A Message From General Counsel and Senior Vice Chancellor for Legal Affairs Frederick P. Schaffer On The Pathways Project and Faculty Authority Regarding Academic Policy

November 3, 2011

Questions have been raised as to whether the resolution adopted by the CUNY Board of Trustees at its meeting on June 27, 2011 regarding the establishment of an efficient transfer system and the subsequent implementation of that policy by the Chancellor are inconsistent with certain authority granted to faculty councils and the University Faculty Senate (“UFS”) by the Board’s Bylaws as interpreted by case law.   For the reasons set forth below, the Board has clear and final authority to adopt academic policy as set forth in that resolution and to direct the Chancellor to implement it in accordance with the procedures established by the Board.

The Pathways Project

For decades CUNY students have endured an arbitrary, inconsistent and incomprehensible “system” relating to the transfer of credits among its colleges, especially the transfer of credits in satisfaction of the requirements for general education and majors.  The result has been that the many students who transferred from one CUNY college to another each year were not able to get their course credits accepted at their new college and had to re-take courses, thereby spending additional time and money for courses beyond the 120 credits necessary to satisfy those requirements.  A number of efforts were tried over the years to remedy this problem, such as improvements in the TIPPS system and bilateral articulation agreements, but they have proved to be inadequate.  The basic problem is structural – it is difficult to establish a smooth and comprehensive system of transfer when each college, and each department at each college, retains the authority to evaluate every transfer credit to determine whether it is the equivalent of a course that satisfies the requirements of the general education or major curriculum.  This problem is compounded by the fact that there are wide discrepancies in the number of general education credits required at each college, and at some of them the required number of credits far exceeds national norms.  It was therefore necessary to establish a system-wide framework while leaving course-specific decisions to college faculty and governance bodies.

Accordingly, the Chancellor directed the Office of Academic Affairs to produce a report detailing the scope and causes of the problem and recommending solutions.  That report was sent to the UFS in October 2010.  To facilitate the sharing of information and the circulations of comments, the Office of Academic Affairs established a web site (www.cuny.edu/pathways).  Hundreds of documents and comments were posted there over the ensuing months.  In addition, the Executive Vice Chancellor for Academic Affairs and her staff attended more than 70 meetings of faculty governance organizations, disciplinary councils and other faculty and student groups to discuss the issue and proposed solutions.  As a result of this process, the proposal put forth by the Chancellery was modified in significant ways to permit greater flexibility.  Furthermore, in order to permit full consideration by all constituencies within the University, the schedule for presentation of the matter to the Board was delayed from the May 2l to the June 27,  2011 Board meeting.  A number of faculty organizations and departments passed resolutions regarding this matter; some opposed the proposal of the Chancellery, while others requested more time for discussion.  The University Student Senate (“USS”) passed a resolution supporting the proposal.

The Board’s Committee on Academic Policy, Programs and Research considered and approved the Pathways resolution at its meeting on June 6, 2011.  A public hearing was held on June 20, 2011 which lasted more than three hours and was almost exclusively devoted to the final proposal.  There were 67 speakers, including students, faculty and administrators.  The students and administrators who spoke were uniformly in favor of the proposed resolution.  The faculty speakers were divided, with a slight majority in opposition but a substantial minority in favor.

At its meeting on June 27, 2011, the Board of Trustees unanimously passed the resolution (which may be found at http://policy.cuny.edu/text/toc/btm/2011/06-27/ at pages 120-22).  The resolution did the following:

General Education Framework – The resolution established a “Common Core” consisting of 30 credits for all CUNY colleges and a “College Option” for baccalaureate programs consisting of 12 additional credits.  All undergraduates will be required to complete the Common Core to graduate with an A.A., A.S. or baccalaureate degree.  Moreover, any courses completed within the Common Core at a CUNY college will be transferable in satisfaction of the Common Core at any other CUNY college.  All baccalaureate students will be required to complete the College Option credits in order to graduate, except that students who transfer from an associate program to a baccalaureate program may not have to satisfy all of the 12 additional credits depending on the total number of credits they earned in their associate program and whether they earned an associate degree.  All College Option credits will be transferable among all CUNY baccalaureate colleges.

