Miskatonic University Press

Monday will be day 78 of the 2018 York University strike. CUPE 3903 walked out in March (see Labour Update for the Employer’s side). I’m not on strike, because I’m in YUFA, but it’s a grim situation, and of those of us left on campus, pretty much everyone is some combination of frustrated, stressed and angry. Any undergrad who had classes suspended, or was hoping to take a summer course that now doesn’t exist, is surely all three.

When it’s over, among the many problems that needs fixing is the governance crisis (or jurisdictional question, depending on your point of view) about the relation between the Senate and the Board of Governors. Many Senators (me included; I am one of two representing librarians and archivists) think the Board is not respecting the boundaries of the bicameral governance structure set out in the York University Act, 1965, where basically the Senate oversees academic matters and the Board oversees the operations and business side of things.

This whole issue is very complex, and I’m going to stick here to just one part of it: a letter written by Rick Waugh, the chair of the Board of Governors, to Lesley Beagrie, the chair of Senate.

The strike began on 01 March. On 08 March there was an emergency Senate meeting where a motion to suspend all classes was ruled out of order. The chair was challenged but this was defeated, 54–53, so the motion did not come to a vote. That led to this motion at the Senate meeting on 22 March:

That Senate hereby expresses its view that Senate, in conjunction with Senate Executive, has the authority to direct and determine that classes be suspended on the basis of academic integrity.

This was made by two Senators who wanted it to have meaningful force (though they did not intend classes would be suspended—the time for that had passed), but Senate Executive made it a hortative motion, which means it is just a matter of opinion and has absolutely no effect. (“Hortative motions express Senate’s opinion on matters lying outside its jurisdiction,” say The Senate of York University Rules, Procedures and Guidelines.) It passed. The majority of Senate, I think, assert that Senate actually does have the authority to suspend classes for reasons of academic integrity, but because the motion was brought to the floor as hortative, now it’s questionable. (I admire the skill with which this was done.)

Buried at the end of the 26 April 2018 agenda package are the minutes from that meeting, which say:

With the knowledge that Senate would be discussing a motion on this question, the Chair had contacted the Board Chair who communicated his view that the Board’s responsibilities for the conduct, business and affairs of the University includes decisions with respect to continuing or not classes and other University activities in the strike.

This letter became the object of curiosity for many people who wanted to know exactly what the chair of the Board had said. It was not released.

I was one of the curious, so I followed York’s access to information procedures and made a request under FIPPA, Ontario’s Freedom of Information and Protection of Privacy Act.

• 28 March: I emailed the University Secretary and General Counsel (that’s one person) to ask for it. “At the 22 March 2018 Senate meeting Senator Beagrie (chair of Senate) mentioned a communication from Senator Waugh (chair of the Board of Governors). I request a copy of that communication, and any other communications between those two parties, dated from 29 February 2018 (two weeks before the current CUPE 3903 strike began) onwards, that are related to the Senate’s role in academic governance during this disruption, either a) about planning Senate and Senate Executive’s actions regarding a potential disruption or b) their actions when the strike began and the Senate Policy on the Academic Implications of Disruptions or Cessations of University Business Due to Labour Disputes or Other Causes came into effect.”
• On 02 April, Correspondence from the Chair, Board of Governors, April 2, 2018 was made public. It seemed pretty clear to me that with all the hubbub people reckoned they’d better make a letter public, if not the letter.
• By 05 April I hadn’t heard anything back, so I put in the same request on paper using the official form. The Information, Privacy and Copyright Office had 30 days to respond.
• 03 May: They said three documents met my criteria. It would cost $9.30 for me to get them. I sent a cheque.
• 17 May: The documents were sent. In fact, the director arranged for someone to walk them over to me, because for some reason campus mail never delivered the letter of acknowledgement I should have received first off, and took eight days to deliver the list of matching records, so who knows how long the actual documents would have taken.

The response contained three documents. First there was a brief email (dated 16 March, six days before the Senate meeting) from the chair of Senate (Beagrie) to the chair of the Board (Waugh) asking for the Board’s perspective on the hortative motion given above and other motions about suspending classes that had been passed at faculty councils. Then there were two letters from Waugh: the original mentioned at the Senate meeting and the later public one.

The original is redacted in two places. It looks like each blacked-out piece is covering a full paragraph. I was given a page with all the possible reasons why things can be redacted, and three points were cited:

13(1) Advice to Government: A head may refused to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution.

18(1) Economic and other interests of Ontario. A head may refuse to disclose a record that contains:

(e) positions, plans, procedures, criteria or instructions to be applied to any negotiations carried on or to be carried on by or on behalf of an institution of the Government of Ontario

(g) information including the proposed plans, policies or projects of an institution where the disclosure could reasonably be expected to result in premature disclosure of a pending policy decision or undue financial benefit or loss to a person.

