Introduction

In June 2023, the City University of New York announced that all CUNY colleges would adopt Brightspace, a Learning Management System (LMS) created by a software company called D2L. Over the course of the next two and a half academic years, from the fall semester of 2023 through the fall semester of 2025, each school within the CUNY system will transition their courses and teaching communications to the Brightspace platform. In tandem with the LMS transition, CUNY will be hiring staff to oversee the transition, test and solicit feedback about the platform, and train CUNY faculty, staff, and students to use the platform. For the critical thinker, CUNY’s adoption of Brightspace is bound to raise questions: why is our school switching to a new LMS? Who was involved in making decisions about which LMS to adopt? At what cost to students — either financially or in other terms — does Brightspace come? At an institution that serves over 225,000 students per year, what role will Brightspace play in the individual student’s educational experience? As digital technologies pervade nearly every dimension of human life, so do critical frameworks that we can use to interrogate and understand the impact of these technologies on ourselves. By invoking theories of platform capitalism, surveillance capitalism, race, critical university studies, and infrastructure in our consideration of Brightspace, we can better understand why CUNY students should care about our school’s new LMS. The following page will walk readers through important questions to ask about CUNY’s internal infrastructures, and provide guidance about where to find answers. Using an investigation into Brightspace as a model for critical inquiry, we aim to empower our peers to ask their own questions about topics like data privacy, racial algorithms, and financial systems as they relate to student life at CUNY.

What is Brightspace?

Brightspace isn’t just a learning management system: in the words of parent company D2L (“Desire to Learn”), Brightspace is “so much more than a learning management system”. With “powerful tools, customizable content and best-in-class service and support,” Brightspace is a “learning innovation platform that’s evolved as purposefully as education itself”.

But what does this mean?

According to Global Market Insights, LMS platforms offer a standardized way to provide educational content, host course information, track student progress, and facilitate collaboration across users in an institution. One could argue that LMS platforms are essential for higher education institutions in the digital age because of their ability to process and present data about student and faculty activity, house administrative records, and provide online learning support that patchwork systems at individual universities couldn’t handle. At a practical level, LMS platforms offer classroom members a centralized place to register for classes, find assignments, post grades and feedback, and give updates about coursework. On a subterranean level, LMS platforms comprise a $38.7B industry and are deeply invested in user data analytics. By exploiting student data — which, in some cases, is an inevitable cost of using LMS software — platforms can create and monetize predictive algorithms that may have deleterious effects on student learning and assessment. Brightspace, for example, can be synchronized with Performance+, a learning analytics dashboard that uses “contextual data” to create predictive tools that measure “learner performance” and “maximize results”. Brightspace is, then, a platform that aims to centralize our educational experiences; and it is also a broker in the information economy in which we will all participate once the cross-college transition to Brightspace is complete. 

Critics of LMS platforms will also point out how the platforms’ design — which is typically centered around assignments, deadlines, and grades, with little room for deviance from formal and standardized assessment methods — inscribes the banking concept of education into contemporary classrooms. In the banking concept, students serve as depositories into which teachers place information (Freire, Paulo. Pedagogy of the Oppressed. p. 72. Seabury Press, 1970). In other words, the reduction of learning to a simple transaction negates any possibility of critical inquiry. Since many LMS platforms are designed to facilitate the submission and grading of assignments — with no possibility of discussion outside of the bounds of the platform’s features — the banking concept of education is implicit in every lesson. For students and teachers who are evaluated within the parameters of the LMS platform (remember Performance+?), there is little incentive to pursue the “hopeful inquiry” from which knowledge emerges. Although D2L contends that Brightspace is “so much more” than a learning management system, the platform does seem to correspond with the general offerings and limitations of typical edtech products: Brightspace streamlines contemporary pedagogy, for better or for worse, easing the process by which universities can administer and monitor our education.

Who makes decisions regarding LMS contracts?

The Office of Academic Affairs (OAA) page states:

“Numerous campus representatives will be involved in the LMS transition to Brightspace. The Office of Academic Affairs (OAA) estimates that the transition team, including the governance groups, will exceed 225 individuals.”

