Editor’s note: A shorter version of this appeared in the Detroit Free Press on February 11, 2018.
In a nutshell:

• Michigan’s governance model for its flagship universities and all universities is fairly unique
• The current model of electing board members for UM, MSU, and WSU would not necessarily be improved by moving to gubernatorial appointments
• Such a change would have repercussions for the autonomy of the universities

The recent unfortunate circumstances at Michigan State University have drawn increasing attention to governance of Michigan’s three flagship public universities.  Key to this discussion is a question of how the governing boards are to be held most accountable; and by extension, accountable to whom?  The independent election of the governing boards for these universities and the autonomy granted them through this arrangement is long standing.  That does not preclude change, but it suggests a better understanding is in order before alternatives are offered.

Governance of the flagship universities

The organization and governance of public universities in Michigan is different from what is found in most other states.  

Michigan has 15 public universities located throughout both peninsulas.  The flagship universities – the University of Michigan (UM), Michigan State University (MSU), and Wayne State University (WSU) – have the largest campuses and biggest student bodies.  The other 12 universities are smaller schools.  

Many other states have university systems, with branch campuses of one or more universities located throughout the states.  This is similar to UM’s Ann Arbor, Dearborn, and Flint campuses, but often with far more campuses than just three.

While most state constitutions empower the state legislatures to provide for systems of higher education, Michigan’s is one of the few that enumerate specific institutions and specify for the governance and autonomy of those schools. 

Public universities in most states are governed by consolidated governing boards (24 states) or coordinating board systems (24 states) that may have regulatory powers (21 states) or play only advisory roles (3 states).  The state universities and the consolidated/coordinating boards in other states are under the control of the governors and legislatures. 

Michigan’s 15 universities are independent schools.  Each university board, irrespective of elections or appointment, is given general supervision of the institution and the control and direction of all expenditures from the institution’s funds.  Each board elects a president of the university as often as is necessary under its supervision.  The three flagship schools are given autonomy in their governance and operations. 

Each Michigan university is governed by an independent board, but the means by which members come to serve on the boards of the flagship schools is different from how members come to serve on the boards of the other 12 universities.  The Michigan Constitution provides that UM, MSU, and WSU are to be governed by independently elected, eight member boards.  The Constitution later provides that the 12 other state universities are governed by their own eight-member boards that are appointed by the governor, with the advice and consent of the Michigan senate.  This makes the UM, MSU, and WSU boards accountable to the voters.  The boards of the other state universities are accountable to the governor.

Prior to 1850, the governor appointed members to the University of Michigan’s board of regents.  Members of the faculty served one year each as president.  The governor served as the presiding officer of the board while the internal administration of the university was fully subject to legislative control.

Constitutional provisions for electing UM’s eight-member board of regents were introduced in the 1850 Michigan Constitution (Article XI, Section 10).  A constitutional amendment in 1862 changed board terms from six to eight years and provided for staggered terms.  The president of the university and the state superintendent of public instruction both had non-voting seats on the board until the superintendent was removed in the 1963 Constitution. (Note: The state superintendent occupied an ex officio position on the governing boards of each state university as means to achieve some degree of integration and coordination across institutions.)

The 1850 constitution directed the legislature to provide for the establishment of an agricultural school (the first of its kind in America) as soon as practicable and authorized the legislature to make the school a branch of the university.  The legislature established a state agricultural school in 1855, which until 1861 was under the control of the state board of education.  From 1861 to 1909 the state board of agriculture, created by the legislature in 1861, was appointed by the governor. Constitutional provisions for the election of Michigan State’s board of trustees were introduced in the 1908 Michigan Constitution.

In 1933, the Detroit board of education united several institutions of higher learning to form Wayne University.  The present board of governors of Wayne State University was created by a constitutional amendment in 1959.  A prior board had been created by statute in 1956 as a temporary board during the transition from a municipally-supported to a state-supported institution. 

Michigan’s long ballot

The election of these university officials must be considered in the larger context of electing government officials in Michigan.  Michigan elects more than 18,000 public officials, including members to the state board of education and the three universities, county row officers and commissioners, city officials, township boards, community college boards, local school district boards, and judges. 

Michigan’s propensity to rely on elections instead of appointment is lodged in Jacksonian democracy, which advanced the concept that the problem with government was the appointive status of government officials.  The cure proposed was to have as many officials as possible elected directly to short (two-year) terms.  This approach, which would theoretically keep democracy close to the people, reflected the frontiersman’s belief in personal versatility and his suspicion of specialization.  It was hoped that the fragmentation of power and frequent turnover of officials would prevent the formation of a government aristocracy. 

The upshot of this is that we the people, the electors, must make a concerted effort to learn about candidates for office.  What do they hope to accomplish while in office?  How do they plan to make our nation, state, universities, counties, cities, townships, community colleges, school districts, or other governmental entities better?  We must also actively monitor the decisions and actions of those in office?  Are they carrying out their campaign platforms?  Are they representing those that elected them?  This is not easy to do.  It requires a robust media and active participation.

