5. The Reason of Dubious Legal Authority

This page is a sub-section of the Open Letter to Senate: Six Reasons Why it is Wrong to Freeze BFA Admissions Without Academic Process, by Mark Jones (4 December 2011).

5.  The reason of dubious legal authority.  The Board of Trustees is officially “responsible for the overall operations of the University, including overseeing financial matters” (BT website).   Senate is officially responsible for “determin[ing] all matters of an academic character that affect the University as a whole” (Purpose and Functions of Senate, sec. 1).  This seems, on the surface, like a symmetrical division of responsibilities and a fair balance of power.  But everything academic has a financial dimension: academic programs have financial costs, and academic decisions have financial tradeoffs and repercussions.  Academic hirings cost money, and dismissing faculty or refusing to refill vacancies will save money.  Closing almost any program will save money, at least in the short term.  Of late, the Board of Trustees and Administration have interpreted the ubiquity of the financial dimension as giving themselves unilateral authority over everything, and as freeing them of the necessity to consult or coordinate with the stewards of the university’s academic standards, Senate and the Faculty Boards.

For example, in February 2009, the Dean of Arts and Science announced that the Faculty would cut programs with 25 or fewer concentrators.  In justification, he cited straitened “financial circumstances” but offered no academic rationale.   At Faculty Board in April, faculty members objected to this top-down, financially motivated decision as a violation of process.  They moved and carried a motion to force the Dean to rescind the closures and use proper academic process.  But when members of Queen’s Senate moved that Senate enforce this Faculty Board motion, the Senate Agenda Committee (chaired by the Principal) referred their motions to the Senate Committee on Academic Development for “clarification” on grounds that Senate has no power “to dictate to Faculty Boards the implementation of their own procedures” (Senate Agenda, April 2009, App. N, pp. 140-41). Invited by the Principal to speak as “university counsel” in Senate (23 April 2009), Diane Kelly defended the Dean’s “managerial” right, as an “officer” of the Board of Trustees, to act as he had done.  “The Board,” she said, “through its officers, has the authority to make resource-based decisions that influence the academic program of the University,” and “Deans have the authority and responsibility to take steps to ensure the Faculty is fiscally sound. These actions will ultimately have an impact on the academic offerings of the Faculty” (Senate Minutes for 23 April 2009 (I.5.e)).  The contention that the financial responsibility of the Board and of its “officers” gives them the right to override academic considerations appears to mean that the powers of Senate and of the Board of Trustees are actually asymmetrical: whilst the Board, entrusted with financial decision-making, can make unilateral financial decisions with academic implications, Senate, entrusted with academic decision-making, cannot make unilateral academic decisions with financial implications.  Indeed, if Senate cannot command the Faculty Boards to follow their own procedures for academic review, it is increasingly unclear where its academic authority does extend.

In November 2009, Queen’s University Faculty Association invited constitutional expert (and Queen’s Law Professor Emeritus) David Mullan to assess this reading of the relative powers of the Board of Trustees and Senate.  Professor Mullan’s discussion paper argues that the Faculty of Arts and Science should not have suspended enrolments “without reference to Senate,” since “Senate’s authority in relation to such matters is guaranteed by the 1982 Board of Trustees’ Policy, Functions of the Senate” (Mullan p. 1).  He treats the Functions of the Senate as a “delegation” of powers by the Board to Senate, a delegation that is “binding until formally revoked” (pp. 9-10).  Although Functions of the Senate was revised in 2010 as Purpose and Functions of Senate, it still provides, as noted above, that Senate “determines all matters of an academic character that affect the university as a whole.”  In considering whether Senate’s academic jurisdiction extends to matters of program and enrolment suspensions, Professor Mullan emphasizes the fact that SCAD (the Senate Committee on Academic Development) “over the years has been responsible in a very broad sense for recommending enrolment targets and, more generally, the impact of enrolments on the functioning and quality of academic programs” (p. 11).  In this connection it is worth noting that as recently as 2010-11 the Chair of SCAD served on the Enrolment Planning Task Force whose Preliminary Report was presented to Senate with the Senate Agenda for February 2011.  As that Preliminary Report explains:

Queen’s University has a history of careful enrolment planning based on the establishment of annual enrolment targets set by the Senate Committee on Academic Development (SCAD) upon consultation with the Deans. The enrolment plan is approved annually by the Senate and presented to the Board of Trustees for information. (“Appendix A:  A Historial Review”)

The responsibility of Senate for matters of enrolment is thus very clearly a matter of both policy and longstanding practice.

