Turning the Clock Back

Posted September 30, 2016
By Jon Thompson

The decades following the Second World War saw gradually increasing democratization of governments and other organizational structures, including greater protections for freedom of expression in general and academic freedom in particular. The pace of change varied from country to country, with Canada often benefiting from progress in the US and UK in developing its own approaches. But an anti-democratic “counterrevolution” began to emerge in the 1970s, also at varying paces.[1] This brought erosions of effective democracy across the world, including significant efforts to weaken democratic participation. The reaction was fueled by a social science technology, neoliberalism that was globally triumphant by the turn of the century. It adversely affected the academy and brought measures that weakened, or potentially could weaken both academic freedom and academic democracy.[2] An early instance was the 1988 abolition of tenure, a basic protection for academic freedom by the UK Thatcher government. Two recent Canadian instances are the focus of this note.

The first was national in scope and emerged in 2011 when Universities Canada (UC, formerly AUCC) issued a new Statement on Academic Freedom. The new Statement was not only weaker than its own 1988 Statement, but one that took the scope of this right of academics back a century to the narrow conception prevalent in the Second German Reich. Notably absent from the UC characterization were freedom to criticize the state and freedom to criticize the university. Both are included in the CAUT policy statement and through the efforts of CAUT and its members over decades, academic freedom protection in Canada is enviably maintained in comparison to other countries.  Both aspects have been important in Canada since the 1958 summary dismissal of historian Harry Crowe by United College in Winnipeg, the case that galvanized CAUT into very active rights promotion and defence. CAUT sharply criticized the UC Statement, noting among other things that the Statement emphasized institutional autonomy to an inappropriate extent and conflated it with academic freedom.

The second instance was local, at the University of New Brunswick: a radical draft revision of the UNB Act proposed by a committee of the board of governors that emerged in 2014. If enacted by the Legislative Assembly, the draft revision would have restored to the board unilateral powers it had enjoyed a half century earlier. The draft would also have removed the limited but significant legislative oversight provisions of the current Act that provide a measure of protection for the public interest. If enacted, removal of these oversight provisions would have given the corporate governing body – the board – a degree of institutional autonomy unprecedented since 1859 when the institution was incorporated as the Province’s secular university. This local instance may have wider significance because a similar attempt to turn the clock back could potentially occur elsewhere. In such event the successful collaborative effort by many in the UNB community to oppose enactment of the draft could be instructive.

 In the 1960s university governance in Canada was transformed into a shared model, with incorporation acts of many institutions revised so as to set out the compositions and specific powers for academic bodies (senates) and for corporate bodies (boards of governors). The process was jointly promoted by CAUT and AUCC, and brought a measure of limited but significant democracy to the academy. The transformation (sometimes referred to as the Duff-Berdahl reforms) helped to consolidate a right of academic staff to significant involvement in establishing and maintaining program standards, because the compositions and powers of senates were enshrined in the legislation and as such not easily subject to unilateral change by the board.

During 1967-1968 the UNB Act was extensively revised along these lines, a revision developed in detail by a 16-member committee with board, administration and faculty representatives, the majority being faculty members (including three table officers of AUNBT, the faculty association). Technical drafting for enactment was carried out by law professor George McAllister who was past president of AUNBT and also vice-president of CAUT. Overall, the 1968 UNB Act was and remains one of the strongest in Canada from the academic-democracy perspective although not the strongest in every respect. It has been amended without controversy several times since 1968; for example, in the mid-1980s a second senate was created (for the Saint John campus). In contrast to the transparent revision process of 1967-1968, the 2014 attempt to radically revise the Act was secretive for many months.

AUNBT was certified as a trade union in early 1979, and during almost all of the subsequent 35 years developed and maintained a mature bargaining relationship with the UNB administration and board. This changed during the round of collective bargaining which began in 2013 and culminated in UNB’s first strike in early 2014. In the process a degree of solidarity not seen for many years developed, a measure of which was the 90% vote in favour of strike action, with 97% of the membership voting. Conversations among strikers on the picket line and in the strike headquarters included sharing of deep concerns over under-resourced teaching and research programs among members. The strike occurred after a period of several consecutive years of board-approved practice of budgeting for deficits and generating large annual excesses of revenues over expenditures. Much of these funds were accumulated in internally restricted accounts. The high rate of growth of the total in these accounts and the large total accumulated over the period, together with ongoing successive depletions in academic program resources were factors contributing to the decision to hold a strike vote.

