Introduction

In the current environment, universities, colleges, and their related foundations must satisfy a wider range of important stakeholders than ever before—stakeholders who can often be at odds with each other. Each governing board must carefully consider the needs and objectives of its specific constituencies and determine how it and the institution can best meet those needs and objectives.

However, a governing board must also serve as its institution’s or foundation’s North Star—overseeing and guiding it to ensure it fulfills its mission and holding fast to key principles and values over the long haul to benefit current and future stakeholders. The responsibility and ultimate accountability for each institution’s mission, quality, vitality, and viability rests singularly with the governing board, which serves as the ultimate fiduciary authority.

The Foundation of Academic Freedom

Beginning with the first American colleges, founders chose to protect academic practices, mission-focused curricula, students, and colleges from influences that attempt to alter institutional priorities, by creating independent governing boards instead of leaving oversight functions to external agencies. America’s founders placed board governance in the collective hands of citizen trustees who were expected to serve as independent fiduciaries with commensurate responsibility, authority, and accountability.

The strategic importance of establishing ultimate authority with independent governing boards is especially salient when it comes to issues of academic freedom. Academic freedom is the foundation for learning at American colleges and universities, providing faculty members and students the ability to learn, debate, and express ideas without censorship, based on open access to facts, expertise, and alternative perspectives. Academic freedom is essential for innovation that depends on juxtaposing different ideas, challenging established norms, accessing relevant information from the best sources, and following an important question to its deepest understanding. Without academic freedom and autonomy, higher education institutions cannot fulfill the vital role they play in our democracy and economy. The global competitive positions of our nation and society are in jeopardy if board oversight of academic freedom is diluted.

Academic freedom gives college and university faculty members the vital opportunity to research, teach, write, and discuss issues in an academic field without interference, as long as their outcomes are aligned with board-approved missions and priorities. Colleges and universities require academic freedom to fulfill their core purposes, including educating students to develop their independence of thought and to advance knowledge through research and creativity.

Academic freedom does not mean that institutional leaders do not embrace change, innovation, and transformation. Rather it facilitates their ability to offer quality academic opportunities and experiences.

The governing board’s responsibility related to academic matters is to safeguard academic freedom from influences that may jeopardize educational quality and institutional vitality. When such influences threaten academic freedom, governing boards need to address, proactively and with courage, efforts to mandate, prohibit, or limit academic decisions that, in fact, belong in governing board and institutional policies and procedures.

The Board’s Fiduciary Responsibilities

As defined in law, the duties a fiduciary owes to the enterprise—in this case a college, university, or related foundation—are commonly known as the duties of care (a focus on the best interests of the enterprise), loyalty (placing the interests of the enterprise ahead of the interests of self or any other), and obedience (ensuring that the enterprise is operating in furtherance of its stated purposes as set forth in its governing documents and in compliance with the law). Taken together, these duties require governing board members to exercise their authority by making thoughtful, good-faith decisions that are consistent with the public or charitable mission of the enterprise, independent of influences that may not appropriately support that mission.

Strong American higher education institutions are essential to the health and vitality of a civil democracy and functioning national economy.

That independence is endangered today at all types of institutions, both public and private. Governing boards for public institutions and systems are more engaged than private colleges and universities with the political environment—given their public funding, appointment or election processes for board members, and open-meeting or open-record laws that require them to convene, discuss, and vote in full public view. Acknowledging their responsibility to state policies and procedures, board members of public institutions may be tempted to give deference to government officials, including those who appoint them, instead of acting on their individual perspectives and understanding of the educational needs of the general public and best interests of the institutions they hold in trust. Without deep fiduciary understanding, they may vote for a political agenda for fear of retaliation even when it is not aligned with their personal beliefs about what is best for the institution or it rolls back a vital initiative or otherwise works against the institution.

But the fact is that all academic institutions, private and public, have become vulnerable to domestic and even sometimes foreign entities. Such entities, which may have considerable impact on the institution’s access to resources, can have their own goals for change not related to furthering the institution’s mission and try to undercut the governing board’s authority.

Governing boards are expected to welcome input, while ultimately making decisions that fulfill their fiduciary duties* and uphold their institution’s or foundation’s mission and strategic priorities. Every higher education governing board, whether public, private, system, or related foundation, needs to assess its culture and record from that perspective.