Professor Mullan argued, further, that Queen’s “Principal should, in consultation with and with the approval of Senate (and, if necessary, the Board of Trustees), develop a protocol on how the Senate’s rights in matters such as this are to be respected in the future” (ibid., p. 1).  Principal Woolf has said he disagrees with Professor Mullan’s opinion, but has offered no further explanation or defense of his view of the matter.

So the matter rested until November 2011, when Queen’s Administration took a similar course of action again and reiterated the justification of “managerial” authority (delegated from the Board of Trustees) over financial decisions even when they have academic implications.  The same Dean of Arts and Science froze admissions to the BFA program, again citing “resource” and not academic reasons.  In this case the unilateralism was in fact more extreme, for this time there was no pretense even of consultation with either Faculty Board or Senate before the public announcement was made.  Most members of Queen’s community learned of the decision only when it appeared in the Queen’s Journal and in the Toronto Globe & Mail.  It is true that this administrative action was far smaller in scope than the one 2009, when about 75 programs were affected (Mullan p. 1).   The BFA is only one program and ordinarily enrols about 30 new students each year.  So there may be stronger arguments in this case for the Dean’s “managerial” rights (see Mullan pp. 10-13).  But there is also some question whether the Dean’s stated justification of “resources” is sincere.  Faculty members in Fine Art insist that all they would need to hold the program open is half of an adjunct position costing, probably, less than $25,000 per year.  Weighed against about 30 admissions per year, this hardly seems a compelling financial justification.  When asked to “provide Senate with the rationale and the process by which this decision was made,” the Dean and “university lawyer” Diane Kelly offered the same justifications in Senate as were offered formerly.  In both April 2009 and November 2011, Ms. Kelly argued the “managerial” right of the Board and its officers to make unilateral financial decisions even when they have academic implications.  And in both cases she presented this explanation of the Board’s and Administration’s power as simple fact.  But there are at least two objections.

One has to do with the authority of the “university lawyer” or “university counsel” to pronounce on this matter. [1]  “University lawyer” is a misleading designation in a case where Ms. Kelly has been called in to adjudicate between the relative authorities of Board and Administration, on the one hand, and of Senate, on the other.  For she is hired by and answerable to the Board and Administration, and it has been the Administrators who invited her into Senate to deliver her opinion.  It would be more fair and proper to consider her as acting, in these cases, as the “Board and Administration Lawyer.”  To render an impartial decision on this matter, another lawyer should be appointed to represent Senate’s claims to authority, and a genuinely impartial judge should decide the case between the two.

The other objection arises from the question:  what happens to the supposed right of Senate to “determine all matters of an academic character that affect the University as a whole” when the right of the Board to “oversee financial matters” is construed as a unilateral authority?   In the phrase “determine all matters of an academic character,” “determine” is a strong and decisive term.  But Senate does not have all of the authority that this term designates if in fact the Board and Administration have a unilateral “authority to make resource-based decisions that influence the academic program of the University” (Minutes for 23 April 2009 (I.5.e)).  The right of the Board to exert its financial authority should not be at the cost of the right of Senate to exert its academic authority, and so there must be some more proper arrangement for sharing and coordinating these powers than is provided for in the theory of unilateral powers claimed by the Board, Administration, and their counsel.

[1] Ms. Kelly is variously styled “university counsel” and “university lawyer”:  see, e.g., Senate minutes for Apr. 2009, p. 3, and 20 Jan. 2011, p. 6.

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