Unprecedented faculty mobilization achieves results: York terminates CIGI deal Reply

The following email was sent to York faculty on April 3, 2012, following York’s announcement that the CIGI-York agreement had been terminated, to thank those who made it possible through a strong and courageous mobilization.

Dear colleagues,

A strong mobilization by York’s full-time faculty and librarians, effective action by colleagues in Senate, and careful research and a courageous stance by colleagues at Osgoode have brought about a decisive turn of events. Yesterday evening the York administration announced that the agreement with CIGI for the creation of a program in international law was terminated. This decision came in the wake of yesterday’s decisive rejection by Osgoode Hall Faculty Council (OHFC) of Provost Patrick Monahan’s latest effort to make the CIGI agreement palatable to York faculty.

The latest proposal prepared by the Provost and quickly approved as a consultation document by Senate’s Committee on Academic Policy, Planning and Research Committee (APPRC), was distributed last week. Osgoode Dean Lorne Sossin presented a motion to OHFC for a vote yesterday to approve the CIGI agreement under the new terms. See below for a 10-point summary of key problems identified by OHFC members on this most recent version of the proposal. The new terms did not address serious problems with the CIGI agreement that had been already identified by Osgoode faculty, members of the York Senate, and in the Open Letter of Concern by York colleagues. After an energetic discussion, OHFC rejected this proposal by a substantial margin (34 to 7, with 8 abstentions). Soon after, York announced that the deal was off.

We are struck by how flawed this governance process has been, from beginning to end. The August 2011 CIGI-York agreement to create research chairs in international law was accepted by OHFC in November 2011, subject to a protocol safeguarding academic freedom and institutional autonomy. Apparently intent on ensuring CIGI’s sponsorship and prepared to accept CIGI’s conditions, the Administration rejected that opportunity. We hope that this sorry episode will encourage the York administration to strengthen transparent and collegial governance and to respect academic values that inform York and other universities across the country.

We write to thank all of those in the wider York community who expressed concern about the dangerous precedent this would have set and supported this campaign. The Open Letter of Concern reached the unprecedented total of 310 signatures from full-time faculty and librarians (see the final list here). Your voices were heard loud and clear, and were critical to ending this egregious agreement.

But the matter is not closed. We need to stop this from happening again. We will follow up with our thoughts in the coming days.

In the meantime, we have created an independent forum for governance issues at York, yutalk.org, which we hope will make a contribution to opening up channels of communication on campus. We hope to have your support in making it a lively tool. All issues and viewpoints are welcome.

Thanks again, colleagues, for a job well done! You can continue to contact us at cigi.letter@gmail.com, or contact Jody Berland <jberland@yorku.ca> or Malcolm Blincow <blincow@yorku.ca> with your initial suggestions and advice.

Please read on for further analysis and detail.

More on the decision making process and our concerns about governance

The Administration went through a series of twists and turns to demonstrate they were attentive to faculty concerns, signing two new protocols, and, last week, issuing an “academic governance framework.” But CIGI was, it seems, not interested in an agreement where they served primarily as funders, rather than as overseers, and York’s Administration demonstrated poor judgment by accepting the CIGI conditions and walking away from Osgoode when CIGI didn’t approve of the protocol proposed by OHFC in November 2011. To achieve their desired outcome, Provost Monahan carried forward with an outrageous top-down, one person governance “process” that involved an initially secret deal, bypassed established academic processes, produced misleading documents, forfeited Senate’s academic governance role, and used the Senate Chair, Prof. William van Wijngaarden, and a key Senate committee, APPRC, as his rubberstamps.

CIGI was clear all along that it did not want to be “seen solely as a funder,” preferring to “show an interest in the area that we’re funding, and who’s doing the research,” in the words of its vice-president of public affairs, Fred Kuntz, quoted in today’s Globe and Mail.

CIGI’s interest should be seen in a wider context. Mr. Balsillie is a registered lobbyist with the federal government, and recognized as one of “Canada’s top 100 lobbyists” in the area of intellectual property laws – exactly the area of the proposed research program. The Canadian International Council, another one of Mr. Balsillie’s incursions into academe, also chaired by him, recently published an academic analysis that expounds proposals for changes to intellectual property law, precisely along the lines lobbied by Mr. Balsillie in Ottawa. Questions of intellectual property, regulation of international trade, and socio-environmental practice have been central to Mr. Balsillie and his former company, RIM, and RIM’s activities have been controversial, for varying reasons, in all of those areas. It is not surprising that CIGI refused the role of bystander in terms of who holds the CIGI-York research chairs and what they produce.

You can find additional information regarding the proposed CIGI Agreement, the Open Letter of Concern from York faculty and the list of 310 signatures, Professor Brooks’ commentary on the CIGI financial arrangements, press coverage, key documents, and updates, at the new website, yutalk.org. We invite you to visit this space and to leave your comments and suggestions. We also invite new articles with commentary and analysis about this or any other issues. Please contact yutalkorg@gmail.com.

What was wrong with the latest proposal

Last fall, Osgoode faculty reviewed the August 2011 agreement and made extensive recommendations. Subsequently, OHFC approved the CIGI initiative subject to the signature of a detailed protocol following those recommendations. A Faculty Council panel discussed the protocol with CIGI and York for nearly two months. The protocol was not taken up by the Administration, which walked away instead and tried, unsuccessfully, to establish the research program on international law without Osgoode participation.

Key problems with the latest proposal were identified in an analysis by Osgoode professors Gus Van Harten and Stepan Wood.

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 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 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. This veto allows CIGI to cut off all funding under the Agreement and 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 York-CIGI 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.

This analysis helped to inform the bold decision by Osgoode Hall Faculty Council yesterday.

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