Wednesday, January 04, 2006
MLA post-mortem: the NYU emergency resolution debacle, part one
I’m going to assume that anyone who’s willing to follow this very long narrative already knows something about the graduate student strike at NYU, but for those of you who don’t, here’s GSOC’s main page, and here are three extensive blog discussions of the strike, one at Brian Leiter’s place and two on Crooked Timber (note that NYU faculty themselves have contributed to those discussions). The back story is this: spurred by a pro-labor NLRB ruling in 2000, NYU recognized GSOC and negotiated the first contract with the union in 2002. Then in July 2004, the NLRB, freshly restocked with Bush appointees, reversed itself in a 3-2 party-line vote, holding that graduate students at private universities do not have the right to unionize. NYU has since de-recognized GSOC. On November 9 of this year, GSOC went out on strike. In response, in a November 28 email, NYU President John Sexton threatened striking students with the loss of their spring semester stipends (basically, with the loss of their jobs) if they did not return to work by December 5; he further threatened students that if they returned to work but then participated in a work action in the spring, they would lose two semesters of support. From Sexton’s email (the full copy of which can be found on the History News Network, along with Jesse Lemisch’s searing reply):
For those graduate assistants who resume teaching and other assistantship assignments by Monday, December 5th (or the first class meeting thereafter) at the assigned times and places, and who fulfill all assigned responsibilities for the remainder of the semester, including grading, there will be no consequences. These GAs will be eligible for teaching and other assignments by the department for the spring semester. This amnesty represents a balance between our respect for the principled positions of those choosing to strike and our obligation to undergraduates, who have a right to complete their semester’s work and experience no disruption in their courses next semester.
Because we take both responsibilities seriously, graduate assistants who do not resume their duties by December 5 or the first scheduled teaching assignment thereafter—while experiencing no consequences for this semester—will for the spring semester lose their stipend and their eligibility to teach.
For those graduate assistants who return by December 5th and accept a teaching assignment for the spring, this acceptance comes with the commitment to meet their responsibilities without interruption throughout the spring semester. Absences not approved by the dean will result in suspension from assistantship assignments and loss of stipend for the following two consecutive semesters. Graduating students will be assessed comparably.
Sexton has since postponed that December 5 ultimatum, but you get the drift: this policy would effectively establish a blacklist in which students involved in the strike will not be re-hired once the strike is over. If the 2000 NLRB ruling were still in place, it would be illegal. As it is, it is merely, in my humble opinion, unethical.
(And speaking of unethical: check out the NYU faculty letter of protest over Sexton’s authorization of surveillance of NYU faculty and student email. There should be no doubt about the hard-line nature of NYU’s response to this crisis.)
Now here’s where the MLA comes in. The MLA is already on record in support of graduate student unionization (at both public and private universities), having passed Motion 1999-11 five years ago (you can also check out a similar action, Resolution 1999-3, here). So you might think (as apparently many people thought) it would be a simple matter for the MLA to reaffirm that position and condemn the NYU administration for its refusal to negotiate with GSOC and for its threats of reprisal against strikers.
It turns out it’s not a simple matter at all, because during my period of service on the Delegate Assembly Organizing Committee and the Executive Council (2002-05), we proposed—and the Delegate Assembly overwhelmingly approved—an important revision to the MLA Constitution regarding “emergency resolutions.”
