Whose University? The Board's

The Autocratic Academy: Reenvisioning Rule within America’s Universities by Timothy V. Kaufman-Osborn. Durham: Duke University Press, 2023.

“Whose university? Our university!” is a popular slogan at campus protests. The cry has the ring of plausibility: students pay tuition, and their futures are at stake. Faculty, meanwhile, will say that they are the ones with the expertise. However, most would agree that regardless of what should be the case, the university now belongs to neoliberal administrators.

We’re wrong, according to Timothy V. Kaufman-Osborn in The Autocratic Academy. He is impatient with the ubiquitous “corporatization” talk among faculty. I’ve always been a little uncomfortable with it, though as guilty as anyone else in using it. For me, it’s the get-out-of-jail-free card allowing us to think that getting our hands dirty in shared governance would be pointless in the face of a neoliberal juggernaut. But Kaufman-Osborn points out that faculty members invoke the term shared governance as a solution to corporatization as ubiquitously as they invoke corporatization as the problem. For him, there is a clear answer to the question of who owns universities, plainly written in bylaws: the boards (trustees, regents, visitors, and so on). Boards have power over bean-counting administrators, and they have power over faculty and students. They have, in fact, complete power.

Kaufman-Osborn is technically correct. That may sound like a hedge or mild criticism, but it’s not. In this moment of hyperpartisan politics, the fact that boards do technically have complete power is a real and present danger to public higher education across the country, so we’d be wise to think seriously about what Kaufman-Osborn has to say. In many states, board members are appointed by the governor. We know the consequences of this in Florida, where Governor Ron DeSantis appointed right-wing troll par excellence Christopher Rufo to the board of New College, and in Virginia, where Bert Ellis, a businessman appointed by Glenn Youngkin to the University of Virginia Board of Visitors, intends to “wage war for the soul of UVA.”

Although the right-wing takeover of boards is not the focus of Kaufman-Osborn’s book, it does make his argument especially timely. The Autocratic Academy seeks to disabuse faculty members of any lingering self-delusions that we have power in the existing arrangements. If we ever have a say, it is not because the law gives it to us but because the board does, in the spirit of noblesse oblige. Using language we can find repeated in board bylaws at private and public universities—small and big, secular and religious—the AAUP Statement on Government of Colleges and Universities explains that “the governing board of an institution of higher education in the United States operates, with few exceptions, as the final institutional authority.” It “entrusts the conduct of administration to the administrative officers—the president and the deans—and the conduct of teaching and research to the faculty” and “should undertake appropriate self-limitation.” “Entrust” is not a word I trust at the moment and “appropriate self-limitation” sounds almost farcical when board members write playbooks like Rufo’s “Laying Siege to the Institutions.” “The possibility of rule by fiat, in short, always lurks behind governance in accordance with established rules,” writes Kaufman-Osborn.

The problem of political appointees to boards of trustees was widely known, or should have been, before the takeover of New College. Kaufman-Osborn quotes from a 2020 report issued by the Association of Governing Boards of Universities and Colleges, which condemns the University of South Carolina system’s structure of board election by state legislature. “Given this mode of appointment,” Kaufman-Osborn writes, “we should not be surprised to learn that many of South Carolina’s elected officials believe trustees owe them ‘special responsiveness and loyalty’ and should prove amenable to ‘requests for favors.’” Why has the country perpetuated this kind of corrosive and corrupting structure for so many of its colleges and universities for so long?

It needn’t have, argues Kaufman-Osborn: “The form of rule to which we submit today is the congealed fruit of a complex history that could have turned out very differently and that involved protracted clashes among multiple parties, all seeking control of America’s earlier colleges.” Much of the book is taken up with detailing this history in the hope that if we understand how contingent our arrangements are—how they were not inevitable or inescapable—we might be liberated to envision a new governance structure, one more suited to institutions nested in a democratic rather than autocratic country.

