The phrase board of trustees is synonymous with governance in higher education and is the most common name for groups of individuals who serve as the legal agents for and have authority over two-year colleges, four-year colleges, and universities in the United States. While several other types of boards provide similar governance, depending on their own unique institutional histories, they may have different names. Some examples of the other most common terms for these structures are board of visitors, as used by the Commonwealth of Virginia; board of regents, as used by New York, California, and several other states; board of curators, as used in Missouri; and board of governors, as used in North Carolina to describe the management of the entire university system even though each campus of the system has a separate board of trustees. The term board of trustees is also used to describe boards that serve related educational governance functions, such as the governing boards of quasi-independent, nonprofit foundations that raise money for institutional advancement. The term boards is used throughout this entry to refer to all such instances of governing structures. The entry focuses on describing the selection of members for boards, the responsibilities of boards, and the legal controversies involving boards.
Membership of Boards
The process of selection of board members varies among the many types of institutions of higher education operating in the United States. The means for selecting members is generally set out in the governing documents of colleges or universities, in the form of statutes or similar legislative provisions for state institutions, or in some form of charter if the institution is private in nature. For both public and private institutions, the governing documents contain rules about the number and length of terms board members may serve. Additionally, the number of members can range from less than 10 to more than 30.
For public institutions, selection is often made by the governor of the state or by the state legislature. In some cases, members are selected by the board of governors of the entire university system, while in other situations, members are directly elected by the public. Over the years, efforts have been made to remove the appearance of conflicts of interest in membership by prohibiting persons or their spouses from being board members if they occupy specified public offices or are employed by the state. Exceptions to this general rule are often made for ex officio members, such as student government presidents, presidents or former presidents of institutions, and other high-ranking public officials whose agencies have direct involvement with colleges or universities.
The majority of members come from the world of business; academics are rarities on boards. Board members tend to be prominent individuals with substantial leadership and executive management experience; also, many members are often distinguished alumni. The representation of women and minority groups has improved in recent decades but still lags behind equitable demographic representation. Insofar as membership on boards is seen as a great honor, members are rarely compensated for serving and receive reimbursement only for expenses related to board business.
For private institutions, some similarities to public institutions exist in the selection process, such as looking for prospective members from a pool of individuals who have connections to the institution. For instance, being a graduate or being a prominent member of the community is often a criterion for board membership for private institutions. However, many other considerations of the process are quite different due to the different missions of public and private institutions. In other words, private institutions may not have the same type of pressure to appoint political elites that may exist at public institutions, but that is not to say that officials at private colleges and universities do not have other outside pressures related to their institutional traditions in the appointment process.
Responsibilities of Boards
Boards are charged with overseeing the institution through the selection of a president or chancellor and the continuation of the institution’s mission through policy development. Additionally, boards serve as the legal entities responsible for the overall operations of colleges and universities. As a result, boards often find themselves at the forefront of legal confrontations regarding higher education.
The key function of boards is the selection of a president or chancellor for single institutions or for an entire public college and/or university system. Here, again, there are differences between public and private institutions. Because they generally have more alumni, public systems have to get more extensive public input to reflect their larger constituencies; however, the diverse constituencies of private institutions can also create pressures during the selection process. One approach to this complicated process of selecting a president, which is utilized by both public and private institutions, is the use of executive search firms that specialize in finding higher education leaders. This outsourcing of a key function of board responsibility is often met with criticism; nevertheless, it has become almost standard procedure for boards, as it insulates them from the minutiae of the search and partially from the final outcome if the presidential choice does not work out as expected. Additionally, the use of search firms has been justified as a matter of confidentiality that is needed to attract highprofile leaders who do not want their names released to the public unless they are offered the position.
Boards’ relationships with presidents can be contentious, especially when different visions for the institutions come into conflict. Further, new presidents with mandates from boards can come into conflict with faculties that are resistant to moves away from shared governance. These tensions often come from the differences in the backgrounds of board members and faculty, who often see the future of the institutions in quite different ways. Unfortunately, this type of tension can lead to votes of no confidence and, possibly, litigation.
