Senate Agenda, EXHIBIT VII, March 23, 2001

REPORT OF THE AD HOC SENATE COMMITTEE
TO REVIEW THE DRAFT CODE OF STUDENT CONDUCT

The Ad Hoc Senate Committee to Review the Draft Code of Student Conduct was established on November 17, 2000, by the Senate of the University of Western Ontario, with the following terms of reference and composition:

Terms of Reference

To review and comment on the draft Code of Student Conduct prepared by the Vice-Provost's Advisory Committee

To seek input from the University and external communities

To report to Senate on March 23, 2001

Composition of the Committee

Mr. Chris Sinal, Undergraduate Student, Chair

Professor Paul Barker, Department of Social Science, Brescia College
Mr. Fern Gauthier, Graduate Student
Professor Albert Katz, Department of Psychology
Ms. Nicole Nelson, Undergraduate Student
Professor Martin Westmacott, Department of Political Science
Ms. Michelle Witen, Undergraduate Student

1. Committee Activities

The committee first met on December 12, 2000. From December to March, the Committee solicited public input through advertisements in the Gazette and Western News, and displayed on TVWestern. In addition, the Chair of the committee wrote to specific groups in the University and external communities requesting input. In one open forum, the committee heard presentations from organizations and individuals from the University and external communities. Additional forums were held at King's College and Brescia College. Candidates for the presidency of Huron University College Students' Council, as well as the University Students' Council, made known their views as well. In closed sessions, the University Students' Council and the Broughdale Community Association made presentations.

The Committee extends its appreciation to those who made written submissions, or who appeared before the Committee. The names of those who submitted briefs or made presentations to the Committee can be found in Appendix 1.

The submissions received by the committee addressed numerous areas of the draft Code, which the committee has examined and commented on below. A copy of the draft Code referenced by the committee can be found in Appendix 2.

SCOPE OF THE CODE

The draft Code applies to off-campus conduct in the following instances:

"Conduct that occurs on the premises of the University or its affiliated colleges;

Off-campus conduct when the individual is acting as a designated representative of the University or a student organization recognized by the Board of Governors as representing parts of the student body (USC, SOGS, MBAA) or when the individual holds out that he or she is a representative or member of a student group or organization at the University;

Off-campus conduct that has, or might reasonably have, an adverse effect on the proper functioning of the University or the rights of a member of the University community to use and enjoy the University's learning and working environments."

The Committee heard a wide range of concerns involving the application of the draft Code of Student Conduct to off-campus student activity. Members of the external community who presented submissions felt that the Code should contain a statement that the University does "not condone behavior that infringes upon the rights of the University's neighbors, and specifically prohibits participation in unlawful activities." It was also suggested that the Code contain a statement of good will whereby the University encourages students "set for themselves the highest standards of behavior off-campus, including behavior conducive to the peaceful and safe enjoyment of housing by both students and neighbors." Student submissions expressed concern that the Code could be applied to student conduct that was unrelated to an individual's behavior as a member of the University.

With respect to the concerns of the external community, the Committee supports the addition of a statement of good will to the draft Code. As for student concerns, the Committee believes that the scope of the draft Code should be narrowed to include only off-campus behavior of designated representatives of the University Students' Council, Society of Graduate Students, and Master of Business Administration Association. The inclusion of the term 'student group' would unnecessarily extend the Code to student conduct that is not directly related to an individual's behavior as a member of the University's academic community. In addition, the Committee believes that the scope of the draft Code be narrowed to off-campus conduct where the object is, or might reasonably be, to have a detrimental effect on the proper functioning of the University or the rights of its members. Adding the element of intent emphasizes the action rather than solely its intent.

The draft Code stipulates that an "officer, leader or spokesperson of a student group or organization at the University may be held responsible for violations of the Code by a member of the group or organization if the member has received consent or encouragement from the officer, leader or spokesperson to engage in conduct prohibited under this Code." Submissions received from student organizations and their leaders expressed concern that the Code would unnecessarily hold the leaders of student groups to a higher standard of conduct. In addition, there was concern that higher standards for student group leaders would discourage student participation.

The Committee believes that since student leaders would be subject to the Code by virtue of being students, the inclusion of this section is redundant.

Currently the draft Code would apply to graduate students. Graduate students believe that there is no need for their inclusion in the Code. At the present time there is no comprehensive Code of Conduct that applies to graduate students. As well, graduate students were concerned about the adequacy of the appeal procedures found in the draft Code.

The Committee recognizes the concerns of graduate students, and believes that with appropriate revisions to the appeals procedures, the inclusion of graduate students in the Code is warranted.

