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Kim: Smoking ban is unconstitutional

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On Nov. 23, the CWRU Faculty Senate ruled to ban all tobacco products on campus. Anyone who briefly looks over the June 2015 Faculty Handbook, the guide for University Faculty as defined in the “Constitution of the University Faculty,” will realize that the CWRU Faculty Senate ruled outside its constitutional power in its decision to ban tobacco.

In the Introduction under Chapter 2 of the Faculty Handbook, the role of the CWRU Faculty Senate is to exercise all the powers vested in the university faculty by the Board of Trustees. The Board of Trustees is careful to specify that the university faculty holds “certain powers and responsibilities concerning the University’s educational, research and scholarly activities” (emphasis added), which is written out again in Article III, Section A. It is clear that the powers of the university faculty is one that is strictly academic, and rightly so. The Faculty Senate is only the exercising embodiment of this power, as further specified in Article V, Section A, and is comprised of elected faculty members.

Understanding that the powers of the Faculty Senate is all that of the university faculty, we can now move to the specifications of its “powers and obligations” as written in Article V, Section A, paragraph 2. There are several listings describing the “powers and obligations” that include recommendations to the University Faculty and the president regarding issues of appointments, degree curricula and programs, awarding of degrees, modifications in university calendar, and amendments to the Faculty Handbook. Five of the six main listings in this paragraph all reverberate back to the Senate’s underlining role for “educational, research, and scholarly activities.” All of those five are made clear.

However, the sixth represents somewhat of an elastic clause as it could elicit a few more interpretations than desired, and warrants further inspection. The penultimate listing of the Senate’s “powers and obligations” states the reviewing of “current programs, policies and organizational structure with regard to their effectiveness, and exercising initiative in proposing the development and introduction of new programs, policies, and organizational structures.” If read in isolation, the tobacco-free policy could be justified as the reviewing of a policy and the proposing of a new one, but throughout the constitution it is made clear that the faculty operates within the boundaries of “educational, research and scholarly activities.” It is then implied that such “programs, policies, and organizational structures,” whatever they may mean, must fall within its delegated powers of academia.

And so the next question is whether the Faculty Senate’s move to ban tobacco was within its constitutional power. The Senate is not responsible for student life or any other social activities. The move to ban tobacco had nothing to do with “educational, research and scholarly activities.” In fact, the Senate apparently hadn’t even argued for the decision with this defense. According to the Dec. 4 issue of The Observer, the policy was described as “focusing on compliance, not enforcement, meaning that the policy aims to support those who choose to quit smoking, rather than punishing those who do not comply.” This claim has nothing to do with the academic structure and so lies outside the delegated powers of the Senate, and it seems that the Senate even admits it.

I hope it is clear that it was not in the power of the CWRU Faculty Senate to make the decision to ban tobacco products on campus. I call that this unconstitutional policy be vetoed by the Board of Trustees, as I, along with other fellow students, trust they will do so.

Jonathan Kim

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Case Western Reserve University's independent student news source
Kim: Smoking ban is unconstitutional