Should higher education become merely another agency in the executive branch of state government? In essence, that is the issue which House Bill 229 sets before the voters in the November 1996 election. That was also an issue which the delegates to Montana's 1972 Constitutional Convention debated extensively. The answer in 1972 from both the Constitutional Convention and the voters of Montana was "No." Have circumstances changed so much in the last two decades that Montanans should take the extraordinary step of amending our constitution to strip higher education of its special constitutional status as proposed by House Bill 229? My answer is "No." In this brief article, I will summarize Montana's constitutional history as it relates to higher education, describe some of the problems we have experienced in implementing the 1972 constitutional provisions regarding higher education, and provide my assessment of House Bill 229 and the educational governance recommendations of the Governor's Task Force to Renew Montana Government.
With respect to governance of higher education, Montana's 1889 constitution provided that "The general control and supervision of the state university and the various other state educational institutions shall be vested in a state board of education, whose powers and duties shall be prescribed by law..."(emphasis added)./1/ Thus while the 1889 constitution specifically provided for a board of education to control and supervise higher education, the definition of the board's powers and duties was strictly a legislative prerogative. Presumably, the Legislature could have expanded or contracted the board's powers and duties at any time. In short, under Montana's 1889 constitution, the board of education was just another state agency.
State v. Brannon/2/ is instructive on this point. At issue in that case was the propriety of legislation designating the chairman of the Department of Chemistry of the State College of Agriculture and Mechanical Arts as the state chemist and requiring him to test and analyze samples of gasoline and other petroleum products submitted to him by the Public Service Commission. The legislation provided that the chairman could enlist his assistants in the mandated testing. The legislation specified that the chairman and his assistants were to receive no additional compensation for the work performed and barred them from charging any fee for testing samples submitted to them. (As an aside, I would suggest that this legislation provides an early example of what today we would refer to as an "unfunded mandate.")
Rejecting the Board of Education's argument that the legislation violated the 1889 constitutional provision noted above, the Montana Supreme Court emphasized that the constitution authorized the Legislature to prescribe the powers and duties of the Board of Education. The Court noted that "[i]t is not inapt to characterize the State University as a developmental arm or agency of the state"/3/ and that assigning the testing and analysis of gasoline to the chairman of the chemistry department was therefore appropriate. The Court suggested that the Legislature, in the interest of economy, assigned the important testing and analysis functions to the chairman of the department and his assistants who were already employees of the state, thereby avoiding the need to create a new governmental office and hire and compensate a new official. The Court summarized the status of the Montana Board of Education under the 1889 Constitution as follows:
The Board of Education is part of the executive department and is but an agency of state government. The Legislature may prescribe the extent of the powers and duties to be exercised by the board in the general control and supervision of the University of Montana. The Legislature may broaden the functions of the University or any of its units. It may require research and experimental work to a greater extent than is now being carried on, and for the public benefit may require the discharge of functions in new fields. In other words. the state may extend and add power to its developmental arm./4/
At the time of the 1972 Constitutional Convention, considerable concern existed regarding this "agency" status of the Board of Education, prompting the Convention delegates to engage in lengthy discussions regarding the proper status for the Board of Regents under the new constitution./5/ The Convention delegates overwhelmingly rejected the continuation of agency status for the new Board of Regents. Instead they vested the Board with broad powers--so much so that some have even suggested that Montana's Board of Regents/6/ represents a fourth branch of state government./7/ The relevant language of the 1972 Constitution proposed by the delegates and adopted by the voters of Montana is as follows:
The government and control of the Montana university system is vested in a board of regents of higher education which shall have full power, responsibility, and authority to supervise, coordinate, manage and control the Montana university system and shall supervise and coordinate other public educational institutions assigned by law./8/
Comparing our current constitutional language to that of the 1889 Constitution, one immediately notes important differences designed to render the Board of Regents something more than just another state agency. Specifically, unlike its predecessor, which authorized the Legislature to define the powers of the Board of Education, the 1972 Constitution itself establishes the scope of the power of the Board of Regents, granting that body "...full power, responsibility and authority to supervise, coordinate, manage and control the Montana university system."
While this language was obviously intended to ensure that the direction and control of higher education in Montana be removed to some extent from politics, the convention delegates did not provide the Board of Regents with complete political immunity. Article X, Section 9 of Montana's Constitution, for example, provides that the Governor appoint members of the Board of Regents and sits as an ex officio member of the Board. Furthermore, the Legislature controls appropriations to higher education, thus ensuring that the Board of Regents must be responsive to legislative views. In short, the 1972 Constitutional Convention acknowledged the importance of a certain autonomy for higher education and attempted to strike a balance between the authority of the Board of Regents on the one hand and the legitimate interests of the Governor and Legislature on the other. In sum, the constitutional delegates and ultimately the voters of Montana made a decision in 1972 that, because higher education was different than other state functions, the Board of Regents should not be subject to the same kinds of executive and legislative controls to which, for example, the agencies managing Montana's highways, prisons, and health and human services are subject.