AFFILIATED COLLEGES

The Code currently applies to students registered at an affiliated college while on University property subject to the provisions of the Affiliation Agreement.

Affiliated college students were concerned that a lack of clarity in this provision could result in inappropriate application of the Code to students at the affiliated colleges.

The Committee believes that the Code should include a statement clarifying the relationship between the Code and the Affiliation Agreement.

RELATIONSHIP TO OTHER CODES AND POLICIES WITHIN THE UNIVERSITY

With the exception of the three existing policies referred to in the draft Code, action taken under any other University policy does not preclude the application of the draft Code. Concern was expressed that a student could be disciplined under two or more codes. A related concern was that the Code of Conduct could be applied when another code fails.

The Committee believes the relationship between the draft Code and other existing University policies be clarified to ensure that the draft Code is applied only where an alleged offence might warrant instituting disciplinary proceedings or sanctions beyond those available under existing University policies.

STUDENT CONDUCT - RULES

The Code currently contains a list of specific examples of prohibited conduct that are neither exhaustive nor inclusive. Students suggested creating an exhaustive list so there would be a clearer understanding of specific conduct that would be in contravention of the code.

The Committee agrees with the concern that an illustrative list creates unnecessary confusion among students. To clarify this section, the Committee supports the notion of a list of specified areas of prohibited conduct with the inclusion of a residual clause.

SANCTIONS

At present the draft Code lists Sanctions, with no correlation between offences and sanctions. Student submissions conveyed the opinion that there should be a more direct relationship between offenses and sanctions. The University Students' Council raised the issue of the appropriateness of applying "academic sanctions for non-academic offences".

The Committee believes that in the application of the Code, the sanctions imposed should be proportional to the prohibited conduct.

INTERIM PROHIBITION

The draft Code stipulates that the student shall be informed within two working days following the imposition of interim prohibition. Students raised concerns that two working days was an inappropriate length of time to receive notification of the reasons for the prohibition.

The Committee believes that two working days is a reasonable time frame in which to notify a student.

PROCEDURES

The Code states that legal representation is not permitted at the investigative stage.

Many members of the university community expressed concern that students could be denied legal counsel at such an important stage of the procedures.

The Committee believes that reference to the use of legal counsel should be made only in the appeals section of the Code. The Committee encourages students to employ legal counsel only at the appeal stage.

The draft Code allows the Dean (Vice-Provost) to both investigate an offence and impose a sanction. It was recommended that the authority of the Dean (Vice-Provost) be limited to the imposition of a sanction, and that a separate office be created to carry out the investigative role in order to avoid the appearance of bias.

The Committee believes that existing procedures permit an appeal in this instance.

APPEALS

The draft Code stipulates limited grounds for appeal. It was suggested that the grounds for appeal be broadened to include an automatic appeal for sanctions that hinder the academic progress of a student.

The Committee believes that appeal procedures should be broadened to include all instances where the sanction imposed was believed to be inappropriate. In addition, the Committee feels that there should be an automatic appeal in the instances of deregistration, suspension, or expulsion. While the Committee acknowledges that there may be concerns within the University community regarding the broadening of the grounds for appeal, the Committee believes that there are provisions within the draft Code that will limit the number of unsubstantiated appeals. Also, the Committee recommends the inclusion of a section that provides for the automatic review of the draft Code after three years.

2. Recommendations

The Committee has drafted revised text to those sections of the code that incorporate the aforementioned observations and conclusions.

2.a. Recommended: That Senate recommend to the Board of Governors that Section I.3. of the draft Code of Student Conduct be amended as highlighted below.

Reason: The Committee supports the addition of a statement of good will to the draft Code, as suggested by representatives of the external community.

I. Scope of Code

3. The University does not stand in loco parentis to its student members: that is, it has no general responsibility for the moral and social behaviour of its students, as if they were its wards. In the exercise of its disciplinary authority and responsibility, the University treats students as free to organize their own personal lives, behaviour and associations subject to the law and to University regulations that are necessary to protect the integrity of University activities, the peaceful and safe enjoyment of University housing and facilities by other members of the University and public, the freedom of members of the University to participate reasonably in the programs of the University and in activities on the University's premises, or to protect the property of the University or its members. Strict regulation of such activities by the University is otherwise neither necessary nor appropriate.

The University encourages students to set for themselves the highest standards of behavior off-campus.

2.b. Recommended: That Senate recommend to the Board of Governors that Section I.6. of the draft Code of Student conduct be amended as detailed below.