 The introduction to the Proposed Governance Framework also explains that “our governance model is designed to be inclusive.” This information, including the LMS Transition Governance Framework (TGF), is open to the public; however, the core information about who makes decisions is still hidden and unclear.  According to the TGF, the chart shows the Contract Team, Steering Committee, and Univ. Executive Committees are working together. We can easily notice the role and the people of the Steering Committee on the OAA’s Transition Governance page: “Champion the transition effort with CUNY and campus leaders,” but we need to take further steps to clarify who these leaders and individuals are

 First,  through the CUNY Contract Signing Authority page,  we can guess who will be involved in the Contract Team as below:

Contracts in the Amount of $100,000 or More.

“All such contracts must be signed by the General Counsel(A), except that annual renewals of technology contracts covered by the Board’s omnibus resolution may be signed by the Associate Vice Chancellor(B) and University Chief Information Officer(C) where the terms of the contract have not been changed (other than dates and price increases set forth in the original contract) and the renewal contract does not extend beyond the term of the original contract.”

(A)  Derek Davis, Senior Vice Chancellor for Legal Affairs and General Counsel (https://www.cuny.edu/about/administration/offices/legal-affairs/)

(B)  Alicia Alvero, Associate Vice Chancellor for Academic Effectiveness and Innovation – The Steering Committee (https://www.cuny.edu/academics/leadership/)

(C)   Eusebio (Seb) Formoso, CUNY Vice Chancellor for Information Technology and the Chief Information Officer – The Steering Committee (https://www.cuny.edu/about/administration/offices/cis/)

According to the information above, it is likely that the contract of the new LMS transition was signed by the General Counsel, Derek Davis (A), and the renewal of the contract will be signed by both the Associate Vice Chancellor, Alicia Alvero (B), and the Chief Information Officer, Eusebio Formoso (C).

Next, according to the Special Board Meeting (Aug. 23, 2022), the Board of Trustees has decided to authorize the LMS contract with D2L Corporation.

Also, within the contracting process, we face a new group: the Evaluation Committee, which has selected D2L Corporation as a new LMS provider to the CUNY:

WHEREAS, The University issued a Request for Proposals (“RFP”) in November 2021 to procure an LMS; and

 WHEREAS, Three (3) vendors responded to the RFP and were evaluated by a committee comprised of both college and Central Office personnel (the “Evaluation Committee”); and

 WHEREAS, The Evaluation Committee selected D2L Corporation (“D2L”), as the most responsive vendor to enter into a contract to provide the services required under the RFP; now therefore be it

 RESOLVED, That the Board of Trustees of The City University of New York (”the Board of Trustees”) authorize the General Counsel or his designee, and that they hereby are, and each of them hereby is, authorized to execute, seal, and deliver a contract with D2L Corporation to provide an LMS

Not surprisingly, the members of the Board of Trustees and the members of the Univ. Executive Committee overlap, and this RFP process was proceeded by Chairperson Thompson, JR, and was endorsed by Trustee Berger. (They both are in the Trustees and Committee.) However, the question of who these “college and Central Office personnel” are exactly remains unsolved.  

What do these contracts look like?

This page will be updated and available later! The contracts can be accessed by making a FOIA request.

FOIL: How to access information?

Anyone can submit the request to CUNY University Central Office through the Freedom of Information Law (FOIL) portal below:

•  Open FOIL NY Resource Center
•  The City University of New York / FOIL Records Access Center

CUNY’s LMS contract documents request should be directed to the CUNY University Central Office. After submitting the request, a determination as to whether the request is granted or denied will be reached in approximately 20 business days.

Who is signing them; how much do they cost?

CUNY provides a Contract Authority Signing page outlining CUNY general rules, scope of applications and definitions, and who is responsible for signing contracts. According to the LMS Transition Governance Framework, the Steering Committee, the Contract Team, and the University Executive Committees are working together regarding CUNY’s transition to Brightspace. It is important to first highlight the ambiguity in the introduction of the Contract Authority Signing in terms of the whos and whats: “There appears to be some uncertainty within the University as to which individuals have the authority to sign contracts and which contracts require approval by the Office of the General Counsel (‘OGC’). This memorandum is intended to clarify the rules pertaining to these issues and where appropriate to change them so as to achieve consistency and eliminate unnecessary delays while ensuring proper oversight.” This acknowledgment is indicative of the hiddenness of information about how CUNY functions. However, since CUNY is a public institution, we have access to a lot of information if we know how to find it.

