Responding to Legislative Interference in University Governance

The dangers of legislative preemption of academic decision making.
By Jack Simmons and Beaman Floyd

The faculty role in governance at state institutions is under attack from many legislatures. Our example here is Texas, but other states have experienced a similar erosion of faculty governance through legislative action. Legislatures have a long history of involvement with academic matters, and the principle of academic freedom suffers from political intrusion into teaching and research. Elected officials are using the current financial crisis and anecdotal stories of faculty excess to justify their expanded (and unwelcome) involvement in academic affairs.

For perhaps too long, faculty at state colleges and universities have focused their efforts to maintain faculty governance at the campus level. These efforts are becoming insufficient, because, even if faculty win a significant role in campus governance, the range of choices that legislatures leave to campuses may be severely constricted.

Legislative involvement in higher education governance generally begins with two assertions: (1) that states are now giving public universities block grants for their operations without any control over how that money is used, and (2) that taxpayers (and their representatives) should be given greater control over how the money they give to public institutions of higher education is spent. In a time of financial crisis, the calls for legislative interference have become louder.

In the more traditional understanding of institutional governance, the governing boards wield ultimate authority, with faculty working to maintain a voice in the decision-making process through a variety of channels, including a faculty senate, committees, faculty liaisons, and unions. Typically, university administrators report to state boards of regents or other bodies that may also dictate institutional policy, but faculty rarely interact directly with board members except through their own administration or advisory committees composed of faculty that represent a particular academic interest (such as a core curriculum advisory committee). In this way, faculty governance operates at a degree of separation from the final decision makers.

The increasing legislative control over state academic institutions reduces faculty input into university governance. In most states college and university administrators report to the board, and the board reports to the executive and legislative branches of government. In these cases, the faculty are at two degrees of separation from the decision makers, and in this way their voice is essentially extinguished. Worse, legislatures, not satisfied with the role of oversight and audit, are increasingly using statutes to intrude directly into governance at the campus level with almost no meaningful input from faculty.

Examples from Texas

In the following section, we look at three bills from the 2009 Texas legislative session and briefly outline the approval process for each bill to demonstrate the limitation of faculty input in decisions we deem critical to teaching and research at Texas institutions of higher education. Of these three bills, one failed, one nearly passed, and the third passed easily.

  1. H.B. 2746: The School of Ethics, Western Civilization, and American Traditions bill would create an independent school within the University of Texas, overseen by the Texas legislature.
  2. H.B. 3790: This performance-incentive funding bill would create a funding formula for universities based on graduation rates, with the relative importance—as determined by the legislature—of the graduates’ disciplines also taken into account.  
  3. H.B. 2504: The “database bill” would require universities to post an accurate assessment of all academic costs for students and the state for any course; a complete, daily accounting of all classroom teaching, including required and suggested readings; and a full listing of faculty academic credentials and publications in an online database that allows the general public to carry out anonymous word and subject searches.

The School of Ethics, Western Civilization, and American Traditions bill (H.B. 2746) was an attempted legislative takeover of academic content and pedagogy. It not only designated the creation of a new school at the University of Texas at Austin, but also dictated the content of study: six three-hour courses, each covering one of the following topics: (1) ancient philosophy and literature; (2) ideas from the Bible; (3) great works from the Middle Ages; (4) classics of the Renaissance and the Age of Enlightenment; (5) the development of Western science and technology;  (6) classics of the American founding and development of the American Republic.

The bill also dictated the pedagogical approach to the academic content by legislating that each course offered by the school must

  1.  be multidisciplinary;
  2. be based primarily on:

    A. a critical reading of the primary texts that have shaped the tradition of Western civilization, including works spanning a significant range of genres such as literature, philosophy, religion, history, art, science, and technology;

    B. a study of the institutions, ideals, and principles of the United States and the development of the American Republic;

  3.  focus on developing a student’s understanding of the primary texts described by Subdivision (2)(A) that is based primarily on the student’s direct reading of those texts without the introduction of external sources of interpretation or theory;
  4. employ the Western civilization field of study at the university;
  5. be designed to engage students in exploring enduring fundamental questions of profound ethical and philosophical significance.

