HOW THE LEGISLATURE ANNEXED PUBLIC HIGHER EDUCATION TO PARTISAN POLITICS

Contributor "Will Davie's Ghost" analyzes what is arguably the most significant instance of politicization of public higher education in the 45 year history of the UNC system.


HIGHER EDUCATION IN THE JONES STREET DOMINION

As the end of the recent legislative session fades into the past, North Carolinians should know that moment also marks the establishment of a new era for public higher education in this state: lawmakers finally swept aside or transgressed nearly all the checks and balances protecting our universities from partisan political interference. These new statutory provisions are so broad in reach, and ill-conceived in substance, that members of the University community are still struggling to make sense of the implications and intent of this historically unprecedented arrogation of power.

The full force of these changes will not be felt for months, and in some cases for years, but when they are citizens will wonder how one of the best systems of higher education in the country was systematically undermined by a knot of teapot authoritarians. Indeed, if these actions are not reversed or mitigated, historians will describe this as a critical moment in the hyperpoliticization -- and decline -- of the University of North Carolina system.

That said, these developments are not a complete surprise. Long-time observers of the University know that partisan strong-arming has been a real possibility, and a recurrent aspiration of overweening legislators, since the establishment of the UNC system in 1971. There has always been danger in the fact that North Carolina’s state constitution gives the legislature too much unchecked power, and when lawmakers established the governance structure of the University, future first-UNC President William Friday and many others warned that the setup was primed for corruption.

Over the years those warnings have been repeated by concerned citizens from across the political spectrum, including the Pope Center and the Civitas Institute on the right, NC Policy Watch on the left, and by the centrist North Carolina Center for Public Policy Research. For more than 4 decades a tenuous protection of the public interest, and ongoing mitigation of misguided legislative overreach, was managed by the wise counsel of thoughtful citizens from every corner of civil society, and a due respect for University leaders. None of that has worked with the current legislative leadership.

North Carolinians might have anticipated that this particular group of politicos would break bad on the University. Over the last few years they packed the UNC Board of Governors (BoG), encouraged the BoG to conduct a political inquisition of UNC research and service Centers and Institutes, applauded the still-unexplained firing of UNC President Tom Ross, extended the threat of legislative control over the BoG – not surprisingly with support from minority party imperialists-in-waiting -- by shortening Board terms and disrupting the search for now-President Spellings (perhaps because, some have argued, the Board snubbed the legislature’s preferred candidate), in addition to intervening in the Board’s personnel actions. It is also critical to recognize that lawmakers intentionally made the University a hostage-by-legislation in the HB2 controversy, emphasizing with a specific and pointed statutory reminder that "institutions of the executive branch, including The University of North Carolina” would be the primary target sites of the law’s discriminatory intent.

Nonetheless, explaining this recent surge of diktat has been a challenge. It may be fear of losing control: much of what this legislature has done is so far out on the radical fringe that its own appointees on the UNC Board of Governors have expressed the need for some independence from Jones Street, and even the Republican functionary who was chosen to replace UNC President Tom Ross has demonstrated some concern about legislative overreach. It may also be that the prospect of losing the Governor’s office or their veto-proof majority in the legislature urged them to peremptory action. Either way, the point is that lawmakers must have recognized that it is much more difficult to break the shackles of law than to turn aside the inflated rhetoric of blustering whistle-stoppers.   

But whatever might have prompted this explosion of excess, over the span of a few short weeks during May and June, the General Assembly moved swiftly. By the time they were done, the legislature had seized unprecedented control of fundamental University policy functions, annexed budgetary authority over several campuses, and set up several new UNC system institutions in order to circumvent independent state and local government authorities. The means of this stunning display of imperial enthusiasm required breaking or nullifying existing state law that protected independent governance of the University, overturned numerous mandates of UNC system policy and campus governance policies, transgressed time-proven best practices of academic and organization management, and even went so far as to quash the rights of students to define their own wants and needs.  

