The Public Interest and University Governance (Part 2): Recent Controversies at the College of DuPag

Tom Wood

In Part 1 of this two-part article and in my previous series Three Cheers for the Dons, I set forth a position at odds with the National Association of Scholars on the matter of how universities ought to be governed. NAS has advocated for more vigorous involvement by boards of trustees and the general public. I believe that this is a mistaken policy and that the prevailing governance structures in American colleges give faculty members little or no incentive to maintain academic values. I believe that there is a silent majority of faculty that adheres to sound academic values, and that the professoriate would have better incentives under faculty governance to maintain those values. I appreciate the willingness of NAS to indulge an extended dissent on its own website. 

The College of DuPage, the alma mater of John Belushi, is a two-year community college in Glen Ellyn, IL. Glen Ellyn, located in one of the wealthiest counties in Illinois, is the home town of performance artist Laurie Anderson and of Bill Ayers, the co-founder in 1969 of the Weatherman organization. The college serves approximately one million residents and 31,000 students each term. Nearly 22 percent of all high school students in the region attend the college after graduation. More than 30 percent of students attending the college hold bachelor’s, master’s and doctoral degrees. It is the largest single-campus community college in Illinois and the fourth largest in the nation. COD is also the first community college ever to have a student named a Rhodes Scholar.

DuPage (COD) has also been in the news recently. (See here and here.) I have posted a number of links to CASNET over the last several months about recent controversies there. An article in the Chicago Tribune on May 8 about COD was entitled: “New College of DuPage board rescinds academic Bill of Rights.” The article was subtitled: “College of DuPage's Bill of Rights called for equal presentation of political ideas.” The article reported that four new members had been elected to the seven-member board of trustees of the college. Two incumbents, board Chairman Mike McKinnon and trustee Mark Nowak, who were up for reelection were defeated. The newly constituted board voted down the college’s version of the Academic Bill of Rights (ABOR) that the outgoing board had approved at its last regular meeting in April. Three of the newly elected members voted against the College’s Academic Bill of Rights; one newcomer voted for it. The new chairman of the reconstituted board is Kathy Wessel, an incumbent who was not up for reelection. Wessel voted against the COD’s ABOR.

The headlines for the Chicago Tribune article suggested that on the vote that struck down the recently adopted Academic Bill of Rights at COD, the bad guys won and the good guys lost. But some further digging shows pretty clearly, I think, that this is incorrect.

I first began to suspect that the outgoing board members who failed in the re-election bid were not the good guys in the controversy when I learned from Web searching that FIRE had sided with the AAUP against the outgoing board and many policies that had been adopted by the Board. (It is very important to keep in mind, though, that FIRE said nothing about DuPage’s Academic Bill of Rights, which was Policy No. 25-135 of the revised Policy Manual; FIRE’s criticism was directed solely against other policy manual revisions.) On March 18 of this year, FIRE’s Adam Kissel sent a letter to the College of DuPage Board of Trustees Chairman Micheal E. McKinnon. (McKinnon was defeated earlier this month in his reelection bid.) Kissel’s letter said in part:

FIRE is very concerned about several threats to freedom of expression and association in the proposed changes to the Policy Manual for the Board of Trustees of the College of DuPage. We have read the March 16, 2009, letter to the Trustees from Walter J. Kendall, President of the Illinois Council of the American Association of University Professors, and if the facts of that letter are correct, we agree with many of that organization's concerns.

As a public college, the College of DuPage is both legally and morally bound by the First Amendment to the Constitution of the United States, which protects the rights to freedom of speech and association and prohibits a public college from restricting the exercise of these rights by students and faculty members. The proposed changes, for instance, ban “demeaning” activity, give the president or his representative the power to deny requests for assemblage and outside speakers, and institute prior restraint on speech. Some of these policies are plainly unconstitutional, and others are likely to be employed unconstitutionally from their very first use.

John K. Wilson of CollegeFreedom.Org posted Walter J. Kendall's letter (dated March 16) to his web site, and Peter N. Kirstein posted the national AAUP’s protest (dated March 18, 2009) on his web site. Kendall’s letter said:

The most disturbing proposals give the administration extraordinary power to ban speakers and protests, ban any discrimination based on “viewpoint or opinion,” and prohibit “demeaning” behavior. These policies will most certainly create a litigation nightmare for the College of DuPage as censored speakers or disgruntled students and applicants sue for “opinion discrimination.”

