THE THREE HUNDRED EIGHTH PLENARY SESSION

OF THE UNIVERSITY FACULTY SENATE

OF THE CITY UNIVERSITY OF NEW YORK

November 30, 2004

The meeting was called to order by UFS Chair O’Malley at 6:30 p.m. in Room 9204/5 at the Graduate School and University Center. Voting members were present:

Baruch: Present – Goldstein, Hill, and Pollard. Absent – Freedman, Giannikos, Majete, Myers, and Smith. BMCC: Present – Agwu, Friedman, Martin, Price, and White. Absent – Belknap. Bronx CC: Present – Fergenson and Skinner. Absent – Carney and McManus. Brooklyn: Present – Antoniello, Bell, Jacobson, Morawski, Shapiro, and Tobey. Absent – Bloomfield, Cunningham,, Romer, Viscusi, and Wills. CCNY: Present –Crain, and Sank. Absent – Benenson, Broderick, Buffenstein, and Sohmer. Vacancies – 3. CSI: Present – Cooper, Farkouh, Levine, Petratos, Alternates Monte and Schumann. Absent –, Klibaner, and Yousef. CUNY Law School: Present – McArdle. Absent – Andrews. Vacancy – 1. Graduate School: Present – Baumrin, Nolan, Tobin, and Alternate Long. Absent – Khuri, Lerner, and Rachlin. Hostos CC: Present – August, Roe, and Singh. Vacancies - 1. Hunter: Present – Doyle, Finder, Friedman, Guzzetta, Kaye, Krishnamachari, and Matthews. Absent – Sherrill, and Wimberly. Vacancies – 1. John Jay: Present – Brugnola, Kaplowitz, and Wylie-Marques. Absent – Kubic, Kucharski, Mandery, and Stevens. Kingsborough CC: Present – Barnhart, Farrell, Galvin, O’Malley, Ruoff, and Alternate Perlmutter. LaGuardia CC: Present – Beaky, Davidson, Lerman, Mettler, Rushing, and Alternate Green-Anderson. Lehman: Present – Aronowitz, Mineka, Philipp, Wilder, and Alternate Kolb. Absent – Hosay, and Jervis. Medgar Evers: Present – Barker, and Hastick. Absent – Donohue. Vacancies – 1. NYCCT: Present – Cermele, Hounion, and Alternate Nicolau. Absent – Dreyer, Horelick, Richardson, and Walter . Queens: Present – Bird, Erickson, Moore, Savage and Tse. Absent – Brody, Casco, Habib, and Sukhu. Vacancies – 1. Queensborough CC: Present –, Pecorino, and Alternate Ansani. Absent – Barbanel, Hest, and Weiss. Vacancies – 1. York: Present – Lewis and Wolosin. Vacancies - 2.

Governance Leaders present: Baumrin (GSUC), Cooper (CSI), Friedheim (BMCC), Kaplowitz (John Jay), Krishnamachari (Hunter), Leonhard (CCNY), Levine (CSI), Mettler (LaGuardia), Pecorino (QCC), Savage (Queens), Tobey (Brooklyn) and Tronto (Hunter). Parliamentarian Andrea McArdle, Executive Director Phipps, Administrative Assistant Pasela, and Secretary Blanchard were present. 

I. Approval of the Agenda - The agenda was adopted.

II. Approval of the Minutes of October, 2004 - The minutes were adopted as proposed.

III. Reports : (Recorded in Reports & Deliberations)

A. Chair: (page 20, Reports & Deliberations)

B. Chancellor Goldstein.

         C. Vice Chancellor for Legal Affairs Frederick Schaffer.

         D. Representatives to Board Committees.

The meeting was adjourned at 8:24 P.M.

Respectfully submitted,

William Phipps

Executive Director

THE THREE HUNDRED AND EIGHTH PLENARY SESSION

OF THE UNIVERSITY FACULTY SENATE

OF THE CITY UNIVERSITY OF NEW YORK

November 30, 2004

III. Reports:

B. Chancellor Goldstein: Chair O’Malley - Because the Chancellor has to be some place else, he can only stay five minutes. But I do want to say I was up at the SUNY governance leaders meeting. Chancellor King was there, and he said, "Matt and I are good friends but we’re different. Matt’s an academic. I’m a lawyer." Anyway, thank goodness for an academic.

Chancellor Goldstein – Thank you very much. Einstein said the past and the future are all illusional and that you can be in two places at one time if you are Schroedinger’s cat. I apologize before I even begin that I can’t stay too long because I do have another engagement that I’m very much involved in. Let me just talk very briefly about a series of things that have occurred in the past several weeks. We did our launch and it was quite effective. I think a question that was asked by Manfred was "You have some money in the bank I assume before you launch" and I said, "Yes, we do." So now I can publicly say, and it was certainly reported in the press, that we’ve been working very quietly and without much fanfare across the entire University, that we’ve booked about $470 million in private giving, and that’s a great tribute to a lot of people. We announced a campaign that is a little different than what most universities do because we are a public university and the way in which some of our funds come about. We’ve announced a $1.2 billion campaign that is restricted to endowment and programs. But in addition, because of the way that our capital program is structured, we believe that we will have an investment in the University that will be a combination between that which is provided through the State and City of New York and matching money and leveraged money that would bring that overall target up to about $2.6 billion. So that’s a really significant advance for us, and in answer to the second part of Manfred’s question I indicated, rightly so, that the faculties across the University have to be intimately involved here, because nobody is a better articulator, if you will, of the needs of what happens in the academic life than students and faculty. So we’re going to really need all of you to be helpful, and the good presidents, I will surmise, are the ones that will engage faculty very quickly. As case statements are developed, and needs are developed, and areas for the campus are developed, the faculty should be very much involved and I hope that you will be. So that was an important event for us because this is the first in the history of this University. Of course the most joyous occasion were our two Rhodes scholars. I must tell you, and I did not report this in the press, but President Williams, he and I reconnoitered before all of this event occurred, that Lev Svirdov would call him as the Rhodes committee made their final decision, whether we were in the game or out of the game, and I was driving a little faster than I should when my phone rang and it was President Williams, and he said, "You won’t believe it; not only did Lev win but we have another winner as well." I almost went off the road. To hear both of these men talk about the experiences with their faculty, with the students, and how these were the right choices for them, Brooklyn College and City College, it was just a great tribute to everybody that was involved in helping these two extraordinary young men come from where they did to where they are today. So kudos to all our faculty that were involved and everybody else who nurtured and challenged and allowed these two students to realize the pinnacle of scholarship support for undergraduate students. So that was clearly a wonderful event.

Last night we appointed the founding Dean of the Graduate School of Journalism, Steve Shepard, who is the current Editor in Chief of Business Week, a CCNY graduate and very proud of it. One of the Board members asked me privately, "How does an engineer become a journalist so early in his career?" and the answer was, for those of you who remember the City College that I remember, there was a wonderful magazine called Vector. Were any of you science majors or engineering majors at City College? Vector was an award-winning magazine written by students that were in natural sciences and in engineering, some in mathematics. And it was all student-oriented, it was an award-winning magazine, and Steve Shepard was the Editor in Chief. So he always had this secret life of wanting to be a journalist but if he had told it to his father his father would have said, "What, are you crazy? Be in engineering, get a job, make some money and support yourself." So that was a good occasion. Last night the Board unanimously approved our recommendation for an Operating Budget for the University and for a Capital Budget, and this will be our largest budget request in the history of CUNY. We will be asking for another $115 million over what we received last year in our Operating Budget. This represents about a 9.2% increase from expenditures to ask, and the record for a Capital Budget of about $2.3 billion. I don’t know if we will receive this amount of money, but unless you ask and are a little aggressive we’re just not going to be in the game. And I’ve been beaten up a bit because of my position on Fiterman Hall; I insist we need to have a new building for Fiterman Hall and there are people in the city who just say just fix it up and do it the cheap way. I just don’t think that’s right. That’s OK, you take some lumps and you just move ahead. We’ll see where it is that we go.

