Changes to Board of Regents could have unintended consequences

4 May 2023

Legislators are justified in responding to public anger over the dysfunction that has characterized the Nevada System of Higher Education Board of Regents over the past few years. Nevada’s colleges and universities are among the state’s most valued resources and their governance has proven too often to be an embarrassment rather than a credit to the state’s citizens it seeks to serve. The legislative solutions being put forward, however, may not fix the problem and could have unintended and damaging consequences instead.

Taking away the independent governance authority of the Board of Regents in these hyper-politicized times is risky and could result in compromising the integrity and quality of Nevada’s higher education system. In numerous states across the country legislators and governors are attempting to impose their political beliefs on what can and cannot be taught in the classrooms of our nation’s campuses. They are inserting their views in tenure decisions, which only academic professions are qualified to determine, and attempting to cancel critical efforts to advance diversity policies that educators deem critical for a robust and healthy student environment.

In states where elected officials have the power to appoint regents and trustees to college and university boards, we are seeing political interference threatening to undermine the foundational pillar that distinguishes American higher education and draws students from around the world — freedom from government interference.

Academic freedom is the principle at the heart of American higher education that allows faculty to teach and conduct research in their fields of academic expertise without external interference from political figures, donors or other external actors. This principle respects the right of faculty and university personnel to design curriculum and establish policies that advance the educational missions of their institutions. Free and open inquiry is at the heart of a university education.

Our campuses must continue to provide an open marketplace of ideas rather than a cordoned space where certain theories, themes and approaches are forbidden, or prescribed, if it is to retain its integrity, its beneficial role in the civic discourse of our nation and its high standing in the world.

Authoritarian regimes, such as China, establish ideological guidelines to confine and shape their educational curricula. Two centuries of independent governance in American higher education has worked to prevent that kind of rigid ideological control in the classrooms where free inquiry and a broad range of ideological expressions are encouraged.

Current egregious political intrusion into matters of academic authority and prerogative as witnessed recently in Florida and South Dakota, and numerous other states, threaten to undermine the integrity of institutions whose governance protocols through centuries has been respected and protected. Governors and legislative bodies are passing laws to prevent the teaching of certain theories of American history, (critical race theory is particularly targeted), and enacting laws to restrict campus initiatives in curriculum and policy that advance diversity, equity and inclusion.

Advancing diversity on college campuses is not only about social justice but is seen as a critical part of the educational experience of students who will transition to work and operate in a diverse environment and world.

The model of independent boards of citizen trustees to govern and guard the educational missions of America’s colleges and universities was established early in our nation’s history to provide the guardrails to keep political actors at bay. Unlike most countries of the world, in America, lay members of the public — not the government — are those invested with the authority to govern educational institutions.

This centuries-old principle of independent college governance was buttressed in law two centuries ago in the Dartmouth College v Woodward case of 1819, for the specific purpose of keeping the government’s hands out of the educational offerings of colleges and universities. That legal precedent reinforced the principle that the political ideologies of transitory governments, which veer right and left in a democracy, should be kept at arm’s length from the nation’s’ college campuses charged with educating the nation’s citizens.

Those long-established governance guardrails are currently being threatened in numerous states and are proving inadequate to protect the nation’s higher education institutions from the very political interference they are designed to resist. Nevada’s constitutional protection of regental independence is our state’s version of a guardrail that meets the protection from political intrusion requirement. Efforts to impose legislative control over the Board of Regents could cause collateral damage well into the future that is entirely unintended.

Members of the Legislature and the public are justified in their frustration and sense that some remedying action should be taken. The decline in public confidence in the Board of Regents has been a costly outcome of the dysfunction of a divided and argumentative board, and the reputational toll on the Nevada System of Higher Education as a whole is considerable, especially in this critical time of higher education’s pressing challenges. Reputation in the world of colleges and universities is high on the list of things that matter most.

Whatever reform might be advanced, either now or in the future, appointing instead of electing regents is not a panacea to the problem of board dysfunction. As the threat of political interference in states around the country attests, it can carry its own toxic impacts. The challenge in Nevada is to keep the baby and throw out the bathwater; retain the board’s constitutionally guaranteed independence from inappropriate political interference but find constructive ways to impact the behavior of an elected board that fails to live up to acceptable and respected standards of university board governance.

The Legislature’s ability to modify the term length and size of the Board of Regents is within legislative authority, and would send a signal that board size is being considered.

Having served three terms on the Board of Regents, the first on a board of nine, the second on a board of 11 and the third on a board of 13, I can attest that the size of a board is not a defining indicator of the quality of its governance performance, although there are efficiencies to a smaller board, cost being one of them. It is the character and integrity of those who serve that are defining features of well-functioning boards, along with a clear understanding of the scope, limits and expectations regarding their governance role.

Private colleges and universities self-select their board members and are thus able to determine the talent, expertise and character of those they appoint. Public college and university boards, such as NSHE, cannot choose who serves. In the majority of these public institutions, regents and trustees serve by virtue of political appointment — by governors or legislators.

Whether elected or appointed to office, a key ingredient of good board performance is robust orientation and education into the scope and limits of their role, combined with ethical training and clear guidelines of the expected behavior that public trust requires.

Senate Bill 347 would seek to separate the components of Nevada’s higher education system, which delegates appointive authority to Nevada’s governor. Whatever the merits of the proposal — and there are some — assigning appointive authority to the governor leaves the selection process open to political determinants.

The current composition of the Legislature would not present a threat to the academic independence of Nevada’s colleges and universities. Political tides shift over time, however, and keeping in place the constitutional independence of the Board of Regents is a guarantee against future political attempts to micromanage curriculum and policy to align with the political philosophy of elected officials dominant at the time.

If the Legislature does pass reform legislation, now or in the future, and if the electorate subsequently ratifies it, a follow-up process of regent selection would need clarification and definition.

If a system of appointing regents were to be adopted, guardrails should be put in place to protect the board from the kind of damaging political interference taking place in other states. Qualifications and criteria that aim to appoint deserving, respected and experienced citizens should be established, codified and adopted into any confirmation process. Such a system of appointment policy has been put in place in other states, which could serve as models.

Regardless of how the legislature chooses to act, in a preferred scenario the Board of Regents needs to manage its own public image and conduct, by optimizing transparency, adopting a more partnering posture with the legislature and enacting policies and practices that conform with well-established “best practices” of effective board governance. Board leadership is key in such redemptive efforts.

More recently elected regents, likely to be in tune with public sentiments, are hopefully encouraging reform efforts. Pride in service on a well-regarded board should be incentive enough to encourage conduct that restores the public confidence that has gone missing in recent years.

Jill Derby is the former chair of the Nevada System of Higher Education Board of Regents and is a senior fellow with the Association of Governing Boards of Universities and Colleges.

The post Changes to Board of Regents could have unintended consequences appeared first on The Nevada Independent.

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