Here is a paragraph by paragraph, line by line, comparison of the two letters: 20 March 2018 (the original) and 02 April 2018 (the public one). Where there is a difference in the second letter, that line is on a grey background.

March 20, 2018	April 2, 2018
Dear Professor Beagrie:	Dear Professor Beagrie:
Thank you for reaching out and seeking input from the Board on the question of continuation of classes during the current labour dispute.	Thank you for reaching out and seeking input from the Board on the question of continuation of classes during the current labour dispute.
It is apparent from the special meeting of Senate held on March 8, 2018 and the email traffic on the Senate-D listserv that this issue is of interest to many Senators.	It is apparent from the special meeting of Senate held on March 8, 2018 and the email traffic on the Senate-D listserv that this issue is of interest to many Senators.
Please be assured it is also a significant matter for the Board and was the subject of a special Board Executive Committee meeting last week.	Please be assured it is also a significant matter for the Board and was the subject of a special Board Executive Committee meeting.
I suspect we can all agree that labour strikes such as this one have a substantial impact on everyone in the York University community.	I suspect we can all agree that labour strikes such as this one have a substantial impact on everyone in the York University community.
The students who rely on CUPE3903 instruction and academic support face risks of attainment of their education in a timely manner which can have several effects on them.	Many of our students experience disruption to their learning.
Small business owners operating on campus experience losses that adversely affect their staff.
The university's progress in attracting and retaining student, faculty and staff talent—progress made through the collective efforts of thousands of dedicated staff members—is slowed.	The university's progress in attracting and retaining student, faculty and staff—progress made through the collective efforts of thousands of dedicated staff members—is slowed.
Faculties, their full-time members and indeed Senate are all affected by the need to develop and implement modifications to academic activities.	Faculties, their full-time members and indeed Senate are all affected by the need to develop and implement modifications to academic activities.
Members of CUPE3903 lose pay and are separated from the work to which they are undoubtedly very committed.	Members of CUPE3903 lose pay and are separated from the work to which they are undoubtedly very committed.
Given all this, the bargaining process is taken very seriously by the University and, I trust, CUPE3903.	Given all this, both the University and CUPE3903 take the bargaining process very seriously.
Whether in the public or private sector, few events have a more profound effect on the affairs of an institution than a labour dispute.	Whether in the public or private sector, few events have a more profound effect on the affairs of an institution than a labour dispute.
As noted above, it impacts on all aspects of the University's operations no matter how directly they are associated with teaching and learning.	As noted above, it impacts on all aspects of the University's operations no matter how directly they are associated with teaching and learning.
Oversight and accountability for the conduct and operation of the University rest with the Board of Governors.	Given that oversight and accountability for the operations of the University rest with the Board of Governors, the Board has the understanding that in the case of a labour disruption the administration would make a recommendation to the Board regarding any suspension of normal operations of the University beyond what was absolutely necessary in regard to the activities of the striking union.
	In this context, the Board Executive Committee carefully considered the question of authority to suspend all classes during a disruption.
	It is important to note that apart from the activities of striking union members themselves, normal University operations continue during a strike unless a decision is taken to the contrary.
	As any decision to cancel classes across the entire University would have a profound effect on all aspects of the University's operations and affairs, we are convinced, under our statutory responsibility under the York University Act, 1965 that the senior administration would need to see the Board's agreement to do so.
	The Senate Policy on Class Cancellations recognizes that the administration would also need to consult with the Chair of Senate before taking any such action, because of the impact on academic activities.
	It is to be expected that the senior administration, and/or the Chair of Senate, would consult with Senate Executive in forming a recommendation to suspend all classes.
We acknowledge and respect the critical role Senate plays in a strike under its authority over academic policy.	We acknowledge and respect the crucial role Senate plays in a strike under its authority over academic policy.
There are significant decisions to be undertaken to meet expected learning outcomes for courses and programs and to ensure that faculty members can effectively evaluate students' mastery of the material.	There are significant decisions to be undertaken to meet expected learning outcomes for courses and programs and to ensure that faculty members can effectively evaluate students' mastery of the material.
I understand the Senate Executive Committee is currently working on a series of remedial options for this very purpose.	We understand the Senate Executive Committee is currently working on a series of remedial options for this very purpose.
The importance and complexity of those efforts cannot be overstated.	The importance and complexity of those efforts cannot be overstated.
We also appreciate that there may be individual instances in which, based on unique circumstances, a course cannot continue to operate.	We also fully appreciate that there may be individual instances in which, based on unique circumstances, a course cannot continue to operate.
However, with the greatest respect, Senate's authority over academic policy does not extend to wholesale cancellation of classes.	However, with the greatest respect, Senate's authority over academic policy does not extend to unilaterally effecting a wholesale cancellation of classes due to a labour disruption.
The mere fact that the decision to continue classes may affect the educational experience of students and faculty does not convert that decision into one concerning academic policy, or academic integrity, within the jurisdiction of the Senate.
Efforts to pass motions in faculties or Senate asserting authority do not properly respect the powers assigned to the Board by the York University Act, 1965.	We believe efforts to pass motions in Faculties or Senate asserting such unilateral authority do not properly respect the responsibilities assigned to the Board by the York University Act, 1965.
The majority of governors are independent external members who, unlike most Senators, receive no salary or other remuneration.	It is noted that the majority of governors are independent external members who receive no salary or other remuneration.
We volunteer our time, knowledge and expertise for the benefit of the university and all its stakeholders; current and future students, staff, alumni, donors, and the public at large.	We volunteer our time, knowledge and expertise for the benefit of the university and all its stakeholders; current and future students, faculty and staff, alumni, donors, and the public at large.
We have a fiduciary responsibility to the university and all its stakeholders that calls for the highest standard of care and protection of all stakeholders in the public interest.	We have a fiduciary responsibility to the university and all its stakeholders that calls for the highest standard of care and protection of all stakeholders in the public interest.
It is our duty to protect the reputation of the University for current and future generations and to preserve its ability to attract talented academics and staff and well qualified students.	It is our duty to protect the reputation of the University for current and future generations and to preserve its ability to attract talented academics and staff and well qualified students.
The Board's extensive statutory responsibility for the conduct, management, control, business and affairs of the university is exercised within this essential arms-length framework.	The Board's statutory responsibility for "the government, conduct, management and control of the University and of its property, revenues, expenditures, business and affairs..." is exercised within this essential arms-length framework.
	I am aware that some Senate members have strongly held views on the roles of Senate and the Board and the careful balance of authority vested in these bodies that does not accord with the Board's understanding of its responsibilities.
I would be interested in discussing with you some feasible options for ensuring that, now and in future, the respective roles of Board and Senate are respected and decisions to keep the university open in a strike are effectively implemented.	Nevertheless, I was wondering whether there would be some value in exploring with you some feasible options for ensuring that, now and in the future, the respective roles of Board and Senate in a labour disruption are respected and clearly understood by all members of the community, and that any decisions about how to manage the academic implications of a strike are effectively implemented.
Perhaps a working group comprised of representatives from each of the two Executive Committees could be tasked with undertaking such an initiative.	Perhaps a working group comprised of representatives from each of the two Executive Committees could be tasked with undertaking such an initiative.
I welcome your thoughts moving forward.	I welcome your thoughts moving forward.
Sincerely, Rick Waugh	Sincerely, Rick Waugh