Those are some of the highlights. You do know that we are seeking a new President for the Graduate School and University Center. We gave the charge to the committee. We’re being assisted by Jonathan Cole as just a consultant to the search as opposed to doing what we traditionally have done, which is to hire one of the major Executive Search Firms, like and Jonathan is a man of great stature and standing at Columbia; for those of you who studied at Columbia and know his work, I think you will agree that he could be very helpful. We’re hoping to get that search done the early part of the spring and have new leadership at the Graduate School. That to me is a critical search because I circulated the report that I asked a number of consultants to join us in helping us think through the structure of the Graduate School. I think on balance it is the right kind of structure if there are some areas that we need to attend to make the Graduate School even better in delivering the kind of destruction and research for our students than it does today, but we will see. We probably will bring in a group of scientists to talk about how we perform our natural science programs at the University. That has been probably the most problematic in terms of structure, in part because so much of what goes on in science, certainly in my word, it’s an old word, but "lab science" is done on the campuses. There needs to be, I think, a fresh look at that structure, and we’ll bring in some very prominent people who have experience in systems to see how we advance that. Science, and I’ve spoken now to so many of our great scientists across this University, and there’s one theme that is invariant across all the campuses, and that is there has been a real lack of attention to developing the necessary instrumentation and equipment upgrades in order for our faculty and undergraduate students and graduate students to do their best work. We’ve known this for a while. Our capital program is requesting about $600 million in upgrades of facilities, instrumentation and equipment. If there is a defining theme in this capital program it is really renewal of the sciences because we’re just not going to be able to do the things that we are capable of doing.

I spoke longer than I intended to. I’ll take just a few questions. Please try to make it brief so other people have a chance, and then I really have to get out of here.

Professor Levine (Engineering Science and Physics, College of Staten Island) – I completely agree with your comments about the need for upgrading science equipment both at the research level and at the instructional level. A few weeks ago a group of scientists from the graduate programs met with Selma Botman in this building and one of the recommendations that came out of that meeting was a suggestion that you add the executive officers of the PhD programs in science to your Advisory Committee on science research. I haven’t heard that it has happened yet. I hope that you will announce it tonight. / Chancellor – I’m going to announce it tonight because tomorrow I’m meeting with them, enhanced by the EOs. / Professor Levine – Thank you. / Chancellor – I told you we would do that and I think it’s scheduled for some time in the afternoon tomorrow.

Professor Rushing (Social Science, LaGuardia Community College) – I’d like to just follow up on questions about the Honors College for community college students, being able to get into it. We think that we can show that students are qualified to get into that program after they’ve been at the community college for two years. These are the students who are transferring to Cornell and Amherst and Vassar If they can go there and be Phi Beta Kappa in those institutions surely they should be able to transfer into the Honors College. So I was also wondering how we could follow up. You said you thought we could have a dialogue on that, so I was wondering how we could proceed to do that. / Chancellor – I think we need to have a dialogue about that. / Professor Rushing – That’s correct. / Chancellor – The Honors College as presently conceived is a highly structured program. The third and fourth years are much less structured than the first and second year, and that’s really where the problem resides. Students can’t miss the first two years without being at an unfair disadvantage. Selma Botman and I have started a conversation about this and I don’t know if the suggestion emanated out of this group or some other group and it’s something we’re going to look at, but it’s going to be a big challenge unless the way in which the Honors College is presently conceived is restructured, but it’s something that we’re going to take a look at. / Professor Rushing – Maybe we could discuss that because students do transfer into highly structured programs at these prestigious colleges, and they do well there, so I think maybe we could talk about that. / Chancellor – It’s certainly something we would be interested in discussing. / Professor Rushing – So could we call your office to get that started? / Chancellor – We have started the discussion and let us do it internally first and then …/ Professor Rushing – …and then it could reach out. / Chancellor – Absolutely. I have no problem with that.

Professor Bell (Educational Services, Brooklyn College) – You talked a little bit about the plans for next year’s budget. Have we given up on getting back the money on this year’s budget or if not what are we doing about it? / Chancellor – The Legislature reconvenes on December 6, and the window is very narrow, and unless we, and SUNY in particular, to a lesser extent the independents that have some stake here in the capital program, unless we can find a way for some accommodation I doubt -- and I don’t have any inside information to support this -- but my instincts and experience would tell me that I doubt that there would be an override; but I could be wrong. I am hopeful that there will be some accommodation between the Legislature and the Governor’s Office prior to the end of the fiscal year. If this is not done before December 31 what’s going to happen is that all of the wonderful efforts that we were successful in achieving with the Legislature will disappear, and we will have to start anew with the new budget. So for us this is very critical. We were hoping the Legislature would take up some of this stuff on November 17, 18 and 19 when they were in, but they didn’t because they were involved in lots of other things, as you know what was going on then. So people tell me that there is going to be a serious effort to get some reinstatement. We’ve been working as hard as we can. I don’t think there is a week that goes by that a group of Vice Chancellors are not up in Albany. They were today, they were twice last week with staff and the leadership in both the Senate and the Assembly talking to the governance people. Everybody says, "We got to do it, we got to do it," but as Jerry Maguire said, "Show me the money." / Professor Bell – Is there something the faculty should be doing? / Chancellor – I’ve always said that faculties in general are a potent force in getting the word out, so yes, of course. Call your legislators in your district. We’ve put out all of the paper; we continue to do it. It doesn’t hurt; it can only help. / Professor Bell – Thank you. / Chancellor – And with that I think I’m finished. / Chair – Thank you so much.

C. Vice Chancellor for Legal Affairs Frederick Schaffer: Chair O’Malley – Our next speaker is Frederick Schaffer, General Counsel and Vice Chancellor for Legal Affairs. He called and asked if he could address the faculty. I wanted to do a proper introduction, so I went to the website and I printed it out. The only problem is the whole right hand side of the page is missing, so it’s quite curious what I know about you. Right before he came to CUNY he was a litigation partner in the law firm of Schulte, Roth, and Zabel, and then it cuts off; there must be other partners. But anyway, he specialized in commercial and securities litigations and employment. Earlier in his career Mr. Schaffer served as Counsel to Mayor Koch in the Office of the Corporation Counsel. He was also assisting US Attorney in Manhattan. He was also an Associate Professor of Law at Benjamin N. Cardozo School of Law. He recently served as Chairman of the Board of Legal Aid Society. He received his BA degree summa cum laude from Harvard and his JD degree magna cum laude from Harvard Law School, where he was editor of the Harvard Law Review. Following law school he clerked for Honorable Francis L. van Dusen judge on the US Court of Appeals for the Third Circuit. Welcome.

