Shared Governance: A Legal Perspective 

Legal Standpoint

By Lou Guard    //    Volume 32,  Number 1   //    January/February 2024

“Shared governance” is a term that permeates the higher education landscape. Yet how does the principle of shared governance intersect with corporate legalities central to the governance and operations of a college or university? As institutions face a variety of strategic challenges, it can be helpful for governing boards to understand the interplay of these concepts.

Shared governance is unique to higher education. Its origin can be found in the evolution of colleges and universities in the nineteenth century from places operated solely by the faculty to more complex entities in the twentieth century with a broader array of supporting component parts and administrative structures. The American Association of University Professors (AAUP) first opined on shared governance in 1920, and by 1966, it had published an official “Statement on Government of Colleges and Universities.”1 This document codified principles and values related to shared institutional operations in a world that required a more active role for governing boards, administrators, and staff navigating a variety of external pressures.

The central gist of the AAUP’s conception of shared governance is that an institution’s various constituent parts are “interdependent” and that these constituent parts of board, faculty, and administration should effectively communicate and engage each other on institutionally significant decisions. As such, shared governance is more of a constellation of values to be aspired to rather than a rigid or prescriptive “one size fits all” decree. In practice, shared governance focuses on the role of the faculty, or specific segments of the faculty, in significant institutional decision-making.

Shared governance meets law when its values and conceptual framework are cemented into the governing documents, policies, and operating procedures of institutions. Often the corporate charter or bylaws of an institution will specifically spell out the role of the faculty in the governance of an institution. Some institutional governing documents may provide for faculty, staff, or student participation as members of a governing board. Or an institution may simply have a past practice of inviting faculty members to participate in the work of certain board committees or task forces.

As well as contributing with the American Council on Education to the formulation of the 1966 AAUP statement, AGB has written extensively on the topic of shared governance from a board perspective, including the AGB Board of Directors’ Statement on Shared Governance (AGB, 2017). Among the statement’s principles is one that recommends to boards that, “Institutional policies that define shared governance should be reviewed periodically to ensure their currency and applicability.” Furthermore, AGB advises that “the board must be confident that the institution’s foundational documents and policies, such as the board’s bylaws, faculty handbook, and the institution’s charter, agree with one another and codify decision-making responsibility in a clear and practical way.”2

An institution’s governing documents may explicitly delegate to the faculty authority over certain spheres of its operations. A charter or set of institutional bylaws may provide authorization for faculty to organize a faculty senate or other governing body for purposes of self-governance. Often, the governing documents reaffirm the faculty’s purview over the curriculum and academic matters more broadly. The institution’s governing documents may also recognize or authorize the rules or bylaws that faculty adopt to govern themselves. Such faculty bylaws often contain key provisions related to tenure and promotion, leaves of absence, faculty compensation, or related matters. Critically, those provisions can often create contractual obligations for the institution. Faculty bylaws may also incorporate external policy statements like those drafted by the AAUP. In certain situations, that may create further contractual obligations or constraints on processes an institution desires to carry out.

To best fulfill their duties, governing boards should be familiar with the values and principles of shared governance and their centrality to academe. But boards should also be cognizant of how shared governance can create legal obligations by virtue of the way its principles are embedded in the governing documents of their institution. Trustees should regularly review and be well versed in their institution’s charter and bylaws. Adherence to institutional governing documents is also a central tenet of the fiduciary obligations of trustees and senior officers.

Louis H. Guard, JD, is vice president and general counsel at Hobart and William Smith Colleges and an adjunct professor at Cornell Law School. He is the author, with Joyce Jacobsen, of the forthcoming book All the Campus Lawyers: Litigation, Regulation, and the New Era of Higher Education (Harvard University Press, 2024).


Notes

1. “Shared Governance,” AAUP, available at https://www.aaup.org/our-programs/shared-governance; “Statement on Government of Colleges and Universities,” AAUP, available at https://www.aaup.org/report/statement-government-colleges-and-universities.

2. Association of Governing Boards of Universities and Colleges, AGB Board of Directors’ Statement on Shared Governance (Washington, DC: AGB, 2017), 9.

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