This was outright abuse of power, and the legislative leadership knew it. When some of the controversial provisions were first introduced in stand-alone bills (for example H97, “NCGAP,” and S873, “$500 tuition”), they were publicly derided for being both inept in design and ideologically suspect. It should then come as no surprise that the leaders tried to shield their handiwork from public scrutiny and debate by interring all of their University usurpations in an omnibus budget bill (H1030) that was too big to properly debate, and too comprehensive for the Governor to veto -- assuming that he even had the will to defend the executive branch, if not the public interest, from legislative expropriation.

Welcome to public education in the Jones Street Dominion. Herewith, an accounting of the imperial spoils the Domini were hoping you wouldn’t notice until it was too late:

NCGAP provision

Until just a few weeks ago, BoG and campus control of University admissions was mandated by statute (in NC GS 116-11) and UNC system policy. That changed under the (deceptively titled) North Carolina Guaranteed Admissions Program (NCGAP), H1030 Section 11.2.(a). NCGAP was made possible by nullifying the extant law on University governance, then securing legislative annexation of the University system and campuses admissions process with a plan to send thousands of admitted University students to the community colleges for their first years of higher education.

The early version of this program (in H97) was widely panned for its simple-minded understanding of student interests, as well as student success and degree completion challenges. Yet instead of removing themselves from the business of managing college enrollments, the Dominion remained obstinate in its overlording intentions, and only withdrew to the line of demanding that the University prove – in 2 short years – that the success/completion puzzle could be solved. This was a set-up for failure: 2 years is of course a mere half of the normal 4 year matriculation period for new student cohorts, and the extensive research literature on student success and completion issues clearly demonstrates that these challenges defy simple, quick, or cheap solutions. The legislation also failed to recognize that many UNC campuses are national leaders in these matters, a fact attested to in UNC’s higher-than-national-average retention and graduation rates.  

But even if the 2-year ‘accommodation’ for the University could be overcome, that still leaves all the problematic provisions and intentions of the original legislation in place. NCGAP was touted as a way of reducing student debt, even while its proponents never acknowledged the fact that it is declining state support for higher education that explains most of the increase in debt over the last decade. This program was also pushed as a way of cutting (or in the Dominion’s favored euphemism, ‘right sizing’) the University, a questionable goal given the increasing importance of higher education in the global economy. Most importantly, the actual effect if not the real intent of NCGAP complements the Dominion’s offensive against poor and minority North Carolinians: A study of the plan by the University and Community College systems showed that the program will disproportionately burden and exclude deserving students from underprivileged education and economic backgrounds.

ACCESS TO AFFORDABLE EDUCATION provision

 Not content with seizing control of University admissions, the legislature then expropriated the BoG’s legal responsibility for University tuition rates (again, in NC GS 116-11). Ignoring a tuition setting process that had been refined over decades of University governance, the so called  Access to Affordable Education (AACE) provision, H1030 Section 11.4.(a), mandated a tuition freeze for each class of incoming students.

This is a great idea – in the abstract. But context is everything. Freezing tuition after years of cutting state per-student spending, and steadily shifting the costs of educating North Carolina’s future social, political, cultural and economic leaders from the public to individual students and families, is simply a back-handed way of imposing further cuts, and driving public higher education even harder in the Dominion’s race-to-the-bottom. Consider the particulars of the AACE.

First, the AACE will divert funds away from instruction by increasing the already considerable costs of University compliance with federal, state, and BoG regulations. As each entering class will be subject to a different tuition scheme, and complicated rules defining eligibility for students who stop-out for a myriad of possible reasons will have to be managed, campuses will find themselves stretched to do more teaching with less money, while the legislature fattens up the ranks of administrative functionaries. In what will become another example of the classical Republican ploy of claiming that government is too big, then making it bigger and proving the point, the AACE will certainly please Dominion adulators who insist that bloated administration is one of the main roots of all that is evil in higher education.

Second, the AACE will exacerbate the now well-established pattern of cutting resources for need based financial aid by further constraining the availability of resources from tuition monies. Starving out funding for financial aid is one of the more popular means of attacking access and affordability for underprivileged students and families. And in fact the BoG in its own inimitable wisdom (sic!), with several members of the Board making shrill pronouncements about ‘subsidies’ for poor students that burden ‘the middle class,’ moved to limit the use of tuition dollars for financial aid well before the legislature joined in with the AACE.    

