BY TIMOTHY V. KAUFMAN-OSBORN

In a bold move, sixteen faculty, staff, students, and alumni recently filed a suit calling on Washington’s attorney general to remove from office six trustees, including the interim president, of Seattle Pacific University (SPU). Given the real risks involved, especially for those currently on SPU’s payroll, we should applaud these plaintiffs for the courage they have shown in seeking to compel the university to eliminate its ban on hiring full-time LGBTQ+ employees. What they fail to do, however, is to challenge the autocratic constitution of power that enables these “rogue” rulers to perpetuate a policy that violates SPU’s educational mission.

 Faithless fiduciaries

Last June, the attorney general’s office initiated an investigation of SPU’s administration for alleged violations of Washington’s antidiscrimination law. The suit filed a week ago, instead, charges specific trustees with a breach of their fiduciary obligations to the university. While the plaintiffs’ principal concern is SPU’s employment policy, they hear its homophobic echoes in the university’s “lifestyle expectations” that prohibit everyone, including students, from engaging in “same-sex sexual activity.”

The turmoil spawned by these policies, the complaint contends, has compromised SPU’s reputation, discouraged gift-giving, decreased the university’s enrollment, induced multiple faculty members, staff, and indeed trustees to resign, and generated a projected ten million dollar deficit for 2022–23. As a result, SPU now confronts an “existential crisis” whose ultimate cause is a small band of trustees “who seized power from the loyal members” of the board and, having done so, “abandoned their duties of care and loyalty to SPU and its people, and their duty of obedience to SPU’s governing documents and state law.”

These transgressions, the suit maintains, are animated by a desire to ensure SPU’s ongoing affiliation with and conformity to the dogma of a specific religious denomination: “These men treat the university and its assets like a personal weapon and war chest to fight the sectarian battles of the Free Methodist Church.” By subordinating SPU to these parochial interests, the defendants have contravened the university’s identity as a specifically educational institution and hence forfeited their authority to serve as board members.

The suit therefore calls on the attorney general to initiate proceedings aimed at removing the offenders from office, appointing a receiver to supervise selection of their replacements, and requiring payment of damages to those harmed by the trustees’ misdeeds. Departing from more familiar protests framed in the vocabularies of shared governance or wounded identities, the plaintiffs demand that the state oust usurpers who no longer deserve to be obeyed: “While these men are powerful, they are not above the law. They are fiduciaries, not dictators. They are trustees, not tyrants.”

The autocratic academy

These rulers may not be tyrants or dictators, but they are most certainly autocrats. As mandated by law, the incorporated entity named “Seattle Pacific University” is governed by a board of directors, and all powers granted to this entity are vested in that body: “The responsibility for the governance and control of Seattle Pacific University,” its articles of incorporation state, “rests exclusively with the Board of Trustees” (emphasis added). Among others enumerated in SPU’s bylaws, these powers include the authority to define the university’s mission; to select and dismiss its officers, including but not limited to the president; to adopt policies regarding the appointment and termination of faculty members; and to regulate its assets, financial as well as tangible. The board, moreover, possesses the sole authority to amend these governing documents and hence to determine the procedures according to which all other policies are made. And, finally, because SPU’s board is authorized to select its own members, this autocracy is forever self-replicating.

By law, instructors and staff are excluded from membership within the incorporated body that is SPU’s board and hence the powers it alone enjoys. Their relationship to the university is one of employment whose terms are specified by contracts that position some as bosses and others as hired hands. True, the board may elect to temper the harsh doctrine of at-will employment (for example, by adopting a tenure policy), but that policy may always be revoked. So, too, the board may delegate certain powers to specific constituencies (for example, by allowing faculty to determine the curriculum), but whatever is delegated may always be withdrawn. Because SPU’s governing board is an autocrat, in sum, all others are subjects.

Let us imagine that the suit against SPU were to succeed (however unlikely that may be given the demanding burden of proof that must be met in fiduciary breach actions). Even if there were a shuffle in board membership, the antidemocratic structure of SPU’s governing board would remain intact. No doubt, the cause advanced by the current suit is critical to SPU’s identity and must be fought. But let us not forget that this controversy assumes the specific shape it does only because everyone who is not a member of this university’s board is denied any legally guaranteed title to take part in its governance. That, though, is precisely what the plaintiffs do when, objecting to the rogues’ entanglement with the Free Methodists, they affirm that SPU “must be exclusively controlled by its Board of Trustees.”

How to reincorporate SPU

All incorporated nonprofits in the state of Washington are governed by boards of directors granted a monopoly over the exercise of the powers that define them as corporations. This, though, does not exhaust all that should be said about how these entities may be ruled.

As is true in other states, Washington law distinguishes between “nonmember” and “membership” corporations. Like almost all US colleges and universities, SPU is a nonmember corporation ruled by a board whose occupants are formally unaccountable to those they rule. Membership corporations, in contrast, are defined by the right of those so designated, in accordance with the principles of one member/one vote and plurality rule, to “vote for the election of directors.” This provision is subtended by a fundamental commitment to equality, for “each member of a membership corporation has the same rights and obligations as every other member with respect to voting, dissolution, membership transfer, and other matters.” So, too, within membership corporations, all have the right to propose and vote on modifications to the internal statutes that are its bylaws. Finally, all are authorized to cast ballots on any allocation of capital assets that is other than routine.

Washington state law authorizes the “judicial dissolution” of a nonprofit corporation if its board “exceeds” or abuses” the powers conferred on it by law; if it causes “irreparable injury to the corporation or its mission;” if it “wastes” or “misapplies” corporate goods; and/or if it acts in a manner that is “illegal” or “oppressive.” Given the suit’s allegations, there appears to be more than enough cause to ask the state attorney general to initiate an investigation into whether SPU’s articles of incorporation should be revoked. Should that be accomplished, SPU might then be reconstituted as what the eighteenth-century English jurist, William Blackstone, called a corporation in the form of a “little republic.” Within that body politic, the fiduciary obligation to fulfill the academy’s mission would no longer be the prerogative of extraneous autocrats, but, instead, would be extended to all members, including the officers they select, hold accountable, and dismiss when that is in order.

Timothy V. Kaufman-Osborn is the author of several articles on academic governance as well as The Autocratic Academy: Reenvisioning Rule Within America’s Universities (Duke University Press, 2023).