An open letter to Margaret Spellings and Tom Ross

An open letter to Margaret Spellings and Tom Ross
Governor Cooper’s newly-formed commission on governance has gotten the attention of Dr. Timothy Kaufman-Osborn.  He submitted an open letter to NC Policy Watch’s The Pulse blog urging co-chairs Spellings and Ross to recommend a dramatic overhaul of UNC System governance.  We view the commission’s work as very important and reached out to Dr. Kaufman-Osborn for permission to share his open letter, in entirety, with you and that permission was granted. We thank Dr. Kaufman-Osborn for the opportunity to share this important perspective.

An Open Letter to Margaret Spellings and Tom Ross
Congratulations on your appointment as co-chairs of the newly-formed Commission on the Future of Public Universities in North Carolina. Governor Cooper’s executive order charges you with evaluating the governance structure of the University of North Carolina system and making recommendations for its improvement. I write now to urge you to consider this charge an invitation to consider a fundamental question that is often left unasked but should in fact inform every inquiry into how higher education is to be governed: Given the mission of our public universities, what form of rule will best facilitate that end’s accomplishment? 

The governor’s concern with UNC’s governance came as no surprise, I trust, since both of you served (only to resign under duress) as that system’s president. Each of you, moreover, knows all too well the recent fiascos that have bedeviled UNC, including but hardly limited to the botched tenure bid of Nikole Hannah- Jones and disposition of the Confederate statue known as “Silent Sam.” These embarrassments have sullied UNC’s reputation and sapped the morale of those whose statutorily-prescribed mission is “to discover, create, transmit, and apply knowledge to address the needs of individuals and society,” whether through teaching, research, or public service.

Nor did it surprise you, I’m sure, that Governor Cooper blamed North Carolina’s Republican legislators for the “undue political influence and bureaucratic meddling” that now afflicts UNC’s governance. For over half a century, all members of UNC statewide board of governors have been appointed by the General Assembly. Since 2016, moreover, the trustees of each university within the UNC system have been selected in part by the state’s senate and house of representatives and in part by the board of governors whose members are appointed by those same elected officers. UNC’s subordination to partisan purposes is thereby structurally enabled, as is its domination by what Cooper opaquely characterized as a “singularity of political thought” but more candidly might be labeled a right-wing political agenda bent on bringing UNC to heel. Insofar as this campaign succeeds, UNC loses its capacity to sustain the free inquiry that is an indispensable condition of its mission’s fulfillment. Resecuring the university’s autonomy must therefore be a central objective of the commission’s work. 

To achieve that end, the governor has suggested that the commission might consider recommending that members of the minority party be permitted to appoint several governing board members or, alternatively, that a few “education leaders” might be seated on that body. Mere tinkering with the method of appointing the board’s members, however, will not meet the challenge at hand. What these incremental proposals neglect is the internal organization of UNC’s rule in autocratic form. Because that constitution of power is itself at odds with fulfillment of the university’s mission, it too must be placed on your agenda. 

UNC’s current governance system represents the worst of all possible worlds. Members of the board of governors, according to state statute, are to be selected on the basis of “their ability to further the educational mission of The University through their knowledge and understanding of the educational needs and desires of all the State’s citizens.” In fact, however, governors are now selected by the General Assembly to promote the parochial interests of the party in power and, once in office, are given virtually unlimited authority to do so. 

The scope of that authority is a function of the board of governors’ constitution as a “body politic and corporate” that is granted sole responsibility “for the general determination, control, supervision, management and governance of all affairs” of the UNC system as well as the full panoply of powers necessary to execute that rule. Lest there be any doubt about this power’s extent, the Policy Manual and Code adopted by the board of governors affirms its exclusive authority to adopt any “policies and regulations as it may deem wise,” subject only to the proviso that they not contravene state law. The board, moreover, is authorized to amend or suspend any provision of the manual itself, thereby enabling it to modify its own policies but also the procedures by which those policies are made. 

True, the board has elected to cede certain “duties and powers” to the trustees of each individual campus just as it has delegated certain tasks to the system president as well as the chancellors of specific universities. Yet the board of governors also asserts its unilateral right to rescind any powers delegated to others and so, in the last analysis, these subordinate officers remain just that.