Vice Chancellor Schaffer – My purpose in coming really wasn’t to address you so much as answer questions. From time to time you’ve had questions for me and I thought after four years that maybe the time had come for you to have a more concentrated shot at me. But since I’ve got the podium, let me just spend a couple of minutes telling you a little bit about what my office does and in particular how it interacts with the faculty and then I’ll open it up for questions. I actually wear two hats at the University: I’m the General Counsel to the Board of Trustees, that’s one client, and in that capacity I report to the Chairperson of the Board mostly on issues related to corporate governance and the education law of the State of New York; and then I’m also a Vice Chancellor for Legal Affairs, which makes me the Chief Legal Officer to the University as a corporate entity. A lot of what I do is to make sure that the administration of the University and of the individual colleges, as they seek to carry out their mission and their vision of how to advance the University, do so in a way that complies with the law and doesn’t get anybody into trouble. To that extent I like to think that the work I do is consonant with the goals of the faculty, but of course you don’t always agree and shouldn’t necessarily always agree with the goals of each administration; sometimes we disagree. My job in that capacity really is that of helping advance those goals in a way that’s consistent with the law. I don’t view myself as a policy maker in that regard. I have a little academic experience but I recognize that I’m coming here and, unlike a lot of people who have been here for many years, I’m only here for four years. This is something of a new enterprise for me despite some teaching experience in the past. But the work of my office sometimes intersects with the faculty in more direct ways, some of them, from your point of view, pleasant, and perhaps sometimes not so agreeable. We are a service office. Law is a service occupation, if you think of it that way. I know all the lawyer jokes, but the goal of a lawyer is really to advance the interests of the clients. You the faculty are not directly my client but in some indirect ways you are. There are instances where there are legal requirements that we all need to comply with and it’s my goal to try to advise you and inform you of them when they’re new and to muddle through them with you. Most recently in its wisdom the State Commission on Ethics reversed a long standing policy that exempted the faculty from the requirements of the financial disclosure provision of the State Ethics Law and ruled that faculty who earned above the threshold level of $70,000 would have to file these financial disclosure forms or, the alternative, file for an exemption. My office fielded hundreds of e-mails and phone calls from the faculty and I know you reached out to other sources as well, which was certainly appropriate, your Union and your Faculty Senate, for answers to those questions. I wish it had been a smoother process. People kind of think of me as a bureaucrat but I think of the people in Albany as the bureaucrats, and they were not always easy to deal with or to reason with. I’m hoping that next year will be a lot easier so that the of the forms, not just the financial disclosure form but the exemption form too, will be available so that you could file it online instead of downloading it, filling it out, and then having to mail it in. We also had a long, heated argument with them to try to get them to change the questions on the exemption form, which is really applicable to 90% of the faculty. The questions didn’t make any sense, they were not, at least two of the four, not geared to the situation of CUNY and SUNY. They were adamant that they didn’t want to have two forms floating around, they insisted on leaving the form as it was, and tried to deal with it with a second page of instructions, which was more or less comprehensible, probably less comprehensible. I’m happy to say that with a little help or a little confusion most of you did figure it out and over 90% of the people who applied for the exemption got it. Those of you who didn’t, you have my sympathy, although I’ve been filling out these forms for a lot of years myself. It’s the law and there was just nothing we could do about it.

In other instances we meet as adversaries, that is to say in situations of grievances, in some cases disciplinary proceedings. My office represents the administration and you may have a grievance and if it gets to arbitration we generally don’t get involved till it fully matures to arbitration. Prior to that Vice, Chancellor Brenda Malone’s office is usually handling it. We represent the administration of your college. Similarly, in the rare instances of disciplinary proceedings against faculty members we are in a sense, in a real sense, I guess your adversary. But in all of these instances we really don’t view ourselves as a hired gun whose job it is to win at all costs. I’ve spent half of my career in government service and about half in private practice, and one of the things I love about public service, whether it’s government or quasi-government in the case of CUNY, is that you have the luxury and the freedom that you don’t always have in private practice to do what you think is the right thing. We settle most grievances; we settle a lot of disciplinary proceedings. We try to do it on a basis that’s fair, that’s equitable. We do not hesitate in cases where college or university administrations have made mistakes to tell them, "You’ve made a mistake, you are going to lose, and here’s our recommendation as to the right way to resolve this." Sometimes we’re convincing and sometimes we are apparently unconvincing to the Presidents of the colleges or in some cases to the administration at 80^th Street, but we really do try to look at these matters not from the point of view of let’s have the best, won/loss, record we possibly can have, but rather what does the law indicate [tape turned over] … is available, my door is always open and that’s true of my attorneys as well. We view ourselves obviously in a legal sense as counsel to the administration, but in a real sense we hope to see ourselves as counsel to the larger University community. Some of you are not shy and know me well enough to pick up the phone or send me e-mails when you’re unhappy about things and I’m always pleased to hear from you and to respond. So that was just a little introduction that I wanted to give you about the work of our office. And by the way, let me just give you one other example because it’s a good example of how an issue that doesn’t seem in the first instance to be faculty centered, is. One of the things we do is respond to Freedom of Information Law requests. There are a lot of people out there who want data about the University. I’m a great believer in open government. In fact those of you who like to do legal research can find a Court of Appeals case with my name as the plaintiff in a Freedom of Information Act case. I’m sure he was never aware of it at the time but the case has the wonderful title of Schaffer vs. Kissinger. It actually is a relevant precedent in light of today’s news since it was an effort to obtain from the United States government reports of the International Committee on the Red Cross on the condition of prisoner of war camps in South Vietnam, a subject about which we read in the paper today. But anyway, we get these requests and my office is the court of appeals within the University if a request is denied at the campus level. One of those requests early on in my tenure, Karen, you will remember this, was a request for an actual vote of a P & B committee on a tenure dispute, which we denied I believe rightfully onto the Statute, as coming within one of the exceptions to the disclosure requirement under the Freedom of Information law, and I certainly thought that was an issue and talked to the leadership of the University Faculty Senate about it, on which we had a confluence of views that it would be a very bad thing if people’s vote on tenured appointment decisions, reappointment decisions, promotion decisions were revealed. These are people you have to live with every day and it had always been structured in a way that proceedings of the P & B would be confidential. So we denied that request. We actually expected a legal challenge, which never came on that, I’m glad to say, but it’s an example of kind of an obscure issue of law that turns out to be an awfully important policy issue relating to the life of the faculty within the University. So that’s just a smattering of the kinds of things that we do and I would like to stop there and give you a chance to ask me about absolutely anything.

Professor Petratos (College of Staten Island) – On the matter of exemption from the ethics, I’m the chair of a department. I asked for an injunction. First of all the Union hired an attorney and the Union turned around a memorandum saying that we had to be designated by the college or the University as policy makers and so on and so forth. That had to be done by February or March of last year. So in terms of the request I said I’m not a policy maker; even if I decide to sharpen a pencil in the morning the secretaries always say no; I have no authority over anybody whatsoever, I buy nothing, so I receive from the State Ethics Commission, from an attorney there an e-mail saying are you authorized or do you do any purchasing? And I answered back: No, not even a pencil I buy with my own money. I’m not a policy maker, I have no authority whatsoever, I’m nobody basically. / Vice-Chancellor Schaffer – I’m sure the members of your department would not agree with that. / Professor Petratos – I’ve convinced them otherwise but that’s the case. I haven’t heard from him. I think the law, as a read it from the Union’s attorney, is very simple, and that amounts to "if you people designate people that are policy makers, people that receive grants, people that administer grants and so on, we’d probably eliminate 95% of the faculty and would leave only five people instead of creating this huge bureaucracy that we have in the corporate world of the United States, the government of course if beyond control when it comes to paperwork, and now we’re also beyond control. And it seems to me they’d be happy to designate us as policymakers and so on and you didn’t. The same thing with the multiple job regulation form. What does that ask? It asks how many days do we work outside the University, and we’re only allowed to work one. Now this is the foolishness of all this: if you work as a ditch-digger on your spare day and you get $10 an hour, you cannot work for two days, but if you work as a high power actor or singer or baseball player or anything else, who makes $50,000 in a day, that’s OK. Not a word about income. / Vice-Chancellor Schaffer – On the first all I can say is that I don’t get to interpret the State Ethics Law; the State Ethics Commission does. I think a very good argument can be made that under the law, Department Chairs are not policy makers. But the staff of the State Ethics Commission seems to think otherwise because in the instructions that they sent to you they asked for a declaration of three things that you’re not in an administrative position, such as Chairperson, that you have purchasing responsibility and that you don’t have grants. So they seem to be of the view that if you are a Chairperson of a department you are a policymaker. I can’t prevent them from taking that view. / Professor Petratos – My President repeats three, four times a day whenever we meet, "You’re only advisors, you have no authority to do anything." / Vice-Chancellor Schaffer – OK. If you get a rejection of your request for an exam on that basis let me know and we’ll talk about what your remedy would be. As to the multiple position form, I don’t want to claim lack of jurisdiction, it’s Vice Chancellor Malone’s department that enforces that, but as I understand the rationale behind it, I think it’s a good rationale. The point is that people who are full-time faculty members should be spending the predominant amount of their time doing what faculty members do, whether it’s teaching or research and so on, and therefore the idea was to limit the amount of time spent on other things, not to limit your income. And therefore as a rule of thumb, and it’s fairly standard across universities that I’m aware of, I should point out my wife is an academic even if I am not, that one day a week is the allowable amount of time. / Chair – Next.