Kendall’s letter specifically criticized the following proposed changes to the Policy Manual:

 

10-110

“The President and/or his authorized representative reserves the right to invite, acknowledge, or deny requests for assemblage as well as the right to control the time, place and manner of the assemblages.”

 

10-115
“The President and/or his authorized representative reserves the right to invite, acknowledge or deny requests for outside speakers or programs as well as the right to control the time, place, and manner of the speaker or the program to be presented.”

 

10-115
“No person shall be required to listen to a speaker or participate in a program that he/she finds objectionable.”

 

 10-115
“The President may deny a particular speaker or program on campus if it reasonably appears that such speaker or program would advocate:” followed by a long list of reasons, including “violation of any federal, state or local laws.”

 

15-10
“The College will not tolerate discrimination and harassment based on an individual’s viewpoint or opinion.”

 

20-5

“The College will also prohibit discrimination based on an individual’s viewpoint or opinion.”

 

What the proposed rules aimed to do was to concentrate power in the hands of the college president in ways that clearly violated the free speech and academic prerogatives of faculty and students. As FIRE observed, some of the proposals were unconstitutional on their face.

As outrageous as these rules were, they are quite typical of the violations of free speech and academic freedom that FIRE and the NAS have had to combat on many campuses. If anything in them is relatively new, it is found in rules 15-10 and 205. Adding a prohibition against discrimination based on an individual’s viewpoint or opinion, as the AAUP pointed out, implies that there are no correct or incorrect opinions about reality. One of a professor’s most important functions is to develop a keen sense of the distinction between truth and falsehood, correct and incorrect opinions, and to develop the intellectual skills necessary to discriminate between them. It is only, I believe, a militant minority of postmodernists in the academy who do not believe in this distinction, and the last thing the academy needs is to have a statement like this, whose only justification could be postmodern skepticism about truth and reality, enshrined in a college’s policy manual.

Controversies over the revised Policy Manual played an important role in the recent DuPage board election, but they were not the only controversies. For example, allegations of sexual harassment had been made against outgoing chairman Micheal McKinnon. McKinnon filed a defamation lawsuit alleging that the complaints were false and “part of a political vendetta … to undermine McKinnon’s position and influence on the Board.” A judge tossed out McKinnon’s lawsuit in February. McKinnon then asked the College to pay the expenses for his failed lawsuit—a request that COD declined.

The COD faculty campaigned against the board incumbents who ran for re-election, and also campaigned against Richard L. Breuder, the president of the college, who had had the strong support of the outgoing board. Although Breuder had been on the job only a few months when the new board was elected, his presidency was a major issue in the election and in the defeat of the two candidates who ran for reelection.

Issues had began to arise about Breuder even before his job started at DuPage. An article in the Daily Herald (“Suburban Chicago's Information Source”) was subtitled: “Trustees surprised by news of Breuder in negotiations with DuPage college.” The article said:

Breuder was extensively quoted in another news report saying he was offered the job last week and is in the midst of negotiations over contract details. He declined comment to the Daily Herald Tuesday and referred all calls to the College of DuPage.

At COD, however, some trustees seemed caught off guard by Breuder apparently making his own announcement.

The previous board’s support of Breuder has continued to be an issue with faculty, and apparently with many Glen Ellyn residents as well. After the elections for the new board had been held, the lame-duck board voted to extend Breuder’s contract with COD by three years—a decision which they felt was not required by any time constraints and which they felt should have been left to the consideration of the newly elected board. An article in the Chicago Tribune dated April 22 2009 (“College of DuPage: Lame-duck board votes to extend president’s contract: Lame-duck board approved contract extension despite protests from staff members, residents”) said:

College of DuPage President Robert Breuder said he won’t reject a three-year contract extension approved by trustees last week amid a torrent of controversy and protests in a packed-to-capacity meeting.

