agreed upon sentence which states "The legislature shall have the exclusive jurisdiction to identify laws of statewide concern."

UHPA vs Administration - difference on wording

The main question of dispute between the Administration and the UHPA here is whether this final sentence means that if the BOR and the Legislature differ on what is a matter of "statewide concern", the BOR can go to the Courts for their judgement, or whether the Legislature has the final word on what is and is not a law of "statewide concern" from which there can be no recourse to the Courts.

UHPA says "Yes. The word of the Legislature is final. We cannot appeal to the Courts" The Administration says, "No. There is no change in the normal right to judicial review," said Kirimitsu.

The Hawaii Supreme Court has consistently ruled that separation of powers can not be abrogated by Constitutional Amendment, and that the words in the Constitution should be construed as written according to the usual rules of English grammar and meaning, Kirimitsu said.

Thus, if the BOR decides that something is "internal" to the University, and both houses of the Legislature pass legislation that says to the contrary that it is of "statewide concern," and the Governor signs or does not veto the bill, then the BOR can go to the Courts as usual, and expect a ruling, all the way up to the State Supreme Court, if necessary, Kirimitsu maintained.

Kirimitsu gave examples of possible disputes between the BOR and the Legislature. One concerned the issue of ceded lands upon which the University sits. The Legislature, in his view, could say that the University is not free to dispose of those lands in ways contrary to the laws of the Legislature. The Legislature could preempt the right of the BOR here. Similarly, the Legislature could preempt the right of the BOR to make rules concerning the privacy of medical records if those rules differed from those of other State employees, declaring this also to be a matter of "statewide concern."

History of case law on university autonomy

Finally, Kirimitsu discussed the history of case law on issues of university autonomy in Hawaii, noting that the 1978 Constitutional Convention did amend the previous Constitution in ways that gave the University more autonomy than it had before. Only once, Kirimitsu stated, did the Courts decide that a State law superceded a policy of the BOR. That was the case of Levi vs. UH concerning the age of mandatory retirement. State law said age 70 and BOR policy at the time said age 65. Levi was successful in getting the Court to decide that State policy here should prevail over that of the BOR.

"Who knows when a dispute may come in the future?" In the meantime, we are losing a great opportunity to gain more freedom and flexibility in our operations if the voters do not support the present constitutional amendment, Mr. Kirimitsu concluded.

A questions and answers period followed.

What is statewide concern?

Kirimitsu was asked, "What is not of `statewide' concern? Isn't everything?"

Kirimitsu replied that at one level, yes, but the courts will apply a much stricter interpretation--there must be a "substantial" level of concern.

Kirimitsu was asked since UHPA disagrees, are you really confident that the amendment will grant significant autonomy to the University?

Yes. The Legislature has in fact enacted three bills in the recent past (including the one that created the office of UH General Counsel) that have granted the University greater autonomy It is the intention of the Legislature in this amendment to grant even more autonomy. The University must more affirmatively assert the autonomy it already has, and which this amendment expands.

Legislature changed bill over question of ceded lands

In response to another question, Kirimitsu also suggested that the sentence in question was inserted at the last minute by the Legislature not to give greater power to the Legislature over the University per se, but in response to "heavy lobbying pressure" by groups concerned that the University might make decisions concerning the ceded lands on which it sits that would be contrary to what these groups might prefer, or to what might be otherwise enacted into law.

Pay lag

The issue of the impending pay lag of faculty salaries was also brought up as an example of the refusal of the Administration now to exercise the autonomy it already has vis-a-vis the State. Kirimitsu replied that the matter is presently before the courts.

At this point, Chair Baker introduced Professor Joan Peters and Mr. Tony Gill, who had been invited by Professor Alex Malahoff , who is also President of UHPA, to represent him and to present to the Senate on his behalf the views of UHPA on the autonomy amendment.

UHPA's position - Joan Peters

Peters started out by making it clear that it is the desire of UHPA to work as closely and positively with the Administration as possible, and only to disagree when there are serious matters of contention. This is one, she said.

