Legislation moving through the Virginia General Assembly received the green light today to move forward. The bill, SB 506, would shift accountability for the oversight of the state’s 39 public institutions of higher education away from the taxpayers and the state’s elected representatives and instead mandate that Virginia’s higher education trustees answer primarily to their respective universities’ presidents and administrators, and secondarily to the taxpayers of Virginia and their representatives in Richmond.
SB 506 passed out of the Senate Subcommittee on Higher Education on January 29, 2024, by voice vote. If enacted, the legislation would enshrine into law that a higher education institution’s governing board must, “Exercise in its collective capacity best judgment in carrying out the powers and duties of the governing board and act at all times in accordance with the duty of loyalty owed primarily to such institution and secondarily to the citizens of the Commonwealth…”
The American Council of Trustees and Alumni (ACTA) President Michael Poliakoff reacted, “SB 506 looks at public higher education through a broken, distorted lens. Boards of Visitors owe their primary responsibility to the citizens, the taxpayers of Virginia, serving the Commonwealth through good governance of their institutions. To reverse their loyalty to privilege the institution is a recipe for eroding yet further public confidence in higher education.” ACTA was founded in 1995 as an advocate for academic excellence, academic freedom, and more robust accountability in higher education. In its seminal publication Governance for a New Era, ACTA stated “Although public trustees may think that their main job is to advocate and raise money for their institutions, it is incumbent upon the governor to ensure that they understand their fiduciary obligation is to represent the taxpayers.” Furthermore, “Many would argue for specific board seats allotted by constituency or vetting commissions that would reduce gubernatorial responsibility. These efforts are misguided; it is incumbent upon sitting trustees to represent the broader public interest. It is also important that appointing power rest with those who are directly accountable; commissions lack that accountability.”
Introduced by Senator Scott A. Surovell (34th Leg. District), SB 506 directly contradicts current Virginia statute §23.1-1304 (2019), which states that all new and existing board members must receive annual training related to a board member’ primary duty to the citizens of the Commonwealth. This legislation also directly contradicts Virginia Attorney General Jason Miyares’ October 2023 opinion in which he provided a strong case that Virginia institutions of higher education have a long-standing recognition as public corporations. Thus, according to recognized jurisprudence, “each institution, and its respective governing board, ‘is part and parcel of the Commonwealth’s higher education system…In serving on the governing board of such a public corporation, each visitor ‘hold[s] under an act of the legislature a public office or employment[.]’”
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