Judge's Ruling Tilts Curricular Control Toward CUNY Administrators

February 26, 2014

A state judge last week dismissed a closely watched lawsuit in which faculty members at the City University of New York had sought to halt a new and controversial general-education curriculum.

The decision, by Judge Anil C. Singh of the New York State Supreme Court, dealt a blow to CUNY professors’ control over academic policy and solidified the claim of administrators and trustees to supervise such matters.

In his ruling, which was issued on Friday, Judge Singh rejected a suit filed in 2012 by CUNY’s Faculty Senate and the faculty union, which is called the Professional Staff Congress.

The original complaint alleged that trustees had violated the university’s bylaws and exceeded their authority when they developed education policy—specifically, by adopting the general-education program, called Pathways, in 2011 and by ignoring the faculty senates of CUNY’s constituent colleges.

The plaintiffs’ central argument was “devoid of merit,” Judge Singh wrote, because the bylaws don’t confer power over curricular change solely to the faculty and Faculty Senate. “The board,” he wrote, “has the power to initiate academic policy.”

The ruling, said Robert M. O’Neil, a constitutional scholar, seems to declare the curricular role of the board and chancellor to be “pre-emptive”—in other words, to effectively trump the power of the faculty.

But faculty members outside the Empire State shouldn’t get too worked up, added Mr. O’Neil, who has served as president of the Universities of Wisconsin and of Virginia, and as general counsel of the American Association of University Professors.

The CUNY ruling, he said, is a creature of the peculiarities of New York state law, which gives state courts unusual latitude over education policy, including both public and private institutions.

Courts in other states, he said, would not “give primacy to the governing board.”

Other observers weren’t quite so sure. Even though the decision is particular to New York, it muddies the generally accepted understanding of shared governance, as set forth in the AAUP’s joint statement on the subject, said Peter F. Lake, a professor of law and the director of the Center for Excellence in Higher Education Law and Policy at Stetson University.

“To have a board or administration arrogate curricular power to itself,” he said, “raises concerns under the shared-governance model.”

‘Trying to Right the Wrong’

Pathways took effect in the fall, and about 50,000 students have enrolled in courses that meet the new standards, CUNY estimates.

Under the new curricular framework, the number of required general-education credits has been reduced to between 36 and 42, depending on the campus. The previous requirements ranged from 39 to 63.

Administrators have argued that the changes are necessary to improve students’ ability to transfer credits within the system. Other curricular experts have lauded Pathways’ emphasis on learning outcomes instead of hewing to traditional disciplinary categories.

Faculty members at CUNY have strongly opposed the changes; 92 percent of them voted no confidence in the curriculum last year. And many have argued that Pathways consigns CUNY’s mostly low-income and minority students to a less-rigorous education.

Barbara Bowen, lead plaintiff in the now-dismissed case, the union’s president, and a professor of English at Queens College, said in a written statement that she was “disappointed” in the ruling but declined to discuss it further, citing a desire not to complicate a potential appeal. In New York the Supreme Court is a trial-level court. Appeals are heard by appellate courts.

Ms. Bowen also cited what she characterized as other recent successes in the faculty fight against the curriculum. In December an arbitrator denied CUNY’s effort to dismiss a labor grievance related to Pathways, writing that “the bylaws expressly provide that curriculum development is among the duties of faculty.”

A memorandum filed this month by William P. Kelly, the system’s interim chancellor, lifted limits on the number of hours assigned to core courses, and he also staked out a role for faculty-elected representatives on the curriculum’s review committee. Both changes had been sought by the faculty.

“We haven’t relied on the courts for this battle,” Ms. Bowen said in an interview. “We’re trying to right the wrong of the curriculum and get the full academic experience back for our students.”