While the creation of new schools by legislative bodies is not new (legislative bodies regularly create new colleges and universities through legislation), the specific legislative requirements for the School of Ethics, Western Civilization, and American Traditions greatly exceeded the state legislature’s traditional purview: to provide funding. Here the bill bypassed faculty input on questions of both content and pedagogy.

Going a step further, the bill would have created a school director position that would report “directly to the university’s provost; and [that,] on request, [would] be available to report personally on the progress and activities of the school to any standing committee of the Texas Legislature with jurisdiction over higher education matters.” In this fashion, the bill further limited faculty participation in academic decisions concerning the new school.

This radical departure from traditional college governance elicited scarcely more academic input than did the performance-incentive funding bill. Three academics, two of whom were from out of state, testified at the House hearing. All were in favor of the bill. No opposition was registered. The bill, however, did not advance past the Texas House.

The performance-incentive funding bill speaks most directly to the faculty role in matters relating to institutional finances. This bill proposed that the Texas Legislature designate critical and noncritical fields of study and award funding to state institutions based on graduation rates in these fields, with graduates in critical fields counting more than those in noncritical fields. The bill was designed to force universities to direct funding to those fields the legislature deemed critical and away from those deemed noncritical. In return, institutions would become eligible for an undefined amount of additional incentive funding. The bill designated engineering technology, computer science, mathematics, physical science, allied health, and nursing as critical fields. While the bill provided the opportunity to designate new fields of study as critical, it gave the Texas Higher Education Coordinating Board, appointed by the governor, the authority to make these determinations. This bill would have created an external hierarchy of priorities for institutions without regard to individual institutional needs and emphasis and ultimately would have prevented faculty from participating in budget decisions that directly affect the academic content available at each university. The bill would have locked priorities in place with statutory designation of critical areas while granting politically appointed nonacademics the power to determine these academic priorities.

We have seen in the past that identifying critical educational needs for the future is very difficult. For example, in the early 1990s universities promoted the study of Russian as the Soviet Union dissolved, on the assumption that an open and expanding Russian economy would create vast opportunities for graduates bilingual in English and Russian. Arabic was simultaneously deemphasized. Few people anticipated the collapse of the Russian economy in the late 1990s or the attacks of September 11, 2001. Those attacks, and the sudden demand for Arabic speakers, revealed a glaring inadequacy in the American system of higher education and demonstrated that fields of study cannot be created and brought up to speed quickly in response to sudden changes in the world outside academe.

The history of incentive programs, particularly those that yield a simple numerical measure, shows that they become the basis not only of critical funding decisions but also of outside accountability measures. An incentive program thus often evolves into an accountability system.

H.B. 3970 represented a clear long-term threat to faculty governance at public institutions of higher education in Texas and could have affected the allocation of resources and measurement of institutional success for years into the future. Yet faculty were entirely absent from the legislative process. The bill had no opposition in its House committee hearing. In fact, the only two scheduled witnesses were businessmen supporting the bill. The Senate hearing was substantially similar, with no faculty comment. Notwithstanding the lack of public interest, the bill failed to pass in the last session. It has been filed in multiple sessions, however, and will likely reemerge in the Texas legislature’s next session.

The final and perhaps most interesting piece of legislation discussed here is what we call the database bill (H.B. 2504). This bill attempts to bring transparency to public institutions of higher learning in Texas, excluding medical and dental units, by requiring those institutions to post online course information, faculty credentials, work-study opportunities, and cost of attendance. While keeping this information updated and online will cost the colleges and universities time and money, there is no obvious reason for faculty concern about these requirements. Perhaps, in tight economic times, the faculty might regret that the resources spent on this legislative mandate would better serve the educational mission of the institution elsewhere, but these measures do not seem overly burdensome. However, the bill’s first provision, which requires detailed posting of course information, may represent more than an inefficient expenditure of resources.

