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Home » Clarion » 2023 » January 2023 » SPS violated rights in class observations

SPS violated rights in class observations

Contract terms protect membersBy Ari Paul

An arbitrator’s ruling in the union’s favor halts the expansive way SPS administration conducts online teaching observations. (Credit: Dave Sanders)

In the Spring of 2021, faculty at the School of Professional Studies (SPS) who taught asynchronous online classes believed that there was something wrong with the way their administration was conducting course observations. Observers were registered in the online system as “grader” rather than as a “student” or “guest,” as mandated under the PSC-CUNY contract.

This status was no mere semantic difference: graders had an expansive view of the grading, student work, comments and other functions, much more than what is allowed for such observations in the contract. The contract states, “For teaching observations of online or partially online courses, the parties intend to replicate as closely as possible the long-standing teaching observation practices established pursuant to this Agreement.”


Faculty members brought this issue to the attention of their PSC delegates, and the PSC contract enforcement team immediately filed a grievance. That grievance set off a protracted battle with SPS and CUNY administrations, culminating in an arbitration decision handed down on November 4 that unequivocally ruled that the union was correct and that the administration had violated members’ contractual rights.

Sharon Persinger, former PSC treasurer, current member of the PSC Executive Council and an associate professor of mathematics and computer science at Bronx Community College, helped craft the contract language regarding online observations and testified on the union’s behalf in the arbitration. “I cannot see how this could be any better for us,” said Persinger, responding to the decision. “[The arbitrator] backed the PSC on everything that we said.”

Marc Kagan, a PSC delegate from the Graduate Center, worked on the original grievance. He explained that SPS’s approach to online course evaluations was an administrative overreach.


“When an observer walks into a physical classroom…they see a class unwind for 50 or 75 minutes: the content, the instructional methodology, the nature of the interaction between professor and students, perhaps some handouts or written materials,” he said. “They probably have seen a syllabus, and later [they] might check in with the instructor about how the class fits into the sequence of the course. An asynchronous observer enrolled through Blackboard as a ‘student’ or ‘guest’ for 48 hours more or less sees the same things: perhaps a taped lecture, the assigned reading, discussion board posts, maybe a quiz or a writing prompt.”

But the SPS online observation method was sweeping, Kagan noted, as “graders” and “instructors” see the same things. “The only substantive difference between the two roles is that a grader cannot make changes to anything posted on Blackboard,” Kagan explained. “But they can see lectures, assignments; and discussion boards not yet open (or already closed) to students; responses of instructors to assignments, assignment grades; speed of grading assignments; and the number of students currently on assignments. Essentially, they can look backward and forward through the whole course and also peer over both the instructor’s and students’ shoulders.” He also noted student privacy concerns raised by this management practice, as students normally express themselves in what they see as a closed classroom environment, and would otherwise be aware when an observer is in the room.

SPS argued that assigning the role of grader was not explicitly forbidden in the contract. Yet Melissa Biren, the arbitrator in this case, understood the PSC’s position: The intent of the contract language was clear, and SPS’s policy was a violation of those terms.


“The record in this case provides compelling proof that the use of the ‘grader’ role violates the contract limitations,” Biren said, noting that the “‘grader’ role provides significantly greater access to course materials that has ever been provided in an in-person teaching observation and, therefore, far more than is contemplated by the parties’ contract language.”

Biren added that “Not only does the use of the ‘grader’ role provide extensive access to the course materials not contemplated by the limited access requirement in the contract, but it does so without notice to student[s] that any work beyond the designated period of the observation can be accessed by the observer.”


Biren continued, “Moreover, contrary to CUNY’s claims, the selection of the ‘grader’ role for online observations was arbitrary and capricious. Indeed, while [an] email explained why SPS rejected using … ‘guest’ and ‘observer’ roles for this purpose, SPS’s analysis as reflected in [the] email concluded that the use of the ‘grader’ role was consistent with the [collective bargaining agreement] language without any review or evaluation of the expansive access with the ‘grader’ role and whether its use, in fact was consistent with the CBA.”

Biren ruled that the SPS administration must “immediately cease and desist from using the ‘grader’ role for observers for online teaching observations” and that she shall “retain jurisdiction for a period of six months from the date of this award solely with respect to clarification and implementation of the award.”

For the PSC, the arbitration decision underscored a number of key points. For one thing, the decision was the result of grassroots, member-driven activism and education.

“Faculty at SPS questioned administration policy based on their understanding of what we’d won in the contract,” said Penny Lewis, PSC secretary. “They reached out to their chapter delegation and the union’s contract enforcement team. It’s a great example of why we must know our own rights in order to enforce them. The boss is certainly not going to do it for us.”

The union activism at SPS has continued. Early last year, faculty collectively challenged the interim dean’s stewardship of the school, and in the Fall of 2022, activists decried the understaffing of key offices. (See the May 2022 issue of Clarion for more details.)


The decision also highlighted the need to address conditions in online education. Online teaching ballooned in the early days of the pandemic. Even with students and instructors back in classrooms, online education is clearly here to stay, and CUNY is expanding its online programs. “Our recent experience has revealed that faculty, staff and students need expanded protections and support for our work with educational technology and distance learning. Our next contract will be critical for winning them,” said Lewis. (The union testified at a City Council hearing about this expansion last September. See the December 2022 issue of Clarion.)

For now, the union’s insistence on language regarding online teaching observations in the last round of contract talks seems to have paid off.

“The mechanics of online instruction make it extremely amenable to administrative surveillance,” said Nivedita Majumdar, the union’s previous secretary and a professor of English at John Jay College. “In the last round of negotiations, while we had a few demands relating to online instruction, the language on observations of online courses was our central gain.”


But perhaps, most importantly, the decision is not simply a victory for SPS faculty, but for all PSC-represented faculty members at CUNY. It sends a message that administrators at all campuses must take contractual protections for online teaching seriously and that the union is ready to fight if members feel their rights are being violated.

“We got this contract language… in time to protect our members in their observations of online teaching. We really need to be making strong efforts to see that the contract is followed,” Persinger said.

“I don’t know how widespread the practice of using grader status in observations of online courses is across other CUNY campuses,” said Susan Fountain, a PSC delegate who worked on the grievance. “But this decision should alert department chairs and faculty across CUNY to the importance of strictly adhering to the contract provisions pertaining to online courses.”

Published: January 10, 2023 | Last Modified: January 12, 2023

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