Since 2015, when Governor Scott Walker signed a budget bill that cut $250 million from the University of Wisconsin system, there has been much criticism of the law’s dilution of tenure but less said about its enfeeblement of the faculty’s role in institutional governance. The fate of shared governance at Wisconsin should concern to all who believe that the well-being of higher education in the United States depends on the participation of faculty in determining its future. Told here as a tragedy in three parts, Act 1 tells of the central role ascribed to faculty by state statute following the merger of the University of Wisconsin and Wisconsin State Universities in the early 1970s. Act 2 involves a 1994–95 court case that affirmed the role of the faculty in Wisconsin’s system of shared governance. The final act, extending from 2013 to 2015, nullifies acts 1 and 2, reducing the faculty to the status of a subordinate whose counsel is without effective authority.
Act 1: Securing Faculty Governance (1971–73)
In 1971, one month into his first term as governor of Wisconsin, Patrick J. Lucey unveiled a plan to merge the University of Wisconsin with the Wisconsin State University system. In order to enable the “intelligent, rational and efficient educational planning that Wisconsin needs,” Lucey proposed to replace the UW and WSU administrations with a centralized board of regents. In addition, he called on senior faculty to “devote a larger proportion of their time to classroom teaching, especially at the undergraduate level,” and, in anticipation of a sharp downturn in the demand for academic PhDs, he urged a cutback in support for graduate programs. Following extended internal debate, the faculty of UW–Madison agreed to endorse Lucey’s merger proposal, but only if several conditions were met, including significant faculty involvement in university governance as well as continuation of tenure based on demonstrated competence.
Shortly thereafter, a Merger Implementation Study Committee (MISC), composed of four legislators, six regents, three citizens, two faculty members, and two students, was charged with drafting appropriate statutory language. Of special interest is the December 1, 1972, meeting of the MISC’s ad hoc drafting subcommittee, which was principally devoted to proposed modifications of the role of faculty and students in institutional governance. For more than a century, Wisconsin law had stated that “the immediate government of the several colleges shall be intrusted [sic] to their respective faculties.” However, the law in place at this time also declared that “the president of the university shall be president of the several faculties and the executive head of the instructional force in all its departments,” and it authorized the board of regents to “regulate the courses of instruction and prescribe the books or works to be used in the several courses, and also confer such degrees and grant such diplomas as are usual in universities or as it shall deem appropriate.”
Regent Frank Pelisek, chair of the subcommittee, opened the December 1 meeting by noting that the language before the body had been drafted “in consultation with faculty representatives and is directed primarily toward a restatement and a reaffirmation of the historical role of the faculty and the peer governance of the institution.” The proposed revision read as follows: “The faculty of each institution, subject to the responsibilities and powers of the board, the president, and the chancellor of such institution, shall be vested with responsibility for the immediate governance of such institution and shall actively participate in institutional policy development. As such, the faculty shall have the primary responsibility for academic and educational activities and faculty personnel matters. The faculty of each institution shall have the right to determine their own organizational structure to select representatives to participate in institutional governance.” (Emphasis added.) During the subcommittee’s deliberations, speaking on behalf of his counterparts, Chancellor Martin Klotsche of the University of Wisconsin–Milwaukee objected that the terms immediate and organizational were “open to rather wide interpretation” and could be “interpreted to relate to the day to day administrative operations of the university.” Accordingly, he suggested replacing immediate with academic and organizational with governance. These alterations, he argued, would “more appropriately define faculty roles,” and, in doing so, emphasize that the restrictive intent of the provision was “to highlight the matter of academic governance.”
In the ensuing debate, Pelisek affirmed that the term organizational referred to the right of faculty members to determine their own internal mechanisms of collective governance. For clarification of the sense of the term immediate, however, he turned to the subcommittee’s faculty members. Clara Penniman from UW–Madison and Marshall Wick from UW–Eau Claire insisted that immediate government, adopted from the existing statute, pertained to the faculty’s role in matters “beyond what most consider academic governance.” Noting AAUP policy as well as established practice, they illustrated what such governance encompasses by citing the selection of department chairs, recruitment and evaluation of faculty, formulation of institutional budgets, and—of key importance two decades later—determination of faculty salaries.
