A Look at the UNC-Chapel Hill Board of Trustees’ Authority

(Spoiler Alert: It Doesn’t Include Creating New Academic Programs)

Last week I read an editorial in the Wall Street Journal expressing consternation that the UNC-Chapel Hill’s accrediting agency plans to ask for more information about University plans—launched by its Board of Trustees–to create a new School of Civic Life and Leadership.  According to the WSJ, questions from the Southern Association of Colleges and Schools Commission on Colleges constitute a political power play that also boosts the cause of faculty members “angry that the trustees created the school without their assent.” Both fair points, perhaps, but there followed a conclusion that gave me pause.

The WSJ wrote:

”But the North Carolina state constitution delegates responsibility for universities to the Legislature, which “shall provide for the selection of trustees . . . in whom shall be vested all the privileges, rights, franchises and endowments heretofore granted or conferred upon the trustees of these institutions. In other words, the UNC trustees are doing their duty under the law to protect the best interests of higher education in the state.”

The editorial’s authors can be forgiven for assuming, like most people probably do, that UNC-Chapel Hill’s Board of Trustees (BOT) holds wide-ranging governance powers, entitling it to take steps like directing University administrators to create a new school. But the BOT’s role in the University is actually more advisory than executive, making its recent directive a cause for concern regardless of one’s opinion on the merits of the proposed School of Civic Life and Leadership.

It’s true that the North Carolina Constitution includes the provision cited by the WSJ. But not long after the current NC Constitution was adopted in 1971, the General Assembly reorganized and expanded the University of North Carolina to comprise what is now a 16-institution system. The powers of the trustees of what had been known as the “Consolidated University” were now vested in the newly created UNC Board of Governors. Thereafter the BOG had pretty much all governance powers over the UNC system and its constituent institutions. (I sometimes wish that weren’t the case, but it is.)

At the same time, the General Assembly mandated separate boards of trustees at each of the UNC institutions, and gave those boards limited, mostly advisory powers. Each is authorized to:

“. . . promote the sound development of the institution within the functions prescribed for it, helping it to serve the State in a way that will complement the activities of the other institutions and aiding it to perform at a high level of excellence in every area of endeavor. Each board shall serve as advisor to the Board of Governors on matters pertaining to the institution and shall also serve as advisor to the chancellor concerning the management and development of the institution. The powers and duties of each board of trustees, not inconsistent with other provisions of this Article, shall be defined and delegated by the Board of Governors.“

NC General Statutes Sec. 116-33.

So, the “privileges” and “rights” ascribed by the WSJ to the UNC-Chapel Hill Board of Trustees have long since been held by the Board of Governors. A few other statutes confer some additional responsibilities on the boards of trustees, such as the power to establish a campus law enforcement agency. But for the most part they possess only those powers that the BOG has delegated to them.

Over the fifty years since the modern University of North Carolina’s creation, the BOG has conferred a wide array of responsibilities on the boards of trustees, such as the adoption of tenure policies and procedures, hearing and deciding a variety of faculty, staff or student appeals from administrative decisions; appointing chancellor search committees, overseeing endowments, and approving matters such as who will receive  honorary degrees, the annual budget, head coach and athletic director contracts, appointment and compensation for certain non-faculty employees, certain types of capital projects, campus master plans, the acquisition or disposition of real property, and new campus building architects, sites and designs. 

Not a trivial set of responsibilities, but they do not include the authority to instruct an institution to create a new academic program.

And given the central importance of a university’s academic programs, it’s not surprising that the BOG has set out expectations about how new programs shall be proposed and approved. Fundamentally, those expectations are rooted in an understanding that each campus should determine what academic programs will work best for its students and community, subject to alignment with UNC System values and priorities. Each constituent institution must establish and follow a clearly defined process for the review and approval of proposals on its campus to plan or establish new degree programs, and UNC-Chapel Hill has done so. As to the BOT’s role, UNC-Chapel Hill’s policy provides only that, upon reviewing and approving such a proposal, the Chancellor is required to “update the Board of Trustees as appropriate” before forwarding it to the UNC System for review. 

Some may argue that the general mandate to the BOT to “promote the sound development of the institution” is all the authority the Board needs to propose a new School at Carolina. A lawyerly response would be that specific statutory and regulatory provisions take precedence over more general provisions, and as explained above, the specific regulations concerning creation of new academic programs clearly don’t give the BOT the power to mandate such a step. Another way of saying it is that if the General Assembly or the BOG thought the BOTs should be involved in formulating and proposing plans for new schools within the UNC campuses, they could have provided for it in setting out a detailed framework for such decisions—and they did not.

Why does any of this matter?

First, it matters because in requesting “that the administration of UNC-CH accelerate its development of a School of Civic Life and Leadership,” the BOT has strayed from its statutorily authorized role, as further defined by the Board of Governors, and that’s rarely a good thing.

Also, honest recognition that the BOT has exceeded its authority in this situation may in turn make the on-campus protests more understandable—and, one hopes, stem the editorial eye-rolling that has met complaints that the BOT has ignored shared governance and disrespected the faculty’s historic and legitimate role in curriculum development. 

Finally, it matters because the “sound development” of the University, and especially of its academic programs, can’t happen without study, preparation, and deliberation, principally by those who will be charged with ensuring that such programs succeed. Chancellor Guskiewicz has pledged to run the proposal for a School of Civic Life and Leadership through the University’s normal channels, with input from faculty and the kind of detailed budgetary planning required for such an initiative. But one wonders whether that review will be so overshadowed by political crossfire and misgivings over the way the BOT has jump-started this matter that the new School, if it goes forward, will be too tainted to succeed.

It didn’t need to happen like this. At their best, the UNC System boards of trustees understand and respect their proper role in university governance. They engage in meaningful, two-sided conversations with the campuses they are pledged to support and to represent to the wider university and to the State. They do their best to learn and appreciate their institutions, so that any criticism they make is grounded in fact and insight. They listen as much as they instruct. That approach seems to have been discarded by the UNC-Chapel Hill BOT in favor of quick and decisive action. By failing to stay within its lane the BOT may have ensured that its effort to bring a conservative perspective to campus life is doomed to failure.

David M. Parker, BA 1980; JD, 1984

Other News:

On Friday, February 17, 2023 the UNC-CH Faculty Council met to address the “bucket of chaos” created by UNC Chapel Hill Board of Trustees as described above.  During the meeting the council passed two resolutions. One of the resolutions made clear that the previously approved “IDEAS in Action Curriculum” is different from the proposed new school and should not be used to confuse the public or justify the recent governance overreach. The second resolution directly addressed the recent overreach actions and made clear the faculty’s role in creating new schools.   Follow this link to watch a video of the meeting and/or read the resolutions.

The faculty resolutions were covered in the News &Observer in a piece entitled; A standoff: UNC-CH faculty pushes back against trustees on conservative program | Opinion.  In this opinion piece, Ned Barnett points out that; “Much of what the board says it’s trying to promote – exposing students to different political views and teaching the skills of civil and constructive debate – are already at the center of a recently adopted academic program, IDEAS in Action.”

The N&O piece also highlighted a blog post from Dr. Art Padilla.  In this post, Dr. Padilla summarizes problems with the BOT’s actions as follows:

“Here’s the real problem: A nebulously defined conservative school, sponsored by a rotating lay board, with untenured teaching or adjunct professors residing at the bottom of the professorial pyramid and providing instruction in no discernible majors or disciplines, with uncertain job prospects for any graduates, and with anemic mainstream faculty support, could possibly be successful and could outlast the board members who promote it. But that’s not the way to bet. There must be better solutions.”