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Too many strings attached
April 5, 2012
By Gus Van Harten
and Stepan Wood
Osgoode Hall Law School
TORONTO, ON, Apr. 5, 2012, Troy Media/ – By cancelling its deal with CIGI, York University did a service to itself, taxpayers, and potential benefactors.
The deal was flawed because it channelled public and private funding to the University through an external gatekeeper, with unprecedented strings attached. It fell apart because CIGI and York officials rejected reasonable proposals to address the flaws.
The deal was inked last August. It involved a $60 million contribution to York for an international law program. On paper, half the funding was from the Ontario government, the other half from Jim Balsillie. After tax adjustments, as much as $50 million would have been public money.
Deal gave CIGI too much power
All the money, public and private, was to be disbursed by CIGI, a private think tank chaired by Balsillie. Instead of creating a standard endowment, the payments would be disbursed in quarterly instalments. If CIGI did not like how the funds were used, it was in a position to cut off all of the funding to the University.
We and other Osgoode colleagues worked for several months to devise a framework to protect fundamental values in the face of the original agreement. We did this based on assurances that all parties would accept robust protections. In November, Osgoode’s Faculty Council endorsed a carefully crafted protocol to achieve these protections.
The protocol was rigorous but reasonable. It was a product of compromise. For instance, it allowed CIGI to set the subject areas for research and allowed most of the Chairs to be located off-site in Waterloo.
After indicating its willingness to accept most of these protections, York administrators pulled the deal from Osgoode in January, without explanation. Soon after, York announced protocols with CIGI that fell far below the floor of protections endorsed at Osgoode.
When the Administration returned to Faculty Council on April 2 for a definitive decision, the terms on offer were far weaker than what was discussed in the fall. Faculty Council rejected these terms overwhelmingly.
Here are some examples of why this was the right decision:
First, the deal obliged York to report regularly to CIGI on curriculum and other academic programming matters. York had to consider CIGI’s advice before making decisions on these matters. This interference in academic planning was removed by the Osgoode protocol. York administrators allowed it back in.
Second, York resurrected CIGI’s veto over the program’s annual budget, which had been removed by the Osgoode protocol. This veto gave CIGI the power to cut off all funding, public and private, under the program.
Third, CIGI was given alarming rights regarding appointment, renewal, and termination of faculty, and individual research plans. Language in protocols signed by CIGI and York failed to remove these rights in clear terms.
Fourth, the deal relied on a stunted definition of academic freedom, suggesting that CIGI wished to influence teaching and service activities.
Fifth, the deal had a one-sided approach to enforcement. York’s obligations in the original agreement, which gave CIGI an extensive role in academic affairs, were enforceable by binding arbitration. On the other hand, CIGI’s commitments to protect academic freedom and institutional autonomy were not subject to any enforcement mechanism.
Sixth, the deal would have allowed secret amendments by CIGI and York. The Osgoode protocol precluded this and required the relevant documents to be made public. These provisions were not accepted.
These and other concerns about the deal were documented in numerous reports by Osgoode faculty. They have been available to York officials for months.
Always read the fine print
The York-CIGI saga holds important lessons. Universities and the public must be cautious about big-ticket funding that comes with fine print.
Governments should not funnel taxpayer money through gatekeepers that are not publicly-accountable and whose role jeopardizes academic freedom and institutional autonomy. If allowed to proceed elsewhere, this model will corrode public confidence in universities.
Private funders must recognize that there are important limits to what they can request in exchange for money. Serious academic institutions must ensure that the limits are respected.
We are relieved that York and Osgoode have now done so.
Gus Van Harten and Stepan Wood are professors at Osgoode Hall Law School. They coordinated an Osgoode Faculty Council panel that studied the York-CIGI agreement and proposed reforms to protect academic freedom and institutional autonomy.
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