BY TIMOTHY KAUFMAN-OSBORN
Much has been said about the radical right’s assault on the autonomy of US public higher education and that campaign’s subversion of academic freedom. Today, for example, we all know about Florida’s Stop WOKE Act as well as it successor, SB 266, which expressly prohibits faculty from teaching that “systemic racism, sexism, oppression, and privilege are inherent in the institutions of the United States.” To focus our attention exclusively on what PEN America calls these “educational gag orders,” however, is to overlook the right’s recourse to a new strategy whose implications for academic freedom are less immediately apparent and so less likely to arouse opposition: “This new breed of legislation,” PEN America explains, “is designed to kick the legs out from underneath university governance and autonomy, so that the next time the state moves to censor faculty, no one is in position to push back.” If we are to counter this insidious scheme, which aims to centralize state control over public higher education, we must learn to recognize its early warning signs long before they become law.
Proceed North on I-95
Although considered more moderate, Virginia’s governor is not above playing the sort of hardball that is the specialty of his counterpart in the Sunshine State. In 2022, for example, Glenn Youngkin requested the resignation of all members of the State Board for Community Colleges who would not agree to seat his representative on the search committee formed to identify a new chancellor. The board soon acquiesced, ceding to what one member of Virginia’s legislature called “partisan strong-arming” and “a shameful overreach to seize control of Virginia’s public education systems.”
This past October, Virginia’s attorney general issued an advisory opinion that effectively announced the legal doctrine that furnishes an ex post facto justification for Youngkin’s power grab the previous year. That opinion responded to this question: Does Virginia law impose upon the governing boards of public universities “a duty to serve the interests of the university or college only, or the Commonwealth more broadly?” The attorney general’s answer is unequivocal: “It is evident that a board of visitors simply serves as the vehicle by which the General Assembly has chosen to exercise the Commonwealth’s control over its colleges and universities.” The boards that preside over Virginia’s institutions of public higher education, in other words, possess only as much independence as the state allows. They do not govern in any meaningful sense of the term, for their character is essentially administrative and their sole job is to do the bidding of Virginia’s elected officials.
In Defense of the Corporate University
The question posed by Youngkin required an advisory opinion only because other plausible responses might be advanced. As I suggest in The Autocratic Academy, one way to counter the attorney general’s argument is to affirm the status of Virginia’s public colleges and universities as corporations. The attorney general cannot deny this statutory designation and, instead, declares that there is no legally significant difference between a public corporation and any other state agency. The implication is clear: the University of Virginia is as fully subject to Richmond’s control as is the Department of Motor Vehicles.
In fact, however, the corporate identity of Virginia’s public institutions of higher education is the condition of their substantial autonomy from the state. These institutions were established not to execute the will of Virginia’s politicians but, as an earlier attorney general stated, to fulfill a unique public purpose: “These institutions exist for the singular purpose of providing higher education opportunities to the people of Virginia.”
To enable these incorporated entities to accomplish this mission, they are granted the powers afforded to all corporations, as designated in state law, as well as others specific to public colleges and universities. As enumerated in the bylaws of the University of Virginia, to mention just a few, these include the power to establish its “general education policy;” to manage “all property belonging to the University;” to approve its annual budget; to issue bonds for capital projects; to exercise the power of eminent domain; to grant easements for infrastructure projects; to elect its own officers (including a rector who is charged with maintaining the university’s “independence” from “outside influences”); and to modify how these powers are to be exercised by amending these same bylaws.
As these powers suggest, Virginia’s public colleges and universities are more akin to municipalities than to administrative agencies of the state. To say this is not to deny that their governing boards, according to Virginia law, “shall at all times be under the control of the General Assembly.” But it is to say that the people of Virginia have chosen to realize the purposes of public higher education through the creation of incorporated entities to which they have delegated considerable powers of self-governance and hence autonomy.
The primary duty of Virginia’s governing boards, therefore, is not to act as clerks whose exclusive task is to execute the mandates of their superiors. Rather, as fiduciaries, their foremost obligation is to fulfill the missions of their respective institutions. This in turn explains why governing board members may only be removed for “malfeasance, misfeasance, incompetence, or gross neglect of duty” whereas members of Virginia’s unincorporated boards and commissions may be dismissed for these reasons but also for a “refusal to carry out a lawful directive of the Governor.” If those who govern Virginia’s public colleges and universities were mere subordinates of the governor, they too would be subject to this additional proviso. But they are not, and that is because their foremost obligation is to “act in the best interests of the University.” In sum, the attorney general is wrong to conclude that Virginia’s governing boards are nothing but “the vehicle(s) by which the General Assembly has chosen to exercise the Commonwealth’s control over its colleges and universities.”
What Say Ye, Mr. Jefferson?
Thomas Jefferson participated in drafting the 1818 and 1819 statutes that founded the University of Virginia in the form of a “body corporate” vested with significant powers, including the power “to make all such by-laws and regulations, as may be necessary to the good government of the University.” Both acts added, however, that the university “shall in all things, at all times, be subject to the control of the Legislature.” Whereas this latter provision embodies Jefferson’s commitment to popular sovereignty, the former exemplifies his conviction that inquiry will never be truly free unless the university remains substantially autonomous from the state. Although far from perfect, the university’s corporate identity is the solution to the dilemma engendered by simultaneous adherence to these two principles. Were Jefferson to reply to those who, today, represent the public university as nothing but the state’s obedient servant, no doubt he would be quick to recite Virginia’s motto concerning the ultimate fate of all would-be tyrants: “Sic semper tyrannis.”
Timothy Kaufman-Osborn is the Baker Ferguson Professor of Politics and Leadership Emeritus at Whitman College. He is the author, most recently, of The Autocratic Academy: Reenvisioning Rule within America’s Universities (Duke University Press, 2023).
