Board exams
By JON EAST
Published February 20, 2005
In a ballroom inside the University of Florida's student union, 13 people appointed to oversee higher education were about to do something that had proved suicidal in the past. They were about to tell the Legislature, which had authorized $9-million to create a chiropractic school at Florida State University, to take the money and shove it.
The school was the pet project of an influential senator who happens to be a chiropractor. It would have met no demonstrated need, it had never been approved by any university board and it represented precisely the kind of political interference these overseers were supposed to stop. These appointees, though, also knew recent Florida history. They knew that the last time a governing board drew a line in the sand, when the state Board of Regents deemed a new FSU law school unnecessary, lawmakers reacted by abolishing the board. So, on this January morning, the Regents' successors asked their attorney what seemed an obvious question.
"The difference," answered general counsel Daniel Woodring, "is that the Board of Regents was statutorily created. As such, the Legislature by statute could trump any existing processes. As you are now a constitutional entity, the Legislature is without the ability to trump by statute the constitutional duty to control and manage the university system."
Translation: The new university Board of Governors has nukes in the silo.
More than two years after voters replaced the defunct Regents with the higher-powered Board of Governors, the decision to reject the chiropractic school represents a watershed. The Legislature's new leaders, Senate President Tom Lee and House Speaker Allan Bense, say they will accept the board's decision, and they promise no retribution. But the board's emergence has caught the attention not just of lawmakers but also of university presidents and their trustees. They aren't eager to share power either, which creates conditions ripe for a showdown.
Yes, the Florida Constitution says the new board "shall operate, regulate, control, and be fully responsible for the management of the whole university system." But the Legislature holds the purse strings. So the dimensions of the relationship are only beginning to take shape. Who gets to set the tuition rates or determine which students get scholarships? What happens when the master plan calls for increasing enrollment but lawmakers don't provide the money? Who decides whether universities are getting the job done?
"The reality is we need to work very closely with the Legislature," says governing board chair Carolyn Roberts, an Ocala businesswoman. "When all is said and done, if our universities are not properly funded, then we are not doing our job."
"The Legislature needs to recognize that the board has been created and has the duty to manage the university system," says House Rules chairman Dudley Goodlette, a Naples attorney. "But there are also separation-of-powers issues that need to be dealt with."
A group of activists led by university system chancellor emeritus E.T. York filed a lawsuit in December, asking the courts to insist the new board exercise full authority over the universities. But it isn't clear whether the courts will want to weigh in on a relationship that is still in the making. One count in the lawsuit, in fact, asks the court to declare the chiropractic school an unconstitutional infringement by the Legislature - an issue that may be moot given the board's vote.
The ongoing lawsuit is not likely to stop the Legislature from taking its own shot at drawing the boundary lines. Roberts says she welcomes a bill that would clarify the respective roles, and Goodlette has been empowered by the speaker's office to write one. All sides are speaking politely for now, with Goodlette going so far as to portray his job as "harmonizing" the roles and "seeking the ... symmetry envisioned by voters." But the stakes are clear. As House spokesman Towson Fraser put it: "On the one hand, the speaker doesn't want to see the Legislature micromanage university program decisions. On the other hand, he doesn't want to just hand over a $2.8-billion check and say spend it wisely."
The House has pulled together university representatives to cull through existing laws and find outdated references and obvious conflicts. Some laws, for example, still refer to the Board of Regents, and some still call on the state Board of Education to play a role in matters such as university borrowing. There also remains an operational conflict that undermines the board's autonomy. University chancellor Debra Austin and her staff still work for the state Department of Education and answer to Education Commissioner John Winn. But DOE has no constitutional authority to oversee universities anymore, and, awkwardly, Winn serves on the university board. Asked to identify her boss, Austin said: "I actually believe I have two."
Beyond the obvious cleanup chores, though, agreement may not be so easy to reach. The board already has adopted a new block tuition plan and been told by its attorney that it has full authority to set tuitions for the 11 universities. But Goodlette says tuition "is something that would be a legislative function, because that's money - that's the power of the purse."
The state Constitution says the board is responsible for "defining the distinctive mission of each constituent university and its articulation with free public schools and community colleges." But Goodlette says he wouldn't feel comfortable if a university shut out community college graduates, and university trustees and legislative alumni are not likely to sit quietly if their own institutions are assigned a mission they deem beneath them.
There is also a question, amid the push to hold universities accountable for the time and money they spend toward producing each baccalaureate degree, about the role of community colleges. The community colleges are now governed by a different board, but as more of them are allowed to grant four-year degrees, should they be held to the same standards as the state's established universities? Should they also have to answer to the Board of Governors?
In what promises to be a contentious debate, one irony is especially rich. The current board chair, Roberts, led the political action committee that fought against the constitutional amendment that established the board. Yet Roberts, a former regent, has become so active in her new role that the board is being criticized in some quarters for going too far. Its "performance and accountability" committee, for example, has been asking how many university students take classes on Friday afternoons and has toyed with the idea of a state-administered standardized test to judge independently whether students are learning.
"The amendment did change the face of the landscape for universities," says FSU president T.K. Wetherell, whose trustees include the former House speaker, John Thrasher, credited with abolishing the Regents. "But the idea of the Board of Governors, as it was sold by (former U.S. Sen.) Bob Graham, was more of a coordinating effort to stop universities from making end runs and duplicating programs. It was not to infuse the board into the day-to-day operations of the campuses. This has gone beyond even the intentions of those who created it."
Clearly, the Board of Governors has grown up. At its first meeting two years ago, then-chairman Thomas Petway, a Republican fundraiser, all but thumbed his nose at the amendment. On that day, the board voted to delegate virtually all responsibilities to individual universities and the Department of Education. The current chancellor, in fact, was chosen by the education commissioner.
Those days of indifference are growing more distant. Even York, whose suit alleges the state has ignored the amendment, says he is "very encouraged" with the board's chiropractic school decision. York calls his challenge "a friendly lawsuit," and he says his goal all along has been merely to keep the politicians from trying to run the campuses. That's easier said than done.
This spring, as the Legislature gathers in the wake of a political gambit foiled by 13 gubernatorial appointees, lawmakers will find themselves in an unusual position. They will be told they must share some of their power over higher education with an appointed board, that the Constitution instructs them to keep their noses out of campus business. Lawmakers may be using courteous words for now, but they have a long tradition of closing ranks and settling scores. When push comes to shove, Florida's universities may need all the friends they can get.