More than 100 people turned out for Thursday night’s board of trustees meeting at the community college in Glen Ellyn, many voicing opposition to extending Breuder’s contract after less than four months on the job. Trustees voted 6-0, with Trustee Kathy Wessel absent, to approve Breuder’s contract extension, a July 1 pay raise and extra cash to be doled out after he retires.

Residents and COD staff who overflowed the meeting room and spilled into the hallways objected to trustees voting on the deal in the last full board meeting most members will attend. Four new trustees were selected during the April 7 elections. Instead, the crowd told the existing board that the new board should decide Breuder’s contract after it convenes May 4.

“Your contract was for 42 months, giving you plenty of time to show that you are worth the big bucks,” Debbie Fulks, of the community-based group DuPage United, said to Breuder. “Extending your contract is a dirty trick by a lame-duck board that the voters have kicked out of office. Do we really need to bring shenanigans worthy of [former Gov. Rod] Blagojevich to DuPage?”

There were other problems, or at least questions, concerning Breuder. Some allegations made by disgruntled faculty—as for example that he had the president's office remodeled at great expense, include a wine cooler cabinet to keep his wine at the perfect 55 degrees—remained rumors and cannot be proven. However, some of the allegations made by the COD faculty and other critics of the trustees and administration concern matters of public record, and since they were never contested, can be assumed to be true.

Glen Ellyn—which happens, by the way, to be a quite solidly conservative and Republican electoral district, where the median family income is over $111,000—could not have been happy about the trustees’ and Breuder’s ambitious building program, or his decision to impose a hiring freeze that left 21 of the 25 faculty vacancies unfilled, or his hiring seven new vice presidents without any due process, while salaries increased for administrators and the president's office. (Breuder's salary is, by his own public statements, $345,000 per year, including benefits.)

An article dated April 7, 2009 in the Daily Herald (“Both incumbents lose in College of DuPage”) generated 40 comments by readers. Most of the comments are critical of the board and of Breuder. Most seem to have been written by COD faculty members, but some are by other residents. The comments help to throw further light on the wider issues that have been agitating the College of DuPage beyond the ABOR issue.

One irate reader said:

Nowak [an incumbent up for re-election who was defeated in the recent election] is trying to put the blame on faculty salaries. I got news for you two guys. The public did not elect you to spend 300 million dollars on buildings at the expense of cutting student programs, student services, and staff. The public did not elect you to hire a new president without a proper search, violate the principle of shared governance, and raise tuition because you do not know how to budget.

Another said:

The message is clear: the taxpayers want their College Board to be accountable, honest, fiscally responsible, strong, and moral. I congratulate our new board members, but I beg them to make decisions with integrity and a real concern for their constituents and the college employees. Ask questions, demand answers! DON'T limit yourselves to managers, deans and higher ups. Something is really wrong with a place that rewards managers and administrators who bully their employees and mismanage their departments!

Others wrote to express their concerns about violation of process and principles of shared governance. Apparently, such concerns have been widespread at COD for years. The manner in which the COD board of trustees and president rammed through the Academic Bill of Rights there was only one instance of it. In a News Blog at the Chronicle of Higher Education (“Illinois AAUP Protests Proposed Policy Changes at College of DuPage,” March 16, 2009), a commenter said:

Even more important than the perverted policy is the process by which it is supposedly becoming policy. There is no legitimacy in any policy concerning the curriculum, pedagogy, shared governance, or academic freedom that is not endorsed by the tenured faculty of a college or university. Boards of trustees are supposed to get the material resources needed to accomplish the academic goals (indeed, dreams) of the faculty. Too many members of boards of trustees think of themselves, by contrast, as simply doing some easy public service to put on the resume or as managing (fully documented and largely disgruntled) domestic help. The Board of Trustees of the College of DuPage should send the proposal before them back to the college president with the admonition not to bring another such item to them, without first securing the endorsement of the faculty.

The AAUP-(national) also raised this concern:

Dear President Breuder and Chair McKinnon:

The leadership of the Faculty Association and other members of the faculty at the College of DuPage have sought the advice and assistance of the American Association of University Professors as a result of a series of actions that the administration and board of trustees have reportedly taken over the past year or so. These actions appear to us to raise important issues relating to the role of the faculty in the governance of the institution. Of immediate concern is the proposed new policy manual, extensively revised with no faculty involvement, that is being considered for adoption by the board at its meeting tomorrow. Faculty members have expressed their concern about the trustees’ apparent failure to follow the college’s well-established and board-endorsed collaborative processes of shared governance (set forth in Policy and Procedure 1001) for revising the manual.