Recommendations

Governing boards must balance their responsiveness to valuable ideas and input while safeguarding their independence. To ensure this practice, it is AGB’s recommendation that all governing boards continue to uphold the following principles outlined in the 2012 statement:

1. Preserve institutional independence and autonomy.
2. Demonstrate board independence to govern as established in charter, state law, or constitution.
3. Keep academic freedom central and be the standard bearer for the due-process protection of faculty, staff, and students.
4. Assure institutional accountability to the public interest.

While these four principles are still bedrock, governing boards need fresh guidance on how to apply them currently.

To implement those principles, AGB offers the following recommendations—practices that can help governing boards be prepared to make appropriate fiduciary decisions even when doing so may be difficult.

1. Engage in thoughtful discussion, decision-making, and policymaking to build shared understanding of the core concepts and values that underlie exemplary governance and the board’s work, while continuing to have meaningful learning experiences together about foundational principles, not just current campus matters.

One way to begin such discussions could be reinforcing that governing boards are accountable for:^†

• Protecting the mission. Assessing and evolving the mission of the institution guides a governing board’s work and how it addresses its responsibilities. Governing boards have a fiduciary responsibility to advance the institution’s mission and to promote its integrity and quality. They also have a responsibility to reexamine and reshape that mission as needs and conditions may require. Foundation boards should be guided by their fiduciary obligations to honor donor intent, serve as prudent stewards of charitable assets, and advance the mission priorities of the institution.
• Safeguarding the transcendent values that guide and shape American higher education. Among those abiding values are self-regulation and autonomy, academic freedom and due process, shared governance, educational quality, transparency, and fiscal integrity. Governing boards are responsible for protecting such values not only on behalf of their own institutions and foundations but also for American higher education in general. In the case of church-affiliated institutions, guiding values may also include certain tenets of the relevant faith community.
• Reinforcing the public’s interest and trust. The American people entrust control of higher education institutions to citizen-led boards and to the independent judgment of their members, rather than to senior public officials or bureaucracies. All governing boards are accountable for the achievement of public purposes. Thus, governing boards incur a special duty to preserve and enhance the institution for future generations. Governing boards of independent colleges are accountable not only to the sources of their founding authority, but also to a government-issued statement of authority, such as a charter that describes some of the basic public expectations for the institution. For those boards whose members are elected by the public or appointed by a governor or legislature (in whole or in part) authority derives from, and accountability pertains to, relevant state laws, charters, or other governing documents.
• Enforcing the legitimate and relevant interests that various constituencies represent. These include alumni, community leaders, donors, faculty, parents, staff, students, local government officials, unions, labor groups, among others. A governing board must exercise its best judgment to accommodate such interests, but it is the board that makes the ultimate decision in light of the institution’s mission, values, strategic priorities, and the law. The board bears ultimate responsibility for weighing conflicting claims of interested parties and the long-term benefits and priorities of the institution. Foundation boards should collaborate closely with institution leaders when considering gifts that may not advance the mission, values, or priorities of the institution.

Further, AGB’s principles for exemplary governance state that governing boards should:

• Focus on what matters most, including success for all students and the fulfillment of the institution’s or foundation’s mission over the long term.
• Carry out the fiduciary duties of care, loyalty, and obedience.
• Protect academic freedom, board independence, and institutional autonomy.
• Understand and support shared governance.
• Engage in thoughtful discussion and decision-making based on sound information and collective wisdom.
• Establish an effective partnership with the chief executive officer.
• Document consensus and build on board learning experiences by maintaining a written, regularly updated inventory of policies and procedures for board governance.

In general, each board should apply a shared understanding of such core concepts as: the best interests of the institution; institutional autonomy; academic freedom and due process; shared governance; board independence; the fiduciary duties of care, loyalty, and obedience; and board accountability. It should continually educate its members on all aspects of their fiduciary responsibilities, with a focus on key principles and how best to apply those principles.

2. Make structural and procedural changes that reinforce the governing board’s fiduciary duties and authority.

• Dedicate time at every meeting to purposeful, ongoing education and discussion about board governance. Discuss how AGB’s Principles of Trusteeship (AGB, 2021) applies to carrying out one’s fiduciary duties.
• Ensure that new board members and their nominating or appointing authorities understand their fiduciary duties.
• Include a session on identifying and addressing external and internal influences in new-board-member orientation programs. In addition, provide continuing education on the topic for all board members, even seasoned ones.
• Determine the board’s options for identifying and navigating efforts by influencers that may conflict with board-approved strategic priorities.