Professor Cooper (History, College of Staten Island / – I’d like to shift the ground from the pragmatic to the theoretical. Would you tell us what you consider as the Board’s Advisor the proper position of Trustees on the matter of academic freedom for this University? The University has a very checkered record in all our century on this issue and listening to the occasional Trustee we’ve got shoot his or her mouth off, I get a sense of déjà vu all over again, having had the unfortunate experience of watching arrest two of my English professors at City College arrested half a century ago. There’s something in the air that reminds me of 1952-3, and I’m wondering how much we can rely on this particular Board and the advice that we’ll get, compared to what happened then and in 1936 and 1940 and earlier. / Vice-Chancellor Schaffer – Look, as a country we’ve had a checkered past when it comes to issues of civil liberties, particularly in wartime. I think the historical record supports a gradual improvement. If you look at the events, of say, the Civil War compared to WWI compared to WWII and you look at the way in which the Supreme Court has responded, indeed most recently in the two cases that it determined last term, I think there’s some ground for optimism. Now with respect to our Board, we have a policy on academic freedom, which is a short version of the original AAUP policy or statement in 1940, and this Chancellor and this Chairperson are quite committed to that. I think the statement that Chairperson Benno Schmidt made shortly after 9/11, which I think we posted on the website on the last anniversary of 9/11, I think speaks quite eloquently to our commitment to academic freedom. I think in the four years that I have been here and in particular the three years since 9/11, there has been really no significant infringement. Individual members of the Board have individual views, and I suppose they have their First Amendment right to express those views. Sometimes I may agree with them, sometimes I may disagree. I suspect that sometimes other members of the Board agree and disagree. But I think there is a strong commitment on the part of this Board, who I know pretty well, to maintain a policy of academic freedom, and I’m quite optimistic that, the current atmosphere of the country notwithstanding, that policy will be maintained, and I’m just personally convinced of that and I think there’s a very strong institutional commitment to it now, whatever may have been the case in the 1930s and the 1950s, which I’m certainly aware of and which I know all of us feel involved some actions that were truly shameful.

Professor Philipp (Chemistry, Lehman College) – Do you think the Board would be willing to pass a formal policy on academic freedom? As far as I know the policy exists only through the Council of Presidents from 1943 before CUNY existed as an institution, so would it not be helpful to the Board itself to protect the Board from accusations of such violations to have a formal policy that it could point to and say, "this is our policy, this is where we stand." / Vice-Chancellor Schaffer – I think the question really is one of need, Manfred. The statement or the policy that you’re referring to that was passed by, it wasn’t even called the Council of Presidents then, and to date has been treated as a policy of the Board. If you have any doubt I’ll be very clear on the record: I view it legally as a policy of the Board. You have the right under your collective bargaining agreement to grieve any violations or arbitrary applications of policies of the Board. That includes, in my view, that policy on academic freedom. That is the position of this University; there is a policy, it applies, and you have the right to grieve under it, and you can write it down; that isn’t going to change. It takes a long time to get people to agree on the wording of anything. I think we’ve got a policy that captures the essence of what academic freedom is. It is virtually verbatim the 1940 statement of the AAUP. I don’t see the need in light of that to spend a lot of time debating should we revise it this way, should we revise it that way. Even the AAUP spent a lot of time on this, which is really the raison d’être of its existence. If you read all of the statements that have come out since 1940, at least in my view, they don’t really add very much to the 1940 statement. The heart of what academic freedom is there. So my view is that our time and the time of the Board should be spent on looking at issues where we don’t have a policy, where they’re clearly inadequate, where they’re out of date. We have a task force right now that is addressing issues of privacy and computer use. Earlier when I first came to the University we had a task force looking at a policy on intellectual property, and it’s a question of where you’re going to put your time and resources. I think we have a good policy on academic freedom and if it ain’t broke, why fix it? / Professor Philipp – Just a comment. It didn’t seem to help though in the early 1950s when the policy was in effect. / Vice-Chancellor Schaffer – Well, you could say the same about the First Amendment. Should we revise the language of the First Amendment because we don’t like the way in which the court applied it in the early 50s? The warning only gets you so far. I think it was Justice Learned Hand who once said that when liberty dies in the hearts of the citizens, no piece of paper can save it, and I think that applies to this situation. / Professor Philipp – Thank you.

Professor Crain (Psychology, City College) – Why did you recommend an adjunct professor,… [tape turned over]... be relieved of his duties when he was not convicted of anything? The presumption of innocence is fundamental to the Constitution. And why don’t you recommend publicly, I know you call it recommend, that Miguel Malo be released and charges be dropped? Whatever the circumstance after his arrest that you addressed last time, he was arrested while holding up a sign and handing out literature, which seems to be governed by the First Amendment. It seems to me the proper thing for the University is to say, "maybe circumstances are such that he got into fights with the officers afterwards but, by gosh, we defend the First Amendment and students have a right to give out literature and we’re going to take a stand on this," or "My gosh, this terrorism sounds scary but he’s innocent till proven guilty and we’re going to take a position on this," and why not come right boldly out and take principled positions in favor of the spirit of the Constitution? / Vice-Chancellor Schaffer – Let me address the two cases in reverse order because the Malo case is in some ways the simpler. The District Attorney of [Bogs County], based upon statements made by the Peace Officers on the campus of Hostos, charged Mr. Malo with assault. I wasn’t there, I don’t know what happened, but two Peace Officers swore out a complaint that they had been assaulted; that’s a crime; it’s not a First Amendment issue, it’s a crime. I, and the University as far as I know, have had literally nothing to do with that since the day it started. Every now and then, because Mr. Malo has sued the University, I check up on what the status of the case is and God knows it is taking forever, but it’s not our case. The District Attorney at Bronx County has brought that case, some of you signed a letter to him a year or two ago, and he responded. I wasn’t there, but if the facts are as alleged by the Peace Officers that they were assaulted by Mr. Malo then it’s a proper prosecution, and if that’s not what happened then I trust the system will wind up with an acquittal. But I just don’t view it as a First Amendment issue. I don’t know, and I don’t think it matters what happened before. If he assaulted those Peace Officers, as would be true if a student assaulted a professor, you would expect that the prosecuting authorities of that county would take appropriate action. I’m not omniscient, I wasn’t there, but it doesn’t strike me on its face as something where the University should take a stand because the outcome really depends on what the facts were, and I don’t know what the facts were. / Professor Crain – A lot of people could tell you what the facts are; he was holding up a sign, he was handing out literature. / Vice-Chancellor Schaffer – At one point in time that’s what he was doing. / Professor Crain – But he is your student. You can’t just say hands off, he is your student. / Vice-Chancellor Schaffer – Well, and the Peace Officers are our employees. / Professor Crain – OK, so then you side with the prosecutor. / Vice-Chancellor Schaffer – I don’t side with anybody; I didn’t file the criminal complaint. With respect to the case of Mohamed Yousry, most of you know what Professor Crain was referring to? First of all I don’t want to answer your question as framed because what I recommend to my client, what I recommend to the Chancellor, is between me and the Chancellor. This administration the Chancellor made a decision to direct President Kidd at the time to have Mr. Yousry cease teaching at York College where he was an adjunct lecturer. He was indicted in April of 2002, he was paid till the end of the semester, and thereafter he was not reappointed. That was the Chancellor’s decision. It was based upon the fact that Mr. Yousry had been indicted for a very serious felony. Again, I’m not omniscient, I don’t know the facts, the trial is going on right now; I’m sure many of you have followed it in the newspaper. But it seems to me that when a faculty member is charged, and I’ll come back to the difference between being charged and being convicted in a minute, Bill, but charged or convicted of a serious crime, it is not inappropriate for the University to consider whether that faculty member under those circumstances should continue to teach. Now we can have a learned and long disagreement as to what the standard of decision should be. Let me start with the easy case of a conviction. Since I’ve been in the University there have been four or five instances where senior administrators and faculty members have been convicted of crimes, or the University learned for the first time they had been convicted of crimes. In each case there was a case-by-case determination as to whether or not it seemed appropriate, given the nature of the crime for which the professor or administrator had been convicted, that the person should be relieved of his or her duties. I’m not singling out faculty, I’m including administrators as well because I’ve had one or two cases like that in the four years that I’ve been here. There is under the collective bargaining agreement a fairly stringent procedure with respect to full-time faculty members. Under the collective bargaining agreement there is a much less stringent procedure when it comes to adjuncts. That’s what the collective bargaining agreement provides. With respect to Mr. Yousry the University followed the collective bargaining agreement except in one respect, which an arbitrator determined was not material to this case. So the procedures were complied with. Every few years we renegotiate the collective bargaining agreement and there are on the table some provisions, although not really the critical one in this case, for adjusting the procedures relating to adjuncts. That’s always an open question, but it’s important to point out that the procedures under the collective bargaining agreement were followed here. Now with respect to the difference between a conviction and an indictment, obviously it’s an important distinction, but I don’t think it’s the determinative. There are situations where I think we would agree that an indictment was sufficiently worrisome that the University should take action on behalf of itself, its students, and public confidence in the University. Let’s take an example: a murder, a rape. The problem a University or any employer faces in those situations is you don’t know ultimately the facts, you can’t be sure that the persons can be convicted, that it’s absolutely right. On the other hand, legally speaking, people do not have rights to employment regardless of their status with respect to a criminal indictment. And so it becomes a judgment call as to what you do in each individual case. You could take the position and be entirely consistent that we should never ever remove somebody merely based on the indictment. The problem is a practical one. Sometimes indictments take a year or two before they come to trial, or three. You have a very serious accusation, it may or may not be supported by the facts, we don’t know. I have absolutely no inside information or insight into the case of Mr. Yousry. I know what you know, which is what I read in the newspapers, and I’ve read the reported decisions and the indictment itself; that’s it. You don’t know, but the charge is sufficiently serious that you are concerned. In some cases you may be concerned for health and safety -- that was not the case here by the way -- in other cases you’re worried about the public perception and public confidence in your institution if a person indicted for a very serious offense remains teaching. The Chancellor in this case made the judgment that it was in the best interests of the University that Mr. Yousry not continue to teach. As I said, we followed the procedures as they are laid out in the collective bargaining agreement, we won the arbitration on that, and from a strictly legal perspective, I think that’s an end to the matter. There’s really not more I can say to that. If the indictment had been for a violent crime, if it had been for drug dealing, I think the level of questioning would be different. I’m certainly sensitive to the fact that many of you feel that because they indictment came out of the Ashcroft Justice Department, it was inherently suspect. I think as a lawyer and as a University, that’s not a suspicion we can act on. As I’ve said to at least some one person who asked me this, what are we supposed to do? To credit the indictments that Robert Morganthau hands down in Manhattan but not the indictments that Attorney General John Ashcroft gets the Grand Jury to do in New York? I don’t think we could do it that way. We know that in times of war, bad indictments are brought. We also know that in times of war, good indictments are brought, and we are not in position, I’m certainly not in a position, to make a judgment at the indictment stage, and the Chancellor is not in a position to make a judgment at the indictment stage, which is which. So I think, in an excess of caution perhaps, the Chancellor made the decision that he did here, and I think it’s an entirely defensible decision. / Professor Crain – …we should lean on this side. If you don’t know which way to go, why not lean on this side protecting the students and the professor’s rights? / Vice-Chancellor Schaffer – Well, because I think we have other interests and institutional interests and the interests of other students and other faculty to consider as well.

