The Regents met on Friday, January 24, 2013 to elect the 14th President of the University of Michigan. All of the meetings of the Presidential Search Committee had been held in secret sessions. The Board had called a special meeting to confirm the selection of Dr. Mark Schlissel by taking a public vote. I applied both online and in person, to make public comments at the meeting but I was told by University spokesperson, Rick Fitzgerald, that no public comments would be allowed.
If I had been allowed to speak, I would have spoken about how the selection process was an example of how the University has effectively eliminated the participation of the governing faculty and students in the governance of the University. SACUA, which is the executive committee of the faculty senate, had asked to have representatives on the search committee but had been refused [1]. The only faculty members on the committee had been selected by the administration. Contrary to the practice when President Coleman was selected, there were no students on the committee [2]. In 2011, The Board of Regents repealed section VII of the Regents by-laws, which had guaranteed student participation in the major decisions of the University [3]. Contrary to the practice when President Coleman was selected, there were no representatives of the alumni or community.
Over the last 20 years, the University has moved further away from the classical academic model of shared governance [4] by the faculty and administration toward a corporate, top-down, governance model. The shared governance model is under attack in other universities as well [5]. Two examples of how the administration diminishes the voice of faculty in governance while still paying lip service are the failure to implement reforms to the faculty grievance procedures that were approved two years ago and the “rule of two”. The faculty grievance procedures are stacked against the faculty since two of the three members of the review panel are chosen by the administration. Thus, faculty members are easily retaliated against if they disagree with the administration. The “rule of two” says that when the faculty of a school votes for their representative on the Dean’s faculty advisory committee, they must forward two names to the Dean. If the Dean does not like the faculty member who received the most votes, they may choose the other person.
The Michigan constitution requires all formal sessions of the boards be open to the public [6] and the Open Meetings Act requires that all meeting of public bodies must be open to the public, including an opportunity for the public to make comments to the body [7]. The University of Michigan and its Board of Regents do not follow the Open Meetings Act and the courts have generally allowed them to do so under the doctrine of “constitutional autonomy”, which is embodied in Section VIII article 5, which says “Each board shall have general supervision of its institution and the control and direction of all expenditures from the institution's funds”. Only three states grant such autonomy to their state universities, Michigan, California and Minnesota, although lesser degrees of autonomy may be recognized by the courts in some other states [8].
Up until the 1950’s the University of Michigan’s Board of Regents would meet in secret and only make public announcements of the Boards decisions. In 1950, the Michigan Press Association, under the presidency of Ink White, formed a committee to work for the right of the public to attend meetings of the Board. In 1954, the Board made an agreement with the MPA to allow the press to attend their meetings but reserved the right to conduct their deliberations in private. In the constitutional convention that wrote the 1963 Michigan Constitution, it was Ink White who added the language to Section VIII article 4 that required formal sessions of the boards to be open to the public. The discussion revolved around the public’s right to know what the Boards were doing in their name and guaranteeing that the board could not rescind their permission in the future. Despite this, the Michigan Supreme Court, in a decision in the case of Federated Publications v. Michigan State University, decided that it was up to the Boards to decide what was a “formal session” and that in the case of MSU’s presidential search committee, the legislature had no authority to enforce the OMA. Even though the Supreme Court took into consideration that the meetings of the presidential search committee did not constitute meetings of the full board (only four of the trustees were members of the committee and their selection had to be approved by a vote of the full board), the lower courts have generally found that the Universities are immune to the OMA.
I believe it is time for a constitutional amendment to give back to the legislature the rights taken away by the court, to legislate open meetings and freedom of information. I would propose the following amendment to Section VIII article 4;
Article VIII § 4: Higher education institutions; appropriations, accounting, public sessions of boards.
Current wording;
… Formal sessions of governing boards of such institutions shall be open to the public.
New wording;
… Meetings of governing boards of such institutions and the documents of such institutions shall be open to the public, except as restricted by legislation. The legislature shall have power to enforce this article by legislation
Please give me some feedback regarding this proposed constitutional amendment. We can have open governance of our state universities without infringing on their academic freedom.
