In a 2021 report titled Covid-19 and Academic Governance, the American Association of University Professors (AAUP) detailed egregious violations of “shared governance” at eight institutions of higher education. These included the termination of tenured as well as nontenured appointments, the suspension of faculty handbooks, the elimination of entire academic programs, the abolition of established bodies of governance, the invocation of force-majeure clauses to nullify collective bargaining agreements, and more. From these findings, the report concluded: “The covid-19 pandemic has presented the most serious challenges to academic governance in the last fifty years.” Peering into the future, its authors expressed their fear that rule by “unilateral” fiat may soon become a “permanent” element of institutional governance and so “acquire an unfortunate veneer of legitimacy.”
To arrest this slide into academic authoritarianism, the AAUP offered a plea in the form of a platitude: “Governing boards, administrations, and faculties must make a conscious, concerted, and sustained effort to ensure that all parties are conversant with, and cultivate respect for, the norms of shared governance.” Thus does the AAUP urge the very trustees and senior administrators who have abetted what it calls the academy’s “corporatization” to concede the error of their ways and affirm allegiance to practices of collaborative governance they have undermined for years.
How are we to make sense of the disjuncture between the AAUP’s bleak account of the academy’s current plight and this pollyannaish prescription for its recovery? The AAUP’s incoherence stems from its failure to call into question the American academy’s autocratic constitution. To understand that constitution is to see why the violations catalogued by the AAUP in 2021 are not so many aberrations but, instead, the foreseeable consequences of a legal framework that concentrates the power to rule in the hands of a few and renders that power unaccountable to the ruled. What we need today, therefore, is not a revivification of the bankrupt project that is shared governance but a democratic reincorporation of America’s universities.
The Autocratic Academy
The basic legal structure of the American academy is an accident that emerges out of circumstances specific to the colonial era, most notably the absence of an established body of scholars who might undertake the work of institutional governance, as was true at Cambridge and Oxford. That absence enabled local elites, chiefly clerical and political, to maintain control over America’s earliest colleges; and it is the legacy of this structure that we now find depicted in the hierarchical organization charts of U.S. institutions of higher education.
These diagrams demonstrate what Walter Metzger and Richard Hofstadter once labeled “the great anomaly of American higher education.” Whether specified in a charter, enabling statute, or state constitution, this peculiarity consists of the law’s exclusive location of the university’s powers of governance within boards that are conventionally dubbed “external,” insofar as their members are not employees of the universities they rule, and “lay,” insofar as expertise in matters academic is neither required nor expected as a condition of appointment. These bodies in turn are authorized to appoint a chief executive whose principal duty is to implement board directives and oversee the academy’s everyday operation. Beneath this officer, we find everyone else, whether designated as staff or faculty (although each of these groups is internally stratified by, for example, the demarcations between deans and associate deans, tenure-track faculty and contingent instructors, etc.).
What renders this constitutional form autocratic is the structural disenfranchisement of those who are subject to these boards’ rule from any legally guaranteed title to participate in that power. These are the persons we designate as employees, and this economistic classification is itself an indicator of their lack of any political authority to make the rules by which they are governed or to select and hold accountable those who do so. Yes, certain categories of employees (for example, the faculty) may sometimes be permitted to play a role in the academy’s governance, but that opportunity is delegated and, as such, may always be revised or even revoked. That this is so was made clear last year when the University of Kentucky’s governing board unilaterally stripped the faculty senate of its authority over the academic program and replaced that body with one whose role is entirely advisory. When the faculty responded by adopting a motion of no confidence, that was not an assertion of its right to rule but a testament to its collective disempowerment.
In its canonical 1915 Declaration of Principles on Academic Freedom and Academic Tenure, the AAUP presented the American academy’s autocratic constitution as a fait accompli: “American institutions of learning are usually controlled by boards of trustees as the ultimate repositories of power.” Given this concession, perhaps the AAUP should not have been quite so surprised when, a century later, it noted a dramatic uptick in “unilateral decisions by governing boards or administrations to set aside an institution’s regulations, in whole or in part.” To represent these actions as so many exceptional responses to “moments of crisis” is to fail to acknowledge that their possibility has always been hidden in plain sight within the legal architecture of the American academy.
California, Here I Come
As indicated by the AAUP’s 2021 report, the term “corporatization” now serves as our go-to epithet whenever we wish to condemn the latest offenses committed by the academy’s rulers. This charge is unfortunate because it discourages us from recognizing that all private colleges and many public universities are legally constituted as corporations on the model discussed above. Indeed, even those public universities that are not formally incorporated are nonetheless ruled by external lay governing boards vested with the panoply of powers customarily granted to corporations, including the power to adopt, amend, and revoke its basic rules of institutional governance. To challenge this antidemocratic constitution, I propose that we frame our argument not as a repudiation of the academy’s corporatization but, instead, as a brief on behalf of its reconstitution as a different kind of corporation.
To see what this might look like, a quick excursion to California is in order. On one reading, the University of California conforms to the autocratic model that has prevailed within the American academy for nearly four centuries. The pertinent provision of the state constitution reads as follows: “The University of California shall constitute a public trust, to be administered by the existing corporation known as ‘The Regents of the University of California,’ with full powers of organization and government,” subject only to oversight of designated financial matters by the legislature. Arguably, this language declares that the regents are constituted as a corporation; that this body monopolizes the powers of rule granted to the juridical entities that are corporations; and, by implication, that those who are not among this body’s members are positioned as subjects whose title to participate in rule, if any, is contingently conceded by the board of regents, which for legal purposes, is the university.