Professor Rushing (LaGuardia Community College) – … [tape turned over] … I and I think many people in this room have been arrested for demonstrating and I think it’s a matter of opinion whether we committed crimes or not. Miguel Malo may have been arrested but I think he has the presumption of innocence; he has not been convicted of a crime. / Vice-Chancellor Schaffer – And we took no disciplinary action against him. / Professor Rushing – What I would like to ask you I would like to preface by talking about the fact that there was a time at this University when there were conflicts between student leaders and the colleges and the administration that it was possible to negotiate these differences over matters that were far more serious than holding up a sign, and that was done successfully. And because it was done, there was the avoidance of violence and avoidance of damage to property and so on. That happened at this University on a big scale. Now I would like to ask you how is it that that doesn’t happen now, how is it that we can’t do that, how is it that there is so little sympathy expressed for this young man? I wonder why? Even on just pure humanitarian grounds your heart wouldn’t go out to this young man who is a struggling student in our University? He has been punished enough. If they dropped the charges tomorrow he has already suffered from being dragged in and out of court for three years with a prosecutor who has refused to dispose of the case. / Vice-Chancellor Schaffer – I have not been involved in the day-to-day prosecution of that case. I don’t know the facts. If he’s innocent and he’s gone through this of course my heart goes out to him, but if he assaulted the Peace Officers my heart doesn’t go out to him. Call me hard hearted, but that’s my view of it. On the other hand, I’m advised that very early on in the prosecution a very favorable resolution was proposed by the District Attorney’s Office whereby there would have been no criminal record and obviously no jail time, and that upon the advice of his counsel Mr. Malo turned it down flat. If he had not turned it down, this thing would have been over two and a half years ago. That was his right, but it’s not a case as no effort, and again, I’m not involved in this, but from what I hear it’s not a case in which no effort was made by the prosecutor’s office to resolve this matter. Similarly, with respect to how long it’s dragged on, if you look at the record and you look at the reasons for the mistrial when it came on for trial, most of the delay can and should be laid at the door of Mr. Malo’s attorney. Any of you who’d like to know more the details of that, I’d be happy to provide them. They’re a matter of public record. / Professor Rushing – I disagree with that. I’ve been to court six or seven times and that’s simply not the case.

Professor Aronowitz (Lehman College) – I’d like to talk on a different subject if that’s OK with everyone. I’ll say beforehand, if you feel that this is not the right venue I’ll stop at that point. Since you said you’re basically a corporation counsel, and I correct? / Vice-Chancellor Schaffer – I’m a counsel to the corporate entity of the University. / Professor Aronowitz – If my understanding is correct, for there two be a contract between two parties both have to show complete agreement to there being a contract. / Vice-Chancellor Schaffer – True. Offer and acceptance, that was the first thing I learned in Law School. / Professor Aronowitz – Exactly. That is the first thing I learned in the first course in law also. The question becomes that I don’t know about any of you here who have ever worked as adjuncts, but I have never received notification by the Board of Trustees that my appointment has been accepted. Never have I ever received that in writing. As far as I know I am not officially an employee of the college. / Vice-Chancellor Schaffer – Have we paid you? / Professor Aronowitz – Yes. / Vice-Chancellor Schaffer – I just wanted to make sure. / Professor Aronowitz – I don’t have a complaint in that way, but along with that I have learned that there’s some kind of agreement within New York State that the simple fact that the college says we may be interested in hiring you for such and such, an adjunct no longer can qualifies for unemployment insurance if they receive that type of notification. / Vice-Chancellor Schaffer – Unemployment insurance I really don’t know about, but let me just address the general problem. Your status, whether it’s an adjunct or full-time faculty, your status as employees in terms of contract law is governed by the collective bargaining agreement that applies to all of you. There are not individual employment contracts. Indeed the University would be committing an unfair labor practice if we negotiated an individual contract with you. Under the collective bargaining agreement the administration of your college is at designated times of the year, I think it’s December 1 and May 1, supposed to send out a letter of reappointment or non-reappointment. I’m advised that this is often observed more in the breach, and I regret that. Together with Vice-Chancellor Malone we have talked to people out at the campuses. Some campuses are much better than others in this regard. Obviously not sending a letter of reappointment when everything just proceeds to reappointment hardly causes much of a…/ Professor Aronowitz – If I may for one second. The only letter I received is an attempt, not the final thing. / Vice-Chancellor Schaffer – The final thing is just simply a piece of paper that goes through the administration and is approved in a Chancellor’s report. / Professor Aronowitz – That’s fine, but we should at least be notified by even a memo that, hey, guess what, it’s OK. / Vice-Chancellor Schaffer – The problem is we do thousands and thousands of reappointments of adjuncts every semester, so I think getting individual notice in that case really would be an administrative problem.