As stated in the memorandum, the LMS Transition Governance Framework does not explicitly provide the list of names of the Contract Team. Yet we can gather from the memorandum that the Office of General Counsel (OGC) is involved in approving all commitments in CUNY’s name. According to the OGC’s Mission Statement, they provide legal advice and counsel to the Board of Trustees, the Chancellor and Cabinet, and University officers and administrators. Derek Davis serves as a General Counsel and he is also the Senior Vice Chancellor for Legal Affairs. He reports to CUNY’s chairperson of the Board of Trustees and the chancellor. According to Contract Authority Signing, all contracts in the amount of $100,000 or more must by signed the General Counsel – with some exceptions (such as where the terms of contract have not been changed and the renewal contract does not extend beyond the term of the original contract) where the Associate Vice Chancellor and University Chief Information Officer can sign the annual renewals of technology contacts. (To learn more about who is involved in signing contracts in an amount less than $100,000 and $20,000, consult the terms listed under Delegations of Authority.) We can thus assume that Brightspace, which is a contract in an amount more than $100,000, will be signed by Derek Davis, the General Counsel though it is fair to assume that it is influenced by the Board of Trustees whom he reports to.

When it comes to the contract with Brightspace, we can look at the summary of action taken at the Special Board Meeting on August 23, 2022, when the Central Office authorized a contract with D2L Corporation. The document provided the description of the processes/conditions by which D2L Corporation was selected: (1) CUNY’s existing contract (with Blackboard) expires on December 31, 2023; (2) CUNY issued a Request of Proposals (RFP) in November 2021 to procure an LMS; (3) three vendors were evaluated by the committee comprised of both college and Central Office personnel known as the Evaluation Committed; and (4) the Evaluation Committee selected D2L Corporation. The Board of Trustees authorized the General Counsel or his designee to execute, seal, and deliver a contract with D2L Corporation. 

It is important to note that the summary states that the RFP process was moved by Chairperson William C. Thompson, Jr. and seconded by Trustee Henry T. Berger; however, there is no specific information about the Evaluation Committee. The Evaluation Committee’s role is to select the new LMS vendor through a thorough “evaluation” of CUNY’s needs and the said vendor. All we know is that the committee is “comprised of both college and Central Office personnel.” We might question the omission of specific names and designation of the Evaluation committee members. Another section of interest is that the Evaluation Committee finalized D2L (Brightspace’s company) since it was “the most responsive vendor” making us wonder how important was the rising popularity and marketing power of Brightspace, as opposed to its function, during the evaluation process.

When it comes to cost, we know from the Contract Authority Page that CUNY signs the contract for “the total amount of the agreement” as opposed to just that very fiscal year. The Special Board Meeting minutes highlight how much the contract costs. It is mentioned that the Board of Trustees is “permitting the University to make expenditures and purchases under said contract not to exceed $11,608,041.39 for an initial five (5) year term, and a not to exceed amount of $14,273,787.78 for an additional five (5) year renewal option, to be exercised at the sole discretion of the University, for a total not to exceed amount for the 10 year period of $25,881,829.17.” In a public educational institution like CUNY, costs are needed for a variety of sources, including faculty salaries, administrative expenses, facility maintenance, student services, etc. Today, LMS have become a significant cost for institutions. Hence, the numbers we see in this contract are substantial. An in-depth analysis of where these numbers come from requires access to documents from the Evaluation Committee and CUNY’s budgets and funding sources which can eventually be sought through a FOIL request, the process of which can be found above.

What are the implications of the Brightspace LMS on student data and privacy?

Data privacy is the right of an individual to control how their personal information is collected, managed, and shared by those who have access to it. Personal information includes any data about an individual that they can be identified through e.g. gender, age, home address, location data, phone number, ethnic background etc. Confidentiality and anonymity are a part of data privacy concerns and needed to safeguard personal data. When learning management systems like Brightspace, however, mediate faculty-student relationships confidentiality and anonymity can become more fraught concepts.