Reason: The Committee believes that the scope of the draft Code should be narrowed to include only off-campus behavior of designated representatives of the University Students' Council, Society of Graduate Students, and Master of Business Administration Association. The inclusion of the term 'student group' would unnecessarily extend the Code to student conduct that is not directly related to an individual's behavior as a member of the University's academic community. In addition, the Committee believes that the scope of the draft Code be narrowed to off-campus conduct where the object is, or might reasonably be, to have a detrimental effect on the proper functioning of the University or the rights of its members. Adding the element of intent emphasizes the action rather than solely its intent.

6. This Code applies to:

a) conduct that occurs on the premises of the University or its affiliated colleges;

b) off-campus conduct when the individual is acting as a designated representative of the University or a student organization recognized by the Board of Governors as representing parts of the student body (USC, SOGS, MBAA) or when the individual holds out that he or she is a representative or member of a student group or organization at the University; and

c) off-campus conduct that has, or might reasonably have, the object of producing an adverse effect on the proper functioning of the University or the rights of a member of the University community to use and enjoy the University's learning and working environments.

2.c. Recommended: That Senate recommend to the Board of Governors that Section I.8. of the draft Code of Student Conduct be deleted and that Section V.9. be amended as shown.

Reason: The draft Code stipulates that an "officer, leader or spokesperson of a student group or organization at the University may be held responsible for violations of the Code by a member of the group or organization if the member has received consent or encouragement from the officer, leader or spokesperson to engage in conduct prohibited under this Code." Submissions received from student organizations and their leaders expressed concern that the Code would unnecessarily hold the leaders of student groups to a higher standard of conduct. In addition, there was concern that higher standards for student group leaders would discourage student participation.

The Committee believes that since student leaders would be subject to the Code by virtue of being students, the inclusion of this section is redundant.

8. An officer, leader or spokesperson of a student group or organization at the University may be held responsible for violations of the Code by a member of the group or organization if the member has received consent or encouragement from the officer, leader or spokesperson to engage in conduct prohibited under this Code.

V. Student Conduct - Rules

9. Other

a. Aiding or encouraging others in the commission of an act prohibited under this Code or attempting to commit an act prohibited under this Code.

b. In the case of an officer, leader or spokesperson of a student group or organization at the University, consenting to, encouraging, or aiding others in the commission of an act prohibited under this Code.

b. Failure to comply with any sanction imposed by the University for misconduct under this Code.

c. Any other conduct that has, or might reasonably have, the intent of producing an adverse effect on the proper functioning of the University, or the health, safety, rights or property of the University, its members or visitors.

2.d. Recommended: That Senate recommend to the Board of Governors that Section III. of the draft Code of Student Conduct be amended as highlighted below.

Reason: The Code currently applies to students registered at an affiliated college while on University property subject to the provisions of the Affiliation Agreement. Affiliated college students were concerned that a lack of clarity in this provision could result in inappropriate application of the Code to students at the affiliated colleges. The Committee believes that the Code should include a statement clarifying the relationship between the Code and the Affiliation Agreement.

III. Students of Affiliated Colleges

This Code applies to all students registered in the affiliated colleges while on University property, subject to the provisions of the Affiliation Agreement between the University and its affiliated colleges. Consequently, students at affiliated colleges must follow the rules set out in the Code of Student Conduct while on University property, but discipline for non-compliance is the responsibility of the Principals of the respective affiliated colleges.

2.e. Recommended: That Senate recommend to the Board of Governors that Section IV.3. of the draft Code of Student Conduct be amended as indicated below.

Reason: With the exception of the three existing policies referred to in the draft Code, action taken under any other University policy does not preclude the application of the draft Code. Concern was expressed that a student could be disciplined under two or more codes. A related concern was that the Code of Conduct could be applied when another code fails. The Committee believes the relationship between the draft Code and other existing University policies be clarified to ensure that the draft Code is applied only where an alleged offence might warrant instituting disciplinary proceedings or sanctions beyond those available under existing University policies.

IV. Relationship To Other University Policies and Codes

3. With the exception of the policies described in 1. and 2. above, no disciplinary action taken pursuant to any other policies, rules, codes, or regulations of the University (e.g., regulations relating to use of computing resources, regulations established by various units of the University including Intercollegiate Athletics, the University of Western Ontario Library System, the Division of Housing and Food Services [Residents' Understandings], and Western Campus Recreation ) shall bar or prevent the University from instituting disciplinary proceedings and imposing sanctions under this Code. Where such other disciplinary action is being taken, discussions must be held between the University and the unit head before disciplinary proceedings are instituted.

2.f. Recommended: That Senate recommend to the Board of Governors that Section V. of the draft Code of Student Conduct be amended as shown below.

Reason: The Committee agrees with the concern that an illustrative list creates unnecessary confusion among students. To clarify this section, the Committee supports the notion of a list of specified areas of prohibited conduct with the inclusion of a residual clause.