Professor Tronto (FGL, Hunter College) – I’m the Chair of the Senate and I was delighted to hear you say that in public service sometimes you can do what’s right as well as what’s legal. And I think I know what’s legal but now I’m going to ask you also about what’s right here. Speaking theoretically, can a President read faculty members’ e-mail? Then secondly, suppose the fax arrived and was directed into the administrative office instead of the faculty office, under that circumstance does the receiving office have the right to go on and read the fax and act upon it as opposed to turning it over to the person to whom it is clearly addressed? / Vice-Chancellor Schaffer – I think I better limit myself to legal advice rather than moral advice. I don’t claim any special expertise on what’s right. Vice-Chancellor Botman help me, who is the British diplomat, who in the 19^th century who said, "Gentlemen don’t read other gentlemen’s mail"? It’s a very timely question. We have a task force in process now to look at questions of privacy. Its first focus is going to be our computer use but it will branch out more broadly after that. But let me tell you what is typical of universities around the United States and you’re not going to like it. Universities generally have privacy or computer use policies that are quite similar to those that exist in the private non-academic sector, which say that our computer system belongs to the employer and you have no reasonable expectation of privacy. A reasonable expectation of privacy would trigger Fourth Amendment protection and, if people went into the system and read it, it would be an illegal search unless it was pursuant to a court subpoena or one of the sixteen thousand exceptions to the Fourth Amendment that the Supreme Court has created. But generally speaking when you are on the computer system under the policies of just about every university in the United States you have no reasonable expectation of privacy. Speaking for myself, I treat what’s on my work computer as something that I go home at night and somebody could come in and read and there’s not a thing I can do about it. Now, that’s not a good situation, and I think most universities have policies which try to at least, even though they’re not truly limiting, explain the circumstances for which the University feels it’s appropriate to do this. The easiest to see example would be a crime had been committed; there was reason to think that this person was involved in the crime and that there might be evidence on the computer to reveal the crime. So one of the tasks of this task force would be to come up with a list and these tend to be fairly standard from university to university as to what are the circumstances under which people’s privacy as generally understood can be breached. And then the other task is what’s the procedure? You don’t have to go to court to get a subpoena, which really is not, I don’t think, appropriate in most circumstances. Is there at least procedural safeguard? You want to know that somebody thoughtful and attuned to this issue has thought about it rather than some midlevel person who decides gee, I’d like to read professor so and so’s mail. And we would certainly have something along those lines. In the interim, because this came up as an issue for faculty at John Jay last year, I still don’t quite understand whether there was a concrete issue that raised it but obviously it was a concern, an issue in the sense that somebody’s privacy had been breached. But obviously there was a genuine concern among the faculty at John Jay and at a meeting of the Faculty Senate at John Jay, and I’ve followed through with my promise, I committed to making it known to the Presidents of all the colleges that while we were drafting a policy, before faculty e-mail or other documents could be read or other similar things, it had to be approved at the level of the President of the college and at the level of my office, so that a top administrator and lawyer for the University would consider the matter, and that is currently in effect. Can I promise you a hundred percent that it hasn’t been breached? I don’t know, but that is certainly our stated policy as of the moment. / Professor Tronto – How about faxes? / Vice-Chancellor Schaffer –Faxes come in public places and to me it’s not so much a legal issue as it is kind of an ethical one. You just don’t read people’s mail, but if you do you do, and then it’s not governed by law.

Professor Cooper (History, College of Staten Island / – This is a follow up about the Yousry issue. I don’t know how to make a question out of this, so I’ll put a question mark at the end of a sentence. I just read in the newspaper recently that the House of Representatives repealed the regulation that a leader under indictment can be removed from his position in order to protect Tom DeLay. I’m wondering if it’s good enough for the House of Representatives, why isn’t it good enough for CUNY? / Vice-Chancellor Schaffer – Sandy, you make a very good point, although I would make one small correction: the regulation in question stated that the leader must be removed upon indictment and they amended that so that it was discretionary, not that it was forbidden. In the case of Mr. Yousry it was a case-by-case discretionary determination. We do not have a policy at this University that I’m aware of, and therefore I don’t think we have a policy, that says that every person indicted no matter for what crime under what circumstances shall be removed from his or her position of appointment. That is not the policy. I know in the same way that I know of four or five cases where people have been removed either upon indictment or conviction. I know of three or four cases where the discretion was exercised the other way. I stress this is not my personal decision. These decisions are made usually by the President of the college. The Yousry case was the exceptional case where the decision reached the level of the Chancellor, but it’s a case-by-case determination, as it should be in the House of Representatives.

Professor Friedman (Developmental Skills, Borough of Manhattan Community College) – I appreciate your coming tonight, Vice-Chancellor, and being so open to answering any questions and I particularly appreciate your avowed commitment to academic freedom and your statement that you feel the policy that exists is the one that is sufficient and that you would uphold and so forth. So I was wondering if you would explain to the body. Unless things have changed, my understanding is that you have declined an invitation to speak at the conference on Friday on the issue of academic freedom, and since you’re speaking so openly here now it would really be valuable, I think, to have your voice in that forum where others are coming and particularly interested in the broad issue of academic freedom, which is so important. I’m hoping you change your mind but if not could you tell us why you have declined to join us? / Vice-Chancellor Schaffer – Sure. I’ll be happy to repeat to you what I previously told Susan O’Malley. That conference is a conference on academic freedom and at the centerpiece of that conference is the case of Mohammed Yousry. I am of the view, very strongly, and with support that I’ll cite in a moment, that the case of Mohammed Yousry is not a case about academic freedom at all. I have no hesitation to talk, as I have with you tonight, about the case, but I declined to attend a conference that purported to be about academic freedom that was going to have that case at the center, feeling as I do that it is a case that has nothing to do with academic freedom. Why do I say that? Academic freedom, according to the 1940 statement of the AAUP, is the freedom to be free of adverse consequences for what you teach, what you write, what you research, and for what they refer to as your extramural utterances, your rights to political association and free speech outside of the classroom. I absolutely support that; it’s a very cherished and hard-won concept. The arbitrator in the Yousry case and the AAUP Ad Hoc Investigating Committee found that Mr. Yousry was not terminated or not re-appointed because of his views or because of what he wrote or what he taught or his political associations; end of question. There was no violation of academic freedom based on the two bodies that have looked into it, and therefore I don’t view the case as having to do with academic freedom. If you had a conference on job security for adjuncts and you wanted to talk about the Yousry case I’d be there, but I’m not going to go to a conference about academic freedom and by my presence acknowledge that this is a case about academic freedom when it isn’t. / Professor Friedman – The entire conference, by the way, if you look at the program, is not on the Yousry case. That will be discussed. If you look at the bulk of the program, I think we are going to be discussing all kinds of cases that clearly are issues of academic freedom with the goal of coming out at the end with some ideas on how to mutually, with the University, with the Chancellery, really move forward together on assuring that we do have an environment where academic freedom is totally supported. So perhaps you might join us at 11 o’clock or whenever the second part starts? / Vice-Chancellor Schaffer – The agenda has changed somewhat. When the conference was first announced it was a conference about the Yousry case and at that time I turned down the invitation. It has since changed somewhat but I still view the Yousry case at its heart. I will read the proceedings with great interest and I certainly will be ready throughout going forward to continually engage in dialogue with the faculty about academic freedom and about issues relating to academic freedom, but I have chosen for these reasons not to attend the conference.