Third, this legislation may divide students against each other when later-entering students have to pay higher tuition to underwrite their classmates who entered college earlier. Many students and families support financial aid for those in need, but this legislation would put students in the same classes at the same time paying very different tuition rates merely by virtue of the fact that they enrolled at different times. Complaints about inequity are bound to follow.

Fourth, the AACE is a brilliant public relations strategy for deflecting attention from the fiduciary irresponsibility of the legislature, and ginning up misdirected public outrage against universities for skyrocketing tuition costs. Shifting attention away from legislative culpability has already been partially accomplished by the long, slow bleeding of public funding for public education, making low state funding and higher tuition the ‘new normal.’ But as national studies have shown, tuition-freezing plans that are not complemented with increases in state support inevitably lead to significant, indeed troublingly high, tuition increase requests as campuses try to recover funds lost from educating earlier cohorts of students at below-cost tuition rates. Certainly some members of the public understand where the real fault for rising tuition lies, but those who don’t will certainly call for ‘starving the beast’ instead of punishing the master.  

Finally, a tuition freeze will very likely further aggravate inequities in access in the UNC system. With reduced appropriations, the legislature cut one leg of University financial support; by freezing tuition the legislature is effectively cutting another leg. Elite institutions like Chapel Hill, and to a lesser extent NC State, have a weak if workable third leg in research and alumni support, and may not feel the hobbling effect of tuition cuts as severely as schools that are more dependent on the two legs of appropriations and tuition.  Not surprisingly, many of those ‘two legged’ schools have also been the target of demands to ‘right size’ the University. 

In short, critics of public higher education may find much to love in plans like the AACE, but for those who believe in the cause of making high-quality college education affordable for every deserving North Carolinian, this initiative actually undercuts instead of advancing that ideal.

STUDENT FEES CAP provision

Another provision of the AACE (H1030 Section 11.4.(b)) in which the legislature expropriated Board authority, caps student fee increases at 3% per year. This is another idea that sounds good in the abstract, yet proves to be rather nefarious in its origins and application.

It should be noted first that the legislation originally required fee cuts of 10 – 25%.  Behind the scenes the Chief Financial Officers from the 17 campuses must have been in a tizzy; these cuts would have savaged the self-supporting services and self-liquidating (mostly construction) projects that students want and campuses need. It is then no wonder that the cuts were dropped from the legislation in later drafts, but the cap is still a potentially serious problem.  

The reasons the Dominion refused to withdraw from this issue may not be too mysterious. The fact of the matter is that the fees cap was rammed through after some of the legislature’s sidekicks on the Board of Governors complained about, and lost the vote to terminate, the student-fee supported construction of a new student center at NCCU, and a system wide campus security initiative to protect students, and especially female students, through better compliance with federal Title IX, Campus Sexual Violence Elimination Act, and other campus security regulations. Like their patrons, even subordinated sycophants know that using diktat is a very effective way to win an argument. It was certainly a good way for Dominion flatterers on the BoG to roll over their more independent colleagues.

The critical point here is that the student fee cap is nothing more than partisan paternalism. The vast majority of student fees pay for campus-initiated services and projects that are typically vetted by campus committees of students and administrators. Indeed, many citizens may not know that a large portion of student fees are those students vote to impose on themselves for self-supporting services as diverse as legal advising, financial counseling, library support, scholarships, child-care, athletics facilities and ticket subsidies, transportation, funding faculty teaching awards, and many others.

The Dominion and its BoG devotees may not like students thinking for themselves, or supporting each other, or asking for services that overbearing paternalists oppose, but whether that is true or not, this legislation is by implication if not intent little more than authoritarian meddling in student and campus self-government.

NC PROMISE TUITION PLAN provision

 Under the so-called NC Promise Tuition Plan, H1030 section 11.4.(c), the legislature clearly telegraphed both ill-intent and ignorance. This is the now-infamous ‘$500 tuition’ legislation, which caps tuition at $500 per semester on several named campuses in the system. Here is yet another apparent ‘good idea’ with a fuzz-word name and filled with bad omens.   

