I
Martm Dame] Member of Committees

State Representative
18th District
West Knoxville

Civil Justice
Business 8: Utilities

Subcommittees

109 War Memorial Bunding HOUSE OF REPRESENTATIVES
Nashville, TN 37243 STATE OF TENNESSEE Business 8; Utilities

(615] 741'2287 

Fax: (615] 253-0348

September 4, 2015

Vincent Carilli

Vice Chancellor of Student Conduct

The University of Tennessee

515 Andy Holt Tower

Knoxville, Tennessee 37996-0151 Via US. Mail and/or electronic mail

Re: Proposed Student Code of Conduct
Dear Vice Chancellor Carilli:

It?s my understanding that you intend to submit a revised Student Code of Conduct to the
University?s Board of Trustees for their consideration at the October meeting. You have
delivered to me, and I have read, the Report of the Of?ce of Student Judicial Affairs
Team (?the Team?), the Student Judicial Affairs Program Review Recommendations
Update, and the proposed revised Student Code of Conduct. Assuming approval by the
Board of Trustees, the Code would go through the usual rule-making process set forth in
the Tennessee Code.

I have several comments and concerns with the proposed Code of Conduct (or ?the
Proposed Code?) and they are set forth below. At the outset, however, my primary
concerns are listed and described in the numbered paragraphs as follows:

1. The Team expressed concern that the current process is ?more of a legalistic model
than an educational and student development model,? and the existing procedures ?mirror
more of a legal process than an educational process.? The Team noted that the student
conduct model should be educational which would make it a less intimidating process,
and recommended a ?serious review of the procedures and a restructuring of the current
system to move away from a legalistic model to an educational student conduct
model?(Tean1 Report, Taken as a whole, however, I ?nd the Proposed Code to
be framed in an abundance of technical, legalistic terms and it is even more intimidating
for an average student to read than the existing Code (set forth in Hilltopics). Indeed, I
found it quite dif?cult to read.

Remarkably, in the course of its revision, the Proposed Code has expanded in length from
the existing Code?s (also referred to herein as ?Hilltopics?) 18 pages to 51 pages. Of
course, I cannot de?nitely speak for the entire General Assembly here, but it?s my
impression that the current legislature is encouraging government agencies to abbreviate
their rules as much as possible. A substantial expansion of the code of conduct,
especially in view of the Team?s recommendation that the process be made less legalistic
in nature, will certainly raise red ?ags (and eyebrows) as to the need for such an
enormous document.

This Code is de?nitely not user-friendly. As I mentioned above, I found the document to
be extremely dif?cult to read, as it is and ?lled with an abundance of technical,
legalistic terms. It would be intimidating for most students to read.

2. Where is the Table of Contents?
3. The de?nitional section should be moved to the front of the Proposed Code.

Related to this, there should be de?nite notice and de?nition of when individual or
?multiple person? conduct shall be deemed attributable to that of an organization, 
when is the conduct of persons on the football team attributable to the entire football
team; when is the conduct of members of the ski club attributable to the entire club?
There is absolutely no guidance on this topic within the Proposed Code or in Hilltopics. I
suspect that its absence in Hilltopics has lead to arbitrary enforcement.

4. One of the concerns of the Team was that students were being pressured into accepting
responsibility to avoid going before board and facing additional charges (Team Report,
p3). I see nothing in the Code that addresses this issue.

 

5. The Team observed that there is a perception that off-campus incidents may be
addressed inconsistently and unfairly 2). The Proposed Code?s jurisdiction of the
University relating to off-campus conduct is too broad and too vague (?adversely affects
the interests of the University?). I believe that we should avoid the overreach and
incident negative publicity that arose out of the Suzanne Glen matter a few years. I
would suggest limiting off~campus conduct jurisdiction to cases involving one of the
following:

 

- acts of violence, or a threat of harm, or conduct that might pose a threat to members of
the University community;

acts that might adversely/signi?cantly affect the learning or living environment of the
University;

- conduct involving academic work.

6. As to Section 06(2) of the Proposed Code, the composition of the Student Conduct
Board is substantially different from that of the existing Student Disciplinary Board
in Hilltonics. Whereas, the SDB is made up - as the name implies of students
(between 3 and 7 students), the proposed SCB would be made up of just three (3) people,
with only one (1) student thereon. The other two (2) on the SCB would be staff or
faculty. Thus, the composition of the SCB is being changed from an entirely student
panel, to one that is mostly University staff and faculty. This revision surprises me, as
although the Team Report mentioned the possibility of reducing the size of the hearing
board, it did not recommend that its composition should be changed. Here student
involvement in the conduct process is being signi?cantly diminished.