The resolution further provided that the Chancellor, in consultation with the Council of Presidents, the UFS and the USS, will convene a Task Force of faculty, students and academic administrators, with faculty members predominant, to recommend to the Chancellor a structure for the Common Core by December 1, 2011.  The Task Force is specifically charged with (i) developing the broad disciplinary or interdisciplinary areas constituting the Common Core, as defined by learning outcomes, and (ii) identifying the number of credits to be allocated to each such area.  After the Task Force makes its recommendations, and the Chancellor approves the structure of the Common Core, all of the colleges must specify the individual courses for the Common Core, all of which must meet the approved learning outcomes.  The programs and courses will be developed and proposed by the colleges in accordance with their governance plans and will be subject to the same process of review and Board approval as are all other academic matters.

Majors – The resolution also mandates that clear pathways be created for the largest transfer majors.  To that end it provides that the Chancellor, in consultation with the Council of Presidents, the UFS and the USS, will convene relevant academic discipline committees consisting predominantly of faculty.  Those committees are charged with recommending to the Office of Academic Affairs between three and six courses that will be accepted as entry-level courses for beginning the major, or as prerequisites for such courses, by all colleges offering those majors.

Elective Courses – In addition, the resolution requires that all courses taken for credit at an undergraduate CUNY college be accepted for credit at every other college regardless of whether a specific equivalency exists at the transfer college to an extent consistent with grade requirements and residency rules.  This means that every course taken at every CUNY college must receive at least elective credit at every other college.

Miscellaneous – Finally, the resolution contains several provisions to ensure appropriate implementation of an efficient transfer system.  It requires the expeditious evaluation of course credits for general education, major and elective courses and an appeal system for students who wish to appeal the denial or restriction of transfer credit.  It also requires technological assistance to provide colleges with academic information about their transfer applicants and students and their advisors with information about the transferability and major-requirement status of courses.

Even before the Board had passed this resolution, the Executive Vice Chancellor for Academic Affairs and University Provost had asked the UFS Executive Committee to nominate faculty members to serve on the Task Force.  The Chancellor repeated that request to the Chairperson of the UFS after the Board action.  In addition, the Chancellor wrote to all of the college presidents requesting the curriculum vitae of the UFS representatives and alternates on their campus and of three additional faculty members that the president would recommend for membership on the Task Force.  The college presidents responded to the Chancellor’s request.  However, the UFS chose not to nominate faculty for the Task Force because the Chancellor would not agree to its demand that a majority of the Task Force be selected from a list of nominees to be supplied by the UFS.  The Chancellor then appointed the members of the two components of the Task Force – the Steering Committee and the Working Committee.  The Steering Committee is chaired by Michelle Anderson, Dean of the CUNY School of Law, and is composed of 11 faculty members (one of whom is a member of the UFS Executive Committee), two campus-based academic administrators and two students.  The Working Committee is also chaired by Dean Anderson and is composed of 36 faculty members, two students and one campus-based administrator.

On October 31, 2011, the Task Force released the draft of the proposed structure of the Common Core, which may be found on the Pathways web site.  It provides for considerable flexibility to individual campuses in terms of what courses they may submit for inclusion in the 30-credit Common Core, as well as flexibility to the senior colleges regarding the 12 College Option credits.  The Task Force has asked for formal campus consultation so that it can incorporate the best ideas from across the University in revising the structure before submitting it to the Chancellor.  Those campus responses are due on November 15.  After reviewing them, the Task Force will submit its final recommendation to the Chancellor by December 1.  Once the Chancellor has approved a structure for the Common Core, decisions concerning the courses that will be part of the Common Core will be made by the campus faculty governance bodies, subject to the usual approval processes of the Chancellery, the Board of Trustees, and the New York State Education Department.

The Chancellor also appointed William Kelly, President of the Graduate School and University Center, to direct the work of the committees charged with creating pathways for the largest transfer majors.  On October 25, 2011 the Chancellor announced the composition of the committees that will recommend to the Office of Academic Affairs between three and six courses that will be accepted as entry-level courses for beginning the major, or as prerequisites for such courses, by all colleges offering majors in the disciplines of biology, business, criminal justice, English, nursing, psychology and teacher education.  Nominations of the faculty members of those committees were sought from multiple sources, including discipline council leaders and the UFS; however, the UFS again declined to nominate anyone.