In addition to hiring presidents, because boards are ultimately responsible for the operations of the campuses that they oversee, they typically make final decisions with regard to granting tenure to faculty members. Acting on input from chief academic officers, particularly in public colleges and universities, faculty members usually cannot be awarded tenure without an affirmative vote of institutional boards.
Setting institutional policies is another essential element of board governance. Institutions have different mandates depending on their nature, but the mechanism of adopting policies that regulate the campus environment finds its origin in board policy development. The development of these policies can be quite complex, technical, and implicative of considerable legal considerations. Therefore, many boards make use of committees to divide the work and institutional staff structures to provide professional legal or accounting advice.
Some of the most contentious aspects of board membership deal with the costs of attending their institutions. In these cases, board members have considerable challenges in weighing enrollment growth with increased costs for everything from instructional services to new technologies. Further, all boards across the country are concerned with increasing their institutions’ national competitiveness and prestige; this goal must be counterbalanced with the fact that improving one’s reputation often requires increases in student fees and tuition. In states with constitutional mandates for low-cost public higher education, boards are undoubtedly concerned with possible litigation to cap rising costs.
Boards are also often tasked both formally and informally with serving as major fund-raising arms of their institutions. This function has increased in importance in the last few decades, as institutions seek to raise their endowments for new buildings and prestigious professorships. Of course, much of this fund-raising is also directed toward athletic programs and the scholarships that are needed to support them.
Litigation Involving Boards
Serving as the legal entities of record or agents of their institutions, boards have been at the nexus of many of the most important cases involving higher education and the law. The U.S. Supreme Court’s first case addressing education on any level was Trustees of Dartmouth College v. Woodward (1819). In Woodward the Court upheld the authority of the board at a private college to engage in self-governance and maintenance without interference from state legislatures and other public entities.
The most prominent, controversial, and ongoing area in which boards have been involved in litigation has been access and admission to colleges and universities at both the undergraduate and graduate levels. The majority of these cases rely on claims under the Equal Protection Cause of the Fourteenth Amendment. For example, in Sipuel v. Board of Regents of University of Oklahoma (1948) the Supreme Court held that students could not be barred admission because of race. Similarly, in McLaurin v. Oklahoma State Regents for Higher Education (1950) and Sweatt v. Painter (1950), the Court found that students in higher education could not be educated in different ways based exclusively on the criterion of race. Each of these cases of expanding access to equitable higher education was of substantial importance as a precursor to the more well-known K–12 case of Brown v. Board of Education, Topeka (1954).
In another important Fourteenth Amendment case in higher education, Regents of the University of California v. Bakke (1978), the Supreme Court concluded that while educational programs that required quotas based on race were unconstitutional, efforts to diversify student bodies through affirmative action did not violate the Equal Protection Clause of the Fourteenth Amendment. The Court subsequently reached mixed results in cases involving diversity on campus, upholding such a plan for law school admissions at the University of Michigan in Grutter v. Bollinger (2003) on the basis that an admissions plan that took race into consideration was constitutional because it was narrowly tailored to achieve a compelling governmental interest and engaged in individualistic, holistic reviews of applicants. Conversely, in Gratz v. Bollinger (2003), resolved on the same day, the Court invalidated the admissions policy for an undergraduate program at the University of Michigan, because it was not was narrowly tailored to achieve a compelling governmental interest.
Many other issues have led to litigation against boards. Some brief examples follow. In Keyishian v. Board of Regents of the University of the State of New York (1967), the Supreme Court decided that state officials could not condition employment on loyalty oaths and that mere membership in organizations could not be judged to be subversive. In Board of Regents of State Colleges v. Roth (1972), the Court posited that a nontenured faculty member with a limited term contract was not entitled to the Fourteenth Amendment protection of procedural due process for contract renewal and rehiring. In Board of Curators of the University of Missouri v. Horowitz (1978), the Court indicated that a student could be dismissed for academic reasons without the due process protections that may be afforded for disciplinary actions, provided that such academic dismissal processes were not arbitrary and the institution had provided notice to the student for the need to improve. Further, in Board of Regents of the University of Wisconsin System v. Southworth (2000), the Court observed that required student activity fees could be used to support all types of student organizations regardless of their ideas and the speech they supported.