3. Listen, learn, and lead. Recognize that all governing boards and their organizations need to adapt and improve. Listen with open minds to constituents’ concerns and suggestions.

• Support and encourage discussion of diverse viewpoints to expand mindsets, sharpen thinking, and make well-informed decisions.
• Listen with open minds to citizens and officials from domestic and foreign entities. Consider whether their concerns are well-informed, legitimate, and merit board discussion and potential changes to institutional policies and practices.
• Build important relationships by regularly and appropriately communicating with key constituencies through coordinated efforts throughout the year, not only when a problem occurs or during a particular cycle of events.
• Consider and discuss stakeholders’ ideas, including whether the input merits potential changes to policies and practices.
• Establish policies and practices that discourage individuals or groups from going over the heads of senior administrators and going uninvited to the board directly with their grievances and concerns. Boards must be careful to avoid being used in this way, as it can create legal and other challenges.

4. Recognize that fiduciary duty belongs to each member of the board and to board actions.

• As stated in AGB’s Principles of Trusteeship, each board member should think independently and act collectively on what matters most to support the long-term vitality of a college, university, or related foundation. Governing boards, reflecting the aggregate actions of board members, are responsible for advancing the institution’s or foundation’s best interests, as is each member of the governing board.
• Understand that governing board members have no authority as individuals; authority rests in the formal, collective actions of the board as a whole—the board’s collective judgment. Individual board members’ courage to make hard decisions will come from understanding their profound governance responsibilities and accountability for supporting the institution’s or foundation’s mission.

5. Address inappropriate influences that interfere with the governing board’s independence, authority, or fiduciary commitment to the long-term success of the institution or foundation.

• Prepare to address, in open meetings with the public, if necessary, influences that are not aligned with the governing board’s aggregate belief about the institution’s or foundation’s long-term interests, so as to reinforce its mission and strategic priorities. Collective wisdom requires candid discussion.
• Consider a phased approach or scenario planning when the potential for confrontation exists. Specifically, ensure the chief executive officer and board chair understand the potential challenges, and clarify messaging with influencers. The board chair speaks on behalf of the board, and the chief executive officer speaks on behalf of the institution, system, or related foundation.

Governing board members need to have a shared understanding of how their roles and responsibilities apply to today’s new and challenging circumstances. When a hard decision requires extra resolve, governing board members should think through together the likely consequences of allowing influence, whether domestic or foreign, to go unchecked. A board that must deal—or is simply worried that it may have to deal—with a protracted influence could find itself distracted from its mission. Moreover, such a situation could raise confusing questions for:

• Governing board members (What matters most here?)
• Executive leaders (Should I make a public statement?)
• Faculty members (Is it safe to continue teaching?)
• Prospective faculty members (Do I want to be part of this environment? Will I be able to teach, research, and publish without interference?)
• Staff members (Does this activity impact how we engage and serve students? Does this activity conflict with newly enacted legislation or pending policy proposals?)
• Students (So much is changing so fast—what’s next? How will it affect me? Is it safe to share my perspectives and questions? Should I transfer?)
• Prospective students (Should I apply? Can I receive a quality and comprehensive education? Will I be and feel welcomed on campus?)
• Accreditors: (Is the board meeting standards for board governance that are part of accreditation reviews?)

When a hard decision requires extra resolve, governing board members should think through together the likely consequences of allowing influence, whether domestic or foreign, to go unchecked.

Unchecked influences may also interfere with the protection of intellectual property and negatively impact educational quality, student experiences, enrollment, staff retention, reputation, investment decisions, and financial sustainability, among other concerns. In addition, they may derail effective board governance and leadership by preventing or limiting a culture of transparency, collaboration, understanding, trust, and accountability.

Conclusion

Various influences on universities and colleges, systems, and related foundations can create favorable and unfavorable consequences. Governing boards must ensure that any such influence is aligned with missions and strategic priorities. The stakes are high, and governing boards have critically important responsibilities that require them to welcome valuable input from various individuals and entities while also keeping damaging influences at bay. Governing boards that do this effectively may see their institutions or foundations flourish.

Governing boards must also define their current and desired place in the landscape of learning, truth, and reason, with a keen eye on what kind of future they are creating for students, democracy, the economy, and our nation’s global competitiveness. Each governing board should pursue systematic strategies that refine its ability to make choices that represent the best interests of its institution, system, or foundation—enabling it to fulfill its mission now and well into the future.

AGB Resources