After the chair reminded the subcommittee that the exercise of all faculty powers, under the proposed language, remains “subject to” the responsibilities and policies of the board, the president, and the chancellors, its members unanimously rejected replacement of the term immediate with academic but agreed to insert the word faculty within the phrase “own organizational structure.” The net effect of this compromise was not only to guarantee the faculty’s right to govern itself but also, and perhaps more important, to ratify a broad understanding of the scope of its participation in institutional governance.
Act 2: Affirming Faculty Governance (1992–95)
The statute ratified in 1973 ascribed to the faculty principal jurisdiction over affairs pertaining to its domains of professional competence, capaciously construed. However, it left unclear what it intended by rendering the exercise of that capacity “subject to the responsibilities and powers” assigned to the governing board and its executive appointees. This issue came to a head in 1992 when the board of regents informed the chancellors that distribution of funds designated for faculty salary increases for the next fiscal year was to be based solely on merit. Without specific guidance about how to put this mandate into practice, the faculty senate at the University of Wisconsin–Platteville formulated its own plan. That plan provided that the “service” of faculty would be classified as either “meritorious” or “unsatisfactory,” and it stipulated that salary increases would be distributed equally to those in the first category. In response, the Platteville chancellor sought an advisory opinion from the system administration. Informed that the plan was not consistent with the board’s intent, the senate voted not to endorse or participate in any plan different from the one it had adopted. The chancellor then devised his own plan, which was carried out following approval by the system president and the board.
Shortly thereafter, a faculty member at Platteville, Raymond Spoto, joined by the Association of University of Wisconsin Professionals, filed suit in Dane County, contending that the board and administration had violated state law by denying faculty members their rightful role in the salary determination process. Specifically, the plaintiffs argued that the method of distributing salary increases was a “personnel matter” for which faculty, according to Chapter 36 of the 1973 statute, held “primary responsibility.” In response, the defendants cited from the same chapter:
“Subject to board policy the chancellor of each institution in consultation with his faculty shall be responsible for designing curricula and setting degree requirements; determining academic standards and establishing grading systems; defining and administering institutional standards for faculty peer evaluation and screening candidates for appointment, promotion and tenure; recommending individual merit increases; administering associated auxiliary service; and administering all funds, from whatever source, allocated, generated or intended for use of his institution.” (Emphasis added.)
On this basis, the defendants affirmed that the chancellors, conditional on final approval by the board, are authorized to set faculty salaries; that their legal obligation is limited to consultation with the faculty; and, finally, that faculty counsel with respect to all personnel matters is ultimately “subject to” administrative decision making.
“This dispute,” the court stated, “raises two distinct, but interrelated issues: 1) whether faculty or administration, or both, have responsibility over the distribution of faculty merit pay; and 2) if they share authority, who prevails in the case of impasse.” This first question required the court to determine whether the method of distributing salary increases is indeed a “personnel” matter, as the plaintiffs contended. The court resolved this issue in the affirmative, in part because the MISC subcommittee meeting of December 1, 1972, had explicitly included reference to the faculty’s role in salary matters. But the court also did so because “the legislature could not reasonably expect the Board to evaluate more than 7000 faculty members and quantify and correlate performance with the economic consequence of a merit pay increase,” and, therefore, evaluation for this purpose “is better performed by a faculty member’s colleagues.”
The court then asked how extensive faculty authority is in such matters, and that required consideration of what it means to render its authority “subject to the responsibilities and powers of the board, the president, and the chancellor of such institution.” Consulting Webster’s Third New International Dictionary, the court noted that subject to can denote either “falling under or submitting to the power or dominion of another” or, alternatively, “likely to be conditioned, affected, or modified in some indicated way: having a contingent relation to something and usually dependent on such relation for final form, validity, or significance.” Of these two senses, the court opted for the second on the ground that the statute allocates to chancellors and faculty alike a key role in personnel matters, and hence that adoption of the first would violate its creation of “a broad scheme of shared governance”:
In order to give the shared governance concept full effect, the term “subject to” may not be defined as an equivalent as “subordinate to.” Although the board and its administration are responsible for system governance and policy, the defendants may not treat shared governance as a matter of administrative convenience. Moreover, sec. 36.09(4) guarantees the faculty the right to “actively participate” in system governance. If the faculty’s right to participate is to be given any effect, the administration may not exercise unbridled power where it reaches an impasse with faculty over the salary distribution decision. Thus, the court concludes that “subject to” means that faculty authority is conditioned and affected by board authority, but not subordinate to or absolutely dominated by board or administrative authority.