Professor Morawski (Brooklyn College) – I have a comment and a question. The comment relates to the previous question about reading e-mail and privacy. While I realize there’s policy established for specific instances or singling out a specific person for looking at their correspondence, I know in some campuses, in our campus, there’s a bit of a feeling that maybe the IT department is a little overzealous in monitoring the things that they don’t approve of: downloading music, certain websites, things like that. And also they have been known to filter information to ascertain whether it’s allowed or not. So in the process of doing that there is some violation of freedoms and I wanted to know if that was something that you would look into. / Vice-Chancellor Schaffer – Yes. That’s definitely part of what we’re going to look into. Most universities, most private employers, have a policy that allows a certain amount of monitoring of computer systems for reasons of maintenance, troubleshooting, and the like, and we have a similar policy. I hesitate to speak about it because I am so technologically inept. This is a topic that needs to be pursued but I have had extensive conversations with Brian Cohen, the Chief Information Officer for the University, and he assures me that he has had similar conversations with the IT directors at the colleges that if something gets beyond the level…I mean, look, sometimes when people download stuff it creates a problem. They’re using too much memory or what have you. Sometimes when you look into it it turns out that what they were downloading was pornography, and you discover; OK, so there it is, some mid-level IT person trying to troubleshoot a problem discovers that there’s billions and billions of whatever those things are called taking up memory because somebody has downloaded pornography. But by and large the instructions that have been given are that if it’s beyond routine troubleshooting and you’re into content, even if you think it’s legitimate because you went from a problem to finding pornography, you’ve got to talk to the head of IT, and the head of IT is supposed to talk to Brian, and he will talk to me. So we need the capability to do that; training is an ongoing process, all the time; it needs to be built into the training of our IT staff. We need to be able to do this but we also need to be sensitized to the issue and to know whom to turn to for permission to take the next step, and I think that will be part of our policy. / Professor Morawski – My other question is in relation with financial disclosure. I think the reason that probably 90% of the people are able to not have to fill out the forms is because a lot of them are junior faculty who don’t make as much. / Vice-Chancellor Schaffer – No, they’re not even covered by the law. I’m only talking about the people who are about the $70,000 threshold, and 90% of those people have gotten exempt. / Professor Morawski – I understand that, but that’s what I wanted to ask. Someone who’s making over $70,000 who does a lot of the purchasing for his department…they sort of missed the…/ Vice-Chancellor Schaffer – Send me an e-mail and let me think about this. I don’t want to give you an answer to this one standing on one foot since it’s your compliance that’s at issue. You could be a policy maker for a number of reasons. The earning threshold is only one of the reasons, but if you’re out there making purchases for your college and you’re actually making the decisions, then you may very well be a policy maker who needs to apply. But don’t worry; if you file late we’ll slip it through.

Professor Baumrin (Philosophy, The Graduate School and University Center) – I wasn’t going to ask you anything and I just realized after you were doing several answers on the Miguel Malo issue that in fact you’ve been avoiding the issue. Let me tell you why I think that. The issue is that a student or several students were demonstrating and expressing themselves, say by means of shouting or by means of carrying signs or other forms of demonstration. Our local hired gendarmerie didn’t like that. I’m sorry they didn’t like that ,and they should have gotten out of the way.. Our untrained, mistrained, campus cops are at fault here. Now whether they assaulted or not, I would have assaulted the cop if I had been there and I certainly would have assaulted the cop if I was 25 years old. / Vice-Chancellor Schaffer – You would have been ill-advised to have done so. / Professor Baumrin – I don’t know if I would have been ill-advised or not and I would advise the administration to do a little training. I’m sorry Bill Crain is sorry for Mr. Malo; I don’t care about Mr. Malo; I care about the University. And I think there’s a failing on the part of the administration to control the campus police force. I saw this at Hunter College under the former President. I’ve seen this at other places with my own eyes, in my own presence, and of course I don’t really interfere anymore. I wish I had been there at the time because then you would have me to have me under indictment by the Bronx County Counsel. So I really want a response. You don’t have to respond now. / Vice-Chancellor Schaffer – There were a series of events that led up to the arrest and it may well have been that security may have not acted appropriately, they may have acted inappropriately; I don’t know all the details; I wasn’t there. There were a number of arrests made that did not result in prosecutions. The Police and the DA’s Office looked at it and they said this is not a proper case and they kicked them. / Professor Crain – No, I had to go to court of the judge to dismiss it. / Vice-Chancellor Schaffer – OK, there were a couple that were kicked and there were a couple that got dismissed by the court; this is the one that remained. My view is if there was a violation of rights of protest and free speech, I regret it; it’s not justification for physical assault on our security force. But let me say something about the security. It is not a justification. I’ll defend that point. / Professor Baumrin – But that’s the sticky point. If they were exercising their First Amendment rights at their own campus and they were interfered with by our employees that’s the appropriate time to say, "No, take your hands off me," whether you want to call that or the Bronx District Attorney want to call that an assault. / Vice-Chancellor Schaffer – They didn’t say, "No, take your hands off me." The allegation is that Malo punched and kicked two security guards. / Professor Baumrin – Did he walk up to them to kick them or did he kick them because they were accosting him? / Vice-Chancellor Schaffer – I assume a jury or a judge will decide that. / Professor Baumrin – I wasn’t there. Do you think it’s taking three years before the judge? He didn’t decide a thing in three years because of the dilatory tactics of the Bronx Distinct Attorney’s Office. / Vice-Chancellor Schaffer – We’ll sit down together, Stefan, and I’ll show you where they delays were. / Professor Baumrin – I’ve never raised this with you before because I thought in our own best judgment we would have been able to handle this. But I did not hear of any concerted effort on the part of the administration to do some campus cop training. / Vice-Chancellor Schaffer – That’s what I want to address next because there has been extensive campus staff training. I’ve written a memo to the security force on the First Amendment. …[tape turned over] … come and get trained but there is recurring training for all of the campus security. I don’t know quite what to compare that with. I have friends who are counsels at other universities. I wasn’t here but I’m aware of the fact that there were problems in the past. I actually think, and this is really more a question for Allan Dobrin, who has more direct line responsibility for this than I do, but I actually think that we have a pretty professional security staff now. They are there to respect the rights of all but also to protect us and to ensure the safety of students as well as faculty. I think they do a pretty good job. I think, from what I’ve learned and what I’ve heard, they’re a whole lot better than was the case before, and training is a very important part. I’d be happy to send you the memo I wrote to them on the First Amendment. Actually I just got a call from a student at the University of Massachusetts. He calls me and says, "I’m writing a paper on First Amendment rights on campuses and I saw your memo on the First Amendment posted on the College of Staten Island website," so you can find it there, and he then proceeded to pick my brain for his paper and I said, "Wait a second, I’m not writing your paper for you, here’s a couple of books and cases you can go with." But it is on the College of Staten Island website. / Professor Baumrin – We will freely distribute it.

Professor Levine (Engineering Science and Physics, College of Staten Island) – As I understand it, the contract that I have with the University expired over two years ago. I have not seen a copy of this contract; I don’t know the words. At every single Union meeting I raise the issue and I am told that the reason that I have not seen the actual wording of a contract that expired over two years ago is that the University and the Union have not reached agreement. Does this mean that I do not have a valid contract? / Vice-Chancellor Schaffer – If you didn’t, you’d have a valid contract on the one that expired six years ago, because under the law collective bargaining agreements survive their term and remain in effect until superseded by the next one. Al, this is almost not worth the time but here’s the short answer to your question. We’ve had a series of collective bargaining agreements going back to the 1970s and often we don’t change a whole lot, and so what you negotiate in collective bargaining are what are called memoranda of agreement, one relating to the economic terms, one relating to the non-economic terms. By the way, I’m somewhat new to this; I was something of an employment lawyer in private practice, but I wasn’t a union labor lawyer or management labor lawyer in a union setting. But what traditionally happens is that a few weeks or months after the deal is reached the Union and management sit down together, they take the two memoranda of agreement, they incorporate it into the text of the existing collective bargaining agreement, and we send that to the printer. You’ve seen this, they have an orange cover, I think the Union and the University each print their own, so the Union says PSC in big letters and the University says CUNY in big letters, but they’re the same document. For reasons that I don’t quite understand, it proved impossible over an extended negotiation to reach agreement on how these memoranda of agreement would be incorporated and the resulting document would come out. At least two years ago CUNY produced a version of this, not with pretty orange color or imprinted but a typewritten version, which took the memoranda agreement, put it in, and said, "here’s the contract." And I’ve been carrying that around with me. I have it; I’ll give you a copy. I do not know why the Union has been unable to agree that this accurately incorporates those two memoranda agreements but I’m happy to give you my copy. / Professor Levine – Can I get someone from the Union; I’m not a Union leader…/ Vice-Chancellor Schaffer – In terms of legal effect of this it doesn’t matter, but it is somewhat strange that we don’t have a single document that says collective bargaining agreement. / Professor Friedman – There are reasons, and I’m not going to get into it, but I’m really shocked to hear you blame the Union. / Vice-Chancellor Schaffer – I don’t know the reason why they couldn’t reach agreement. All I know is that I have my management copy. I was not involved in this, but it’s bewildering.