The initial drafts of the legislation were in a stand-alone bill (S873) that was subjected to a national campaign of withering scrutiny, much of which focused on many problematic provisions objectionable to supporters of our state historically black colleges and universities (HBCU’s). Four of the five schools named in the original bill were minority institutions.

These offenses-by-statute included a range of provisions. One authorized and encouraged the BoG to consider renaming the campuses, thereby breaking the historical identity of several schools. Then there was no legislative commitment to make up the many millions in operating revenues lost to tuition reductions, which would effectively destroy the underfunded campuses. Another concern was that raising the out-of-state student enrollment cap, and lowering tuition for all attending students irrespective of need, would flood the applicant pool with students from  majority/privileged demographic groups. And then there was the fear that the named schools would be perceived as offering a second rate education, further exacerbating the enrollment challenges created by the same ill-advised admissions and funding policies that have hobbled UNC minority schools for the past decade.  

The fifth school, Western Carolina University, was likely included as pork for Senate leader Phil Berger’s right-hand man, Senator Tom Apodaca, who served as primary sponsor of the legislation. Apodaca and his immediate family are all graduates of WCU. Never mind that this kind of individual-campus favoritism was against the law (and rightly so!) before this bill was passed (see NC GS 116-11.9.(b)). The fact that Apodaca himself seemed to be very unhappy about the heat he took while defending the legislation suggested that it was badly formulated. Not only did “Tough Tom” (sic?) complain in the press about having his integrity questioned (but perhaps WCU can create a campus ‘safe space’ to protect the Senator from his critics?), he also tried to slough-off his culpability by claiming that he was merely sponsoring a bill assembled by Berger. This seems to be an Apodaca trademark: he also claimed that he went along with HB2 out of partisan rather than civic commitment.

It is very likely Apodaca – and his supporters at Western -- will soon discover that Berger was pushing a bill of goods. The proof that this was slipshod lawmaking with questionable intent is evident in the fact that there was a whole lot of amending and walk-back to get this legislation to the point where the leadership could blunt the more vociferous opposition, resume its efforts to take control of tuition out of the hands of the BoG, and still keep some of the campuses on a short-leash. To that end, Apodaca pulled the bill from public review, dutifully shuttling it off to the Senate Rules Committee, where it was conveniently hidden from further scrutiny while UNC officials rushed over to Jones Street to plead their case.

In the more tightly controlled setting of Rules, a provision to back-fill the lost money was inserted, some vague language about maintaining the demographic legacy of the schools was included, and Winston Salem State and Fayetteville State – whose administrators, alumni, and students mounted the fiercest opposition to the legislation -- were dropped from the list of named schools.

Yet none of this changed the most radical feature of this statute. In effect, the legislative leadership carved off three campuses from the UNC system. Under this new law, the chancellors of Western, Pembroke, and Elizabeth City State will now be required to justify to the state Director of the Budget – not just the Board of Governors – all requests for funds needed to “buy down” the $500 tuition. 

No one should be under any illusions about what this might mean. There is very high potential for legislative manipulation, if not outright reneging, on any future appropriations requests. Indeed, it would be out of character if this legislature did not try to attach strings to future appropriations. Given frequent  calls for eliminating tenure, requiring ‘ideological balance’ in University teaching, research, and service activities, and regulating ‘free speech’ on campuses, faculty, staff,  students, and concerned citizens across the state should not be surprised if  legislators try to impose any number of ‘pay to play’ schemes as conditions for granting future buy-down money.

The terms and context of this legislation will then make these campuses potential sites for statute-enforced experiments in partisan social engineering. Watch especially for demands involving faculty hiring, tenure, curriculum, student admissions, and other themes of reactionary education philosophy.  That would make the new three-campus ‘University of Jones Street’ a fitting complement to the Dominion’s other excesses in electoral district gerrymandering, voter access restrictions, overrunning executive authority, commandeering local elections, rewriting State Supreme Court election procedures, enacting statutory forms of discrimination, and other actions intended to supplant the public good by imperious arrogations of power.