Of course I want to know what was blacked out, but of what we can see that was cut for the second letter, this is the most damning regarding the governance crisis: “The mere fact that the decision to continue classes may affect the educational experience of students and faculty does not convert that decision into one concerning academic policy, or academic integrity, within the jurisdiction of the Senate.”

It’s also interesting to see how they watered down “Oversight and accountability for the conduct and operation of the University rest with the Board of Governors” (which leaves no role for Senate) and “I would be interested in discussing with you some feasible options for ensuring that, now and in future, the respective roles of Board and Senate are respected and decisions to keep the university open in a strike are effectively implemented.”

Later, at the 10 April 2018 Senate Executive meeting:

The Chair advised members that the Chair of the Board had accepted a proposed process to develop preliminary advice on the mandate, composition and timelines of a group that would take up the authority question. It was reiterated that this advice would be subject to the approval of the governing bodies.

This was the subject of much heated discussion at the 26 April Senate meeting (held in a large classroom, because the Senate chambers are occupied by protesting students), where this motion eventually passed:

Senate instructs Senate Executive that in regards to establishing a process for reviewing the authority and role of Senate during labour disruptions, forming a body to conduct such a review, as well as deriving conclusions and decisions, Senate Executive, shall, as per Senate procedures, bring any recommendation to Senate for approval.

The synopsis of that meeting (see the minutes for more detail) adds, “It is anticipated that recommendations on a process will be taken up by Senate and the Board in the coming months.”

The governance crisis is dormant right now—the whole campus is deathly quiet, while the Employer and CUPE 3903 sling open letters back and forth—but it will come back when the strike is over, and I think it’s going to get heated.

(If you have any comments about this, please send them to my work email address, <wdenton@yorku.ca>.)