About the class of employees designated as faculty, the manual authorizes each campus to create a Faculty Council or Senate but is quick to note that the only role of these bodies is to “advise the chancellor on any matters pertaining to the institution that are of interest and concern to the faculty” (emphasis added). About the class we call staff, the manual says virtually nothing, which is not surprising given that these at-will employees are effectively irrelevant when it comes to UNC’s governance. Rightly understood, in short, faculty and staff alike are subjects of an incorporated “body politic” ruled by outsiders selected by and beholden to other outsiders; and that constitution of rule is more akin to an imperial relationship than one befitting a nation built on a revolutionary rejection of English absolutism and endorsement of the principles of republicanism.

An alternative to UNC’s autocratic corporate constitution is readily available within the state’s statutory code, and I offer it for the commission’s consideration. Like other states, North Carolina law distinguishes between membership and non-membership corporations. UNC is an example of the latter insofar as its board of directors rules over those who are not members but, rather, employees bound by contract. Within a membership corporation, by way of contrast, those who are now employees become members who, as such, are granted certain essentially political rights to participate in its governance. Although these rights vary depending on the specific terms of a membership corporation’s articles and bylaws, they typically include the right to elect and remove governing board members; to adopt, amend, or rescind the rules that regulate this corporation’s internal affairs; and to debate and resolve matters of collective concern at regular membership meetings. 

Within this corporate form, members exercise the powers of self-rule that, today, are monopolized at UNC by a governing board defined by its unaccountability to those it commands. Within a membership corporation, moreover, unless its articles of incorporation or bylaws distinguish between different classes of members, state law requires that all “shall have the same designations, qualifications, rights, and obligations” and, furthermore, that “each member is entitled to one vote on each matter voted on by the members.” The hierarchical and authoritarian structure of power that now characterizes UNC is thereby replaced by an egalitarian and democratic constitution that complements rather than contradicts the core tenets of the Republic to which it belongs. 

Reconstitution of UNC as a membership corporation will advance the system’s autonomy and hence its capacity to sustain the academy’s status as a home to free inquiry. This corporate form is better equipped to do so precisely because it does not place ultimate authority in the hands of an external board whose appointees rarely understand the distinctive purposes and practices of higher education and, too often today, are so many hacks bent on enacting the anti-academic agendas of red state legislatures. Governing board members selected by and hence beholden to a corporation’s members are far more likely to remain fiduciaries in the true sense of that term, i.e., custodians who understand that fulfillment of the university’s mission requires the institutional independence that is a prerequisite of its work. 

To offer this recommendation is not to say that the academy should be organized in strict conformity to the practices that define democratic rule. The scholarly community is not composed of so many equal citizens whose differences on specifically intellectual matters are to be resolved by tallying votes. But it is to say that, like a democracy, the university is predicated on an ideal of a self-governing community; and it is to say that the end of free inquiry cannot be realized so long as the power to regulate that community’s affairs is monopolized by a head that remains sundered from the body it superintends.

In closing, let’s be realistic: Any recommendations advanced by the Commission on the Future of Public Universities are almost certainly doomed from the get-go. No matter how bipartisan its composition, so long as the Republican Party remains in control of North Carolina’s legislature, proposals to modify the appointment process for the board of governors will not fly: “There is no interest in changing the structure of the UNC system,” declared a spokesperson for the house speaker, “regardless of whatever report this politically-motivated commission produces.” 

Given this unfortunate truth, how might North Carolina’s Commission on the Future of Public Universities most productively spend the eight months before its final report is due? In accepting the governor’s appointment, one of you rightly affirmed that “people need to be able to feel that they are represented in this enterprise. That sadly is not the case at the moment.” That trust might be partly restored by adopting piecemeal reforms that encourage creation of a less partisan and more diverse board of governors. This accomplishment will remain stunted, however, until those now ruled as subjects in the guise of employees are genuinely “represented in this enterprise,” and that requires structural changes that, happily, are already available in current law. If nothing else, should you reopen the question of UNC’s corporate identity, you will initiate a much-needed conversation about the form of rule that is best suited to further the university’s unique mission.