Dear Phil...

The governance bodies and leaders of the State University of New York have been in an interesting position for most of this year. In one sense, we're being courted by SUNY Chancellor Nancy Zimpher and UUP President Phil Smith, who have taken opposing positions on Governor Paterson's Public Higher Education Empowerment and Innovation Act. In another sense, we're the staging ground on which duelling talking points are being fired back and forth. And in yet another sense, we're one battleground for the ground war currently being fought to determine who really speaks for the faculty and students in the SUNY system, a counterpart to the air war (TV, radio) and cyberwar (SUNY, SaveSUNY.org). That's the background for this unofficial open letter to Phil Smith, explaining why I'm bringing to the SUNY Fredonia University Senate a special budget resolution that asks us to express our qualified support for the Public Higher Education Empowerment and Innovation Act.

[Update 1 (3/3/10, 7:36 am): Here's my sequel to this post, looking more broadly at SUNY's future, whether or not the Empowerment Act becomes law this year.]

[Update 2 (3/17/10, 9:55 am): Glad to see that this page is still generating so much traffic an entire bloggy era after its first posting, but would encourage people interested in these issues to start with my most recent post (directed at Ken O'Brien, Nancy Zimpher, and Monica Rimai) and work their way backwards.]

Dear Phil,

I was at the UUP Delegate Assembly earlier this month and have received your letter of 22 February 2010 to the UUP membership, so I think I have a pretty good understanding of where you and UUP stand on the Empowerment and Innovation Act, or, as you like to call it, the "Endangerment and Injury Act." I understand that there are some problems--some major, some minor--with the bill as proposed by Governor Paterson, and I appreciate your due diligence in uncovering and publicizing them. And I understand that you need to send a clear message to Chancellor Zimpher that there are consequences to treating UUP as a special interest to be won over, instead of as a trusted partner to be consulted and a respected adversary to be negotiated with before and as a bill is being crafted.

But as Fredonia's campus governance leader, I have a responsibility to represent all the faculty at SUNY Fredonia. And I can't join you in simply opposing the act. So in a few hours I'm going to be arguing before the SUNY Fredonia University Senate that they ought to pass the following special budget resolution:

Whereas over the past 24 months, SUNY state-operated campuses have been cut by $562 million dollars, so that major disruptions in the ability of New York's largest public higher education system to offer students a quality, affordable education are imminent;

Whereas after accounting for additional tuition revenues, SUNY Fredonia still faces a projected operating deficit in excess of $5 million for 2010-11;

Whereas the projected deficit for 2011-12 is likely to be much higher, due to the end of federal stimulus support to New York’s state budget;

Whereas it is imperative that every major public higher education organization work together to present a united front to address the long-standing and accelerating erosion of state funding for public higher education;

Whereas the Governor's Office and the SUNY system have designed the New York State Public Higher Education Empowerment and Innovation Act to (1) depoliticize tuition, (2) eliminate the current "tax on tuition," (3) eliminate unnecessary duplication of contract pre-approvals, and (4) provide for a streamlined mechanism to receive gubernatorial and legislative approval for public-private partnerships and any associated land leases;

Therefore, be it resolved that the SUNY Fredonia University Senate direct the Executive Committee to craft, send, and post open letters to key legislative leaders and higher education organizations expressing and explaining our qualified support for the major provisions within the Public Higher Education Empowerment Act;

Be it further resolved that the SUNY Fredonia University Senate direct its Chair to work with the presidents of the local UUP chapter and the Student Association to jointly craft a statement of conditions under which we all would support a Public Higher Education Empowerment Act;

And, be it finally resolved that the SUNY Fredonia University Senate direct its Chair to seek guidance, input, and feedback from across and beyond the campus on what principles ought to underlie the meaning, mission, value, and financing of public higher education in the twenty-first century and present a plan to the Planning and Budget Advisory Committee for revision, endorsement, and submission to the University Senate during the 2010-11 academic year.

Why should my colleagues support this resolution and go against your position? Let me list the reasons:

(1) The unprecedented scale of the budget deficits facing the State of New York and the sharp and lasting decline in state revenues. Without the kinds of reforms and initiatives proposed by New Yorkers for Fiscal Fairness, we worry that the $562M in actual and proposed cuts to SUNY over the last 2 years--roughly equal to 25% of SUNY's operating budget, as you yourself noted at the DA--will pale in comparison to the coming cuts. In an earlier draft of this resolution, I suggested that these cuts will go far beyond fat-trimming, even beyond muscle and bone, to threaten the imminent dismemberment of the SUNY system itself.

In the face of this threat, which goes far beyond layoffs and even retrenchments to the selling of certain campuses, the closing of others, and the merger of others, what's really so bad about ending the accounting trick that treats actual tuition paid by students and their families as "state revenue," ending the state's taking of emergency tuition increases (a "tuition tax" that amounts to roughly 10% of what Fredonia students pay each year), and taking SUNY tuition policy out of the hands of politicians concerned mainly with reelection and putting it in the hands of campus leaders, who must seek approval from the Chancellor's Office and the Board of Trustees for any tuition increases, after first winning the support of local students and trustees? Such proposals should be part of the campus governance process, as well, and I will communicate what we at Fredonia support to the appropriate higher education and state government leaders if the Senate gives me that authority.

