The U, enjoying a state of autonomy

While the constitution exempts the U from some state oversight, the exemption is sometimes unclear

Nathan Halverson

Editor’s note: This is part one of a two-part series. Today’s article investigates the history and nature of the University’s constitutional autonomy. Part two will examine the implications of constitutional autonomy for the legislative appropriations process and for state sunshine laws, and preview possible future lawsuits.

Court of Appeals Judge Wilhelmina Wright leaned over the bench and asked University Associate General Counsel Lorie Gildea to explain when state laws apply to the University.

Wright was one of three judges presiding at an appeals hearing Tuesday for a case involving five media organizations, including The Minnesota Daily. The media groups sued the University for withholding the names of presidential candidates and conducting private meetings because it claimed the Minnesota Data Practices Act and the Open Meeting Law did not apply to it in that situation.

The University Board of Regents concluded it would be detrimental to its presidential search to hold open meetings, and former chairwoman Maureen Reed announced they had “suspended” adherence to the law.

The University, however, is not exempt from all state laws, and this can create uncertainty as to which laws apply, occasionally forcing the courts to decide.

In the courtroom, Wright questioned the extent of the University’s autonomy, challenging the scope of the University’s claim that constitutional autonomy frees it from certain laws that infringe on its right to self-governance.

Does the University think all laws that have an adverse affect on the institution are unconstitutional? Wright asked.

“The Legislature cannot tell the regents how to go about their business,” Gildea said in her opening arguments.

The current legal debate about the scope of the University’s constitutional autonomy is one of many over the last century.

In at least six cases, the Minnesota Supreme Court has ruled on the extent of the University’s autonomy.

The Minnesota constitution grants the University “very strong” independence from state lawmakers, allowing regents to solely govern campus policy, according to legal experts who say only California and Michigan’s constitutions grant universities such strong autonomy.

“Autonomy only goes so far and the courts have to determine how far it goes,” said Tom Berg, a professor of constitutional law at the University of St. Thomas.

University General Counsel Mark Rotenberg said most laws that do not affect management of the University or its property apply to the institution, he said.

“It does not mean the University is above the law,” Rotenberg said.

Deborah McKnight, a legislative analyst and attorney in the nonpartisan Minnesota House Research Department said, “The University is not going to be exempt from safety and welfare laws.”

McKnight authored a legal analysis for legislators in December 2000 on the University’s constitutional autonomy.

Origin of autonomy

The origin of the University’s constitutional autonomy dates back to 1851 when the institution was founded – before Minnesota became a state.

In the University’s governing document – the charter of incorporation, the Territorial Assembly established the Board of Regents and gave it the authority to govern the University. The assembly was the region’s governing body. The charter gave the board specific powers, including the right to appoint faculty, grant degrees, determine tuition and construct buildings.

When Minnesota became a state in 1858, its constitution recognized the University’s original charter, establishing the institution’s constitutional autonomy.

In effect, this autonomy prevents Minnesota’s legislative or executive branches from directly exerting control over the University and managing its business, both Rotenberg and McKnight said.

The Minnesota Supreme Court first examined the extent to which state law applies to the University in its 1928 University of Minnesota v. Chase ruling.

In their ruling, the justices said the reason for constitutional autonomy “was to put the management of the greatest state educational institution beyond the dangers of vacillating policy, ill informed or careless meddling, and partisan ambition.”

The rationale behind giving the University constitutional autonomy was to ensure that its academics and research are not influenced by state, McKnight said.

“The Legislature can’t meddle with their academic freedom,” she said. When deciding if a law can apply to the University, the question is whether the Legislature is properly regulating the University, or are they invading on (its) academic freedom, she said.

Legislators have said academic freedom is very important, and they have no plans to remove the University’s autonomy.

Sen. Sandra Pappas, DFL-St. Paul, the Higher Education Budget Division committee chairwoman, said autonomy also protects the University from reactionary legislative policy.

After the April 12 riot, a bill was introduced in the Legislature to force students caught rioting to pay out-of-state tuition as punishment. The bill did not pass, but Pappas said even if it did, the state would not have been able to impose the legislation. Regents would still ultimately set tuition rates, and could not be forced to abide by that law, Pappas said.

“I think it makes for a stronger University,” Pappas said.

University leadership agrees that constitutional autonomy makes the University stronger.

Regents Chairman David Metzen said autonomy allows the University to do research that not everyone agrees with. Without that independence, legislators could politicize research and try to ban controversial work.

Regent Dallas Bohnsack said constitutional autonomy was “in the very fabric of how we’ve grown over the last 150 years.” He said it makes clear who should govern the University.

Regent Frank Berman said the University’s unique status does not play much of a role in academic freedom.

“In most cases, I don’t know if it makes a difference,” Berman said. “There’s academic freedom regardless of if there’s constitutional autonomy or not.”

University President Bob Bruininks declined to comment for this story.

Applying laws to the ‘U’

Legal conflicts arise when laws, such as employment laws that are intended to apply to all public agencies and institutions potentially impact the way the regents can govern the University, legal experts said.

For instance, in 1993 the Minnesota Supreme Court ruled that the Veterans Preference Act, which requires that preferential treatment be provided to veterans applying for civil service jobs, did not apply to the University – in part because the University was not explicitly named in the law.

But the court also said the University “is a unique constitutional corporation… . The people of Minnesota thereby conferred the entire control and management of the University’s affairs and property upon the Board of Regents, leaving no such power to be exercised by the Legislature.”

But the court’s opinion said though the powers of the regents are not subject to legislative or executive control, the University is not above the law.

So legislators, who also elect the regents, must take into consideration the University’s unique status when creating laws, they said.

“In the higher (education) committee it’s a struggle, because when you want the University to do something, they don’t necessarily have to do it,” said Rep. Doug Stang, R-Cold Springs, chairman of the Higher Education Finance Committee. “It can be frustrating at times because they do receive such a large portion of state funding you’d like to have some control of how they spend it.”

However, the Minnesota Supreme Court ruled in Regents of University of Minnesota v. Lord that the Legislature may put conditions on certain state funding. In the 1977 case, the Minnesota Supreme Court ruled that the University was entitled to an appropriation that explicitly required adherence to the Designer Selection Board Act only if the University followed the procedures of the act. The act sets procedures for choosing architects for government buildings.

“(The University) can always be bought out of their autonomy as a condition of receiving certain funds,” said Mary Jane Morrison, a constitutional law professor at Hamline University.

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