UNCCH COLLABORATORY provision

 Efforts to control the teaching, research, and service activities of UNC campuses were further extended in the hastily assembled H1030 Section 11.8, which established a “North Carolina Policy Collaboratory” at UNC Chapel Hill. This provision did not appear until the final version of the legislation, it appeared to catch University and UNCCH officials completely off guard, and it has been the focus of several local and national stories, some of which have suggested that this initiative is freighted by state-level jurisdictional disputes between the leadership of the legislature and the science staff in the Department of Environmental Quality (DEQ). 

Senator Berger’s comments about the Collaboratory, and the substance of H1030 itself, did not help University officials in their efforts to reassure the public that the work of the institute would not be subject to legislative interference. On one hand there was the issue of Berger whining about “partisan homogeneity” and his lack of supporters and influence at UNC. Then there were rumors too-omnipresent to dismiss suggesting that Berger’s environmental surrogate, Jeff Warren, was being groomed to direct the academic center. And despite assurances that UNC Chapel Hill officials would not allow research at Chapel Hill to be directed by the legislature, including a bizarre claim by UNCCH Provost James Dean that the legislature hadn’t said a word about the substance of what should be done, Section 14.13 of H1030 not only laid out a more or less complete research program for the University, but it specifically named the Chapel Hill Vice Chancellor for Enterprise, a former employee of the DEQ, as the coordinator of those research initiatives.  

The antecedent for this statutory politicization of the University’s research enterprise was arguably established in the 2015 BoG review and closure of UNC Centers and Institutes. In that instance, the BoG had to rewrite the UNC Code to allow for its actions, a practice also followed in much of the H1030 legislation, where actions were advanced under boilerplate language about new laws being promulgated “notwithstanding” existing legislation. But in the case of the Collaboratory, hubris must have trumped the ‘surgical precision’ of the Dominion’s usual modus operandi: in what may be a lawsuit in the making, the Collaboratory statute directly violated the extant law. And the excess didn’t stop there. Numerous provisions of the UNC system Code, and numerous provisions of UNC Chapel Hill shared governance policy, were also summarily ignored.  

The Collaboratory is perhaps the most sharply defined example of how legislative funding authority has been used to circumvent the professional judgment, experience, and expertise of those responsible for carrying out the University’s teaching, research, and service mission. But believe it or not, despite all of the attention paid to yet another (!?) possible corruption of academic integrity at the so-called flagship, the Collaboratory is actually a mere sideshow in this circus of statutes. Certainly the three rings of NCGAP, AACE, and NC Promise all deserve due consideration, but the Dominion’s biggest spectacle has to be the establishment of University “Laboratory Schools” for K12 school districts.

K12 LABORATORY SCHOOLS provision

 There is no polite way to put this: the lab school initiative conscripts UNC to serve in the legislature’s well-documented assault on North Carolina K-12 education, and establishes an alternative system of K12 schools that is more tightly controlled by the Dominion operatives. If the other provisions of H1030 constitute the foundation of the University of Jones Street, this provision is the foundation of the Jones Street School System.

The lab school law (H1030 Section 11.6.(a)) is a legislature grand-slam: It systematically emasculates the governance structures of the UNC system, campuses, and schools of education, forcing University faculty into research and teaching duties over which they have virtually no control. It abrogates the authority of the state Board of Education by dictating Board approval and funding of UNC lab school projects. It eviscerates the authority of local school boards by coercing their assent and expropriating local funds for the UNC lab schools. And to make sure that all of this is in politically correct conformity with the will of the Domini, the law puts political appointees in charge of the most important operational functions of the lab schools.

Under this exemplar of dictatorial edict, the lab schools effectively operate outside all the checks and balances and modes of popular control for K12 education in North Carolina. With few exceptions, the lab schools are exempt from statutes and rules applicable to local boards of education and school administrative units. There is no ‘refusal option’ for the University; under this legislation the University must establish a lab school in 8 different “low-performing” public school districts. The law rescinds the discretionary powers of the state Board of Education, as it requires Board approval of lab school proposals, and it requires the Board to provide instructional and infrastructure financing out of existing public education funds. Last but not least, it repeals local control of local schools as districts with lab schools are required to transfer the per pupil share of local expense funds for each student enrolled in a University school.