So long as the cap on tuition is firm and at a fixed percentage rate (rather than a multiple of HEPI), so long as campus and SUNY leaders craft good policies and develop smart strategies, so long as a campus/program tuition rate is guaranteed for 4 years for each entering class, what's the real problem with rational and differential tuition? Repeatedly you've argued that the act unduly shifts the burden of financing SUNY from the state to students, but what's stopping the state and federal government from investing further in SUNY and/or expanding student financial aid when the economy turns around?

You've also argued that the bill "removes any guarantee that student tuition and fees will be restricted to benefitting the academic mission of your campus" (2/22/10 letter, page 2). But hasn't that already been happening with the tax on tuition? And haven't state appropriations as well as tuition and fees always been "used for expenses of the state university in carrying out any of its objects and purposes...under regulations prescribed by the state university system" (Subpart A, Section 3, page 58, lines 21-24)? This language is unchanged in the current bill; what changes is who controls the fund and where it is located, but semi-annual reporting language to the Senate Finance Committee and House Ways and Means Committee is also added in, for additional legislative oversight (Subpart A, Section 7, page 59, line 31 to page 60, line 6). How does this entail "removing" oversight? Looks more like shifting and redefining oversight responsibilities to me.

So it seems to me that your deepest reason for opposing the tuition portions of the bill has to do with the perceived threat to UUP itself. But you are asking us to ignore the following language:

Notwithstanding any law to the contrary, all rights and benefits, including terms and conditions of employment, and protection of civil service and collective bargaining status of all employees of the state university affected by the provisions of the New York state public higher education empowerment and innovation act, shall be preserved and protected. Incumbents of any newly created positions within the state university shall be considered public employees for all purposes of article fourteen of the civil service law. (Subpart A, Section 12, page 62, lines 5-12)

This doesn't sound like a frontal, or even a hidden, attack on the Taylor Law to me. Your read of the "University's intent" in your letter of 22 February--to "undo union contracts"--is based solely on the remarks of certain unnamed campus presidents, rather than the text of the bill itself. As for the supposed desire on the part of the SUNY administration to break up and break down the state-wide UUP, isn't that actually dependent on the actions of our "friends" in the legislature? Isn't what you're really telling us that we can't trust the state to honor its commitments to the mission of SUNY, whether or not the bill passes? In that case, isn't it more prudent to support it, as an insurance policy against precisely that eventuality?

(2) The energy, passion, intelligence, grit, and commitment to public higher education and shared governance consistently demonstrated by Chancellor Zimpher and her administrative team. During Chancellor Zimpher's visit to Fredonia, in a private meeting with campus governance leaders, I asked her flat out if she wanted to be known as the Chancellor who dismantled SUNY. I pressed her on her vision for public higher education in the 21st century and her response to the slow-motion privatization of SUNY. I did the same for Chief Operating Officer Monica Rimai at the UFS plenary in Cobleskill, both publicly and privately. I came away from those conversations convinced that we finally have smart and strong leadership in SUNY System Administration. But don't take my word for them. I'm probably an overly-trusting person. Let's review some facts.

Consider that although the bill requires a SUNY tuition-enrollment policy by 15 June, using criteria including, but not limited to,

program cost, program mix, need, comparison with peer programs or campuses, economic elasticity, impact on access, fairness and measures to ensure that students are not steered toward certain courses of study based on ability to pay (A.9707/S.6607, Subpart A, Section 1, page 56, lines 20-24)

to evaluate campus requests for tuition increases, Zimpher and Rimai have already circulated a draft to the State Senate's Higher Education Committee as of 24 February and expressed their openness to revisions at the committee's suggestion. This speaks volumes to their competence, transparency, and flexibility. Consider that Cornell's Ron Ehrenberg is being fast-tracked to join the SUNY Board of Trustees. [Update (3/4/10): He was just confirmed by the NYS Senate!] Consider that the Rockefeller Institute report that Chancellor Zimpher commissioned in response to the Comptroller's Office's misguided proposals on non-resident tuition was rigorous, comprehensive, and nuanced. Consider that amendments have already been proposed to the bill in Assembly and as of 17 February were sent back to the Ways and Means Committee. Finally, consider that SUNY's strategic planning echoes, builds upon, and expands upon UUP's own studies of the huge economic impact of state investment in SUNY and seeks to tie the fortunes of SUNY to P-12 public education.

In response, you've attacked public-private partnerships as wasters of taxpayer dollars. You claim that "SUNY's previous experiences with joint ventures, through special bills enacted by the Legislature, have cost New York taxpayers millions of dollars in lost revenue" (2/22/10 letter) and if I heard right at the DA, you suggested the figure was on the order of hundreds of millions of dollars. But how much state money is really being lost? Do you know how much it cost the state to fund SUNY's Fredonia's new incubator? One dollar. [Update (3/4/10): That's in operating costs; state money was part of many sources of funding during the construction phase.  My point is that SUNY can learn from others' mistakes and identify best practices when setting up criteria for approving campus requests.]