***

According to the information we have received, relations between the faculty on the one hand and the COD board of trustees on the other have been marked in recent years by turmoil and growing mistrust. Faculty members report that they have frequently been at loggerheads with the board over various academic policy and governance issues, and they object to what they perceive to be a lack of meaningful consultation with the faculty on key educational policy matters where the Statement on Government calls for the faculty, because of its particular knowledge and expertise, to have primary responsibility. They have complained about what they have described as a pattern of board indifference toward or disregard for the legitimate role of the faculty in institutional decision making and a lack of sensitivity to faculty needs and concerns. They contend that the board of trustees has been unresponsive both to complaints they have made over an erosion of faculty rights and to their efforts to secure the board’s assistance in recognizing the faculty’s proper position in the college’s governance structure. These concerns have culminated in their strong objections to the proposed revisions of the policy manual.

The letters by AAUP-national and AAUP-Illinois were written in March of this year. But the storm that broke then had been gathering for some time, as is shown by the following press release of the COD Faculty Association dated November 21, 2008. It consists of a statement made to the Faculty Association by Glenn Hansen, the president of the Association. Hansen said in part:

As you look out into the audience, you should realize that most people are here because of the proposed change to the Board Policy Manual. Few documents impact College of DuPage more than the Board Policy and Procedure manual. … The manual has been around from the beginning of CoD. It is a living document that reflects how we operate as an institution. It is a document that is continually amended through a well-established procedure. While it is properly known as the Board Policy and Procedure manual, it is the College of DuPage's Policy and Procedure manual. We, the constituency groups and district community members, along with you, the Board of Trustees, are the College of DuPage. The procedure for amending the policies and procedures is very clear. Past practice has been effective. It is a negotiation process that usually ends in an effective agreement with all voices and concerns heard. Amendments go through Leadership Council, to all of the constituencies, back to Leadership Council for discussion, to the cabinet and the President, and then to the Board of Trustees.

***

If there is a need for new policies and revision of existing policies, there is a proper way to achieve that goal. This, however, is not the way to proceed. The renumbering of all policies, the deletion of many policies, the addition of over 100 more—all without an indication of what is new and what is deleted—is inappropriate.

***

***

The Policy and Procedure Manual is incredibly important in defining College of DuPage. It impacts teaching and learning, it impacts every resident of the district, it impacts our work conditions, and it could change what our students learn. This proposal must be withdrawn so that together we can begin an effective review of the existing manual as per existing Board Policy and Procedure number 1001.

As we have seen, one of the main charges by the state and local AAUP and the COD Faculty Association has been that the administration and the trustees violated the principles and procedures laid down in the Policy Manual for shared governance. This is the way that most of the criticism was phrased. Significantly, though, the criticism by the faculty was occasionally phrased much more strongly. The comment cited by a faculty blogger above—i.e., “The Board of Trustees of the College of DuPage should send the proposal before them back to the college president with the admonition not to bring another such item to them, without first securing the endorsement of the faculty” —is representative of such sentiments.

While shared governance is a tradition of long standing, its legal status is very tenuous, if not non-existent. That is, shared governance is an option that a governing board has in dealing with the faculty, but in the U.S., governing boards of colleges and universities have plenary power. Legally, they own and actually are the college or university. This entails that governing boards have the legal authority to withdraw from any arrangement involving shared governance (except of course that they must honor any contracts that have been made). But whether any governing board could get away with withdrawing shared governance prerogatives that had been granted in the past to the faculty is a political question, not a legal one.

In this respect, the Policy Manual of the College of DuPage Board of Trustees is perfectly typical. The only copy of it that I was able to find online has a URL date of 2008 10 13, and each of the policies is marked “Adopted: November 2008.” November 2008 is about the time that the major controversies at COD began to arise. (See “Power Grab at DuPage,” IHE, November 24, 2008.) But it doesn’t really matter, because the statements about college governance in the Policy Manual are exactly what one would expect, given the tradition of academic governance in this country. It is just garden variety stuff:

Policy No. 5-5
The College Governing Board
On behalf of the residents of Community College District No. 502, the Board of Trustees will govern the College of DuPage, including the management and control of the College’s educational programs, its properties, its facilities, and the College related activities of the College’s students and staff.