 

I will, of course, defer to the students and the SGA on this issue, but I would be very
surprised if they consent to this material change in the code of conduct. In fact, I request
their express consent on this speci?c issue.

7. Notably, the Hilltopics? ?Fundamental Rights of the Accused? (Hilltopics, p.12) have
been deleted in the Proposed Code. As with the Complainant, the University should
acknowledge the rights of the Accused/Respondent and ensure their protection
throughout the process. In particular, one should have the presumption of innocence, the
right to cross-examine adverse witnesses through the hearing of?cer, and the right to
challenge a member of the hearing board for cause. Bias of a board member and/or
refusal to excuse a biased member of the hearing board should be express grounds for
appeal.

8. Somewhat related to the Rights of the Accused in paragraph 7 above, I request that the
University expressly embrace and adopt in the Code the essence of ?The Chicago
Principles.? These are a set of guidelines on free expression developed by the University
of Chicago, basically providing that, except as is necessary to the fuhctioning of the
university, "free and open inquiry in all matters" is guaranteed to "all members of the
University community" with "the broadest possible latitude to speak?.

9. With regard to Hilltopics and to the Proposed Code, the burden of proof in SCB and
Administrative proceedings is too low. It is fundamentally unfair, and I doubt that it
complies with due process. Under Hilltopics, one can be found ?guilty? by a 4-3 vote of
the Student Disciplinary Board. As the University?s disciplinary actions can materially
affect a student?s life, the burden should be by clear and convincing evidence, or the
required vote count should be unanimous.

Additional comments that I have concerning the Proposed Code are as follows;

a. Graduate or professional programs seeking to impose different disciplinary procedures
should have those procedures approved in the usual rulemaking way. 

b. The de?nition of ?plagiarism? is too broad. Under the suggested de?nition,
conceivably, a personal email to a friend containing ?someone else?s words or ideas?
would be an offense. 

c. The example of ?Academic Dishonesty? in paragraph 8 on page 6 is too broad. .03(c)8.
It should be limited to instances where one gains an unfair academic advantage by his
failure to follow the expressed procedures.

d. The references in the document to ?Student Conduct? and to are confusing. I
would suggest referring to the Of?ce of Student Conduct as and to the Student
Conduct Board as 

e. With regard to hearings before a Student Life Hearing Of?cer: Is there a pool of
people that may be selected for such duty? If so, who are they? Any University
employee? See It seems that they should have some minimum
quali?cations/training (I don?t see any such requirement). Also, selection of these
persons should be random, or ?blind,? from a pool of numbers who match up to
identities, and those who serve should be disquali?ed from selection until all other
persons in the pool have served.

f. I do not understand section 

g. I would suggest seven (7) business days in .05 as the minimum failure-to?elect
time period.

h. There appears to be a typo in line 6 of and I would suggest a seven(7) day
time limit here for appeal. 

i. The time limit in is too short and should be extended to 10-14 days.

j. As to .05(8) ?Right to an Advisor,? I would suggest moving this section to Are
advisers employed by Who are they?

Ik. As to where there is more than one Respondent arising out of the same
occurrence, they should have the right to have separate SCB hearings.

l. I am unclear as to the composition of the SCB. Are there a total of 4 thereon, with one
non-voting Chairman? Or are there 3 persons on the board, with one of them being
Chairman? 06(2). Selection of those in the pool should be random and blind, so that the
Director should not know who he is choosing, and those who serve shall be disquali?ed
until all others in the pool have served, or have been called to serve.

m. I request that the information described in .068 be provided no less than seven (7)
days in advance, and that the pre?hearing review occur at least three(3) days prior to the
hearing. Basic descriptions of redacted information should be provided.

11. Are the Complainant and the Respondent able to review the record of the Hearing
thereafter? The parties should be allowed access on appeal.

0. As to the video link should be a two-way device, allowing the parties to
see one another.

p. Are the written statements required to be notarized? For minimum authentication, it
seems like they should be required to be in the basic form of an af?davit, sworn and
notarized. 

q. As to the questioning of witnesses, there should be some sort of guideline as to the
exercise of the Chairperson?s discretion. Otherwise, arbitrariness and inconsistency
could result. 

I. As to to ensure Due Process, the burden of proof on the Complainant
should be clear and convincing. A ?nding by a majority vote should be allowed only
where the BOP is clear and convincing.

s. As to I would suggest allowing reference to a Respondent?s student conduct
records if that evidence has been admitted, the conduct is similar to that alleged in the
current proceeding, and it is offered to show a pattern or habit. Of course, it is relevant in
determining a sanction.

t. With regard to appeal of SCB decisions, at least seven (7) days should be allowed for
one to submit a Notice of Appeal. 06(6). The ground for appeal of ?substantial
procedural error? should be changed to ?material procedural error? and some de?nition
of this should be set forth (denial of due process, improperly allowing or excluding
evidence, refusing to submit a question to a witness, 

11. As to the Notice of Appeal, some clari?cation is needed as to what constitutes
?procedurally invalid.? 

v. With regard to the composition of the Appellate Board in the Proposed Code, this
differs substantially from the makeup of the Student Tribunal in Hilltopics. The Student
Tribunal in Hilltopics is composed of 3 to 7 students; the Appellate Board, on the other
hand, is apparently composed of 4 members(one chairman), only one of whom is a
student. I will defer to the students on this, but Irequest express consent on this change
from the SGA. 