How about land leases? Let's look to the text of the bill itself, which states that any such leases authorized by the Board of Trustees must be "in support of the educational and other corporate purposes of the state university, unless the subject project is in conflict with the mission of the campus to which it relates" (Subpart B, Section 1, page 63, lines 38-43); furthermore, "nothing in the lease or agreement shall be deemed to waive or impair any rights or benefits of employees of the state university of New York that would otherwise be available to them pursuant to the terms of collective bargaining agreements. All work performed on the demised premises that ordinarily be performed by employees subject to article fourteen of the civil service law shall continue to be performed by such employees" (Subpart B, Section 1, page 64, lines 9-15). This is the threat to SUNY's mission and our jobs?

As for streamlining the contract pre-approval process, this doesn't have to make it more difficult for us to stop outsourcing or protect employee rights. The state comptroller and attorney general are not removed from the review process in the state university asset maximization board--they are ex officio members, joined by non-voting members recommended by the minority leaders of the Senate and Assembly (cf. Subpart B, Section 2, page 65, lines 26-35). I don't see why they all couldn't be made voting members, or that the 4 legislative members couldn't be appointed by their respective houses rather than by the Governor. What's important is that campuses would no longer have to waste time and resources lobbying their local and other legislative leaders (with the risk of gubernatorial veto by mistake, as happened recently to SUNY Purchase), that once they passed the hurdle of System and BOT review, they would get a thumbs up or thumbs down in 45 days. At Fredonia, during the 10 months the comptroller made us wait for approval of our University Commons construction contract, materials costs went up so fast they cost us nearly another $1M. Oh, and by the way, we've never had a request denied, only delayed.

I agree with you that worker protections need to be strengthened--there are some nasty requirements of 30% union representation in particular trades and occupations hidden in the prevailing wages language; leaving "procurement guidelines" to be "annually adopted by the fund trustees" is too open-ended (cf. Subpart B, Section 4, page 66, line 44 to page 67, line 11); and I don't like the project labor agreement or binding arbitration provisions, either--and that "construction projects performed by private contractors using private funds are exempt" from even these labor protections. But again, this seems worth amending rather than opposing.

Finally, on tuition again, why haven't you acknowledged that most other states already do what the bill proposes for New York? Or that New York's own community colleges have had a differential tuition policy for years? Or that the Board of Trustees has stuck by its policy to keep fee increases under the HEPI cap for close to a decade? What has been the experience under these regimes, here and elsewhere? We agree that SUNY should strive to keep undergraduate tuition as low as possible, so that New York may keep its public higher education system affordable and accessible, but what about quality? If the state won't invest in quality, but finds itself forced into cuts of such magnitude that they threaten the current size and configuration of the entire SUNY system, just what are we to do?

Bottom line: why go to war with potential new allies in SUNY System Administration? Why insinuate that neither campus--administrators, campus governance, student government, and your own local chapters--nor state-wide leadership can be trusted with the responsibility the bill gives them? Rather than distract and confuse the legislature with opposition to the bill, wouldn't it have been better to put conditions on your support for it and negotiate with SUNY and legislative leaders, so that everyone involved may focus on the primary mission--figuring out how to make New York state invest in public higher education? Anyone who thinks this bill can simply substitute for state investment had better read Christopher Newfield's Unmaking the Public University. Where is the New York-based version of that California-centric study?

(3) The relative ineffectiveness of UUP's tireless and long-standing advocacy efforts and overall lack of any proactive planning or strategizing from UUP since Rethinking SUNY.

It seems to me that your opposition to the bill is mainly a stalling tactic. It might well be possible to outwait Governor Paterson, but where is the planning to influence any future governor or legislators? To prepare for a range of budgetary scenarios in coming years, up to and including state meltdown and budget apocalypse? In the absence of such planning, you seem to expect academics to be persuaded by straw-man and slippery-slope arguments. You seem to expect us to be stampeded by fear-mongering and worst-case scenarios. The legitimate problems with the bill that you've helped uncover provide arguments for improving it, not killing it. But when you liken the bill to a "wolf in sheep's clothing" without strong supporting arguments to explain and justify your analysis, you come across as the boy who cried wolf.

Phil, the basic problem is that you've made clear what you oppose but nobody knows what you're for. What is your plan to save SUNY? What are you doing to influence SUNY's strategic plan, to get a seat at the table when the time comes to draft and revise it--or, better yet, to help develop and articulate UUP's own vision for public higher education in the twenty-first century? Will you remain in reactive mode, as the union has been in since the Scheuerman era? Or will you finally shift UUP from a business unionism model to a social justice model?

I'll let you know the results of our meeting later this afternoon. But whether or not you hear from me again in language that's been approved by the Executive Committee of the SUNY Fredonia University Senate, I eagerly await your response and I encourage you to check back in for future posts on this subject.

Sincerely,



Bruce N. Simon
Associate Professor of English
Chair, SUNY Fredonia University Senate