Here’s what that means. In the past, ordinary resolutions and motions had to arrive in the MLA office by October 15, accompanied by the signatures of ten MLA members as well as “documented background information.” Well, you wouldn’t think an association of literature and language scholars would use language as sloppy as “documented background information,” but you’d be wrong. And as a result, resolutions would come in accompanied by pretty much anything. In October 2002, for instance, we dealt with a resolution condemning UC-Davis for allegedly converting multi-year non-tenure-track positions into one- and two-year positions while claiming to convert them to tenure-track positions in accordance with MLA recommendations. But because the resolution also condemned “similar practices elsewhere,” the proposers provided us with a sheaf of material that had nothing to do with Davis. It turned out, over the course of two weary months during which the members of the DAOC and I did little else other than comb through new reams of “documented background material” sent to us by the proposers, that it was damn near impossible to find out what the hell was going on at Davis unless someone managed to steal administrators’ spreadsheets. But we on the DAOC agreed that if in fact a university was doing X while claiming to be doing Y and citing the MLA in support, we should make every effort to bring the issue to the floor of the Delegate Assembly, and then, once the 2002 convention was over, we would get around to the larger task of trying to fix the resolution-proposing process. The Davis resolution, by the way, was rewritten many times between October and December 2002, and I vividly recall drafting a “final” version of it just hours before it went to the floor, with the advice of its proposers. Right up until the last minute, it was unclear whether the resolution would demand that Davis re-hire the person(s) allegedly fired, or that Davis terminate its multi-year contracts and convert them to tenure-track positions, or that Davis preserve them and allow multi-year faculty to undergo a sixth-year review for longer contracts, or what. The resolution passed after much energetic and confused debate on the floor—a debate that included people on one-year and multi-year contracts as well as Davis’s dean herself, who insisted that the resolution was factually wrong. Many people who voted in favor of it admitted openly that they did not have enough information to determine whether their vote was justified, and sure enough, the following February, the Executive Council found that the resolution was erroneous, but also found that the Delegate Assembly was right to ask the EC to issue guidelines on the ethical treatment of non-tenure-track faculty across the board. So we did. They were drafted by Domna Stanton, Rosemarie Scullion, and myself, and approved by the EC at our October 2003 meeting. Those guidelines are available here.
What does this have to do with NYU? Eventually, everything. But first, one more story from the fateful year of 2001-02: in the 2001 convention, the Delegate Assembly passed an emergency resolution condemning Yale’s academic labor practices. But you never saw that resolution, folks, because the proposers themselves withdrew it after its passage in December 2001, explaining that they had not been authorized by the local to submit it in the first place. Cary Nelson, who had helped bring the resolution to the floor, angrily let it be known that he would not be working with those proposers again (since they had inaccurately represented themselves as acting with GESO’s approval), and the Executive Council decided that as long as we were addressing the resolution process, it was time to fix the whole emergency-resolution process as well. The Yale screwup was not the first; seven years earlier, the DA had passed a resolution on Bennington that just happened to contain patently false information (for example, that Bennington had “swept away all structures of faculty governance”), and Bennington promptly sued the MLA. So, taking a deep breath, the EC charged the DAOC with reforming the whole damn thing. And since I was one of the two EC members who also served on the DAOC, I was one of the liaisons for much of the communications between the two bodies.
So, then, here’s what we did. We proposed that the deadline for ordinary motions and resolutions be moved to October 1, so that the MLA staff would have ample time to get in touch with the proposers about possible problems before the DAOC convened in the last week of October. We asked that resolutions be accompanied not by “documented background material” but by “material that provides evidence in support of the resolutions’ claims” (duh!—but seriously, it was really something to watch people like Judith Butler and Anthony Appiah bend their formidable interpretive skills to fixing a foolish procedural hole where the rain got in). And, most importantly (for our present purposes), we proposed that all resolutions submitted after October 1
shall not name individuals or institutions in such a way that, in the determination of the committee [i.e., the Delegate Assembly Organizing Committee], a response from the named party must be sought.
At the time, we weren’t thinking of things like the NYU strike; we were simply trying to fix a string of messes stretching from Bennington in 1994 to Yale in 2001, in which emergency resolutions were put into the hands of delegates who had no advance knowledge of the resolutions (because they were introduced at the Open Hearing on Resolutions, 24 hours before the Assembly convenes) and no reliable way of determining the merits of the resolutions’ claims.
