Forum: Send in the Guardians

By Jill Derby    //    Volume 30,  Number 4   //    July/August 2022

One of the most distinctive features of American higher education is the designation of citizen trustees—lay members of the public—as the authority for institutional governance. Most nations leave this responsibility to governmental agencies, such as a ministry of education, but the United States chose a different course early in its history. An important rationale for its approach was, and is, to protect educational institutions from governmental and political pressure to align with the political winds of the times. Unfortunately, recent, and alarming, increases in forms of political intrusion at colleges and universities, particularly at public institutions, threaten to erode our uniquely American system of citizen trusteeship.

External Interference

Higher education governance is based on certain foundational principles—a key one being independence from external interference. Clark Kerr, a former president of the University of California System, used the term “Guardians” to refer to the role of college and university trustees. This term expresses a primary responsibility of board members to protect the mission and integrity of institutions they are charged with overseeing. In highly polarized times, trustees must guard against legislatures and governors injecting their partisan prescriptions into board oversight. Governance authority is reserved for the trustees of our nation’s colleges and universities.

Increasingly, colleges and universities are becoming political targets in the culture wars roiling the American landscape. Classrooms and curricula have been the subject of bills and laws in many states limiting the teaching of certain ideas, for example, those about race, history, and gender diversity. Presidential searches at institutions also have faced political interference, with the result that critical presidential hiring decisions are being questioned on political grounds. Moreover, misguided legislation meant to ensure free speech is proliferating on our campuses, cancelling opportunities for civil discussion and informed debate of opposing views.

A Marketplace of Ideas

Partisan efforts to frame curricular and institutional decisions along ideological guidelines are antithetical to the mission and promise of American education. One of the most troubling forms of these assaults focuses on academic freedom, another grounding principle of American higher education. The strong international reputation of American colleges and universities is based on an academic philosophy of curricular diversity and exposure to a broad spectrum of ideas, concepts, theories, and beliefs. Broadening student perspectives is central to the general education component of American higher education. It helps nurture students’ capacity to deliberate and think critically. Unlike authoritarian countries that limit courses to specific ideologies, the United States embraces the value of academic freedom and exposure to a marketplace of ideas as vital to a healthy campus culture and the student learning experience.

Tenure is another central tenet of academic freedom in American higher education, yet it is facing serious challenges. Tenure is meant to protect faculty from employment vulnerability due to the teaching of unpopular or controversial ideas and from being forced to curate teaching to fit shifting political ideologies. Although academic freedom applies to both tenured and non-tenured faculty, it is compromised by attacks on tenure that remove its protections to individuals, whether by eliminating it, phasing out tenured positions, or making it easier to fire tenured professors. If course content is then allowed to fit partisan demands, the quality of an American college education will become fatally compromised. Governing board members are the sentries at the gate with responsibility for guarding the precious resource that academic freedom provides to American colleges and universities.

External interference is not limited to the public sector of higher education or to elected individuals and legislative bodies. Trustees of all institutions, public or private, can infuse partisan preferences into the boardroom in inappropriate ways. Major donors, business groups, and community members can bring pressure on governing boards to support special interests and goals, regardless of how those align with institutional priorities and plans. Trustees are expected to listen to all who have a stake in board decisions and to take their concerns and priorities into account, but ultimately trustees should base their final decisions on the best interests of the institutions they serve. Listening is one thing, but thinking independently is the quality integral to honorable trusteeship. AGB’s recommendation in Principles of Trusteeship to “think independently and act collectively” is sound and essential advice for all board members.

Political interference can be a particular problem for public institutions. Trustees and regents of the nation’s public colleges and universities are either elected or appointed to serve by state governors and/or legislatures. This system is too often driven by politics, rather than the promise of a singular commitment to impartial judgment in governance decisions and can lead to vulnerability to political pressure. Publicly appointed trustees will inevitably face decisions that are unpopular with the officials who selected them. Although difficult, especially since these same officials can be key voices during budget deliberations, the board’s fiduciary duty of care requires impartial decision-making regarding institutional priorities. Regardless of how trustees are appointed or elected, the well-being of public colleges and universities depends on the courage and resolve of trustees to take up the mantle of guardianship and resist political pressures.