Applicable Law

Article 125 of the Education Law grants to the CUNY Board of Trustees complete and final authority to govern and administer CUNY, including the making and implementing of academic policy, including curricula.  Section 6204, subd. 1, provides:

The board of trustees shall govern and administer the city university.  The control of the education work of the city university shall rest solely in the board of trustees which shall govern and administer all educational units of the city university.

Section 6206, subd. 7(a) goes on to provide:

The board of trustees shall establish positions, departments, divisions and faculties; appoint and in accordance with the provisions of law fix salaries of instructional and non-instructional employees therein; establish and conduct courses and curricula; prescribe conditions of student admission, attendance and discharge; and shall have the power to determine in its discretion whether tuition shall be charged and to regulate tuition charges, and other instructional and non-instructional fees and other fees and charges at the educational units of the city university.

In the exercise of its powers, the Board of Trustees has adopted Bylaws, which delegate certain functions to the Chancellor, the Presidents and other officers of the educational units of CUNY and to faculty councils and the UFS.  In all cases, however, the Board of Trustees remains the final decision-maker.

Section 11.2 of Bylaws defines the position of Chancellor in relevant part as follows:

A. Position Definition

The chancellor . . . shall be the chief executive, educational and administrative officer of the city university of New York and the chief educational and administrative officer of the senior and community colleges and other educational units and divisions for which the board acts as trustees.  He/she shall be the chief administrative officer for the board and shall implement its policies . . . .  The chancellor shall have the following duties and responsibilities:

a.   To initiate, plan, develop and implement institutional strategy and policy on all educational and administrative issues affecting the university, including to prepare a comprehensive overall academic plan for the university, subject to the board’s approval; and to supervise a staff to conduct research, coordinate data, and make analyses and reports on a university-wide basis.

b.   To unify and coordinate college educational planning, operating systems, business and financial procedures and management.

*          *          *

i.    Nothing in this enumeration shall compromise or detract from the powers of the board of trustees as defined in the state education law.

Section 11.4 of the Bylaws sets forth the powers of each President, which include the power to “advise the chancellor and the board on all matters related to educational policy and practice” and to “[c]onsult with and make recommendations to the chancellor concerning all matters of significant academic, administrative or budgetary consequence affecting the college and/or the university”.

Section 8.6 of the Bylaws sets forth the duties of the faculty.  It provides, in relevant part, as follows:

The faculty 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 including health and scholarship standards therefore, student attendance including leaves of absence, curriculum, awarding of college credit, granting of degrees.

Section 8.7 provides that the responsibilities of the faculty shall be exercised through faculty councils.  Pursuant to the governance plans adopted by each college and approved by Board of Trustees, each college has a senate or council, made up largely but not exclusively of faculty, which exercise the responsibilities of faculty councils.

In a similar vein, Section 8.13 of the Bylaws provides:

There shall be a university faculty senate, responsible, subject to the board, for the formulation of policy relating to the academic status, role, rights, and freedom of the faculty, university level educational and instructional matters, and research and scholarly activities of university-wide import.  The powers and duties of the university faculty senate shall not extend to areas or interests which fall exclusively within the domain of the faculty councils of the constituent units of the university.

These provisions of the Bylaws make clear in two ways that the role of the faculty is advisory to the Board of Trustees, which retains final authority over all matters of academic policy.  First, the faculty is charged only with the “formulation” of policy in certain areas.   That means the expression of policy in a systematic form or statement.  Thus, the faculty is charged with expressing its views and recommendations, not with actually making policy.  Second, in the provisions dealing both with faculty councils and the UFS, the Bylaws provide that the faculty’s formulations of policy are subject to the Board or its guidelines.

Even with respect to the “formulation” of academic policy, the faculty councils and the UFS do not enjoy a monopoly of authority.  Nowhere do the Bylaws state or suggest that faculty councils have exclusive responsibility to formulate academic policy.  The Board of Trustees is empowered by statute to govern all aspects of the University and may do so without awaiting faculty proposals or consulting with the faculty councils or the UFS at all.  Moreover, as noted above, Section 11.2 of the Bylaws provides that the Chancellor, as the chief executive, educational and administrative officer, has authority, independent of any policy formulated by the faculty, to “initiate, plan, develop and implement institutional strategy and policy on all educational and administrative issues affecting the university.”  The Chancellor is free to consult with whomever he chooses as he considers and makes decisions regarding academic policy or the implementation thereof.  To the extent the Chancellor wishes to consult with faculty, which is generally the case, he is not limited to faculty councils or the UFS for advice.