The Board will establish and continuously enhance the College’s mission, vision, and values in the best interests of the residents of Community College District 502.

***

Policy No. 5-10
Authority for Operations
The Board of Trustees derives its authority to govern from Sections 3-31 through 3-43 of the Illinois Public Community College Act, 110 ILCS 805/3-31 to 3/43.

The Board will exercise all powers set forth in Sections 3-31 through 30-43 and all additional powers not inconsistent with the Illinois Public Community College Act.

***
Policy No. 5-15
Under Responsibilities of the Board (p. 12), in part:

As the governing body of Community College District No. 502, the Board of Trustees is solely responsible for the development and adoption of Board policies and for making decisions related thereto. The Board is further responsible for the development of appropriate administrative procedures to effectuate its policies. Its authority in these areas is final, subject to applicable statutory and regulatory limitations.



The Board of Trustees will:

(1) Exclusively exercise all requisite and proper powers for the efficient and effective development, operation, and maintenance of the College.
(2) Exclusively exercise authority over all duties and powers authorized by the Illinois Public Community College Act, 110 ILCS 805/1 et seq.
(3) Exclusively formulate and revise policy and procedure as necessary for the governance of the College.
(4) Review systematically the organizational structure and the operation of major components of the College.
...          

(9) Appoint the President, who will be the chief administrative officer of the College and the executive officer in dealing with the Board.

Note that there is nothing in this about shared governance—nor, as a statement of the powers conferred upon the governing board by state statute, should one expect there to be. If in its wisdom the governing board of the college decides to confer rights and prerogatives of shared governance on the faculty, it has the power under statute to delegate those responsibilities, but it is not required by statute to do so, and those prerogatives can also be withdrawn.

These fundamentals about the law of higher education governance have consequences. They had consequences in the case of the College’s Academic Bill of Rights, which the outgoing board adopted over the protests by the faculty. As it happened, this effort failed politically in the recent election, but there was never any question that the Board of Trustees had the legal authority to adopt ABOR or any of the other disputed policy changes without first securing the agreement of the faculty.

The same is true of the presidential search process at DuPage. Faculty members complained in online blogs that Breuder had been hired without a proper search. Actually, this claim does not withstand examination. The presidential search process that ended with Breuder’s selection included the hiring of the Association of Community College Trustees (ACCT) as a Presidential Search consultant. The ACCT provided the college’s Presidential Search Advisory Committee with a list of 11 semi-finalists and aided with the selection of the five finalists. The College also hosted Open Forums over the search at the Glen Ellyn campus, with all sessions aired live through a video stream on the college’s web site. In addition, comments were solicited both online and in person following each of the forums.

So there appears to have been plenty of “process.” But as faculty members found to their dismay, due process according to the principle of shared governance does not guarantee the outcome that the faculty might desire. Furthermore, due process under the principle of shared governance cannot do so. Ultimately, the governing body of a college or university, however constituted, will have to have the authority and the responsibility for selecting the president. Selection of university presidents cannot be handled by referenda, or by consensus, as it is in a Quaker meeting.

DuPage is atypical in one respect, however, because it is a community college. As a community college, it was possible for faculty to organize and gain majority control of the governing body of the college. That is, in effect, what happened in the last election for the board of trustees of COD in Illinois’ Community College District 502. Majority control by faculty of the governing boards of community colleges should also be possible elsewhere for the same reason. (No state or local statute or regulation could bar majority control by faculty or those supported by the faculty senate or union.)