D2L, the company behind Brightspace, outwardly has a robust data privacy policy. According to their privacy center website, D2L doesn’t sell user data to advertisers, obeys the laws of the country the user is accessing their services in, and conducts independent third-party audits to ensure the company meets security standards. However, a closer look at D2L’s privacy policy shows that while the company doesn’t sell personal information, they do collect data in the aggregate i.e. information that doesn’t identify the user as an individual.  As an enterprise user (i.e. if you’re using Brightspace through CUNY’s account as a student) your student education records will be collected on their own automatically by Brightspace as under FERPA (the US Family Education Rights and Privacy Act), the company is deemed a “school official” and has access to student data. Examples of student records include grades, transcripts, schedules, papers, tests, disciplinary records, etc. Under FERPA institutions are allowed to disclose education records without written consent to “Personnel within the institution determined by the institution to have a ‘legitimate educational interest’” (National Center for Education Statistics, 2004). This means that Brightspace as a recognized school official or personnel has a legitimate claim to student data. Considering that CUNY colleges are known to serve marginalized and undocumented students, it’s important to note that the mining and analyzing of such student’s information by outside companies like D2L can have unintended, adverse consequences.  

Additionally, beyond the personal information users provide to access D2L services like Brightspace, the company also tracks its users’ online activities like their IP addresses, when and how many times they login, etc. This data is analyzed to optimize their services according to the D2L privacy policy webpage. For example, Brightspace’s login record over the months of August and September helps them prepare their system for the semester’s start. And while users not affiliated with an organization or educational institute can ask D2L to remove or restrict the collection of their data, this option is not available to students who need to ask their university if they don’t want their information being collected by Brightspace. This though is not a feasible option for most students as LMSs are an almost daily part of university life and CUNY as of yet doesn’t have a system they wish to switch to instead of using commercial higher education platforms like Brightspace.

How centralized is CUNY’s LMS?

How will other schools in the CUNY system – other than the Grad Center – interact with Brightspace?

By the end of Spring ‘24, half of the CUNY schools in the system are projected have shifted to Brightspace: all of the CUNY Community Colleges other than LaGuardia as well as many of the four-year undergraduate institutions and professional schools (CUNY School of Labor and Urban Studies, CUNY School of Professional Studies, John Jay College of Criminal Justice, Medgar Evers, Queens College in the first phase and in the second phase, Baruch College, City Tech, and York).  While the websites for individual schools say that the use of Brightspace is not mandatory, they strongly encourage faculty to adopt the LMS for their courses, advising that
“as the official LMS for CUNY, Brightspace is where students will look for course content” and claiming without specifics that  “having all courses in Brightspace helps support student success”((Baruch College, n.d.).  The language of the transition remains unclear on this point: Baruch, for example, affirms in a letter to faculty and staff its “goal of using Brightspace for all courses in Fall 2024” and adds, as well that “[i]n Fall 2024, all courses will be instructed using Brightspace” (10 October 2023 letter to Faculty and Staff from Jenny Provo Quarles and Mike Richchi, “Baruch’s Transition to Brightspace”), which could be read as a no-opt-out policy for all instructors and students. At the least, such langague indicates that Brightspace will become the only option for on-line class management for CUNY schools.  Judging from the SUNY roll-out, users will not have a choice of LMS: if they opt out of Brightspace, they will opt out of all LMS capabilities, including any free if basic models from Moodle and Canvas.  According to SUNY officials, “While SUNY ha[d] operated with an opt-in choice during its . . .  University Wide LMS contract with Blackboard, with some Moodle, D2L Brightspace, and Canvas usage across the system, the Brightspace LMS will serve as the hub for a Unified Digital Learning Environment across the SUNY’s 64 campuses” (Hill, n.d.) going forward. 

Whether the information from one CUNY school will be available to CUNY central, or, indeed, shared to New York City and State Governmental or other public officials, in aggregate or by department, school, or institution, has not been addressed, but should be determined, with input from all stakeholders if possible.

At the moment, Brightspace operates as something of a “walled garden” or discrete entity, at least among the group of affiliated campus within a University system; however, analysts suggest that this cannot continue as a competitive economic model for LMSs and will probably change within the decade of CUNY’s initial and potential renewal contract dates, that is 2023-2033 (“My LMS has a fever, and the only cure is more AI.” Online Education Across the Atlantic, 27 November 2023)