One unintended consequence of the long ballot created by electing so many officials is voter drop off.  Voters are very good at voting for the presidential or gubernatorial candidates at the top of the ballots and the congressional or legislative candidates that follow, but they begin to drop off by the time they get to the university board candidates, and drop off further by the time they get to judicial candidates, initiatives and referenda, and the candidates for local offices. 

Michigan has also seen the rise of straight party voting.  Although the Internet has made it easier to get information about candidates for political office, voters still have to do their homework to learn about all of the candidates for the many offices that are elected.  As a result, candidates for offices that are lower on the ballots tend to be elected based on name recognition and/or party loyalty.  Successful candidates for university boards often are from the same party as the presidential candidates that win the state or the winning gubernatorial candidate.  

Accountability

The Citizens Research Council of Michigan has a long history of judging public policy on the principles of economy, efficiency, and accountability.  For us, accountability refers to responsiveness to the people served by government.  Michigan voting patterns must be considered when attempting to assess the concept of accountability. 

On its face, accountability would appear to be served by directly electing the boards charged with governing Michigan’s major universities.  Democracy presupposes that the candidates that are elected to public office will be those that offer positions consistent with the will of the electorate.  Furthermore, it presupposes those that perform actions while in office that are contrary to the wishes of the electorate will pay at the ballot in the ensuing election.

Voter drop off and straight party voting weaken the arguments for accountability through the ballot box.  When the number of people voting on those offices is reduced, the election fails to capture the sentiment of the whole electorate.  Likewise, straight party voting does not wholly hold candidates or office holders to account for their actions and positions.

The alternative is accountability to state officials, which provides very indirect accountability to the electorate.  Accountability to state officials is served when the governor is empowered to appoint the governing boards and the senate confirm the appointments.  The people elect the governor, who is responsible for appointment of the governing boards for the other state universities.  The people also elect the state senate, which is responsible for its advice and consent.  Political theory holds that those officials are better able to monitor the actions of board members and hold them to account if those actions are contrary to the will of the people.  But rarely is a gubernatorial election decided by the people holding a sitting governor to account for actions of university board members.

Composition of the current university boards raises concerns about the extent to which the general public is represented under either scenario.  Candidates to the flagship university boards do not have to appeal to statewide electors to get on ballot.  Major political party candidates for UM’s, MSU’s, and WSU’s governing boards are nominated at those parties’ conventions.  The conventions are not open to the public.  The candidates are often well connected party insiders that often have an affiliation with the universities and their major backers.  As a result, the degree to which board members can be said to be accountable to electors, as opposed to party officials (faithful and donors) that nominated them, is weakened.

But, as can be seen by examining the boards of the other twelve universities and other state boards, the opportunities offered through gubernatorial appointment often lead to the appointment of party faithful and/or “golden parachutes” for term-limited legislators. 

Neither could serve as models of representation or accountability.

The big picture

One consideration in this issue is an assessment of the degree of autonomy from state government the people of Michigan have bestowed on the flagship universities.  The Constitution does not place UM, MSU, or WSU within the control of the governor or the legislature, nor under the supervision of the superintendent of public instruction or the state board of education.  This autonomy is fairly unique among the states.

In the long history of adjudicating the extent to which the state government can extend control over these universities, the courts have favored the universities.  The courts have held that by the Constitution these board are made “the highest form of juristic person known to the law,” with authority within the scope of their functions equal to and coordinate with that of the legislature.  The courts have held that the boards are separate entities, independent of the state in the management and control of the universities and the fact that they are state property does not necessarily bring the boards within the purview of the statutes.

Funds appropriated for the use of the universities have been held by the Supreme Court to be under the exclusive direction of their governing boards.  In regard to conditional appropriations the Court has held that the legislature may attach any conditions it may deem expedient and wise to appropriations for the universities.  Where such conditions have been attached the governing boards may accept or reject the appropriations as they see fit.  Should the boards accept the appropriation, the conditions are binding.
Thus, it would seem that altering the method by which members come to serve on the governing boards of UM, MSU, or WSU could have repercussions far beyond holding those officials to account for their actions.  It would fundamentally alter the autonomy under which these three universities have historically operated. 

Change

Because provisions for governance of UM, MSU, and WSU are contained in the Michigan Constitution, change would require a vote of the people.  This could occur with a constitutional amendment initiated by the people or by legislative resolution.  Or it could occur with changes recommended by a constitutional convention empowered to consider the constitutional document as a whole and the balance of power between branches of government and among levels of government. 

Conclusion

Michigan is an outlier in the autonomy constitutionally granted to its flagship universities, in the independent election of the boards of those universities, and in the absence of a consolidated governing board or coordinating board to oversee and serve as liaison between the universities and state government. 

Some argue that this has emboldened the University of Michigan to become one of the best public universities in America, for Michigan State to become the premier land grant college in America, and for Wayne State to serve its role as an urban university. 

The downside is that these three universities are not beholden to the governor or legislature.  The priorities of their boards may not align with the priorities of the governor or legislature.  This arrangement may create structural diseconomies and inefficiencies with duplication of functions and academic programs.   

While the Citizens Research Council of Michigan takes no position on whether the flagship universities’ boards should be independently elected or appointed by the governor, we do think that this is a decision that should not be taken lightly.  A change that alters the fundamental structure of government in the state should not be made in haste nor in reaction to a calamitous event.