During the months following the strike, almost all faculty councils passed motions expressing lack of confidence in members of the senior administration. The board responded by publicly declaring full confidence in them. During the same period, two new informal bodies formed spontaneously to advocate better support for UNB’s core mission: an academic council and a research council. It was in this atmosphere that the text of the draft radical Act revision appeared.

Work by the board’s Act revision committee commenced in early 2013 and the committee published a complete draft early in the autumn 2014 semester, without ever having consulted with organizations whose members’ rights might be adversely affected, such as the two senates or AUNBT, each of which existed and operated under legislative frameworks. Moreover, the UNB Act is and has always been a public act, and any change is subject to the legislative amending process for such acts (there is a different process for private acts). For changes to public acts, the government may require that public consultations be part of the process.

The radical character of the 2014 draft revision is clear from a provision that, if enacted, would have given the board unilateral power to discontinue either or both senates, or to establish a new senate or senates with jurisdiction(s) determined unilaterally by the board. Restructuring the senates by such a device potentially could also weaken certain articles in AUNBT collective agreements outside of the collective bargaining process. These and other provisions in the draft, such as elimination of the legislative oversight sections of the existing Act were the cause of widespread concern.

When the board committee’s draft was published, an accompanying announcement included a deadline of six weeks hence for responses. The senates and AUNBT objected that this was unreasonable for such complex changes and demanded a longer response period. The initially announced period was then extended to six months.

Because AUNBT was able promptly to assemble resources, it took the lead in analyzing the draft revision and developing an appropriate response. It appointed an 11-member bi-campus task force composed of active and retired academic staff from a wide range of disciplines, including several members of its executive committee some of whom also were members of one or the other senate. Unlike the senates, the faculty union had a budget and ability to retain independent legal counsel to assist its task force. The task force met many times over a two-month period, analyzing the proposed revisions and studying university acts in other provinces. Ultimately, the task force concluded that the draft revision was so radical it was not an appropriate basis for revision of the Act. The task force then decided to develop an alternative draft Act revision that would not alter the powers of the board or senates, but would update the existing version to reflect current terminology and practice, to promote certain positive and seemingly uncontroversial changes, and to simplify several sections. This draft revision was publicly posted on the AUNBT website.

UNB is the Province’s largest university and its proper functioning is of public interest. In addition to the AUNBT task force, the AUNBT executive committee, members of the senates, many other members of the academic staff and a few board members, along with several retired faculty members, several retired senior administrators, several former board members, and several prominent alumni took an active interest both in the board committee’s draft and the AUNBT task force’s draft. Both drafts were discussed in separate series of well-attended information meetings. The AUNBT draft was well received, while in contrast the board committee’s draft was poorly received. Several faculty members and several AUNBT representatives had meetings with the deputy minister in the Department of Postsecondary Education, Training and Labour who confirmed that the UNB Act is a public act. The deputy minister also confirmed that Department officials had advised representatives of the UNB board that the UNB Act is a public act.

Following the two sets of information meetings, the board committee responded by publishing a new, much more circumscribed draft revision. AUNBT publicly announced it would support this new set of proposed changes, except one item pertaining to property transactions. In this announcement AUNBT declared its willingness to work with the board and the senates in a transparent process to further develop appropriate amendments to the Act. AUNBT also sent a publicly posted letter to the relevant ministers and opposition leaders confirming this position. The same letter requested an opportunity for AUNBT and the public to make representations to the Legislative Assembly in connection with any proposed amendments to the Act.[3]

To date the UNB board has not submitted any Act amendments to the government. However, it has approached AUNBT on a possible amendment pertaining to property transactions, and discussions are now ongoing in a cordial manner that potentially could lead to an agreed draft amendment on this topic.

[1] Alain Supiot, The Spirit of Philadelphia (New York: Verso, 2012), 17-23.

[2] The origins and impacts of neoliberalism on democratic societies are discussed in Wendy Brown, Undoing the Demos (Brooklyn: Zone Books, 2015), with influence on education the subject of Chapter VI. A summary of the sentiments and sources of money inspiring adoption of neoliberalism in the US (where ‘conservatism’ is the more common term for ‘neoliberalism’ in political discourse) is presented in Lewis H. Lapham, “Tentacles of Rage,” Harper’s Magazine, September, 2004, 31-41.

[3] AUNBT’s communications on UNB Act revision to its members during 2014-2015 are posted at http://www.aunbt.ca/issues/governance/unb-act/