All of this strong-arming is just the beginning. The coup de grace is that the legislature vested full managerial control of the lab schools in the hands of sponsoring campuses’ Boards of Trustees – all of whom are political appointees. The Trustees’ powers are astounding: their proposals to establish a lab school must (as noted above) be approved by the Board of Education, they appoint the lab school advisory boards, they establish the standard course of study (or the curriculum) for the lab schools, they conduct student assessments, they define all academic performance, attendance and student conduct policies, and they appoint all employees of the school.

In this plan, it appears that all that is required to qualify for K12 school management is achievement in partisan back-scratching. Citizens should not be surprised to see Boards of Trustees subjected to muscling by members of the legislature, members of the UNC Board of Governors, the Governors’ office, advocates of alt-schools who have the ear of legislators, big-money party donors, and anyone else who supports the Dominion.

Unfortunately, the law is also likely to sour or break relations between UNC Schools of Education as University lab school expropriation of scarce local resources pits elected officials against the minions of the Dominion.

Finally, this is a very risky venture for UNC Schools of Education. Given Senator Berger’s ‘reform or scrap-em’ approach to University teacher education programs, campuses with lab schools that struggle or fail may find themselves targeted for legislative termination.  

 Where this incredible initiative came from is not certain, but what matters is that it epitomizes everything that is wrong with legislative imperialism in North Carolina. It realizes what critics of University governance structures have for 45 years feared. It recapitulates other abuses of power enabled by North Carolina’s lopsided system of Constitutional checks and balances. It extends this legislature’s now long-and-growing list of haughty and imperious overreach. In sum, it installs a dictatorial structure that allows a handful of petty despots to run roughshod over time-honored principles of divided power, overturns time-tested practices that promote the professional management of public goods, and reverses the significant progress that has been made in realizing the American ideal of nonpartisanship in the governance of public education.  

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H1030 AND THE DECLINE OF NC PUBLIC HIGHER EDUCATION

As the founders of UNC knew, institutions of public education are arguably the most important public goods democratic societies establish in order “to consult the happiness of a rising generation, and endeavor to fit them for an honorable discharge of the social duties of life.” The common good by definition requires knowledge and understanding that is unfettered by parochial, partial, and partisan interests. That goal can only be realized when the foundational standards of intellectual inquiry -- evidence, argument, debate and deliberation, and the encouragement of promising talent without regard to social status -- are protected by the guarantees of law.

By contrast, when the law limits instead of enabling intellectual rigor, when it constrains rather than opening doors of opportunity for citizens of every background, when it usurps authority and undermines proven practices of governance in our systems of education, that may be taken as a sure indication that politicians intend to control, distort, and corrupt the marketplace of ideas for their own private purposes and the interests of their courtiers.

The citizens of North Carolina have made enormous sacrifices to build a University that has made this state a model of excellence in public higher education. Encouraged in its mission by thoughtful lawmakers, civic leaders, and education professionals, the unfinished work of the University’s legacy was until very recently open to a promising future.

For several years running now, observers in this state and elsewhere have noted with alarm that North Carolina has been transformed from being a leader in the development of public higher education, to joining the national trend of education decline. None of that is news, but what will become news is how the sweeping and historically unprecedented statutory arrogations of the current Jones Street Dominion may be a new model for advancing the reactionary offensive against American public colleges and universities.

This is not the kind of national leadership citizens of this state should welcome. Legislators, the Governor, the UNC Board of Governors, UNC system administrators, and even some campus administrative and faculty leaders have sometimes encouraged, and sometimes turned a blind eye, to these developments. At this moment it may be difficult for citizens outside the inner circle of University governance to fully grasp how this legislation represents a gross betrayal of public trust and confidence, but if it is not stopped or mitigated, our progeny may have good reason to ask why we allowed their inheritance to be squandered by a handful of petty despots. Let’s hope that men and women of conscience and integrity can rise to defend the legacy of excellence their predecessors gave so much to build.

Will Davie’s Ghost is an advocate of public education as an essential institution in democratic societies