On this basis, the court affirmed that “the administration overstepped its authority when it unilaterally set faculty merit pay increases,” for “neither party may proceed on nor force implementation of a merit pay distribution plan without the approval of the other party.” Instead, in this instance, the “matter should have been returned to the faculty for them to adopt a plan in accordance with conditions set by the board of regents,” but with the proviso that the administration retains the authority to veto any implementation plan it finds inconsistent with those conditions.
In advancing this analysis, the court acknowledged that the overlapping distribution of authority enumerated within the statute contains within it the possibility of generating a standoff. The “legislature obviously allowed for the possibility of impasse when it enacted a statute with built-in ambiguities and mixed grants of authority to the various University actors.” This, however, indicates not that the law is contradictory but rather that “reading any statutory grant of authority as exclusive would tend to defeat the sharing concept.” In other words, adherence to the principle of shared governance means that no affirmative course of action can proceed without the negotiated concurrence of all parties granted some measure of authority with respect to designated issues. That resolution of such matters may take time (and so may appear “inefficient” to some) indicates not that the principles of shared governance are flawed but that it is functioning as anticipated.
Act 3: Gutting Faculty Governance (2013–15)
On September 5, 2013, the board of regents and state legislators participated in a forum titled “Finding Common Ground: Regent Governance, Funding, and Partnerships for Wisconsin’s Public University System.” The avowed reason for convening this event was an audit that had revealed that the university system held cash reserves totaling $648 million, about a quarter of its annual appropriation. As Pat Schneider commented in The Capital Times, however, a broader agenda emerged at the forum: “The meeting on Sept. 5 revealed lingering distrust, with Republican lawmakers accusing university leaders of a lack of transparency, loss of focus on creating job-ready graduates, and a campus climate that shuts out conservative voices in intellectual debate.” One source of this distrust became apparent when, during a panel devoted to the regents’ role in institutional governance, several legislators initiated a discussion about faculty participation. “Does the role of allowing the faculty to make a huge number of decisions,” asked the speaker of the assembly, Robin Vos, “help the system or hurt the system?”
Several months earlier, Vos had quietly created a working group charged with examining “the balance of power” among the parties to shared governance with an eye toward “streamlining” its operation. The background materials provided to that group identified the imbalance of particular concern: “The shared governance structure has at many universities vested more power in the faculty membership seat, which has been to the detriment of operational efficiency and educational improvement.” The final report issued by the working group made clear what sort of “educational improvement” its members aimed to promote: “If Wisconsin is going to respond to the needs of the Wisconsin labor market to increase the return on the public invest [sic] of Wisconsin’s public institutions; then there needs to be a paradigm shift on the emphasis on the goal of our education system. This would shift from an emphasis in a liberal arts education towards an educational background that better prepares them [students] for the job marketplace and utilizes vocational training.” Echoing the position advanced by the system’s chancellors four decades earlier, the report criticized the current statute on the ground that its “definition of shared governance is too broad.” By failing to clarify the specific powers of each participant, as well as the relations of super- and subordination among them, the law breeds confusion and delay. In short, according to the working group, the very virtue of the 1973 statute according to Spoto—that is, the fact that its structure of overlapping powers anticipates impasses that can only be resolved through compromises deemed acceptable to all—is now represented as one of its principal vices.
Although conceding that faculty members should “continue to have decision-making power in their individual curriculum,” the working group recommended elimination of the statutory section that specifies their broader responsibilities in institutional governance. In its stead, the report urged reconstitution of the faculty senate at each system branch “as a consultation resource for campus administrations.” This recalibration of the faculty’s role would represent an essential first step toward “long-term reform to connect faculty pay to teaching load and reform the tenure process” as well as to consolidate or eliminate academic programs that fail to “prepare students to secure meaningful work in today’s economy.”
