California scheming

January 3, 1997

Back in November the affirmative action initiative that ended racial and gender set-asides (where not in conflict with federal law) was approved by California's voters, although by a much smaller margin than predicted. The rest of the nation stood by anxiously. Implementation has been suspended, however, pending the outcome of judicial appeals, which are likely to go on for a year or more.

I have no doubt that the eventual legal solution will be a compromise - assistance to the needy and "deserving" continuing under a different name with public concurrence. The euphemistic phrase "affirmative action", as well as its application, has always been indeterminate.

A certain momentum in outreach, hiring and promotions has been built up over decades, practical solutions have emerged, both quiet and noisy revolutions have been occurring. It is not clear how much of the extreme language, the threats and warnings and moral outrage employed by many, is just fallout from a bygone era, momentarily concealing newer critical issues.

One digs deep into the history of all universities. A simple question has arisen which cannot be answered simply. It is this: who owns the University of California? Who "owns" universities generally? The novelist E. M. Forster once asked this question of Cambridge. His waggish answer was the third year. Freshmen worry about clothes, sophomores affect an air of superiority, but the final year brings experience, balance and a sense of loyalty to the institution. So the third year has earned the right of possession. Ownership usually implies control, and academics have struggled for centuries in different contexts to acquire control over admissions, appointments, curriculum and the disposition of income. Whether private or public, ownership of an American university or college is vested in a lay body of trustees, but the strength of public ownership depends upon whether the law incorporating the institution is part of the state's constitution, as in the case of the multicampus University of California, or whether it derives from statute, as in the 22-campus California state university and college system.

Legislatures readily amend statutes, but constitutions are more resistant. Many attribute a university's reputation and achievements precisely to the degree of legal insulation it enjoys.

A byproduct of the dispute over affirmative action has resulted in bitter disagreements over the legitimate line separating trusteeship from academic authority. The parties to the controversy are the state's governor, the board of regents of the university on which he serves ex officio, the president of the University of California system, the chancellors of the subordinate campuses, the academic senate of the entire system and its council, and the individual senates of each campus.

Together these bodies constitute "shared" governance, implying cooperation, divisions of responsibility and mechanisms for consultation. But the sharing is an arrangement not a right, a derivative of history. The bedrock document dates from 1920 when the regents "delegated" certain powers of internal management to faculty senates, to include central decisions affecting student admissions and curriculum.

In time the very complexity of the system, massive investments in new campuses, the explosion of knowledge, huge increases in student numbers, the innumerable streams of private or federal revenues, a gigantic administrative bureaucracy and the staggering reputation of the university as measured by peer review and world opinion made anything more than broad regental policy-making impractical. Furthermore, any attempts by the trustees to take a closer look were immediately denounced by the senates as "political interference" and intrusions upon academic freedom, defined here as the right to internal self-management.

Elsewhere in the United States higher education lobbying organisations have accused politicians of improperly imposing their own agendas on campuses and trustees, noting also the increasing tendencies for elected and appointed boards to micro-manage their institutions. Most such observations refer to views normally associated with the political right in America, but an accurate historical appraisal would balance that with intrusion by the left, occurring at least since the 1960s and reflected, for example, in the introduction of the late affirmative action policies.

It has been pointed out in connection with the UC regents that their 1982 group preferences policy, now overturned, was adopted without senate consultation and little fuss, and that the regents had re-opened the issue when campus violations of their policy, converting "preferences" into quotas, were brought to their attention.

At the University of California, particularly Berkeley, the issue of shared governance has now reached a stage where some parties in the senate wish formally to censure the regents. Two presidents, one just retired, do not believe that the regents breached existing norms. The famous octogenarian university president emeritus Clark Kerr, a specialist in labour arbitration, has been summoned from retirement to calm inflamed nerves. He regards the present situation as perhaps the worst internal crisis in the history of the university. Close observers and participants disagree on how to apportion blame, or even on the sequence of events producing the crisis, and no single party to the controversy is fully united, increasing the danger that events will spin out of control.

The ramifications of the dispute are legion. Some are specific to California, involving its particular kind of educational structure, its understanding of delegated responsibility and shared governance and the implications of its legal definition of ownership. But others have wider resonance. The conspicuous absence of leadership at all levels is a problem affecting many universities.

Clearly "ownership" of a public university does not imply the same level of hierarchical control typical of business conglomerates, and it is not the general public but academic administrators and their staffs who draw analogies to business and introduce business values. But the American public has also resisted vesting the academic guild with the authority that might be found, let us say, in an Edwardian practitioner-run profession.

If trustees, whose clumsy behaviour over the past few years has also troubled non-partisans, are not meeting their fiduciary responsibilities, it can be also wondered whether the professors collectively understand the nature of a great public trust and are capable of putting the general good above self-interest.

Unless there is more disinterested discussion, erosion from within will continue. It will not be a happy new year for the nation's premier public university system, now no longer esteemed as a national model for enlightened self-government.

Sheldon Rothblatt is professor of history at the University of California, Berkeley and STINT professor of history at the Royal Institute of Technology, Stockholm, Sweden.

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