V. Student Conduct - Rules

Any conduct on the part of a student that has, or might reasonably have, an adverse effect on the proper functioning of the University, or the health, safety, rights or property of the University, its members or visitors, is subject to discipline under this Code. Without limiting the generality of the foregoing, The following list sets out specific examples areas of prohibited conduct. This list is illustrative only and is not intended to define misconduct in exhaustive or exclusive terms.

Examples

2.g. Recommended: That Senate recommend to the Board of Governors that Section VI. of the draft Code of Student Conduct be amended as highlighted below.

Reason: The Committee believes that in the application of the Code, the sanctions imposed should be proportional to the prohibited conduct.

VI. Sanctions

The University may impose one or more sanctions for misconduct, of which those listed below are examples.

1. Verbal Warning from the instructor or other person in authority.

2. Exclusion from a class, examination room, or other area. (Note: In this context, "class" refers to a period of instruction such as a lecture, seminar, tutorial, laboratory session, recital, concert or exhibition of visual arts or sports event.).

3. Formal Reprimand.

4. Removal, either temporarily or permanently, from a course in which the student is registered.

5. Prohibition or limitation of access to any academic facility.

6. Prohibition or limitation of employment at the University.

7. Prohibition or limitation on entering University premises or specific parts thereof and/or restriction on contact with specified person(s).

8. Restitution. Compensation for loss, damage, or injury to the appropriate party in the form of service, money, or material replacement.
9. Forfeiture of University awards or financial assistance.
10. Disciplinary Probation. A designated period of time during which the student is not in good standing with the University. The terms of probation may involve restrictions of student privileges and/or set behavioural expectations, violation of which will result in the imposition of further sanctions.

11. Deregistration. Removal from some or all courses for one or two terms.

12. Suspension from the University for a specified time period.

13. Expulsion from the University.

The sanctions imposed shall be proportional to the type of misconduct. The most serious types of misconduct will merit the most serious sanctions: deregistration, suspension and expulsion.

2.h. Recommended: That Senate recommend to the Board of Governors that the final sentence of Section VIII.7. be deleted, and that Section X. be amended as detailed below, including the addition of a new Section X.4.:

Reasons: With reference to the change to Section VIII. 7. and the addition of Section X.4., the Committee believes that reference to the use of legal counsel should be made only in the appeals section of the Code. The Committee encourages students to employ legal counsel only at the appeal stage.

The Committee believes that appeal procedures should be broadened to include all instances where the sanction imposed was believed to be inappropriate. In addition, the Committee feels that there should be an automatic appeal in the instances of deregistration, suspension, or expulsion. While the Committee acknowledges that there may be concerns within the University community regarding the broadening of the grounds for appeal, the Committee believes that there are provisions within the draft Code that will limit the number of unsubstantiated appeals.

VIII. Procedures

7. At all meetings with the Dean (Vice-Provost), the student may be accompanied by a colleague of his or her choosing. Legal representation is not permitted.

X. Appeals

1. A student may appeal to the University Discipline Appeals Committee (UDAC) on one or more of the following grounds:

(a) that the sanction was inappropriate if the sanction imposed was deregistration, suspension, or expulsion;

(b) that the sanction imposed was not proportional to the type of misconduct;

(c) that there was a serious procedural error(s) in the hearing of the complaint by the Dean (Vice-Provost) which was prejudicial to the appellant;

(d) that new evidence, not available at the time of the earlier decision, has been discovered, which casts doubt on the correctness of the decision;

(e) that the Dean (Vice-Provost) did not have the authority under this Code to reach the decision or impose the sanctions he/she did.

2. Filing an Appeal Application will not stay the implementation of any sanctions imposed except where the Chair of UDAC otherwise orders upon application of the appellant.
3. UDAC may: deny the appeal, grant an appeal under 1(a) and vary the sanction, grant the appeal and/or vary the sanction under 1 (b), grant an appeal under 1 (c) or (d) and direct the previous decision maker to re-hear the matter or reconsider some pertinent aspect of its decision, or grant an appeal under 1(e). In the case of a direction to re-hear the matter, UDAC may also include recommendations relating to the conduct of the re-hearing.
4. Legal representation at this stage is permitted.

2i. Recommended: That Senate recommend to the Board of Governors that a new Section XI. be added to the draft Code of Student Conduct as follows.

XI. Review of Code

The Board of Governors shall review the Code after a period of three years.


Senate Agenda, EXHIBIT VII, March 23, 2001 APPENDIX 1

Written submissions were received from the following groups and individuals:

Groups:

Individuals:

In addition, the following groups and individuals made presentations to the committee in closed sessions:

The Broughdale Community Association

The University Students' Council