She described the way in which the issue had slowly emerged within the governing board of UHPA, and then read the UHPA Resolution, that had been passed overwhelmingly, against supporting the autonomy amendment. She said it is clear that the amendment, far from granting the University more autonomy, gives us significantly less than we have now.

She also read from the official Fact Sheet that comes from the State concerning the proposed Amendment.

While appearing to present the Administration and the UHPA side fairly, at the very end of the UHPA position, the Sheet appears to discount the UHPA objection, she said.

UHPA's counsel - Tony Gill rebuts Kirimitsu

Gill then spoke at considerable length, repeatedly rebutting the statement, uttered by Kirimitsu, that it was "absurd" to believe the wording in question does away with the right to judicial review. Gill agreed with Kirimitsu that UHPA had supported the amendment right up to the last-minute addition of the final sentence. Without that sentence, the amendment would be OK. With it, it is entirely unacceptable, Gill said.

It makes no sense to give any branch of government the exclusive right finally to determine the legality of its own acts. And yet that is what these words "plainly" do--according to the normal rules of English grammar and meaning, the standard that Kirimitsu correctly said the Courts will use, Gill stated.

Gill also disputed Kirimitsu's claim that there was only one prior court case concerning the autonomy of the University. The Levi case in 1981 that Kirimitsu cited is one, but there is also the Daeufer case in 1983.

And, Gill said, there have been at least ten other cases that have also concerned the autonomy issue to some extent.

He also said that the Courts are already generous in allowing the Legislature to determine what is of "statewide concern" in such a way that other provisions of the Constitution (on equal protection of the law, for example) can be overridden by constitutional amendment, in matters not related to UH autonomy. He reminded the Senate of the Court's position on same-sex marriage. The Courts initially maintained that same-sex marriages were valid, under the equal protection clause, unless the State could prove a compelling state interest to the contrary. The Legislature turned the matter over to the voters in a constitutional amendment who overwhelming disapproved of same-sex marriage. The Courts then stated (and properly so, according to established principles of law, Gill said) that the Amendment against same sex marriage overrode the right to equal protection under the law as also provided in the Constitution.

If the Courts decided this way on the same-sex issue, there is no reason to assume they will decide otherwise on the Autonomy Amendment, if passed in its present form. They will say they have no right to decide on a controversy between the BOR and the Legislature; that the Amendment clearly and plainly states that the Legislature has the final word.

Gill reviewed the history of wording on UH governance in the State Constitution from 1968 through the present proposal (handout attached). He also distributed what he labeled "Sloppy Diagram #1" that depicts his understanding of the relationship between the Constitution, Statues, and BOR policies (also attached).

Gill concluded that the principle of checks and balances is a good one that must be preserved, and that if this amendment passes, it will be much harder to change it than it would be if the amendment were defeated now, and preferred wording sought later.

He agreed that the current wording does not give the UH real autonomy anyway. He suggested that we should search out the best examples of university autonomy, and enact them here. He cited 1848 Michigan legislation, and the laws governing the University of California system, as especially good examples.

A question and answer period then followed.

Gill was asked if it was the Union's judgement that having an unelected group of the governor's friends running the University is better than having the 75 elected members of the Legislature running it.

Gill replied, no, and that was why he suggested we vote no on this amendment, find a better model for autonomy, and enact it.

Kirimitsu was asked why the Administration was not willing to reject the current amendment and try to get better wording later. He replied that the Administration believes that, if the Amendment is rejected by the voters, the Legislature will not be willing to reword and resubmit it later--at least for a long time; that getting the present amendment passed is our best hope for autonomy.

Someone asked if the current Fact Sheet can be changed. Kirimitsu said it is being reviewed by the Attorney General now, who is thoroughly familiar with the difference of opinion between the Administration and UHPA. Kirimitsu is hopeful a new Fact Sheet will result.

Someone then asked if that meant that the Courts would refer to the Fact Sheet to interpret the intent of the Legislature, and Kirimitsu replied that he hoped the courts would not be that weak; that they would come to their own judgement on the meaning of the constitution and not be bound by what the Fact Sheet said.

