On November 6, oral arguments were heard in the two lawsuits against CUNY’s Pathways initiative brought by the PSC and the University Faculty Senate (UFS). At issue were a motions brought by CUNY to dismiss the suits, and at the November hearing Judge Anil Singh heard arguments from both sides.
“Our lawyers did an excellent job,” said UFS Chair Terrence Martell. “The case reinforces the importance of the faculty role in decisions on curriculum. The fact that the UFS and PSC are working together to defend that role is important to the academic and intellectual life of the University.”
The PSC and UFS are jointly represented by the firms of Meyer Suozzi, English & Klein, and Emery, Celli, Brinckerhoff & Abady.
Pathways, a University-wide overhaul of rules on general education and transfer that took effect this Fall, has been strongly opposed by CUNY faculty. In a referendum among full-time faculty held last May, 92% voted that they had “no confidence” in the administration-imposed curriculum plan. Faculty leaders say that Pathways is watering down CUNY’s curriculum in order to move students through the system more quickly without additional investment of resources. For example, schools like Brooklyn College have dropped foreign language requirements in order to comply with Pathways’ limits on general education, while introductory science classes are dropping lab-based instruction. Such changes signal a decline in the quality of education that CUNY students will receive, the PSC and UFS contend, and they have opposed Pathways as a result.
The lawsuit against Pathways is not based on the program’s academic quality, however, but rather the process through which it was adopted. Instead of asking elected faculty bodies to formulate policy on curriculum, CUNY administrators designed and implemented Pathways through a series of brand-new administration-appointed committees. One PSC-UFS lawsuit charges that this violates a 1997 settlement in an earlier lawsuit, Polishook v. CUNY. The second PSC-UFS suit alleges that Pathways was implemented in violation of the NYS Open Meetings Law.
As part of the Polishook settlement, the Board of Trustees adopted a resolution stating that the board “recognizes and reaffirms that the faculty, in accordance with CUNY Bylaws section 8.6 “shall be responsible, subject to guidelines, if any, as established by the board, for the formulation of policy relating to the admission and retention of students,…curriculum, awarding of college credit, and granting of degrees: that this responsibility is to be exercised through the college faculty senates…or the University Faculty Senate.”
The PSC-UFS lawsuit asserts that the CUNY administration violated this settlement by formulating Pathways policy on its own, instead of going through the UFS and college faculty senates. The suit does not contest the board’s right to ultimately make its own decision about what the policy should be, but it insists that the role of the faculty senates, as laid out in the 1997 resolution, is not optional.
Representing the PSC and UFS, attorney Hanan Kolko of Meyer, Suozzi said that the Polishook settlement and CUNY Bylaws “set up a two-stage process.” In Stage One, the faculty senate formulates a policy; in Stage Two, the trustees decide if they like that formulation and make a decision on what the policy ultimately should be. “The board has the authority to set guidelines,” Kolko added. “They can tell the faculty senate, ‘these are your guidelines’ – but that didn’t happen in this case.”
By unilaterally formulating and implementing Pathways without faculty senate involvement, the board “essentially writes the faculty senate out of the two-step process,” Kolko said. “But that’s not the deal we made.”
The CUNY administration was represented at the hearing by William Taylor, a New York State assistant attorney general. Also present, but not active in the oral argument, was a lawyer from the City of New York’s Law Department.
Taylor argued that the Pathways suit should be thrown out because “it is an action challenging the board’s authority” to set CUNY policy, and that this is “contrary to the [State] education law, and contrary to the [CUNY] Bylaws.”
Kolko replied that the PSC and UFS are insisting on faculty rights “in the formulation of policy, not the right to ultimately decide the policy.”
Taylor further contended that CUNY’s Board of Trustees has no continuing obligation to the PSC or UFS as a result of the 1997 settlement in Polishook. That settlement, he said, was “a very simple agreement: if the board enacts a certain resolution, then the petitioners [the PSC and UFS] will withdraw their suit.” Both of those steps were completed years ago, Taylor said; they are over and done with, so “there is no contract [between the parties] that has anything to do with this case.”
Kolko responded that the PSC and UFS had agreed in 1997 to drop the Polishook lawsuit in exchange for “a consideration” – namely, the resolution adopted by the board as part of the settlement agreement. That resolution is thus part of that settlement, he said, and the board cannot simply disregard its terms.
Behind Closed Doors
The hearing also considered CUNY’s motion to dismiss the related PSC-UFS lawsuit that charges that the Pathways process violated NY State’s Open Meetings Law (OML). At many CUNY colleges, after faculty senates refused to approve Pathways-compliant curricula, college administrators discussed these curriculum decisions behind closed doors and forwarded their recommendations directly to CUNY Central administration.
Taylor insisted that “the OML simply has no application” to Pathways. But Kolko cited a previous case, Perez v. City University: “The guts of [the ruling in] Perez is that in decisions on college-level curriculum…when a college is going to make a recommendation…to the chancellor, that decision has to be made in an Open-Meetings-Law-compliant meeting.”
There is no set schedule for Judge Singh’s ruling on the motions to dismiss; it could come soon, or not for several months. (To receive updates, sign up for the union’s weekly electronic newsletter.)
“PSC members would have been proud to hear how our lawyers argued the case,” said Barbara Bowen, president of the PSC. “But the legal case is only one front in a continuing effort to defend faculty governance and protect the quality of education at CUNY. We owe it to our students to keep fighting.”