In requiring faculty to post detailed course information on the Internet, the bill presumes to increase transparency at the university. But why? Is there a gnawing public interest in university course content? Has the press traditionally been interested in course content or found university faculty reluctant to provide course syllabi to people outside the university? Because most faculty love their field of study, they are typically more than happy to share the content of their research and teaching with anyone who shows even a passing interest. The answer to this question comes later in the bill.

Section 1b requires that the course information be accessible by use of not more than three links, searchable by keywords and phrases, and accessible without user name, password, or user identification. Why mandate searchability through keywords and phrases? Why mandate anonymous searches? One would not need a keyword search to find the syllabus for Introduction to Philosophy, Section 001, any more than one needs a keyword search to find the course offerings in philosophy. So why would a keyword search be mandated by law?

The answer lies in the list of witnesses at the bill’s legislative hearings. Though some higher education interests expressed concerns about this bill, there was no broad engagement by faculty groups, and as a result, academics were again silent on a significant question of university policy. Several witnesses appeared in favor of the bill, including representatives of Americans for Prosperity, the Young Conservatives of Texas, and the Texas Conservative Coalition. These groups historically combine concerns regarding fiscal responsibility and the dangers of a presumed liberal academic agenda. Their support suggests an effort to create a database intended to link taxpayer cost to specific academic content in a quick, anonymous, and highly anecdotal fashion. Using this database, one could search for, say, “Karl Marx,” and then, devoid of academic context, assert that a sum certain of public dollars is being used to advance Marxist ideas in public institutions.

The ability to isolate presumed political agendas through course content represents a serious threat to academic freedom. Here we are not suggesting that academic freedom requires secrecy. On the contrary, the free flow of information and ideas remains a central goal of the university. But too often we interpret information technology as politically neutral. One must imagine the consequences of this legislation in order to appreciate our concern. Picture a Texas legislator standing before the Texas Senate in a hearing concerning the funding of Lamar College: “Last year Lamar College received $40 million from the state of Texas and spent that money to teach your children to be Marxists.” 

When bundled with the cost of attendance, thumbnail reports that could be generated by this database create dangerous, decontextualized connections between course content and university funding. The cost of attendance subsection of the bill requires the Web site to address all the elements that constitute the total cost of attendance, including tuition and fees, room and board, books and supplies, transportation, and other personal expenses. Now the legislator may argue even more specifically that 10 percent of the cost of attending Lamar University goes to the circulation and promotion of Marxist ideas. In a political environment that produces bills like the three we have seen here, there is a clear and present danger that faculty will be pressured to keep controversial topics out of their courses.

H.B. 2504 passed both houses of the Texas legislature on May 29, 2009, without a single vote against it.

Faculty Responses

Higher education faculty across the nation are rightly concerned about the importance and erosion of faculty governance. The Texas examples are not unique to that state but in fact exemplify of political pressures on higher education nationwide, pressures that have been exacerbated by the current financial situation. As illustrated in this essay, the battle for real decision-making authority can easily be lost long before the battle to gain it at the institutional level is ever joined. Faculty may win decision-making responsibility only to find they have earned access to a range of options that are at best meaningless, and at worst self-destructive.

Given that these threats to faculty governance occur at the legislative level, faculty will rightly wonder what possible response is available to them. We suggest the following:

  1. clear articulation of arguments in favor of faculty governance that work in general public discourse;
  2. basic involvement as a citizen in the legislative process, particularly at the state level;
  3. systematic exercise of freedom of assembly, including the creation and expansion of professional organizations such as the AAUP and direct lobbying efforts.

The lack of academic participation in our Texas examples is sadly common to most other legislative environments. Faculty nationwide must continue to work for governance authority in their institutions. However, they cannot ignore the extrainstitutional threats to academic self-determination that could render victories at the institutional level immaterial.

Jack Simmons is associate professor of philosophy at Armstrong Atlantic State University in Savannah, Georgia. Beaman Floyd is a contract lobbyist in Austin, Texas, representing higher education, public education, and insurance interests.



The solution to many of the problems described in this piece is identified by Kim Emery in her essay in the same issue of Academe Online:  Organize!

L. B.

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