Mark Jones, Queen’s Governance: The Case for Legal Advice for Senate (28 February 2012)

At its meeting of 28 February 2012, Queen’s Senate passed a motion concerning Senate authority on academic decisions by a vote of 28 – 20. What follows is the opening argument for it as delivered in Senate.

This motion simply proposes that Queen’s Senate get independent legal advice concerning the proper extent of its own authority and responsibility in academic matters.

Is it really true that the Board of Trustees and the upper Administration can make unilateral decisions on all university matters involving financial resources, even when these decisions also have academic impacts?  Queen’s does have, in its bicameral structure, a Senate for academic oversight, a Senate in which our experts in academic matters, i.e., our academic faculty and students, preponderate.  In our newly revised “Purpose and Functions of Senate,” the first sentence reads:

“Under the jurisdiction of the Royal Charter of 1841, Senate determines all matters of an academic character that affect the University as a whole . . .”

Yet Queen’s upper Administration has repeatedly assumed—and indeed asserted, with the support of a university lawyer—that it has a unilateral authority in matters involving “resources”:  that is, an authority to determine these matters without the consultation or approval of Senate.  The university lawyer Diane Kelly delivered this as her opinion in Senate in April 2009, and again in November 2011.  In both cases this opinion was ex post facto, that is, it was offered in support of a done deal.  In the first case, it affirmed the Administration’s unilateral right to have suspended about 75 programs that had 25 or fewer concentrators.  In the latter, it supported the Administration’s unilateral right to have frozen admissions to the BFA program. In both cases the Administration’s decision had an indubitable academic impact; in both cases the Administration cited only financial, not academic rationales for its action; in both cases it had acted without consultation of or approval by Senate; in the later case, most of Queen’s Senators never even heard about the matter until the decision had been announced nationally in the Globe and Mail.  In both cases, concerned faculty and students duly passed motions with large majorities in the Arts and Science Faculty Board:  both motions required the Dean to rescind his financially based decision and to submit the matter to academic consideration through proper channels, that is, to consult with the Faculty Board and Senate.  In both cases, the same Dean—the Dean of Arts and Science—declined to do the clearly expressed will of his Faculty Board, invoking the university lawyer’s argument that Administrators, as officers of the Board of Trustees, have a “managerial” right to make unilateral decisions where finances are involved, even when those decisions have academic impacts.

One glaring problem with the University Lawyer’s opinion is that virtually all decisions on “matters of an academic character that affect the university as a whole” also have resource implications.  Therefore, according to the university lawyer’s opinion, the Board of Trustees’ and upper Administration’s “managerial” authorities pre-empt virtually everything that Senate is here for – its very “purpose” as stated in its lately revised and approved “Purpose and Functions of Senate” document – that is, its responsibility to “determin[e] all matters of an academic character that affect the University as a whole.”  If we accept the theory of Ms. Kelly, the purpose of Senate is essentially fictitious.  As my esteemed colleague Elizabeth Hanson put it in a letter recently sent to all Queen’s Senators, “If Senate allows [this opinion] to stand unquestioned then Senate might as well disband itself.”

Yet the motion now before Senate does not ask Senate to decide on the legal niceties of this matter.  It does not ask that we rule against Ms. Kelly’s opinion.  It merely asks that we get some arms-length expert advice.  Passing this motion is merely prudent and responsible conduct, the least that we can do in our obligation as Senators to our constituents and our university.

This past December, when the Dean of Arts and Science refused to act upon a Faculty Board motion requiring him to rescind the BFA admissions freeze, he invoked Ms. Kelly’s opinion and explicitly treated it as a “ruling.”  He said:

“This came up two or three years ago and the legal ruling is the same as Diane Kelly gave in Senate. The authority is not that of Faculty Board or Senate.” (“ArtSci faculty members at odds with admin over Fine Arts suspension,” Queen’s Journal, 13 December 2011)

But Ms. Kelly is not a judge, she is a lawyer, and her theory of Administration’s unilateral “managerial” rights is not a “ruling” but an opinion.  There is a vast legal difference between the two.  The Dean’s treatment of it as a “ruling” illustrates, however, what happens if we neglect to think critically and to consider other opinions: an unchallenged opinion is liable to be mistaken for a “ruling,” just as an unchallenged theory is commonly mistaken for a fact.

To illustrate that this opinion of the Queen’s University lawyer is neither a ruling nor a fact, but is merely one opinion among others, I would remind Senate that a contrary view has been rendered in careful detail by a credible source, Queen’s law professor emeritus David Mullan, one of the nation’s foremost experts in public and administrative law.  Professor Mullan’s discussion paper (which is linked to the motion) argues that the Faculty of Arts and Science should not have suspended enrolments in 2009 “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 the Senate, a delegation that is “binding until formally revoked” (pp. 9-10).  Although “Functions of the Senate” was revised in 2010 as the “Purpose and Functions of Senate,” the revised document still provides, as noted above, that Senate “determines all matters of an academic character that affect the university as a whole.”

Thus, we have on record two diametrically opposed assessments of Senate’s jurisdiction over academic matters.  Again, the motion now before Senate does not ask that Senate decide between these, but merely that it recognize the dissonance between them as indicating an uncertainty concerning the very material question of its own legal authority and responsibility, and that it therefore take proper measures to ascertain what its own legal authority and responsibility are.

I can anticipate the question, “who will pay for this legal opinion?” because I have heard it many times already.  Given that the question of Senate’s authority has to do in some manner with a contest for power between the Board and Senate, and given that the Board controls the money, this question would appear to be a Catch-22.  But I have two answers.

One is that it is difficult to imagine that Queen’s can pay $100,000 to a Toronto ad agency to reinvent the phrase “the spirit of initiative,” and cannot afford to pay an arms-length legal expert to render an independent expert opinion on a matter of such real consequence as ensuring the propriety of Queen’s own academic governance.

My other answer is that it is difficult to imagine the Board of Trustees wishing to leave this question mark over its own authority—for this is as much a question of the Board’s legal authority to override the Senate’s academic authority on “resource” grounds, as it is a question of the academic authority of Senate itself.  If the requisite outlay needs to be expressly approved by the Board, I would therefore suggest that the proper process would be for Senate to approve the motion, and then to ask the Principal to appeal to the Board, on the grounds I have just stated, to approve the expenditure.  Resolving this question of relative authorities is a matter of real academic consequence to the future of Queen’s, but it is also a matter of reputation:  as such, it is in everyone’s best interest to see it resolved in an open, upright, and principled—i.e., in a proper legal—fashion.

In sum:  Queen’s Senate needs to work out the present contest of authorities (a) by admitting that what the Dean has been treating as the university lawyer’s “ruling” is actually an opinion, (b) by getting another opinion from an independent expert on the question of the authority of Senate over academic decisions, and (c) by putting the various opinions into dialogue with one another to decide, cooperatively, how Queen’s financial and academic authorities can henceforth cooperate in decisions that have both financial and academic dimensions.

It is to initiate this process that I urge all senators to vote yes on this motion.

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