Someone then asked what the Faculty Senate can do in response to this information. Chair Baker replied that this meeting was intended just for information purposes, but that if anyone wished to make a motion to be voted on, including that of asking a committee to review and make recommendations, then that was in order.

Faculty senate passes motion opposing constitutional amendment at it stands

After some further discussion a motion was made which stated that "the Faculty Senate goes on record as being in opposition to the proposed constitutional amendment on autonomy as it is written." Chair Baker asked the author of the motion Associate Researcher Bob Cooney whether this motion represented a sense of the senate; Cooney relied that it did.

After very brief consideration, a vote was taken, and the motion passed 22 for, 12 against, and 6 abstentions.

Committee Reports

CAPP

The next order of business was a report by CAPP and the presentation of four resolutions, by CAPP chair, Professor Manfred (No Hair To Lose) Henningsen.

Henningsen stressed the fact that the recent actions by the Senate in modifying the core, and the assessment proposal from CAPP today, if adopted, will require considerably more participation by the faculty members in their own governance than ever before--regardless of what happens to the constitutional amendment.

Yet the low recent faculty turnout (except by those departments directly concerned) for an issue as vital as the Language Waiver makes one wonder if the faculty really wants, or deserves, autonomy. We are approaching the voting turnout levels of ASUH which are themselves similar to voting rates in England in the 17th Century, he pointed out, when the franchise was purposely restricted.

Resolution on Assessment

Henningsen then called attention to the material distributed to the Senate along with the Agenda (and attached to these Minutes), beginning with the Draft Handbook on Departmental Assessment of Undergraduate Learning at the University of Hawaii at Manoa. He thanked Ralph Moberly for preparing the first draft of the Handbook, Craig Chaudron for fine-tuning the Handbook, and Ken Tokuno from the Office of the Executive Vice Chancellor for his invaluable assistance throughout the process.

Henningsen read the Resolution which explained the purpose and need for the action on assessment. He called the attention of the Senate to the other resolutions, also attached, which he said came to CAPP from Director David Robb, UHM Director of Admissions and Records. Chair Baker asked that all of the CAPP resolutions be voted on as a package, if possible; no senators objected.

A question and answer period then ensued.

One person wanted to know why ACTs were to replace the SATs for home-schooled applicants.

Robb replied that ACTs test actual knowledge in subjects usually taught in high schools while the SAT is an "aptitude" test (as the "A" in SAT used to mean). So the ACT will serve not to replace the SAT but rather the school transcript that home schooled students do not have.

Resolution on Home Schooling

Someone wanted to know why home-schooled applicants should "generally be 17 years of age or older"? Robb replied that in spite of the abolition in the 1960s/70s of the old In Loco Parentis doctrine, the

University still would have special obligations towards any minors who were admitted as its students. So, "generally" someone younger than seventeen should not be admitted, but could be in exceptional cases.

Resolution on suspension of differential admission requirements for some students

Resolution on how grade point averages are calculated

Why has UH required that out-of-state applicants have higher academic qualifications than in-state applicants? Mr. Robb said he was not sure; that there had been considerable discussion in his office about that. It was believed that it related to the fear (widespread generally, and not just concerning admission to UH) that after obtaining statehood, Hawaii would be flooded with mainlanders, who might push locals out of UH. This did not happen, and there is now no justification for having different academic standards for locals and mainland applicants, if there ever was.

Chair Baker then asked EVC Smith and AVPAA Bopp if they had any comments to make on the resolutions, and Smith replied only to thank CAPP for moving so well and quickly on the matter, and to inform the Senate that he had today committed funds to the Assessment process.

Henningsen again reminded the Senate that the Handbook was a very good guide, and that it also listed the names of people at Manoa who could provide individual departments with assistance in setting up their own assessment policies and procedures. "This is being done by the faculty, and not the administration," he reminded everyone. There is also additional information about the assessment process on the websites identified in the Handbook, he said.

The question was called for. The vote on calling the question was unanimous, as was the vote on the resolutions themselves, which were voted on as a package, and not separately.

Immediately after voting the Senate lost its quorum and the meeting adjourned at 4:58 PM.

Humbly submitted by your loyal scrivener,

Jim Dator