Professor Philipp (Chemistry, Lehman College) – You have specifically talked about the rights of students to demonstrate on campus in connection with the Miguel Malo case, but of course faculty members also have under their academic freedom rights to demonstrate. In the course of a demonstration one often engages, in symbolic acts of violence: clenching their fist, raising their hands, shouting, saying the words that in polite company one might not use, but nonetheless these things go on during demonstration; inflammatory language, right. Now the University’s new violence policy would appear to prohibit some acts of symbolic violence. I have no problem with prohibiting actual violence, that’s inappropriate, but symbolic violence is a different story in the course of a demonstration. What’s your position on faculty members and other University employees engaging in the symbolism in the course of the demonstration? / Vice-Chancellor Schaffer – I’m not familiar enough with the wording of that new policy to speak to it. I’m sure it wasn’t intended to deal with the situation that you’re describing. Whether inadvertently the language is broad enough to encompass it, I’d have to look at the document itself. / Professor Philipp – I know that the Academic Freedom Committee of the Lehman College Senate is actually looking at that and they’re quite concerned. / Vice-Chancellor Schaffer – Quote the language, send me an e-mail, send Brenda Malone an e-mail, and I’m sure that wasn’t the intent.

Professor Beaky (English, LaGuardia Community College) – My question is about he task force on privacy. You said, that the task force is primarily concerned or only concerned with computers and e-mail. So my question is about paper, the files in faculty offices. What governs who can go into those files and look at them and remove things? Is the task force looking at this? What is the current policy that governs this? / Vice-Chancellor Schaffer – Yes, the task force will look at it. They’re focusing first on computer use because there was a pressing need for a new computer use policy. The issue of privacy sort of got swept in. We’d already done a lot of work on it and we thought rather than wait longer to produce anything, let’s finish up on computer use and then turn to the other privacy issues, which we will do following it. So the task force is the task force on computer use and privacy, and once the computer use has been taken care of we would look at these other issues. I actually think that many of the principles that will apply to computer use will be applicable to other kinds of privacy issues, but we certainly intend to look at it. With respect to what our current policy is, I don’t think we have one. / Professor Beaky – What about telephones? May I ask about telephones? / Vice-Chancellor Schaffer – I don’t think we have a policy on that right now either. / Professor Beaky – You think there is no extant policy on paper files? / Vice-Chancellor Schaffer – I don’t think so. I think the general understanding, but it’s no more than kind of a gestalt, is that there may be circumstances, as with computers, where monitoring may be appropriate, but it should only be under fairly limited circumstance and only with fairly high level of approval, but I don’t think we have a single thing on paper. / Professor Beaky – All these things are on the agenda of the task force, however. / Vice-Chancellor Schaffer – Yes.

Professor Lefkoe (Queens College) – I know the Office of Faculty and Staff Relations is involved with the development of a policy related to accommodations for faculty and staff with disabilities. In listening to the discussion tonight I’m thinking that perhaps your office may also be involved with that, and I’m wondering if they are and if there’s any preliminary you can give us of what’s on the horizon and when. / Vice-Chancellor Schaffer – The two offices work very closely together on issues that have legal ramifications, as the Americans with Disabilities Act does, and I believe one of my attorneys is working with Vice Chancellor Malone’s Office on that. I’m not aware of what the status of that is. I could find out but you’d probably get a more authoritative answer if you ask questions of Malone. I’m just not aware of where things stand. / Professor Kaplowitz – Which of your attorneys is doing this? / Vice-Chancellor Schaffer – I’d have to find that out too but I’m sure one of them is because I’ve got several who are quite expert in this area. Why don’t you just follow up on this later? / Professor Lefkoe – Thank you very much.

Professor Jane Matthews (Math, Hunter College) – When I was hearing about the multiple position forms, you’re not supposed to spend more than one day a week on something else because you’re a full-time employee. I’ve talked to our IT office about all this spam, and it was almost wasting a day of my week with all that stuff, multiple copies in one day. I hope your task force is looking at what we shouldn’t be bombarded with as well as looking into…/ Vice-Chancellor Schaffer – Have you talked to your IT people about filters? / Professor Matthews – Yes, they tried. They gave me a junk thing. Now the only way I can get my inbox mail is to go to junk. / Vice-Chancellor Schaffer – Well, I can’t help you. / Professor Matthews – Is this not a CUNY-wide problem? Why do they do this? / Vice-Chancellor Schaffer – I think it varies a lot from campus to campus. I get maybe 30 or 40 a day but it’s not hundreds and hundreds.

Chair – OK. I think that’s it. Thank you very much. / Vice-Chancellor Schaffer – Thank you very much.

Chair O’Malley – Just a couple of things before we finish. I’ll keep it short because I know most of you want to leave. First of all, about the conference Friday: It’s at Hunter School of Social Work. About 70 people are preregistered. If you want to go and you haven’t registered, you should see Vernice outside or come talk to us. Hunter School of Social Work only takes 80 people, so we have room for about 10 more. All of you should receive Academe. I don’t know if you do get the magazine Academe. If you do not, you should let me know and I’ll get it so you have a subscription. The latest copy of Academe has an article by the investigating committee on the Mohammed Yousry case. I think this is historic; it’s important that we know about it. On the AAUP website there is a link to Schaffer’s response and why he thinks the case is not a violation of academic freedom. The Academe article explains why the AAUP thinks removing an adjunct without any due process is a violation of academic freedom. In June the AAUP will vote whether or not to sanction the University. Hopefully remedy will be worked out ahead of time, but I think there has to be some acknowledgement that there was a violation of academic freedom for remedy, but we’ll see; I’ll keep you informed.

A few more items: Student experience survey: It’s online now. It’s quite interesting. You can compare the 2004 survey with the one done in 2003. Go to the CUNY web page, click on faculty/staff, then institutional research, and under special reports there is the student experience survey. We’ve also put the Graduate Center Advisory Panel Report on our web site. Take a look at it. The Work Force Assessment of Diversity by Campus Report: we gave that to all the governance leaders, so your governance leader has a copy of that. If he or she was not at the meeting, we sent it. UCRA Committee chaired by York professor Bill Divale is taking a look at the PSC CUNY grants. They will issue a report on the PSC CUNY grants. They’re looking at scoring, at the percent of grants funded, the paying of outside reviewers and the fact that about 20% of the money awarded is not spent. The latest issue of the Senate Digest with editor Lenore Beaky is now online and will be in your mailboxes shortly. The Law School: the bar scores have risen 10 points; that’s good news. / Unidentified – It’s not official until we know exactly how many people actually sat for the Bar. We don’t have the official numbers but that seems to be…/ Chair – Right, but I think that the initial news is very good. All of those recommendations we did for the Master Plan: we sent them to the Regents and asked them to have a hearing. They voted to have a hearing and sent the dates to the Commissioner, who is stalling. So that’s where we are with that. Finally, the faculty experience survey. Does a meeting ever go by when I don’t say something about it? It is now held up by management because of Union negotiations. They have said, "How can we ask faculty if they like their salaries, how can we ask faculty if they like their workload? That might hurt negotiations." I spoke again to the Chancellor today and he said once again, "Well, they told me I can’t do it. Besides, it’s a very weak survey." We have to figure out how to persuade him that it’s quite an acceptable survey. Any questions? It seems amazing that the holidays are upon us. Have a wonderful holiday. Thanks for coming and asking such good questions.