Shortly after the adoption of the 1972 Constitution, the Supreme Court had the opportunity in Judge v. Board of Regents/9/, to interpret and apply the new higher education governance provision. In that case, among other issues, the Court considered whether the Legislature could exercise control over private moneys raised by the units of the university system and whether the Legislature could limit salary increases for the presidents of Montana's colleges and universities. While recognizing broad legislative authority over appropriations, including the right of the Legislature to impose conditions on its appropriations, the Court rejected the legislative efforts to exercise control over private moneys. With respect to presidential salary increases, the Court, relying on the above-quoted language of Article X, Section 9 of the 1972 Constitution, stated:
Inherent in the constitutional provision granting the Regents their power is the realization that the Board of Regents is the competent body for determining priorities in higher education. An important priority is the hiring and keeping of competent personnel./10/
The contrast between the Court's opinion in Judge v. Board of Regents and State v. Brannon is stark. The difference is a function of the very constitutional provision which House Bill 229 would essentially eliminate!
To be sure, the 1972 Constitution's provision providing special status to the Board of Regents has not been without its problems. I submit that for much of the first twenty or more years following the adoption of the Constitution, the various stakeholders, i.e., the Legislature, the Regents themselves, the Governor, our courts, academics, and the public were struggling to understand and implement the special constitutional role of the Board of Regents and Commissioner's office. For example, as evidenced by Judge v. Board of Regents, the Legislature has on a number of occasions attempted to micro-manage some aspects of higher education. Indeed, because of the enormous power which the Legislature can exercise by way of appropriations, serious questions periodically arise as to who really governs and controls higher education--the Board of Regents or the Legislature.
The use by the Legislature of line item appropriations rather than a lump sum appropriation to the Regents has in the past frequently resulted in concerns about favoritism and a perceived lack of principled decision-making. Rumor has it, for example, that some years ago during half-time of a Grizzly-Bobcat football game, the then Governor of the state entered the presidential box of the home team and commented to the president and other assembled guests that, if their team played as poorly in the second half as they had in the first, the next legislative session could prove difficult for that university. Regardless of that rumor's truth, l suspect that, for many Montanans who pay attention to higher education matters, the story suggests a plausible explanation for certain higher education appropriation decisions made by the Legislature during the 1970s and 1980s. Indeed until recently, legislative appropriations for a particular state college or university often appeared to be more dependent on factors such as the popularity and persuasiveness of the unit's president, the performance of its athletic teams, the political activities of its professors, or the strength of the legislative delegation from its area than on specific programmatic needs or any overall state strategy for higher education.
Because they do not have a political base of their own, the Board of Regents and Commissioner have appeared almost powerless in some legislative sessions. If anything, until very recently, the presidents of the various colleges and universities, each boasting their own political base, seemed to be the real players in the legislative halls--not the Regents or the Commissioner. Not surprisingly, higher education's involvement in some legislative sessions during the 1970s and 1980s resembled a gigantic tug-of-war between and among the various units of the university system with the legislators serving as referees. To make matters worse, during some of those same legislative sessions, relations among the Board of Regents and the Legislature and Governor could only be characterized as antagonistic. These realities hardly inspired any confidence that a coherent and comprehensive strategy would emerge for higher education for Montana.
Although our state's constitution speaks of a "university system," the term "system" seemed almost a misnomer until the last few years; for most of its history in this state, higher education in Montana might have more accurately been characterized as a loosely joined collection of fiefdoms. The absence of a true "system" of higher education was reflected in the lack of coordination among Montana's various colleges and universities. For a period of time following its creation, the Board of Regents permitted the colleges and the two universities to add new degree programs even when those degree programs were duplicated elsewhere in the system. Students often found that credits earned at one institution did not transfer easily to another institution within the "system." Curricular requirements at the universities differed, making the transfer from one unit to another a risky proposition for students. As noted infra, our current Board of Regents and Commissioner have done much to change this situation.
I view all of the above problems as examples of the growing pains which the Board of Regents and the university system experienced in the years following the adoption of the 1972 Constitution. Some of those growing pains were a function of the higher education governance structure in our state; others were a result of the history of educational governance in Montana and a lack of understanding of or willingness to accept the changes wrought by the 1972 Constitution.