In any event, selection from the pool should be random, and those serving should be
disquali?ed until all others in the pool have served or been called to serve. A party
should have a right to ask for recusal of an appellate board member for cause.

The time for reSponse to Notice of Appeal should be at least seven (7) days. 

w. An inspection and search policy of University housing should be described in the
Code, consistent with the State and Federal constitution.

X. A deadline for issuance of the Appellate decision should be set forth; 10~l4 days after
appointment is suggested .06(6-7)

y. As to the Complainant?s Right, as noted above, the Respondent should have similar
equal rights. 

z. I do not understand the difference between ?Disciplinary Probation? and ?Deferred
Suspension.? It does not appear to be signi?cant.

aa. Some of the ?Developmental Sanctions? in section .08(2) seem to be disciplinary in
nature, not ?developmental? (revocation of degree).

bb. The Greek Judicial Board has been eliminated for no apparent reason. It?s my
understanding that the Greek organizations oppose this change. Absent express
collective consent by the IFC and the Sorority Committee to this change, I request that
the Board continue to be included under the Proposed Code.

cc. There is a substantial change to the procedure for deciding cases of Academic
Dishonesty. .09. The Academic Review Board of Hilltopics, composed of at least 3
students, has been eliminated, and, apparently, instructors are allowed to initially impose
an academic penalty. Only on appeal of the penalty is the student allowed to get to a
formal proceeding. Again, here, I will defer to the students, but I ask their express
consent for con?rmation of approval for this change.

dd. The Good Samaritan policy is commendable, but its protections are vague. .10. Good
Samaritan protection should be made mandatory, not discretionary with the University.
Express limitations can be placed on it to ensure that it is not abused.

ee. With regard to the ?Emergency Power? described in .11, please provide examples of
circumstances that might warrant suspension of the usual procedure. I am concerned that
absolute discretion to the Chancellor might result in arbitrary invocation of the authority.

ff. With regard to the definitional section, it seems extremely I realize that some
additions thereto relate to so-called ?Title matters, but, for example, I note that the
de?nitions of ?Consent? is two pages long, that of ?Incapacitated? is one half page long,

and that of ?Weapon? is also one half page in length. In contradiction to the Team
Report?s suggestion that the code should be less legalistic in nature, many of the
de?nitions seem unnecessarily detailed and and they just con?rm the overly
technical, legal nature of this document and the process set forth therein.

With regard to the de?nition of ?Course of Conduct?, is this intended to only apply to
?Stalking??

With regard to ?Notice?, I request that an attempt by email be required, in addition to
other methods that may also be used.

Vice Chancellor Carilli, my objective, consistent with ensuring a safe and secure
environment for all students and for university personnel, is to make the Code of Conduct
an easily understandable document, and the conduct process fair to all concerned. I
respectfully request that you consider the above issues and incorporate the suggested
changes to the Proposed Code. If you should proceed with submission to the Board of
Trustees Without requested modi?cation, I would have no choice but to oppose their
approval at the proper time that they are considered by the legislature.

Please let me know if you should have any questions as to the matters set forth in this
letter. I?m glad to meet with you at a mutually~convenient time to discuss them.

Very Truly Yours,

Wm

Martin Daniel

 

amt

cc: Joe DiPietro, President
Jimmy Cheek, Chancellor
Raja Jubran, Chairman of the Board of Trustees
Ron Ramsey, Speaker of the Senate
Beth Harwell, Speaker of the House
Jeremy Faison, House Government Operations Chairman
John Ragan, House Government Operations Vice-Chairman
Mike Bell, Senate Government Operations Committee Chairman
Ed Jackson, Senate Government Operations Committee 1St Vice-Chairman
Kerry Roberts, Senate Government Operations Committee Vice-Chairman
Jon Lundberg, House Civil Justice Committee Chairman
Mike Carter, House Civil Justice Committee Vice-Chairman
Brain Kelsey, Senate Judiciary Committee Chairman

Alex Clark, Interfraternity Council President

Will Freeman, Student Government Association President
The Interfraternity Council Executive Board

The Student Government Association Executive Board
The SGA Student Senate Executive Committee