It’s possible that I’m overthinking this, but I think we might be about to be entangled into a separation-of-powers style showdown at the University.
According to the writ granting cert to the Union Judiciary trial today (on the constitutionality of a (Union) constitutionally mandated Racial Minorities Senator, henceforth RMS (in the Union Senate))*, the petitioners (aka the prosecution aka those arguing against the position of RMS) base at least part of their opposition to the RMS position on the Universityhandbook on Rights and Responsibilities.
Now, the UJ is in a bit of an odd position here. They explicitly granted cert** for an argument based partially on the Rights and Responsibilities. Yet, right now anything dealing with the Rights and Responsibilities is dealt through the Administration. If the court tries to “grab power”, as it were, by trying to claim jurisdiction over the student conduct process, I don’t think the Administration will be pleased. Likewise, if their gambit works, then perhaps the Union Judiciary will spend its future sessions ruling on student plagiarism, drug use, fire safety, parking violations, and all other activities covered by the Rights and Responsibilities handbook.
I think the UJ is already in a tricky spot by granting cert explicitly on the University Handbook, but if they base their ruling off it in any way, we might just see a showdown at high noon between the Deans of Student Life*** and the Union Judiciary.
*Guide to the Perplexed: A couple students at Brandeis are taking the Student Union to trial, since they arge that the position of Student Union Racial Minority Senator is illegal, as it contrevenes the non-discrimination clause in the University Rights and responsibilities (as only Racial Minorities can run for the seat). The Union Judiciary has decided to take the case today to figure it out. Does that help?
** Giving cert is a fancy-pants legal term meaning “provided a document allowing the case to come before the court” or, as I like to put it, “The Judiciary was bored enough to take the case”
***Or whoever is currently in charge of the student conduct process.
10 responses to “Are we about to test the Separation of Powers?”
Publius is of course correct… I really need to stop posting just after waking up. Well done Publius- your familiarity with the Constitution impresses me, especially given the passing of time.
If someone in the University administration came to a determination that the position was a problem, then a UJ case would not be need – the administration could simply tell the Union that they are no longer allowed to have the position. Since the Union exists within the University, it is required to abide by decisions of the University. As long as it is in the Constitution and the administration does not rule that it violates University policy, the position is constitutional.
One thing that must be pointed out is that there is a good chance that this opinion may be viewed as advisory and not binding. This Means that the UJ can help sort out the answers to the questions without rewriting the constitution. Judging by the debate that the case has brought I am glad that there is now awareness of this issue and I hope that if the RMS position is not eliminated then we can open up the vote to all the students of the university.
If the Dean of the Student Life ruled that the positions violated R&R, then they might have a case. But as it hasn’t, they don’t. If the UJ decides to rule they have that power, then it is indeed an issue of separation of powers.
I think Sahar is right. If there’s no R and R violation, then there’s no Constitutional problem. The only way that the UJ can rule for the petitioners (at least on this particular issue) is if they find the positions to “violate… University policy”, to quote Ryan’s words from the complaint.
I’m still shocked that the UJ decided to hear this case, which I feel to be completely beyond their purview. I’m not sold on the necessity of the RMS positions, but it’s very telling that the attempts to eliminate it have largely bypassed the much more obvious solutions of Constitutional revision or petition to University administrators. I have to assume that they know that neither the administration nor the student body buys into the “blatant racial discrimination” their complaint alleges. Their only remaining option is the long-shot court case which would basically require the UJ to rule against the stated word of the Constitution.
To the best of my understanding, that’s not how Constitutions work.
As much as I don’t agree with the existence of a racial minority senator I think there are three reasons why this case has no merit:
1. The case cites that the RMS is in violation of anti-discrimination laws and the university R&R. Both of these things are the not the UJ’s job to interpret. The case should be thrown out. The UJ’s job is to interpret the union constitution and by-laws. It’s up to the board of student conduct to interpret the R&Rs and real courts to interpret anti-discrimination laws.
2. How can you allege that the RMS is unconstitutional. It’s in the constitution! How can part of the constitution be considered unconstitutional? Something that is in the constitution inherently can’t be unconstitutional. Who is it to say one part of the constitution overrides another?
3. Even if you throw both of these arguments you can still argue that RMS isn’t discriminatory as any student can go to the registrar and declare themselves a racial minority no questions asked.
As much as I think the RMS position is unnecessary and should be abolished this case is not the way to go about doing it.
“As it is mainly an issue dealing with the SU constitution and how it should be interpreted in reference to R and R and not whether and R and R violation actually occurred”
come on Sahar, really?
Then why did you bring up the R&R in the first place?
Also I was on UBSC.
So I don’t think so because this issue is aimed at the constitutionality of a position as opposed to the action of any one person or group of people within the Student Union. As it is mainly an issue dealing with the SU constitution and how it should be interpreted in reference to R and R and not whether and R and R violation actually occurred.