This, though, is not the only possible reading of Article IX of California’s constitution. In 1899, the state’s supreme court asked whether a gift left to the “University of California” rather than to its board of regents must be returned to its heirs because the former, unlike the latter, is not constituted as a juridical entity vested with the authority to accept that bequest. In ruling that it could in fact accept the gift, the court held that the “University of California” was itself chartered as a “public corporation” via the Organic Act of 1868 and, as such, is legally entitled to exercise the powers afforded such entities, including that of receiving and owning property.
This conclusion, the court explained, does not deny that the board of regents is also an incorporated entity, nor that it possesses the powers enumerated in the state constitution. What the people of California have created, however, is “a corporation within a corporation.” Nowhere does the 1868 statute provide that “the regents should become and thereafter be the university.” Instead, this board is a “part of and ancillary to the parent and principal institution” that is the university constituted as a public corporation. True, the board of regents is vested with the powers necessary to “administer” the university’s affairs; but that power is custodial in the sense that it may only be employed to advance the legally prescribed mission of the antecedently incorporated university. Were the board to act as anything other than a steward of purposes not its own, that would violate the “public trust” vested in the university. The regents, therefore, must never be permitted to “displace nor destroy nor to absorb” the more comprehensive corporation whose servant it forever remains.
On the court’s account, the public corporation that is the university encompasses the regents but also the university’s president as well as “the different colleges of which the university is to consist.” It is to the faculty, more specifically, that the Organic Act entrusts the “immediate government” of these colleges, and that governance is exercised by its elected representatives within a duly constituted academic senate. Yes, the faculty’s authority operates within the context created by the board’s power “to enact laws for the government of the University.” But that power is exercised not over so many subjects, each constituted as a contractual employee, but on behalf of the conjoined members of the corporation that is the University of California. Because the board is also a part of this inclusive juridical entity, it does not stand apart from and so cannot, like some disembodied head, rule from above the body of which it, too, is an organ invested with specific fiduciary duties it must not violate.
The Academy as Member Corporation
The California Supreme Court’s ruling establishes the board of regents as a corporation located within the incorporated body politic that is the University of California, and the purpose of the former is to exercise governance responsibilities that contribute to the latter’s purpose. The court does not, however, ask how to ensure that the board remains accountable to the university in the performance of its constitutionally-prescribed duties, and the failure to address this question explains why the AAUP’s doctrine of shared governance has proven such a bust.
A possible answer to this question is furnished by the provision, found in state statutory codes, for the formation of what are often called “member corporations.” California’s nonprofit incorporation statute, for example, invites the creation of juridical entities whose members are defined as those who have the right to vote for as well as to remove directors, to adopt or amend their articles of incorporation and bylaws, and, more generally, to exercise the powers conventionally afforded by law to incorporated bodies (for example, to determine the disposition of capital assets).
The fundamental difference between member corporations and their autocratic counterparts turns on how the power of rule is organized within each. In the latter, the powers of governance are vested within boards whose members are neither selected by nor accountable to those they rule. Here, the authority to rule is legally monopolized by these boards and delegated downward through the formal chain of command depicted in standard organization charts. In a member corporation, this chart is turned upside down. Ultimate authority resides not within a head severed from the subjects it rules but, instead, within a body whose members may (or may not) choose to delegate authority upward. That authority, however, can always be recovered by the body politic that is its source as well as the ground of its legitimacy.
Within this second corporate form, the power of rule is exercised by its members over themselves; and they may do so either directly in assembly or indirectly via selection of the representatives they authorize to exercise a corporation’s powers on their behalf. These representatives may be organized within senates; but, unlike those within the autocratic university, these are not advisory bodies whose role is restricted to offering counsel to those who need not heed it. Instead, these senates are true legislatures whose officers may adopt, amend, or eliminate the statutes of this body politic, with the proviso of course that they may always be overridden by its members as a whole. Those who, today, are so many subjects of external lay boards are thereby recreated as citizens of a university organized as a self-governing corporation.
If the University is to Educate Citizens…
The AAUP was surely correct when in 1994 it declared that “a sound system of institutional governance is a necessary condition for the protection of faculty rights and thereby for the most productive exercise of essential faculty freedoms.” As its 2021 report demonstrates, however, the American university’s constitution as an autocratic corporation is ill-equipped to safeguard the public trust that is higher education. To hoist the banner of shared governance in response to the latest violations of that confidence is to forget what we should know by now: What the AAUP calls “moments of crisis,” including that fomented by the radical right’s takeover of higher education, do not mandate that the academy behave autocratically but, instead, expose a constitution of rule that has always been so.
As this term’s etymology suggests, a regent is a relic of monarchical absolutism in which sovereign power is external to and looms over its abject subjects. The American republic is predicated on the right of those subjects to resist and, when needed, to overthrow any government that no longer fulfills the trust reposed within it. There is no good reason why this same principle ought not to apply to our universities, and that is especially so if their very purpose, as California’s constitution expressly states, is to cultivate an educated citizenry whose members are perpetually jealous of their claim to self-governance. To leave the university’s antidemocratic legal form unchallenged is to betray that end and so to facilitate the nation’s collapse into unleashed authoritarianism.
