Our efforts have not borne fruit: A further analysis of the York-CIGI initiative Reply

Gus Van Harten and Stepan Wood

This analysis was prepared prior to the April 2 meeting of the Osgoode Hall Faculty Council. In ten areas, it tracks concerns arising from the York-CIGI Agreement of August 2011, steps to address these concerns in the Osgoode protocol of November 2011, and the corresponding gaps in York’s new governing documents.

What follows is the Executive Summary of the document. The full document is available for download here.

Executive summary

 We have prepared this analysis to assist colleagues in dealing with the complex documentation that surrounds the York-CIGI initiative. In ten areas, it tracks concerns arising from the York-CIGI Agreement of August 2011, steps to address these concerns in the Osgoode protocol of November 2011, and the corresponding gaps in York’s new governing documents.

Tomorrow at Faculty Council, the Osgoode Administration is proposing to proceed with the CIGI collaboration. Although the terms remain unclear, they fall well short of the protections contained in the Osgoode protocol. We think that most or all of the problems outlined below should be treated as deal-breakers, and ask colleagues to oppose the initiative.

1: There is no enforcement mechanism for CIGI’s obligations. CIGI and the University have not included any enforcement mechanism for CIGI’s obligations to protect academic freedom and institutional autonomy, despite longstanding opportunities to do so. Yet the University’s obligations to CIGI under the York-CIGI Agreement are subject clearly to binding arbitration. This undermines all of the assurances that CIGI’s rights in the York-CIGI Agreement have been modified or limited effectively.

2: CIGI retains alarming rights. Even if they contained an enforcement mechanism, York’s protocols leave intact CIGI’s rights relating, for example, to appointment, renewal, and termination of faculty and to individual research plans. Language to the contrary in York’s protocols is imprecise and unreliable.

3: The governing documents  give CIGI, the central University Administration, and an external Panel unprecedented influence over faculty recruitment. This is a striking variation from what was understood to have been agreed at Osgoode in the Fall 2011.

4: York’s protocols encroach on the role of Senate and Faculty Councils in academic governance. Among other things, the collaboration will require quarterly reports to CIGI on curriculum and other programming matters. York’s governing documents remove various roles and protections for Osgoode Faculty Council. They transfer various roles from Faculty Council to the central Administration (instead of Senate).

5: CIGI retains the power to cut off funding. The University has allowed CIGI to keep its veto over the budget of the academic program, despite a clear proposal to remove this power. CIGI’s discretion to cut off all funding under the Agreement is the main source of CIGI’s leverage over the University as a whole.

6: There is no role for any independent party in dispute settlement. CIGI and the University have not allowed any meaningful role for any independent party in dispute settlement processes. This is troubling because arbitrations under the CIGI-York Agreement could affect academic freedom or institutional autonomy significantly. CIGI and the University have rejected even the mild statement in the Osgoode protocol that faculty and Faculty Councils have rights and interests protected under the Agreement and protocol.

7: The initiative is based on a stunted definition of academic freedom. York’s protocols have clipped the definition of academic freedom in the Osgoode protocol, which was based on the statement of principle in Article 10 of the YUFA Collective Agreement. This makes little sense unless CIGI intends to influence the teaching and service activities of faculty.

8: CIGI and York are not precluded from striking secret deals. York’s protocols remain open to being amended confidentially by CIGI and York and are unacceptably vague about making relevant documents public. This is very troubling in light of clearly-worded provisions in the Osgoode protocol to preclude secret deals and ensure transparency.

9: Virtually all commitments made to the Osgoode community have been removed. A wide range of commitments to the Osgoode community during the Fall 2011 have been removed. We see this either as punishment against Osgoode or as evidence that the previous assurances were unreliable.

10: The process employed by York taints the initiative. The initiative and any implementation of it has been tainted irreparably by the process followed by the University Administration in the past three months, if not longer.

We were supporters of the York-CIGI initiative at Osgoode from September 2011 until January 2012. Based on what we have learned from our unique access to various processes, we have changed our minds and are now firmly opposed to any collaboration with CIGI.

We believe that the proposed collaboration is a grave threat to academic freedom and institutional autonomy. The threat is not removed by the University’s new protocols and governance framework. If anything, it is exacerbated by them due to their potential to lull others into a false sense of security. If the initiative proceeds, we think the collaboration will do serious damage to the reputation of Osgoode and York University.

York and CIGI have had nine months to address the problems in the York-CIGI Agreement of August 2011. They clearly have failed to do so. Only last Thursday, York presented Faculty Council with a further draft governance framework that repeats problems and intensifies serious concerns arising from York’s new protocols of February and March 2012. Most of the commitments to Faculty Council since the discussion of the proposed collaboration began last September have been withdrawn or proven unreliable.

The process to consider the initiative has taken a huge toll on Osgoode’s governance processes. Faculty Council has allocated time to the CIGI initiative at all of its meetings since September. This has delayed important business and placed significant pressures on colleagues, students, and Osgoode as an institution.

Speaking personally, we have invested hundreds of hours of time trying to make the initiative work. We sought to do what the University should have done from the beginning: devise documents and an institutional framework that protected the fundamental values on which the University’s academic enterprise is based.

With considerable regret, we ask colleagues to accept that Osgoode’s efforts to make this work have not borne fruit. We think it right to conclude that they never will, and to put aside further consideration of the proposed CIGI collaboration.

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