These principles are not merely formal or theoretical.  They play out in practice every day and at every Board of Trustees meeting.  Faculty proposals in the form of resolutions adopted by campus-based governance bodies are reviewed by the appropriate office within the Chancellery, which is the Office of Academic Affairs in the case of proposals regarding academic policy.  In some cases, they are sent back to the originating campus with comments or objections.  If they are approved, and are of sufficient importance to be considered individually by the Board as part of its policy calendar, such as the establishment of new programs, they are referred to the appropriate Board Committee, which is the Committee on Academic Policy, Programs and Research in connection with academic policy.  If the proposals are routine, they are collected and incorporated into the Chancellor’s University Report.  In either case, campus-based proposals do not become effective unless and until they are adopted by a resolution of the Board or approved by the Board as part of the Chancellor’s University Report.  Moreover, with respect to the establishment or revision of significant academic programs, review and approval may also be required of the New York State Education Department.

At the same time, policy proposals are frequently developed within the Chancellery, and on occasion they may also come directly from a President.  The Chancellor will usually rely on one of the Vice Chancellors to work on such proposals within his or her area of responsibility and to consult with affected constituencies within the University.  In that regard, the Chancellor has on numerous occasions created task forces to develop, modify or implement policy on a wide variety of subjects, including academic integrity, intellectual property, computer use, sexual assault, tobacco use on campuses, student learning assessment and the establishment of the CUNY School of Public Health and the New Community College.  In each of those cases, the Chancellor or his designee has selected faculty to serve on the task force, including some proposed by the UFS.  In no case, however, did the UFS nominees constitute a majority of the task force.

The above-described allocation of authority has been consistently recognized and approved by the courts, most directly in the Polishook decision, where the Appellate Division confirmed the ultimate authority of the Board of Trustees to make academic policy.  Polishook v City University of New York, 234 A.D.2d 165 (1st Dep’t 1996).  In that case, certain faculty, including the president of the Professional Staff Congress, challenged resolutions of the Board of Trustees that had declared fiscal exigency, terminated faculty, implemented budget cuts and reduced the number of credits required for a baccalaureate degree from 128 to 120 and for an associate degree from 64 to 60, subject to waivers granted by the Office of Academic Affairs for undergraduate degree programs that require additional credits for certification or accreditation from outside professional organizations or for other compelling educational reasons.  The lower court granted the petition and set aside all of those resolutions.  The Appellate Division reversed that decision except as to the reduction in the number of credits.  It specifically rejected the faculty’s principal argument that the Board had violated the provisions of the Bylaws concerning faculty authority to formulate policy.  As the Appellate Division held, “the Bylaws do not require the Board of Trustees to consult with the senior college faculties prior to implementing the Long Range Planning Resolutions as the Board of Trustees is charged with ‘govern[ing] and administer[ing] the city university.’  Education Law § 6204[1].”  Id. at 166-67.

The Appellate Division affirmed the lower court’s holding that there was no rational basis for the reduction in the number of credits required for a degree.  Id. at 167.  CUNY sought leave to appeal to the Court of Appeals on that issue.  The parties then settled, thereby ending CUNY’s appeal but leaving in place the Appellate Division’s decision.  In the settlement agreement, the Petitioners agreed that, with certain clarifications as to the reasons for which waivers might be granted, the resolution reducing the number of credits required for graduation had a rational basis, and the Board of Trustees reaffirmed that policy.  In the settlement agreement, the Board of Trustees also recognized and reaffirmed the role of the faculty as set forth in Sections 8.6 and 8.13 of the Bylaws, which the agreement quoted verbatim.  Thus, the agreement did not change the fact that the role of the faculty under the Bylaws is solely to formulate policy in certain defined areas, subject to the ultimate authority of the Board of Trustees, which the Appellate Division had ruled did not even require the Board to consult with the faculty councils before acting.

