Problematic autonomy continues to stir debate

Within the last 10 years, the University has used its constitutionally autonomous status three times as an argument not to abide by state law.

And while no one questions the existence of such autonomy, its scope and the University’s uses of it have caused friction among Minnesota’s lawmakers more than once.

Yet despite the occasional tension such legal arguments cause, University administrators defend autonomy as the guarantor of academic freedom.

Still, some legislators and higher education experts say the University’s use of the argument might cause a political and financial backlash within the State Legislature.

And one expert said the University should be careful about risking funding in order to challenge a state law.

Autonomy defined

The state constitution protects the University from the powers of the governor and the State Legislature in some ways, granting it a measure of autonomy. The executive and legislative branches consequently have few ways to exert control directly over the University or manage its business.

The applications of that autonomous status have varied over time.

The University successfully challenged the Veterans Preference Act in court in 1993, arguing that it did not apply to the University because of its autonomous status.

In 2002, the University’s regents claimed in an ongoing lawsuit that the state’s Open Meeting Law and Data Practices Act did not apply to them in their search for a University president.

And during the past several weeks, the University asserted that the state’s new conceal-and-carry legislation does not apply to it, again using its autonomous status as justification.

While legislators and legal experts accept constitutional autonomy exists, they disagree with University officials over the extent of that autonomy – and the University’s legal challenges have complicated the issue further.

Political, financial troubles

Those disagreements could result in serious consequences for the University outside of the courts, some legislators said.

“If you really want to duke it out with the Legislature, be careful,” said Rep. Gene Pelowski, DFL-Winona.

He said if the University upsets legislators, lawmakers might respond by offering less financial backing.

“You want to throw constitutional autonomy on us – great, you can be (constitutionally) autonomous in funding, too,” Pelowski said.

Other legislators agreed and said the University should be careful how it uses its autonomy. When the University engages in controversial lawsuits, they said – such as its attempt to exempt its presidential hiring process from Minnesota’s sunshine laws – it can annoy or upset some lawmakers.

Rep. Doug Stang, R-Cold Spring and chairman of the House higher education finance committee, said the University needs to be careful when refusing legislative orders.

“I think they’d be careful to shove it in the face of the Legislature,” he said. “They need our funding.”

Despite Pelowski and Stang’s comments, the state Supreme Court ruled in Winberg v. University of Minnesota that when legislators want the University to take a certain managerial stance – such as setting tuition – they can only make requests of the regents and cannot attach conditions to state money.

Still, University officials recognize the potential for more subtle ties between an agitated Legislature and decreased funding.

University Provost Christine Maziar said autonomy is not perfect because the University depends on the state for financial support.

“Certainly we need to be sensitive to political issues because they can be expressed through funding mechanisms,” she said.

Tension related to autonomy issues could contribute to lost votes for the University on some funding requests, such as the Translational Research Facility, said Sen. Steve Kelley, DFL-Hopkins, the education committee chairman.

The Legislature approved funding for the research facility this spring.

According to one lawmaker, however, the Legislature’s power to influence the University has waned over time.

Because the University receives less money from the state than it did 15 years ago, legislative requests have become less influential, said Sen. Sandra Pappas, DFL-St. Paul.

But Pappas, higher education finance committee chairwoman, said she thinks the regents recognize the importance of abiding by the state’s requests.

Protecting academia

University President Bob Bruininks said one of the important factors of constitutional autonomy is to ensure academic freedom.

“It allows the University to pursue avenues of thought that may be unpopular,” he said.

Bruininks said some medical science and genetic modifications of plants and crops are examples of controversial areas of study.

Maziar agreed.

“(Autonomy) provides a bit of a shield Ö for an institution of higher education from the prevailing political fashion of the day,” she said.

Bruininks said constitutional autonomy is important in a free society, comparing the institution’s autonomy to that of the appointed judicial branch.

“It’s a form of protecting the freedom of thought, freedom of inquiry and freedom to pursue ideas,” he said.

University officials said they respect legislative requests and do not foresee serious problems with their relationship with the Legislature.