Kaufman-Osborn walks us through the early history of William & Mary and Harvard and then covers the Trustees v. Dartmouth trial, in which Chief Justice John Marshall essentially misconstrued the college charter as a contract, rendering the college property, the board its owner, and the faculty at-will employees. This understanding underwrote the form of governance to which we all are subject. Kaufman-Osborn also offers a brief primer on corporations so that we are better able to discern where history went wrong and where it almost went right. Corporatization is not itself the problem, he explains: “The most salient power granted to corporations is not the power to sue and be sued, to enter into contracts, to borrow money, to buy and sell property, and so forth, but the power to practice self-governance. . . . Corporations are granted considerable authority to govern themselves.” We should “not repudiate the academy’s ‘corporatization,’” in fact, but rather “reaffirm its identity as a corporation”—though as a “member corporation,” in which members (that is, faculty) are accountable to one another, not to an external lay board. Among US colleges and universities, William & Mary came closest to being a “member corporation” back in 1729, when a transfer agreement gave all professors the legal status of members of a self-governing college.

Early in the twentieth century, the heartening “professors’ literature of protest” movement challenged the logic that came to dominate governance structures after Trustees v. Dartmouth. The now mostly forgotten scholars behind books like James McKeen Cattell’s 1906 University Control argued for a “democracy of scholars serving the larger democracy of which it is a part.” These were radical thinkers who believed in abolishing private property and who might find their contemporary analogues in those advocating for wall-to-wall unions today. Indirectly, but nonetheless definitively, according to Kaufman-Osborn, the emergence of the AAUP in 1915 put an end to this challenge. “What if,” he asks, pointing to a painful irony, “the foremost champion of shared governance, the AAUP, has done more to reinforce than to challenge the autocratic constitution of rule within American colleges and universities?” Kaufman-Osborn praises the AAUP for its extraordinary historical accomplishments in articulating and defending academic freedom, but he is scathing about the way its solutions, such as advocacy for tenure, essentially accepted board authority as a fait accompli. The AAUP’s mistake was to believe that it could “figure out how to locate and preserve the horizontal relations of authority that define member corporations within the confines of property corporations predicated on a vertical construction of rule.” The erosion of tenure and the rise of activist boards whose members are happy to assert their dominance demonstrate, he suggests, that the AAUP’s positioning of professors in terms of the modern professions was a “gamble . . . that has now proven a wholesale bust.”

Kaufman-Osborn anticipates that the idea motivating The Autocratic Academy—that boards might be eliminated and universities reconstituted as member corporations—will be met with skepticism. He also seems to anticipate that readers will be frustrated that he fails to sketch out how faculty might find the solidarity and will to reincorporate our colleges and universities along the democratic lines he envisions. Such a task would obviously be enormous, and the timing for it is not auspicious, given the contempt for faculty currently being whipped up by partisan politicians who say legislators and their political appointees on boards should have more, not less, control over what we do. But the book is extraordinarily important at precisely this moment when we need to think seriously about how dangerous our institutions’ bylaws are and how devastating it is that we never found a way to give shared governance doctrinal heft or to enshrine faculty control over curricula into law. The path to Commonwealth University—the name Kaufman-Osborn gives to his imaginary member-incorporated institution of higher education—is murky, but we can and should start to renegotiate our governance rules. We might, for example, follow the lead of the Oregon AAUP conference, which successfully lobbied for SB 273, a bill that “reforms our public university boards to ensure that they are more inclusive of and responsive to community voices both on the board itself and in its public meetings.” It requires that public comments receive a response and that faculty unions have the right to present reports at board meetings. SB 273 is not the revolution we need, but it is a step in the right direction.

Jennifer Ruth is professor and associate dean at Portland State University. Her most recent book is It’s Not Free Speech: Race, Democracy, and Academic Freedom, coauthored with Michael Bérubé, and she is the coeditor, with Ellen Schrecker and Valerie Johnson, of The Right to Learn: Resisting the Right-Wing Attack on Higher Education, forthcoming from Beacon Press. Her email address is [email protected].