A similar result was reached by the Court in Friedman v. Perez, Index No. 117248/00 (Sup. Ct., N.Y. Cty., Aug. 18, 2000) (unpublished opinion).  In that case certain faculty members at BMCC challenged the decision of the President, which was approved by the Board of Trustees, to replace a one-credit course with an orientation program for new students that carried no academic credit and was tuition free.  That action was in accordance with the recommendation of an evaluation team from the College’s accrediting body, but contrary to the recommendation of a departmental committee and before any action by any of the College’s governance bodies.  Petitioners argued that the procedure followed violated the Board’s Bylaws, the BMCC Governance Plan and the Curriculum Committee Policy Manual which assign responsibilities to faculty bodies in formulating curriculum.  The Court rejected that argument, holding:

Contrary to petitioner’s contention, however, none of these provisions gives the faculty a veto power over the Board of Trustees, such that the board can consider only those changes which have been developed through the cited procedures and recommended by the faculty.  The Board retains the ultimate power, authority, and responsibility to govern and administer the university, including the setting of course requirements.

Opinion at 3.  See also Mendez v. Reynolds, 248 A.D.2d 62, 681 N.Y.S.2d 494 (1st Dep’t 1998), where the Court held that an individual college in the CUNY system could not substitute its own preferred test for the one required by the Board.

This conclusion is entirely consistent with the decision of the New York Court of Appeals in Perez v. CUNY, 5 N.Y.3d 522 (2005).  There the Court held that the Hostos Community College Senate and its Executive Committee were “public bodies” and therefore were subject to the Open Meetings Law.  In order to reach that conclusion, the Court analyzed the authority of the College Senate under the Bylaws of the Board of Trustees and the Hostos Community College Governance Plan approved by the Board.  It noted that the Board had delegated part of its authority under Education Law § 6206, subd. 7 by providing in Sections 8.6 and 8.7 of its Bylaws that the faculty and faculty councils were responsible for the formulation of policy relating to certain areas; it also noted that the Governance Plan of Hostos Community College similarly authorized the College Senate “to formulate new policy recommendations and review existing policies” in a number of areas.  Id. at 526-27.  The Court went on hold that the College Council was a public body performing government functions, and therefore subject to the Open Meetings Law, for the following reasons:

The Senate is explicitly imbued with the power to formulate new policy recommendations and review existing policies, forwarding those recommendations to the Board of Trustees in areas as far-reaching as college admissions, degree requirements, curriculum design, budget and finance; it is represented on all committees established by the College President or Deans; it is to review proposals for and recommend the creation of new academic units and programs of study; it must be consulted prior to any additions or alterations to the College’s divisions; and it is the only body that can initiate changes to the College Governance Charter.

Under CUNY’s comprehensive university governance scheme, the College Senate is the sole legislative body on campus authorized to send proposals to the CUNY Board of Trustees, and although the policy proposals must first be approved and forwarded by the College President, they overwhelmingly are. While the CUNY Board retains the formal power to veto recommendations of the College Senate, that does not in and of itself negate the Senate’s policy-making role or render the Senate purely advisory.

Id. at 530-31 (emphasis supplied).

Nothing in the holding of Perez casts doubt on the authority of the Board of Trustees to make the final decision with respect to academic policy.  On the contrary, as the opinion makes clear, the role of faculty councils is to make policy “recommendations” or “proposals” that the Board may decide to enact or not; and unless enacted by the Board, they do not become University policy.  Nor does anything in Perez suggest that the Chancellor may not consult with faculty on the implementation of policy outside of the formal structure of faculty councils, especially where, as here, the Board has specifically authorized the Chancellor to do so.  Indeed, even the UFS does not maintain that the implementation of the Pathways policy had to be undertaken solely through faculty councils and/or the UFS; rather, it demanded only that a majority of the Task Force should be selected from a list of its nominees.  That demand had no support in law or prior practice, and the Chancellor correctly refused to accede to it.

In sum, the actions of the Board of Trustees and the Chancellor with regard to the Pathways Project are consistent both with applicable law and prior practice at CUNY.  In the absence of nominations from the UFS, the Chancellor proceeded to appoint the members of the Task Force pursuant to recommendations received elsewhere. Nevertheless, faculty members comprise 86% of the body.  The Task Force has nearly completed its work under the Board’s resolution.  There is no legal impediment to its continuing to do so or to the implementation of the structure of the Common Core that the Chancellor adopts pursuant to the Board’s June 27 resolution.