And while some legislators might feel the University does as it pleases, University General Counsel Mark Rotenberg said the institution voluntarily adopts many of these laws for its campuses.

A surprising risk

One national higher education expert said it is surprising that the University would challenge a state law at the risk of losing funding, even with constitutional autonomy.

“It does not happen often that a university would invoke that status with a direct confrontation with the state,” said Richard Harpel, the federal relations director at the National Association of State Universities and Land-Grant Colleges. The association is an interest group comprising 212 public colleges and universities nationwide.

Due to a nationwide trend of decreasing higher education funding, state colleges and universities are cautious of losing state funds, Harpel said.

Losing autonomy?

Some legislators have considered stripping the University of its autonomous status. Sen. Cal Larson, R-Fergus Falls, said he is constantly conflicted over the issue.

Larson last seriously considered the idea after the 1999 men’s basketball academic fraud scandal broke, but now said he feels the move is unnecessary.

Harpel, however, said he has not seen any state universities go through a process that later led to a university losing its autonomy.

Constitutional autonomy issues are often peacefully settled, Harpel said, and rarely lead to governments pushing to strip a state university of its constitutional authority.

“I don’t see any great movement to encroach on the autonomy an institution may have,” Harpel said.

Larson said the University is becoming more accountable and the right leaders are managing the University.

“It’s all about leadership,” he said.

Because Minnesota’s constitution grants the University independence from lawmakers, only a statewide referendum could affect constitutional autonomy.

For that to happen, the Legislature must pass a bill calling for a referendum on the issue.

Former Minnesota Sen. Allan Spear, DFL-Minneapolis, said bills were written to order a referendum, but he cannot remember when.

According to past articles in The Minnesota Daily, such bills were written in 1976 and 1981. But neither passed both legislative chambers.

Spear, a former University history professor, said it is difficult to amend the state’s constitution.

“Unless there was a big backlash against the University Ö I don’t think (a constitutional autonomy referendum) will ever happen,” he said.

The University’s state lobbyist, Donna Peterson, said the University’s autonomy is normally only discussed when new legislators take office and do not understand the matter.

“We probably go for years and never talk about it,” she said.

Changes to autonomy

With the ongoing media lawsuit regarding the University and the state’s Open Meeting Law and Data Practices Act, Mary Jane Morrison, a constitutional law professor at Hamline University, said the lawsuit’s outcome could have either a big or small affect on the University, depending on whether the court bases its ruling on constitutional autonomy.

“There could be a lot at stake here for the future of the University,” Morrison said. “Or, this could be just a bubble in the ‘U’s’ history.”

Morrison said because the courts have done some interpretation of the Open Meeting Law, there is little room for the court to rule that the University can choose whether to follow it in certain circumstances.

Up next

Despite the lawsuits and recurring legislative threats of losing autonomy or funding, the University continues to assert its autonomy.

A recently enacted University gun ban policy that conflicts with the state’s new conceal-and-carry law could spark another lawsuit, said David Gross, a constitutional lawyer who helped draft the conceal-and-carry legislation.

He said the University’s policy, which prohibits students, employees and visitors – even those with legal permits – from bringing guns on campus or to University-related, off-campus events, goes beyond constitutional autonomy.

Rotenberg said constitutional autonomy entitled the University to institute the ban. He said because the University was not specifically named in the legislation, it is not legally bound by it.

Some legislators said the University could have prevented litigation by lobbying when the legislation was being discussed, but one lawmaker said the University purposely avoided lobbying.

Kelley, who is also an attorney, said the University’s decision not to lobby against the bill might have been a legal strategy.

He said if the University lobbied against the bill, its authors might have specifically written how it applies to the University, making the University’s claims of autonomy from the law more difficult to argue in court.

Rotenberg said the University sometimes decides not to voice its opinion on legislative issues, noting that the University did not lobby when terrorism and safety legislation were in discussion.

– Nathan Halverson contributed to this report.

The writers welcome comments at [email protected] and [email protected]