[1] http://www.annarbor.com/news/university-of-michigan-faculty-want-input-on-presidential-search/
[2] http://www.mlive.com/news/ann-arbor/index.ssf/2013/10/university_of_michigan_student_96.html
[3] http://regents.umich.edu/bylaws/bylaws07.html
[4] http://www.aaup.org/issues/governance-colleges-universities
[5]http://www.insidehighered.com/news/2013/09/09/wisconsin-faculty-object-idea-shared-governance-should-change
[6]http://www.legislature.mi.gov/(S(er2cp345ryt2agznuagjkx55))/mileg.aspx?page=getObject&objectName=mcl-Article-VIII-4
[7]http://www.legislature.mi.gov/(S(er2cp345ryt2agznuagjkx55))/mileg.aspx?page=getObject&objectName=mcl-15-263
[8] http://drum.lib.umd.edu/handle/1903/7743
If I had been allowed to speak, I would have spoken about how the selection process was an example of how the University has effectively eliminated the participation of the governing faculty and students in the governance of the University. SACUA, which is the executive committee of the faculty senate, had asked to have representatives on the search committee but had been refused [1]. The only faculty members on the committee had been selected by the administration. Contrary to the practice when President Coleman was selected, there were no students on the committee [2]. In 2011, The Board of Regents repealed section VII of the Regents by-laws, which had guaranteed student participation in the major decisions of the University [3]. Contrary to the practice when President Coleman was selected, there were no representatives of the alumni or community.
Over the last 20 years, the University has moved further away from the classical academic model of shared governance [4] by the faculty and administration toward a corporate, top-down, governance model. The shared governance model is under attack in other universities as well [5]. Two examples of how the administration diminishes the voice of faculty in governance while still paying lip service are the failure to implement reforms to the faculty grievance procedures that were approved two years ago and the “rule of two”. The faculty grievance procedures are stacked against the faculty since two of the three members of the review panel are chosen by the administration. Thus, faculty members are easily retaliated against if they disagree with the administration. The “rule of two” says that when the faculty of a school votes for their representative on the Dean’s faculty advisory committee, they must forward two names to the Dean. If the Dean does not like the faculty member who received the most votes, they may choose the other person.
The Michigan constitution requires all formal sessions of the boards be open to the public [6] and the Open Meetings Act requires that all meeting of public bodies must be open to the public, including an opportunity for the public to make comments to the body [7]. The University of Michigan and its Board of Regents do not follow the Open Meetings Act and the courts have generally allowed them to do so under the doctrine of “constitutional autonomy”, which is embodied in Section VIII article 5, which says “Each board shall have general supervision of its institution and the control and direction of all expenditures from the institution's funds”. Only three states grant such autonomy to their state universities, Michigan, California and Minnesota, although lesser degrees of autonomy may be recognized by the courts in some other states [8].
Up until the 1950’s the University of Michigan’s Board of Regents would meet in secret and only make public announcements of the Boards decisions. In 1950, the Michigan Press Association, under the presidency of Ink White, formed a committee to work for the right of the public to attend meetings of the Board. In 1954, the Board made an agreement with the MPA to allow the press to attend their meetings but reserved the right to conduct their deliberations in private. In the constitutional convention that wrote the 1963 Michigan Constitution, it was Ink White who added the language to Section VIII article 4 that required formal sessions of the boards to be open to the public. The discussion revolved around the public’s right to know what the Boards were doing in their name and guaranteeing that the board could not rescind their permission in the future. Despite this, the Michigan Supreme Court, in a decision in the case of Federated Publications v. Michigan State University, decided that it was up to the Boards to decide what was a “formal session” and that in the case of MSU’s presidential search committee, the legislature had no authority to enforce the OMA. Even though the Supreme Court took into consideration that the meetings of the presidential search committee did not constitute meetings of the full board (only four of the trustees were members of the committee and their selection had to be approved by a vote of the full board), the lower courts have generally found that the Universities are immune to the OMA.
I believe it is time for a constitutional amendment to give back to the legislature the rights taken away by the court, to legislate open meetings and freedom of information. I would propose the following amendment to Section VIII article 4;
Article VIII § 4: Higher education institutions; appropriations, accounting, public sessions of boards.
Current wording;
… Formal sessions of governing boards of such institutions shall be open to the public.
New wording;
… Meetings of governing boards of such institutions and the documents of such institutions shall be open to the public, except as restricted by legislation. The legislature shall have power to enforce this article by legislation
Please give me some feedback regarding this proposed constitutional amendment. We can have open governance of our state universities without infringing on their academic freedom.
[1] http://www.annarbor.com/news/university-of-michigan-faculty-want-input-on-presidential-search/
[2] http://www.mlive.com/news/ann-arbor/index.ssf/2013/10/university_of_michigan_student_96.html
[3] http://regents.umich.edu/bylaws/bylaws07.html
[4] http://www.aaup.org/issues/governance-colleges-universities
[5]http://www.insidehighered.com/news/2013/09/09/wisconsin-faculty-object-idea-shared-governance-should-change
[6]http://www.legislature.mi.gov/(S(er2cp345ryt2agznuagjkx55))/mileg.aspx?page=getObject&objectName=mcl-Article-VIII-4
[7]http://www.legislature.mi.gov/(S(er2cp345ryt2agznuagjkx55))/mileg.aspx?page=getObject&objectName=mcl-15-263
[8] http://drum.lib.umd.edu/handle/1903/7743
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