There must be appropriate, established channels for interactions between public boards and political leadership on state funding and other issues, led by the institution’s or system’s CEO. Institutional representatives and trustees should be prepared to answer legislators’ questions about the institutions they help fund. What is not in the lane of legislative authority is course content, which faculty members with requisite scholarly expertise, along with administrative leaders, are authorized to shape and determine.

Freedom to Choose Institutional Leadership

One of the most important responsibilities of governing boards is appointing the institution or system president or chancellor. Good practices call for careful assessment of future institutional needs and a process that includes faculty and other key stakeholders. Board members should guard their prerogative to choose and hire administrative and executive leaders without interference from others.

Final governance authority for American educational institutions lies with citizen trustees for the purpose of keeping at arm’s length the intrusive and illegitimate reach of political forces such as we are witnessing today in legislative bills designed to under-mine academic freedom and limit classroom curricula. Board independence, along with institutional autonomy and the courage of top administrators, form the line of defense to forestall the momentum of this politically fueled rush to thrust partisan politics into our campus lecture halls and laboratories.

Unlike corporate governance models where financial well-being is the central focus of boards, college and university trusteeship involves intentional fiduciary care to protect the integrity of the academic mission, which is the heart and soul of the enterprise. Orientation programs for new board members may not have emphasized this guardianship role in the past. But in today’s hyper-politicized environment, it is vital for boards to protect their own independence in order to protect the mission of the institutions they serve. When a board makes a decision as a fiduciary entity, such as hiring a new leader, that decision should stand; it should not be second guessed or undermined by external individuals or groups.

Board Education and Development

The recent increase in the number of inappropriate external intrusions into college and university governance highlights the need for renewed board education that focuses on board autonomy as central to the fiduciary responsibility of trustees. There is a need to inform both new trustees through orientation programs and sitting trustees through allocated time on board agendas regarding this imperative to guard the governance of our colleges and universities.

Newly appointed or elected trustees are unlikely to be familiar with the complex academic landscape and culture of the institutions they are sworn to govern. Such principles as academic freedom and tenure require context to understand and appreciate, and the importance of board independence cannot be assumed to be self-evident. It is not out of the question that trustees appointed by a state’s governor or legislature might assume such an appointment comes with an expectation to follow the priorities or directives of the appointing authority. Although the orientation of new trustees often includes more information about the institution and its personnel than is easily absorbed in one session, the fundamentals of trustee fiduciary responsibility to the institution should be placed front and center. Board orientation over several months and sessions is a best practice to consider.

This issue of external intrusion in college and university governance is serious enough to require designated time on meeting agendas for on-going board education. A one- or two-hour segment devoted to the review of board fiduciary responsibility in light of the external climate institutions are facing would be appropriate. Board chairs who authorize agendas in collaboration with institutional presidents can focus discussions on the essential nature of board autonomy. An important leadership role of the board chair is to ensure that this topic achieves board attention.

Accreditation

One additional consideration: In the United States, colleges and universities are accredited by independent agencies for the dual purposes of supporting continuous institutional improvement and, critically, for providing assurances to the public of institutional integrity and educational quality. These agencies include in their assessment standards a requirement for the independence of governing boards. The purpose is to ensure the absence of external interference and to ensure that institutional governance is exercised by boards who bear the fiduciary responsibility to protect the mission and priorities of their institution. Regional accreditors link independent governance to educational quality. Boards that appear to bend to external pressure risk their accredited status due to violations of the standards requiring the independence of governing boards.

Protecting the independence of our nation’s colleges and universities to design and offer programs that optimally advance student learning is a primary responsibility of governing boards. In the hyper-politicized times we are living through, it has never been more critical. The education of citizens to make reasoned choices is a vital element of a democratic society. Even more important than the personal advantage an education confers is its value to a civil society. Democracy cannot work without an educated citizenry to contribute to reasoned discourse and make informed electoral decisions, especially amid the din of social media. The capacity to think critically and distinguish fact from fiction is all-the-more challenging and important today. Now is the time for trustees to reaffirm their role as guardians of their institution’s educational mission and academic integrity and leave partisan politics at the boardroom door.

Jill Derby, PhD, is a Senior Fellow and Senior Consultant with AGB. She received a U.S. Senate appointment to the National Advisory Committee on Institutional Quality and Integrity, which counsels the U.S. Secretary of Education on higher education. Dr. Derby currently serves as the chair of the American University of Iraq in Kurdistan, and previously served as chair of the Nevada Board of Regents.

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