It would be interesting to research this matter to see if there are other community colleges in the nation that have had faculty majorities on their governing bodies, and if so, how well things have worked out at these institutions. But in any case community colleges are not typical of institutions of higher education in this respect. As recent events at Dartmouth have shown, and as recent events at Harvard are starting to show, governing bodies of private universities, which are self-perpetuating bodies, can find effective ways to thwart “takeovers” by those they regard as “outsiders.” In the case of state colleges, in which appointments are typically made by the governor with the approval of the state legislature, faculty control of the governing bodies would require the statewide faculty to determine the outcome of gubernatorial and legislative elections, and this is neither possible nor desirable. This places faculty control of most public colleges and universities beyond their reach. It is hardly surprising, therefore, that so far I have been able to find only three universities in the world that have faculty majorities on their governing bodies, and all three are in England: Oxford, Cambridge, and Sussex. A constitutional amendment to change the governance structure of state universities like the University of California is not out of the question, but an easier and much more feasible approach would simply be to have the governors and the legislatures adopt de facto policies of putting the governing bodies in the hands of majorities nominated by the university academic councils and senates.

Admittedly, my advocacy of faculty governing majorities rests on the claim, which cannot be proved but that I believe is true, that there are silent majorities in the academy who care about sound academic values and principles, and who are prepared to put them first. It is well-known that there is now a significant postmodernist faction of faculty that puts ideology first, but I haven’t seen any compelling evidence to date that they amount to anything that even approaches a majority. (For an interesting argument that there is a majority that still adheres to sound academic values, see Donald Downs, “Where was the faculty?, November 15, 2007.) Professors who care about academic values know who the ideologues are on their campuses and how to avoid them, and yes, how to quietly marginalize them, at least in most departments and in the faculty senates.

Most of the complaints about university life that I have heard from NAS members and others have been directed at administrators, not the faculty. The problem is that the militant minority has a disproportionate influence precisely by virtue of its alliances with administrators and legislators who also have a political, non-academic definition of the public interest. This seems to me to be undeniably true in California. Here, the biggest single source of mischief on affirmative action, multiculturalism and other issues at the University of California has been the Latino caucus in the state legislature. So if you are hoping for relief from Sacramento, fuggedaboutit. On this front, Sacramento is a major source of the problem, not the solution.

How one defines the public interest in general depends on one’s politics, and therein lies the danger of identifying the public’s interest in the academy as that of “serving the public interest.” Colleges do serve the public interest, but only because they have a useful function in society—teaching. Universities also have an additional function—research. These are functions that belong to the faculty, and to the faculty alone. As I began arguing in “The Communitarian Res Life Movement,” the academy must be particularly vigilant to defend itself against those who want to get a corner on the marketplace of ideas in the academy by getting the academy to promote their own favored political interests, outside of sectors of the university controlled by the faculty. As Gerald Graff and others have argued, all such efforts will inevitably prove to be divisive, simply because there is no agreement about how to define the public interest politically. That is a fact now, not just about the academy, but about the wider society.

Some believe, honestly and sincerely, that the public interest is best served if the academy serves the interest of the corporate right. Others sincerely and honestly believe that the public interest is best served by having the academy serve the interests of transformative education that turns students into change agents for progressive causes. If the debate over the public interest served by the academy loses its focus on the core function of teaching and research, and is left to the debate between these kinds of parties, all will soon be lost.

External members of governing boards are inherently more likely to see the purpose of a university in ideological and political terms rather than its defining functions of teaching and research. Teaching and research are faculty responsibilities, and faculty members can be expected to care more about them because they live and work on the front lines in the academy, and are the first to feel the effects of declines in academic standards and values. That is why I have argued that it would be preferable to have faculty control of university governing bodies. That certainly appears to have been the case with the College of DuPage, where the attempted arrogation of power that belonged to students and faculty was breath-taking, and in many cases facially unconstitutional. The power play by the president and trustees was only defeated by the faculty association there, which ran a successful political campaign to get a reconstituted board.

If I am right about the existence of a silent majority of faculty in academe that still believes in solid academic values, it is easy to see why things seem to be going from bad to worse in the academy. There is little or no incentive under the present governance structure for faculty with those values to work to change the situation. Handing majority control of governing bodies of colleges and universities to the faculty would, I believe, go some of the way—not all of the way—towards disempowering a highly vocal and well-organized minority among the faculty who do not stand for sound academic values. The proposed arrangement would not be ideal, because the professoriate these days is not ideal, but I believe it would be better. There is nothing in the recent controversies at the College of DuPage (or any other college of university I am aware of) to make me think otherwise.

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