A Comparative Legal Analysis of State Constitutional Autonomy Provisions for Public Colleges and Universities

Abstract

This study contributes to our understanding of state constitutional provisions designed to provide constitutional authority for state college and university governing boards to direct the internal affairs of institutions under their control. In these states, independent constitutional authority for public colleges and universities is meant to limit excessive political interference from other parts of state government (Beckham, 1977, 1978; Glenny & Dalglish, 1973). This authority granted to governing boards of public colleges and universities is commonly referred to as constitutional autonomy (Beckham, 1977, 1978; McKnight, 2004). While constitutional language serves as the initial grant of internal control, court cases interpreting the provisions determine to a significant extent the legally recognized constitutional authority exercised by these governing boards (Beckham, 1977, 1978; Glenny & Dalglish, 1973). This study builds on the work of Beckham (1977, 1978) to update the current legal status of constitutional autonomy.

The study shows that Michigan, California and Minnesota continue as the states with the most substantial legal recognition of constitutional autonomy. Court decisions in six states (Louisiana, Montana, Nevada, New Mexico, North Dakota and Oklahoma) and attorney general opinions in Idaho confirm the existence of moderate to limited constitutional authority for public higher education governing boards. A substantially restricted form of constitutional autonomy may exist in Nebraska and South Dakota. In Florida and Georgia, the legal status of constitutional autonomy is ambiguous. The status of constitutional autonomy was still not completely settled in the four states of Alabama, Alaska, Hawaii and Mississippi, but cases suggest judicial recognition of constitutional autonomy in these states unlikely. For Arizona, Colorado, Missouri and Utah, legal opinions reflect judicial rejection of constitutional autonomy.

In addition to assessing whether case law suggests strong, weak or ambiguous judicial treatment of constitutional autonomy or outright rejection of the legal doctrine, the study also analyzes constitutional autonomy cases using the concepts of procedural and substantive autonomy derived from the higher education literature. This analysis indicates that the concepts of procedural and substantive autonomy provide a useful analytical lens to better understand the impact of the legal doctrine on institutional autonomy.