Now the NYU story begins. Three weeks ago I heard from Steve Thomas, a graduate student here at Penn State (with whom I often talk about academic labor issues), that the Radical Caucus of the MLA was going to bring an emergency resolution on NYU to the open hearing. I told Steve what I’d said on the floor of the Delegate Assembly the previous year: the DA is just not a very good rapid-response mechanism. It meets for four or five hours in December, it votes on resolutions, it sends those votes to the Executive Council, the Council vets them to make sure they’re not libelous, tortious, or erroneous (and to make sure they fall within the mission of the organization), and then the MLA puts them to a full vote of the membership. That takes anywhere from eight to eleven months in all. The idea of introducing an “emergency resolution” that will eventually, in November 2006, urge NYU to negotiate in good faith with GSOC seemed to me a less than ideally efficient way to go. Far better, as I’d said at the 2004 convention, to write to the Executive Council directly, and ask them to uphold the organization’s previous (and unambiguous) support of graduate students’ right to organize and bargain collectively. The EC isn’t ideal, either; while it can respond on a dime if it conducts a unanimous e-mail vote, it can’t act when it’s not in session unless it is unanimous. Still, in recent years the EC has fired off timely letters of protest to the U.S. Senate (regarding a proposed provision in the reauthorization of the 1958 Higher Education Act), the U.S. State Department (regarding the denial of visas to visiting Cuban scholars) and to the administration of the University of Southern Mississippi (regarding unilateral and illegal reprisals taken against two faculty members). I told Steve that although I believed the EC would be supportive of GSOC, as I was, I couldn’t predict that it would be unanimous, so I understood the desire to have the issue addressed by the DA in December, before the next EC meeting in late February 2006. But if the emergency resolution made any claims about what NYU had done, was doing, or might threaten to do, I could assure him that the DAOC would determine that those claims merited a response from the NYU administration, however odious or pettifogging that response might be.
We had only one exchange with the resolution’s proposers before the convention. The acting chair of the DAOC, Michelle Massé, advised the proposers about the “named party” problem, and suggested, as a model, a far more innocuous resolution asking NYU to negotiate in good faith, along the lines of the relatively innocuous Resolution 2003-2 we passed in 2004 with regard to Yale:
Be it resolved that the Modern Language Association recommend that all members of the Yale community concerned with the question of union representation of graduate student teaching assistants take steps toward finding common ground for dialogue and establishing an atmosphere of mutual respect, and
Be it further resolved that the MLA urge the parties to find a mutually acceptable forum for reaching some understanding about conduct that members of the Yale community regard as a genuine threat to their freedom of expression. That forum could be the NLRB if all parties so agreed, or it could be another forum approved by the parties.
This resolution was brought forward by pro-union people at Yale, and if you look at it very, very closely you can see, in that second paragraph, that it’s a response to allegations that Yale faculty and administrators were threatening reprisals against students active in the union movement (that’s the “some understanding about conduct” bit). But the resolution is very thin warm milk indeed, so the suggestion that this might serve as a substitute resolution on NYU didn’t go anywhere. I’ll get back to that below.
So, then, at the Open Hearing on Resolutions on December 28, a resolution was introduced by the Radical Caucus. It spoke of NYU taking punitive actions toward striking students, and it spoke of the administration’s threats of future reprisals, and it demanded that NYU recognize GSOC and negotiate a contract with the union. “I hate to say this,” I said at the hearing, hating to say it, “and I hate to ventriloquize a position with which I have no sympathy, but NYU would surely counter that these are not ‘reprisals.’ They would probably say they’re simply not financially supporting students who refuse to do their jobs, even though you and I agree that this effectively constitutes a blacklist.” The proposers, in response, referenced Sexton’s November 28 email. Fair enough; I agreed, as did much of the committee, that NYU was in fact threatening students with reprisals, and that the Radical Caucus resolution said true things. But the question at issue was whether NYU should be allowed a response to this resolution—regardless of whether the administration wanted to contest the terms of the resolution, or whether it simply wanted to say, “hell yeah, we’ll fire their union asses.” I also mentioned that, based on my reading of Brian Leiter’s blog, the administration as well as the faculty opponents of the strike would perhaps want to advance the claims they’d made about the grievance process with regard to the assignment of teaching assistants. To that, a member of GSOC replied that the union had quite explicitly taken all current grievance issues off the table for negotiation of the next contract, but that the administration had refused to negotiate anyway. “That’s extremely helpful information,” I replied. “But you see what we’re getting into here. This is why we would require a response from the named institution: so that the delegates can weigh the claims of the parties involved.” To that, Bill Mullen of Purdue asked what we meant by “response,” and whether NYU should be permitted an endless series of responses to every GSOC claim. It was a good question—one that the MLA will, I think, have to revisit. (We have already addressed the question of who constitutes a “named party,” to the effect that if a resolution says, “the United States government is making it more difficult for international scholars to work in the U.S.,” we do not actually need to get a response from the United States government.) At the time, the DAOC said simply that NYU should be apprised of the existence of the resolution and given an opportunity for a statement. Nothing more: we were not inviting NYU to an extended debate. Indeed, as one person pointed out, the constitution doesn’t require us to get a response—it merely requires us to ask for one. Clearly, we couldn’t do that between 1 pm on December 28 and 1 pm on December 29. But we might have done it between December 5 and December 29, had we the chance.