Two years later, the legislature’s Joint Finance Committee approved an omnibus motion reducing by one-sixth Governor Scott Walker’s call to cut the system budget by $300 million but incorporating, in modified form, the principal recommendations advanced by the 2013 working group. While not proposing wholesale exclusion of faculty from the exercise of authority, the motion did call for excision of the provision that ascribes to faculty “responsibility for the immediate governance” as well as the faculty’s right to “actively participate in institutional policy development.” Moreover, reflecting the working group’s insistence on higher education’s subordination to workforce imperatives, the motion qualified the faculty’s authority to determine its own forms of collective self-governance by requiring each campus to “ensure that faculty in academic disciplines related to science, technology, engineering, and mathematics are adequately represented in the faculty organizational structure.” Finally, the motion called on the legislature to rectify Spoto’s erroneous resolution of the ambiguity inherent in the statutory provision that renders the exercise of faculty responsibilities “subject to” the board and its appointed administrators.
The state senate and assembly passed and, on July 12, 2015, Governor Walker signed into law a revised version of Chapter 36 of the Wisconsin statutory code. Aside from replacing gender-specific pronouns, the statute in place today retains in unmodified form the section of the 1973 law that specifies the governance role of the chancellors and that was cited by the defendants in Spoto.
However, in accordance with the spirit of the working group’s recommendations and the letter of the omnibus motion, the current statute undercuts the faculty’s authority to determine its internal governance and re-casts its role in institutional governance as that of a consultant: “The faculty of each institution, subject to the responsibilities and powers of the board, the president, and the chancellor of such institution, shall have the primary responsibility for advising the chancellor regarding academic and educational activities and faculty personnel matters. The faculty of each institution shall have the right to determine their own faculty organizational structure and to select representatives to participate in institutional governance, except that the faculty of each institution shall ensure that faculty in academic disciplines related to science, technology, engineering, and mathematics are adequately represented in the faculty organizational structure.” (Emphasis added.) Lastly, in order to eradicate any lingering uncertainty about the locus of ultimate authority, the statute includes a new provision applicable to student as well as faculty participation in institutional governance. This subsection reads: “MEANING OF ‘SUBJECT TO’ IN CERTAIN PROVISIONS. In subs. (4) to (5), ‘subject to the responsibilities and powers’ means subordinate to the responsibilities and powers.” With these few words, the ghost of Spoto is forever laid to rest.
Five days after this bill was signed, the board and system presidents disbanded a task force they had appointed several months earlier in order to craft language to take the place of what they had anticipated would be complete elimination of all references to shared governance from state statute. Because the law did not excise but rather modified the 1973 statute’s specification of its several participants’ roles, the presidents concluded that nothing remained to be done except to ask the chancellor of each branch to “review and evaluate existing procedures . . . to be sure all practices are in compliance with current law.”
Approximately one year later, at its May 17, 2016, meeting, the UW–Madison faculty senate unanimously endorsed a “Values Statement on Shared Governance.” That statement calls for creation of a joint committee to fashion policies that “operationalize” an understanding of shared governance as a “transparent, collaborative, and inclusive process” involving “faculty, academic staff, university staff, and students, in partnership with the administration.” More boldly, the statement calls on “the chancellor to delegate primary responsibility for academic and educational activities and faculty personnel matters to the faculty,” which in effect constitutes a request to reaffirm the governance role stipulated by the 1973 statute. For now, however, what was once the practice of “shared” governance at Wisconsin has been jettisoned in favor of a structure of rule that reduces the faculty to the status of an adviser whose counsel in all matters, including those for which it is most expert, bears only as much force as its superiors will countenance.
I wish to express my gratitude to Dave Vanness and especially Michael Moscicke of the University of Wisconsin–Madison for their assistance in providing materials that have been crucial to my effort to piece together this history.
Timothy V. Kaufman-Osborn is the Baker Ferguson Professor of Politics and Leadership at Whitman College.