In 1994, Governor Marc Racicot convened a Task Force of 16 Montanans to examine government operations and recommend ways to make state government more accountable, responsive, cost-effective, and fair. It was a privilege for me to serve on the Task Force. The Task Force was organized into three committees, one of which was charged with examining education in Montana. This committee, ably led by Linda Vaughey of Havre, spent many months examining in detail Montana's educational governance structure. In its reports to the full Task Force, the education committee identified a number of flaws in our educational governance structure and its operation. Among the problems identified by the committee were the lack of coordination between K-12 education and higher education and the lack of adequate linkage between the Governor's office and education.
Some elaboration on the concern regarding the Governor's role in education may be helpful in understanding the Task Force's ultimate recommendation regarding educational governance.
While the Constitutional Convention's determination to immunize education to some extent from partisan politics was certainly commendable, the methods adopted by the Convention may have also weakened education to some extent. Specifically, many of us on the Task Force believed that it is disadvantageous to education that there is no one on the Governor's cabinet charged with representing the concerns of education. Considering the potentially enormous power of a governor in setting and lobbying for state budgets, the lack of a closer link between a governor and education may work against the best interests of public education.
With respect to the coordination between K-12 education and higher education, I think it is fair to say that many, if not most, of the members of the Task Force sincerely believed that appropriate coordination could be achieved if the specific provisions of Article X, Section 9 of the 1972 Montana Constitution were implemented. Eric Feaver and Jim McGarvey in their article in this issue have spoken to this matter and I will not address it further. At the same time, the majority of the Task Force believed that the creation of a Department of Education headed by a director appointed by and reporting to the Governor would ensure coordination for public education from kindergarten through graduate school and provide management of a "seamless" public educational system. In addition, that arrangement would provide education a "place at the table" in the Governor's cabinet.
While endorsing the idea of an expanded role for the Governor in education, the Task Force nonetheless believed that it was important to preserve within the constitution a public board providing oversight and direction for education. Hence, our recommendation included the creation of a constitutionally-based State Education Commission with members appointed by the Governor and approved by the Legislature. I, for one, believed that the Commission should be the policy making body for education in this state. l envisioned that the chair of this Commission would be the director of the new Department of Education. Such an arrangement would provide appropriate checks and balances while maintaining some of the political immunity currently provided education.
What emerged from the Legislature in 1995 is, in my opinion, considerably different from the governance structure recommended by the Task Force. House Bill 229 addresses only higher education and thus falls far short of accomplishing the Task Force's goal of a coordinated, "seamless" public education system. In addition, the Task Force's goal of separating education policy from partisan politics is not achieved since this new department and its director "shall have the duties as assigned by law." One need only revisit the Supreme Court's decision in Brannon, discussed supra, to see the interpretation which would likely be given to this language by our courts.
In many respects, I believe that our Board of Regents and Commissioner's Office are "coming of age." The problems discussed previously, which were experienced primarily during the 1970s and 1980s, have been or are being effectively addressed. Commissioner Jeff Baker and the current members of the Board of Regents have demonstrated a clear understanding of the power and responsibility which the people of our state vested in them under our 1972 Constitution. As a prime example, the restructuring efforts undertaken by the Regents, the Commissioner, the presidents, and other academic leaders on our campuses reflect a bold and promising step towards ensuring proper articulation among the units of our university system. At the same time, Governor Racicot is demonstrating exactly the kind of leadership and involvement which I believe the delegates to our 1972 Constitutional Convention anticipated when they designated the Governor as an ex officio member of the Board of Regents, the State Board of Education, and the Board of Public Education. Furthermore, in addition to the development of an effective working relationship with the Governor, l perceive that the Board of Regents and the Commissioner are forging a healthy working relationship with the Legislature, reflecting an acknowledgment of the legitimate interests of the Legislature in the overall operations of the university system.
Montana's higher education governance structure has its flaws. It is a structure, however, which can work and work well if the various parties have confidence in each other, an understanding of and respect for each other's powers and responsibilities, and a clear sense of purpose. l believe that the structure, if properly implemented, provides for appropriate accountability and responsiveness to the public. At the same time, our existing constitutional structure reflects an understanding that intellectual freedom, the bedrock of higher education, requires that higher education enjoy a certain autonomy and thus a level of immunity from the political arena. That autonomy will not exist if our constitution is amended as proposed by House Bill 229. For that reason alone, while I acknowledge that problems exist in the operation of Montana's educational governance structure, it is clear to me that House Bill 229 is not the solution!