Preserving the Independence of Public Higher Education: An Examination of State Constitutional Autonomy Provisions for Public Colleges and UniversitiesJournal of College and University Law (2009)
AbstractIn American higher education, the need to make public colleges and universities responsive to the public interest is often in tension with the necessity of providing institutions with the requisite authority to manage their internal affairs. In seeking to strike a balance between acceptable state oversight versus the need to safeguard the authority of public colleges and universities to manage their own affairs, some states rely on constitutional provisions to limit excessive state governmental intrusion. Specifically, these provisions vest constitutional authority in public higher education governing boards to direct the affairs of institutions or systems under their direction. In contrast to this approach, in most states the powers and duties of public college and university governing boards are often largely subject to or defined by statutory authority. The use of a constitutional provision to establish and provide legal protection for the internal control of a public college or university is commonly referred to as constitutional autonomy. Constitutional autonomy represents a distinctive governance mechanism in public higher education, and several colleges and universities with independent constitutional authority enjoy national reputations, including the University of Michigan and campuses within the University of California system. Examination of the current legal status of constitutional autonomy provisions is potentially useful to courts faced with the task of applying constitutional provisions to new cases. In addition, higher education stakeholders may find an analysis of constitutional autonomy beneficial in relation to ongoing policy discourse concerning the appropriate degree of state oversight for public higher education. One author has even examined constitutional autonomy in California as a basis to explore issues related to federal constitutional protections for institutions under the First Amendment and principles of academic freedom. Accordingly, consideration of constitutional autonomy has possible relevance in several law and policy arenas that extend beyond just those states with judicial recognition of constitutional autonomy. Approximately three decades have elapsed since the last comparative legal analysis of constitutional autonomy provisions by Joseph Beckham in 1978. Along with seeking to provide an updated comparative analysis covering roughly the decades since Beckham's study, the author was also motivated to examine a forecast offered in 1973 by Lyman A. Glenny and Thomas K. Dalglish that constitutional autonomy appeared to be waning, with their work entitled Public Universities, State Agencies, and the Law: Constitutional Autonomy in Decline. Glenny and Dalglish, considering non-legal trends along with legal decisions, determined that, especially in relation to control of financial issues, institutions possessing independent constitutional authority were experiencing a loss of power “to exercise final judgment on the use not only of [their] state funds but also of those derived from other sources.” Their conclusions, along with the desire to update Beckham's study, helped to prompt inquiry into the current status of constitutional autonomy, including whether or not judicial decisions indicate eroding support for the legal doctrine during recent decades.
- Public Higher Education,
- Public Colleges and Universities
Citation InformationNeal H. Hutchens. "Preserving the Independence of Public Higher Education: An Examination of State Constitutional Autonomy Provisions for Public Colleges and Universities" Journal of College and University Law Vol. 35 (2009)
Available at: http://works.bepress.com/neal_hutchens/2/