An incident that showcases the complicated nature of governance by boards is the battle between the University of Colorado and Ward Churchill, who was a faculty member in the Department of Ethnic Studies and the author of a controversial 2001 essay about the September 11 attacks. Following publicity about the essay, in which Churchill argued that the September 11 attacks were provoked by U.S. foreign policy, his employment was terminated by the regents of the university. However, the university agreed that his comments were protected by the First Amendment, and instead asserted that his firing was based on findings of research misconduct. Churchill successfully challenged his termination by the regents of the university, and in April 2009 he won a civil suit in which the jury awarded him one dollar in damages (Frosch, 2009). Churchill sought a court order to order his reinstatement, and in April 2009, the American Association of University Professors issued a statement supporting his claim. However, in July 2009, a trial court judge set aside the jury verdict, basically relying on the doctrine of academic abstention and recognizing that the decision to dismiss Churchill was a matter best left to university officials. In addition, though immunity was not discussed at trial, the Court had reserved this issue for further review. In its July ruling, the Court agreed that the Board was entitled to Eleventh Amendment immunity, absolving it from liability because it was acting as a public institution in a quasi-judicial capacity. Churchill plans to appeal.
Boards will undoubtedly continue as the structures governing and leading institutions of higher education into the future. Citizens and alumni of institutions should be keenly aware of the role these bodies have in shaping the direction of higher education policy in the United States. Conversely, boards must be aware of the legal implications of their decisions and draft policies that support the mission of their institution while seeking to understand the constituencies they serve.
- Altbach, P., Berdahl, R., & Gumport, P. (Eds.). (2005). American higher education in the twenty-first century: Social, political, and economic challenges (2nd ed.). Baltimore: Johns Hopkins University Press.
- Association of Governing Boards of Universities and Colleges: http://www.agb.org
- Frosch, D. (2009, April 10). Campus still split after jury sides with professor. The New York Times, p. A16.
- Ingram, R. T. (1993). Governing public colleges and universities: A handbook for trustees, chief executives, and other campus leaders. San Francisco: Jossey-Bass.
- International Association of University Presidents: http:// www.iaups.org
- Kaplin, W., & Lee, B. (2006). The law of higher education: A comprehensive guide to legal implications of administrative decision making (4th ed.). New York: Jossey-Bass.
- Olivas, M. (2006). The law and higher education: Cases and materials on colleges in court. Durham, NC: Carolina Academic Press.
- Roth, J. (Ed.). (2007). Higher education law in America. Malvern, PA: Center for Education & Employment Law.
- Smith, D. H. (1995). Entrusted: The moral responsibilities of trusteeship. Bloomington: Indiana University Press.
- Southeastern Community College Board of Directors: http://www.scciowa.edu/about/board
- University of North Carolina Board of Governors: http:// www.northcarolina.edu/content.php/bog/index.htm
- Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78 (1978).
- Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972).
- Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000), on remand, 221 F.3d 1339 (7th Cir. 2000), on remand, 132 F. Supp. 2d 740 (W.D. Wis. 2000), 132 F. Supp. 2d 744 (W.D. Wis. 2000), aff’d in part, rev’d in part, 307 F.3d 566 (7th Cir. 2002).
- Brown v. Board of Education, Topeka, 347 U.S. 483 (1954).
- Gratz v. Bollinger, 539 U.S. 244 (2003).
- Grutter v. Bollinger, 539 U.S. 306 (2003).
- Keyishian v. Board of Regents of the University of the State of New York, 385 U.S. 589 (1967).
- McLaurin v. Oklahoma State Regents for Higher Education, 339 U.S. 637 (1950).
- Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
- Sipuel v. Board of Regents of Univ. of Oklahoma, 332 U.S. 631 (1948), mandate denied sub nom. Fisher v. Hurst, 333 U.S. 147 (1948).
- Sweatt v. Painter, 339 U.S. 629 (1950).
- Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819).