But this speaks to a larger question about the newly-amended MLA Constitution: right now, all it says is that emergency resolutions “shall not name individuals or institutions in such a way that, in the determination of the committee, a response from the named party must be sought.” It doesn’t say that the committee can determine that a response must be sought, and then should go seek it—say, within a two-week period. That would give the MLA some way of bringing emergency resolutions to the floor in such cases, even when an individual or institution is named (and called out of its name). The idea behind this amendment was to prevent resolutions from coming to the floor at the last minute and making claims about a party who had no chance to reply; it was not to prevent all emergency resolutions from naming parties. At least that’s not what I was thinking, back in 2002 when this revision process started.
So I asked the proposers, and members of GSOC in attendance at the open hearing, if they would agree to this: a drastic revision of the resolution that would allow it to clear the “response” bar, and that would simply ask the MLA to reaffirm Motion 1999-11 as well as Motion 2004-1, which read, in part,
Whereas the Modern Language Association has approved resolutions asserting that graduate students working for pay are employees (1999-2); has endorsed their right, along with that of other part-time faculty members, to bargain collectively (1999-3); has “encourage[d] its members and all those employed in teaching and research in the modern languages and literature, to unionize. . .” (Motion 1999-11)
That, I thought, would get the resolution to the floor, and though it would be severely watered down, it would be enough to allow debate; meanwhile, GSOC could contact the Executive Council and ask for a more forceful and specific statement in February.
Before I move to the closed DAOC meeting, one more piece of MLA procedural arcana. I did not have a vote in this process, because I was elected to the EC from the DA in 2001, and according to the Delegate Assembly bylaws, “each Delegate Assembly member who has been elected to the Executive Council in accordance with bylaw 4.B will automatically serve on the Organizing Committee as a voting member in the second and third years of his or her term on the council and as a nonvoting member in the first and fourth years of his or her council term.” Don’t even ask me why the hell anyone drafted this thing. It reads to me like “the DA-EC member shall write with his or her right hand in even-numbered years, and with his or her left hand in odd-numbered years.” Anyway, I imagined that as a nonvoting member in my fourth year of service, I could serve as some kind of facilitator between the proposers and the DAOC. In retrospect, this was a bit of overreaching on my part, and I apologize for it.
And the result of my “facilitating” was that the proposers took some of my (and some of the committee’s) advice, and rewrote the resolution so that it spoke merely of the fact that NYU had recognized and then de-recognized the union; it noted that the union was on strike; and it asked the MLA to reaffirm its earlier positions and urge all university administrations to bargain with graduate student unions in good faith. Now the question was before us: does this require a response from NYU?
In our closed DAOC session we spent over an hour on this question, and (if you’re still with me this far) you can imagine why: because it goes to the heart of the issue of whether the MLA Constitution now forbids any emergency resolutions that name individual parties. My own position was that the constitution does not do this; it forbids only those resolutions that, in the determination of the committee, require a response from named parties. I was then asked: in all honesty, Michael, do you believe this resolution requires a response? And I replied: I believe there is no question that the original resolution required a response from NYU. I do not believe this one does. (Even as a nonvoting member, I could still participate in debate.)
