What comes first for faculty during the strike?
Osgoode Hall Law School is caught in the crosshairs of yet another York University labour disruption by the Canadian Union of Public Employees Local 3903 (CUPE 3903). The union represents contract faculty, graduate assistants, and teaching assistants, only the latter two of which remain on strike. On 3 March, the university suspended all classes, with limited exceptions. Faculties seeking to resume operations were required to apply to the York Senate for an exemption to the blanket shut down. The Senate policy has become the battlefield of the divided varsity, and the futures and careers of Osgoode students have been haplessly caught in the balance.
Doctrine and duty.
To be upfront: I acknowledge the right to strike. My concern lies with distinguishing faculty support for labour with the execution of their governance responsibilities as part of the institution and their duty to students.
Certainly, the labour rift has been keenly felt by those on all sides of the dispute at Osgoode. Union supporters, CUPE critics, and those who simply want the option to return to school have busied themselves with a hashtagged debate over why or why not a given faculty ought to stand in solidarity with the union and why students should or should not cross the picket line. While that discourse is predictable (and perhaps desirable) across any distressed student body, it is from these political trenches that a disturbing fault line has surfaced in the university’s governance structure.
Many are sounding the alarm over what they perceive as the refusal of some faculty with governance roles at Osgoode and York to make decisions in the best interests of the institution and its students, rather than their personal ideological preferences. They point to recurrent attempts to needlessly suspend classes, in solidarity with the impugned union, when doing so is clearly unwarranted. This is particularly true for faculties with minimal reliance on CUPE 3903 members or where the impact on students would be disproportionate. On this rubric, Osgoode is both a distant bystander to the strike, and its students are at risk of becoming one of its greatest casualties.
Impacts and facts.
Only one Osgoode course is taught by a CUPE 3903 member, and two others are supported by CUPE assistants. Osgoode students also have the most to lose if the academic year is delayed. Tuition for one year of study at the law school tips the scales at $23,000. Its average indebted graduate owes over $70,000 in loans upon completion of the three-year program. First- and second-year students may see summer job offers rescinded, further compounding their impoverishment in the future.
More urgently, for those planning to graduate, an inability to complete the term by late April will render them unable to prepare for or write the Ontario bar exams in June, and thus unable to satisfy the conditions on their articling job offers. This would leave them unemployed, with derailed careers, at the same time that substantial student loans come due. Graduands have also paid over $5,000 to enter the Law Society of Upper Canada’s licensing process, and to date, the Law Society has indicated that their schedule is fixed and no accommodations will be made for the 280 candidates impacted by York’s labour woes. Should classes resume but Osgoode not meet a designated number of in-class hours, the degrees awarded to graduates could lose Law Society accreditation.
This is a substantial amount of collateral damage to endure for someone else’s labour dispute, and the irony of striking students holding hostage the livelihoods of other, more deeply indebted students is certainly unsettling. Osgoode administration was right to respond with a resumption plan, and the situation ought to have compelled those on the school’s governing bodies to set aside personal views and retreat to fact-based decision-making, not doctrinal entrenchment.
The facts above should have been sufficient to convince any rational person that Osgoode needed to resume classes immediately, perhaps providing some means of accommodation for students unable or unwilling to cross picket lines. Over 200 students made such a request on 8 March, and Osgoode’s Faculty Council followed suit, voting 34-17 on 10 March in favour of seeking an exemption to the class suspension policy. Osgoode administration obtained the exemption from the York Senate on 12 March, for a resumption of classes on 16 March.
Pupils over politics.
Yet, it is the insistence of a minority of faculty (and some elected students) with governance duties that classes remain suspended for everyone until the labour dispute is resolved that is cause for concern. These are professors with six-figure salaries voting in a direction that would have seen their debt-strapped students ushered further into the poorhouse, lose their jobs, and forgo joining the profession they had studied for at least seven years to enter. These academics would watch this transpire in the name of solidarity with striking workers from a largely external labour dispute, whose demands most could probably fail to enumerate, and who all students do not support.
Hypocritically, during a suspension of classes, all of these professors would continue to receive a handsome pay cheque generated from the fees of their students (who would get no refund), despite not performing any teaching duties. Bluntly put, they appear to be relying on the irreproachability of tenure, the impunity of academic freedom, and anonymity of voting procedures (against the request of students) to inject their personal politics into a governance decision that should turn on other factors. The consequences could have denied their students the same types of professional opportunities they themselves have enjoyed at much less cost.
Only one member of Faculty Council took the podium to point out the incompatibility of members’ personal convictions with their governance duties. The fact that he had to do so is distressing, particularly because all of these decision-makers ought to know better already. Most are well-versed in areas of law concerned with administering the care and interests of others—experts on topics like fiduciary duties, the obligations of trustees, public interest decision-making, and the best interests of the child. Common sense should have exposed other plain rationales: the reputational blow to a leading law school that failed to output graduates because of its internal political biases would be devastating in terms of future support or recruitment outreach from the legal sector, or interest from competitive applicants.
Failing to resume classes would prioritize abstract, personal political loyalties and labour-side convictions over the very real, apparent, and quantifiable threats to the institution and the wellbeing of its pupils. It would be painfully ‘ivory tower’ for academics who often criticize the ideological motivations of governments and sermonize access to justice and the law to contradict themselves in their own policy-making capacities. Resuming classes should never have been a decision concerned with supporting or undermining the union’s right to strike—it was about standing by the best interests of students and the institution. Those best interests favour a return to classes and a timely completion of the academic year.
AWOL academics.
Further, unlike during 2008-09 strike, Osgoode faculty are now members of their own union with an active collective agreement. Accordingly, they are subject to the Labour Relations Act. The Act provides that where a collective agreement is in operation, no employee bound by the agreement shall strike. A strike includes a cessation of work, a refusal to work or to continue to work, or a slow-down or other concerted activity on the part of employees designed to restrict or limit output. Some have questioned whether attempts by faculty members to suspend classes (or keep classes suspended) are contrary to these rules, at least in spirit.
If not, some of the actions taken by faculty since the resumption of classes might also arguably run afoul of the Act. For instance, Osgoode’s Resumption and Remediation Plan contemplates classroom and course technology usage on campus, yet some instructors have scaled back the quality and availability of lectures. Some have moved remaining lectures off-site. Others are only offering “virtual” formats consisting of recorded lectures and online “self-study” documents. A handful have cancelled all in-person meetings, and some continue to undermine Osgoode’s decision to resume classes through various other governance bodies. They are perhaps buoyed by other York labour unions that appear to be judiciously counselling their members on means of shirking work in solidarity with CUPE.
Cancelling lectures, cutting course delivery formats, and refusing to show up at the place of employment certainly look like slow-downs, work stoppages, and restrictions of output. More plainly: for $23,000 per year, students should expect more than an online, self-directed legal education. Many of us hope that the Labour Relations Board agrees.
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The entire strike incident has been deeply disappointing and frustrating for many Osgoode students, who feel that their future has come last in the priorities of some of their faculty mentors. The question to be asked when the dust settles is why Osgoode classes were ever suspended to begin with, when other costly professional programs, like the Schulich School of Business MBA, were not. Moreover, at what point are we uncomfortable allowing academic freedoms and insularity to hold student welfare captive? Until we have answers, applicants to Osgoode may be well advised to check the expiry dates of York’s other collective agreements before enrolling.
Douglas Judson is a JD/MBA student at Osgoode Hall Law School and the Schulich School of Business of York University. He was a member of CUPE 3903 in 2013-14 and 2014-15. The opinions expressed are his own.