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Home » Clarion » 2014 » January 2014 » Arbitrator Refuses to Dismiss Pathways Grievance, Says Contract Covers Faculty Rights on Curriculum

Arbitrator Refuses to Dismiss Pathways Grievance, Says Contract Covers Faculty Rights on Curriculum

Union grievance counselors, chapter chairs and other PSC activists wait to enter CUNY’s former headquarters on East 80th Street in November 2012, just before the Step 2 hearing on the PSC’s grievance on CUNY’s Pathways initiative. CUNY later asked an arbitrator to dismiss the entire Pathways grievance, but on December 9, 2013, an independent arbitrator rejected that request.

In a December 12 ruling, an independent arbitrator rejected CUNY management’s request to dismiss a PSC grievance over implementation of the controversial Pathways curriculum plan. The ruling means that the union’s grievance can now proceed.

At stake was whether the PSC has a right to file this grievance under the terms of the union contract. CUNY central administration argued that issues of governance, the faculty role in curriculum, or academic freedom cannot be considered “terms or conditions of employment.” Therefore, it contended, these matters are not covered by the PSC contract and cannot be challenged by the PSC.

The arbitrator, Melissa Biren, bluntly disagreed: “By their very nature, faculty duties and responsibilities with respect to curriculum development and implementation, as well as issues of academic freedom, are important elements of faculty terms and conditions of employment at an institution of higher education.”


Biren noted that in a 1977 case, CUNY management had also argued “that academic freedom was not a term or condition of employment” and thus was not subject to contractual arbitration. But the arbitrator in that case also rejected CUNY’s effort to narrow the scope of the contract’s protections, writing, “[I]t is difficult to conceive of a more fundamental condition of employment at any academic institution than academic freedom and the responsibilities attached to its exercise.”

“The same can be said of faculty duties and responsibilities with respect to curriculum development and implementation at the college level,” Biren concluded in the current Pathways case.

While Biren’s ruling affirms that the faculty role in curriculum policy and issues of academic freedom can, in general, be protected by a union contract at CUNY, she did not address whether CUNY has actually violated the PSC contract when it implemented the Pathways plan. But while her ruling does not address the merits of the PSC’s grievance, it means that the union’s arguments on those merits can now be heard.

“The motion to dismiss our grievance is just the latest move by CUNY administrators in their ongoing attempt to eliminate shared governance of the University and vest all control in the chancellor’s office, as part of remaking CUNY in a corporate model,” said PSC First Vice President Steve London. “This ruling makes clear, once again, that faculty governance rights and academic freedom are subject to contractual protection.”

“The PSC will now be permitted to present evidence to establish the violation of Bylaws and college governance plans that have occurred in CUNY’s headlong rush to implement its unilateral Pathways initiative,” said PSC President Barbara Bowen. “This is good news for both students and faculty. It means we can continue to fight to uphold the faculty’s right, under the Bylaws and governance plans, to a central role in the implementation of policy on curriculum. We’re confident in the merits of our case and expect that our grievance will be sustained.”


PSC Director of Legal Affairs Peter Zwiebach cautioned that the grievance should not be confused with the two lawsuits filed against Pathways by the PSC and the University Faculty Senate (UFS), both of which are still moving slowly through the courts. “The grievance is limited to violations of the PSC-CUNY contract and is an entirely separate proceeding,” Zwiebach said.

In court proceedings, the PSC and UFS have challenged the manner in which Pathways was adopted, contending that it violated a 1995 settlement agreement that requires policy on curriculum to be formulated by the UFS and other elected faculty bodies. The lawsuits do not challenge the Board of Trustees’ ultimate authority to ultimately decide CUNY policy; they assert that the faculty role in development of that policy is defined in University Bylaws and in the 1995 settlement, and that the CUNY administration is not free to simply set those procedures aside if it finds them inconvenient.

The grievance, filed by the PSC in 2012, is somewhat narrower than the lawsuits: it challenges only the implementation of Pathways, not the way in which the trustees’ Pathways resolution was adopted. It specifically asserts that when CUNY implemented the Board of Trustees’ Pathways resolution, the administration failed to act in accordance with University Bylaws and college governance plans established for the development and execution of curriculum changes. The grievance also claims that the implementation of Pathways resulted in a violation of academic freedom and that CUNY retaliated against members of the faculty for acting in opposition to Pathways.

In its motion to dismiss the union grievance, CUNY management argued that the first two points were beyond the scope of the contract and were therefore not subject to arbitration. (On the third point, the charge of retaliation, CUNY agreed that the contract was potentially relevant but it denies that such retaliation in fact took place.)

Arbitrator Biren, however, found that the entire grievance was subject to arbitration, or “arbitrable,” and ruled against CUNY’s argument on every point.

While the grievance and the lawsuits both involve key principles of university decision-making and faculty authority, they do not in themselves address the question of whether the Pathways plan, which overhauls CUNY’s rules on general education and transfer, is a good or bad idea.

But Pathways, which took effect in the Fall 2013 semester, is strongly opposed by most CUNY faculty, who see it as a scheme to speed up students’ graduation “on the cheap” by watering down the curriculum. For example, Pathways rules have led Brooklyn College to drop its foreign language requirement, and sharply reduced lab sessions in basic science classes. In a referendum last May among CUNY’s full-time faculty, 92% voted “no confidence” in the administration-imposed curriculum plan.

No to Austerity Education

“The faculty role in decisions on curriculum policy is essential to educational quality,” said Bowen. “We are committed to providing CUNY students with the best possible education, and that is why we continue to oppose Pathways. Pathways is a formula for ‘austerity education,’ and it sells our students short.”

The campaign against Pathways is playing out on many fronts: in addition to the lawsuits and grievance, faculty are protesting at meetings of the Board of Trustees, and the union is demanding a thorough and impartial review of the Pathways implementation thus far.

“While we’re pleased that this arbitration ruling allows our grievance to move forward, we’re not relying only on the courts and the arbitrators,” said Bowen. “PSC members continue to speak out on their campuses, and to demand respect for the faculty’s right to formulate CUNY’s policy on curriculum. The board must rescind its Pathways resolution.”

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