The debate, you’ll note, was not about the strike; so far as I could tell, just about everyone in the room believed that the MLA, since it is already on record in support of graduate student unions, should be able to respond in some way to the strike at NYU. The question, instead, was the procedural one of whether this was the way the MLA should respond, via a Delegate Assembly vote, and thus whether the revised emergency resolution merited a response from NYU. When, next day at the DA, Michelle Massé referred to “a prolonged, intense and deeply divisive discussion” in the DAOC meeting, that’s what she was referring to. Some members believed in good faith that NYU should have the chance to respond to this milder resolution, and some members disagreed in good faith. And the committee deadlocked.
And then, as if this weren’t enough, the parliamentarian advised the committee that Robert’s Rules of Order forbid organizations from voting to reaffirm previous actions. (Apparently this injunction is on page 110.) This struck me like a two by four, since, of course, I had suggested that a resolution to reaffirm 1999-11 would be completely unproblematic. In fact, I thought that 2004-1 had basically done the same thing. But no: 2004-1 cited Resolutions 1999-2 and 1999-3, and Motion 1999-11, but did not ask the MLA to reaffirm them. “Well, Jesus H. Christ in triple overtime,” I thought. “Who knew?” So even if the committee were to decide that it did not need to request a reply from NYU, there was the distinct possibility that the resolution would simply be ruled out of order. The rationale is this: if you ask an organization to reaffirm a past action and it fails to do so, it effectively invalidates the past action, or at least throws it into confusion. You know, folks, I said, we really are on the last page of the playbook here. And I do wish I’d known enough to avoid that page altogether.
I have to end this post sometime or I’ll break the Internets, so I’ll leave for tomorrow some of the most salient arguments that were made on the floor of the DA—like Bill Mullen’s argument that the strategy of appealing directly to the EC effectively performs an end run around the DA, which is by far the larger and more representative body, and Cynthia Young’s argument that my argument above—about how DA resolutions are slow-moving devices that don’t take effect for almost a year—is pretty much nonsense. (My apologies to Cynthia if I’ve misremembered the exact term she used. Her counterargument was that the 1995 DA vote to censure Yale during the GESO grade strike that year had had an immediate and palpable effect on that dispute, and Yale anti-union faculty accordingly fought against its passage tooth and nail. That happens to be true so far as it goes, but that vote, laudable as it was, had other consequences as well; anti-union faculty did not stop fighting it once the DA adjourned.) And then I’ll make some suggestions, for what they’re worth, about how the MLA and proposers of resolutions can fix a process that clearly still needs further fixing.
In the meantime, until tomorrow, I want to point out something that may not, after all, be altogether obvious. The MLA has a rep of being one of the more “radical” scholarly organizations in the business, no doubt partly because most of its resolutions in recent years have been drafted by the Radical Caucus, whose work tends to differ in tone and substance from that of the Moderate Caucus, the Revanchist Caucus, and the Quietist Caucus. (No, there aren’t really such groups.) But when it comes to drafting resolutions that condemn or censure or upbraid individual institutions, the MLA is a mere novice, and we’re still figuring out how to do it. (Some members, for that matter, don’t believe we should do it at all; for some it’s a matter of principle, and for some it’s the pragmatic consideration that we don’t have the legal or investigative tools we would need for things like the UC-Davis resolution.) The 1994 Bennington resolution was the MLA’s very first attempt to address a specific university, and it was badly botched. We’ve been trying to de-botch ever since. Still, GSOC and its supporters are quite right to say that MLA resolutions on unionization are meaningless if the MLA won’t back them up in specific instances. I personally would have preferred that GSOC appeal to the Executive Council immediately (back in early November), and then get in touch ASAP with the DAOC to see whether we could, in concert (and with timely advice from the parliamentarian!) draft something that could be brought to the DA floor, either by clearing the named-party hurdle or by requesting a response from NYU in advance. And I admit that I should have said so to GSOC and the Radical Caucus a month ago, but I flat out dropped the ball on this front while I was tending to the more local matter of forming Penn State’s AAUP chapter (and finishing up my overdue book manuscripts too). For that, my sincere apologies to all concerned.
And please, while you’re waiting for the thrilling conclusion to this tale, contribute generously to the GSOC Strike Hardship Fund. Thanks.