Becoming Citizens of a Member-Driven Corporation

In his book, Kaufman-Osborn (Reference Kaufman-Osborn2023) reminds us that colleges and universities are corporate entities chartered by the state. There are two historically and legally recognized forms of corporation in Anglo-American history: the property corporation and the member corporation. The first is a shareholder model in which decision-making power is distributed according to “share of investment”: that is, the more money invested, the more power shareholders have. The second form is a membership model in which decision-making power is distributed equally among those participating regardless of their material investment. Kaufman-Osborn envisions an academy wherein faculty members are “invested” not in a transactional sense but instead as members of a self-governing entity, entrusted by the public with creating spaces in which teaching and research—in all their complex forms—will flourish.

Kaufman-Osborn shows how, despite persistent challenges and resistance from faculty members, the academy in the United States became a property corporation rather than a member-driven corporation. He traces a history of the academy, from the early days of The College of William and Mary in Virginia and Harvard University in Massachusetts to the US Supreme Court’s decision in Woodward v. Trustees of Dartmouth College (1819) (cited in Kaufman-Osborn Reference Kaufman-Osborn2023, 122). His history elaborates moments of possibility during which the academy could have been established as a relatively independent corporate entity constituted by state charter and governed by faculty. In Woodward, the State of New Hampshire defended its prerogative to alter the governing board of the college citing the fact that, after independence, the legislature had inherited the charter. Chief Justice John Marshall countered, arguing the original charter simply made clearer that “the corporation [that is, Dartmouth College] is the assignee of their [the original donors] rights, stands in their place, and distributes their bounty as they would themselves have distributed it had they been immortal” (Kaufman-Osborn Reference Kaufman-Osborn2023, 122). Thus, the status of “trustee” overrode the prerogative of the state. The basic disagreement that Woodward settled was over whether the state or the board of governors was the more trustworthy “trustee” of the college. Would the college become a relatively independent arm of the state or the fiefdom of the trustees? In placing the corporation in the hands of the trustees, the court decided for the latter.

At this point in his book, Kaufman-Osborn is still discussing private universities. However, after the Morrill Act of 1862, entrusting boards of governors with the power of rule over the “property corporation”—that is, the university or college, public or private—became fully normalized. For example, the state statute (Ohio Revised Code 3345.011 19) that created my school, the University of Toledo, in 1967 incorporates it as a “body politic,” giving the Board of Trustees the powers to:

Thus, the university is not exactly a fiefdom but, for all intents and purposes, the Board of Trustees of the University of Toledo acts as a relatively independent ruler over the complex, essentially privatized relationships and means of production of the university.

Channeling their priorities through the one hire that they have the direct power to make—the president or chancellor of their institution—boards control the financial and structural terms on which faculty work. This autocratic rule is veiled and sometimes mitigated by bylaws, tenure, faculty handbooks, union contracts, and statements of principle (e.g., academic freedom). For example, to the benefit of faculty members covered by our collective bargaining agreement at the University of Toledo, there is no “force majeure” clause in our union contract. This limits the Board of Trustees’ ability to fire tenured faculty members, even if they claim financial exigency. However, this protects only a few staff members. The Board of Trustees can restrict hires, fire those among the 60% of contingent and untenured faculty, change workload requirements, and determine budgets—even including individual faculty travel grants. Rule at the University of Toledo—and across American higher education—is indeed autocratic, with trustees and regents often acting by fiat.

How can “academic freedom” be exercised under autocratic rule? Autocratic governance deeply impacts the faculty’s capacity to create conditions wherein free inquiry can thrive. I cannot count the times I have heard fully tenured and promoted colleagues decline to directly challenge administrative actions that impact their teaching and research due to a fear of being punished—typically indirectly—by denial of a faculty line to their program or an increase in workload. This could be attributed to cowardice; a more generous interpretation is that faculty members choose our battles judiciously, given the autocratic system by which we are ruled. Either way, under current conditions, when faculty members pressure the Board of Trustees or the administration, we do so as gadflies or supplicants. Transforming our institution into a member-driven corporate body would allow us to engage as citizens, as equal participants in the project of creating a space wherein free inquiry can flourish.

Kaufman-Osborn (Reference Kaufman-Osborn2023) argues that transforming the academy into a member-driven corporation will re-politicize the governance of higher education in the spirit of republican engagement and attunement to the common good. By this, he means that it will become less bureaucratic, instrumentalist, and standardized. I venture to say that most faculty members, if asked, would state that they prefer to work in such a space. The real question, however, is whether we are willing to work for and sustain it. A key issue is how our responsibilities of teaching, research, and service are understood. We are subjected to the real threat of “publish or perish,” in which teaching and service responsibilities are considered obstacles to tenure and promotion. This exemplifies a system built around a sensibility that the university is primarily a setting in which we perform our individualized talents. It is not understood as a setting in which active citizenship in the name of something greater than our individual promotion file is at stake. However, Kaufman-Osborn’s (Reference Kaufman-Osborn2023) book reminds us that current conditions are an effect of contestation over the terms of rule, and it shows us that it could and should be otherwise.

Does the Book Advise on What to Do? Is It Utopian?

In response to those who may accuse Kaufman-Osborn as offering a utopian vision, he states, “…if it is utopian to imagine an academy in which free inquiry is no longer perpetually imperiled by a constitution of power that is antagonistic to its very possibility, then I happily plead guilty as charged” (Kaufman-Osborn Reference Kaufman-Osborn2023, 272). However, debates about whether this book is utopian are a distraction. The academy as a member-driven corporation has existed, albeit in grossly limited and inadequately inclusive forms. Moreover, the book tells us what to do: directly challenge and ultimately rid the academy of governing boards. There is no blueprint for what to do once this has been accomplished, but there is much to learn from further historical research about how faculty members challenged autocracy and what happened next. We also can learn from the problems and promises of moments at particular colleges and universities when administrative tasks were less detached from teaching and research responsibilities, when faculty members more commonly moved in and out of administrative positions.

Gramsci’s (Reference Gramsci1975, 175) famous reflection, borrowed from Romain Rolland (a French dramatist, novelist, essayist, art historian, and mystic who was awarded the Nobel Prize for Literature in 1915), “my mind is pessimistic, but my will is optimistic….I imagine the worst that could happen in order to summon up all my reserves and will power to overcome every obstacle” could guide us. Faculty members, particularly those in the liberal arts, are known for our pessimism of the intellect—and rightfully so, given insights into the human condition garnered through our individual intellectual pursuits. As shown in Kaufman-Osborn’s history, however, we also should be known for the optimism of our will, persistently struggling to do our work as stewards of the academy. Unionization, faculty senates, and councils are crucial but limited as vehicles for this struggle; conditions of work and review of curricula and academic programming are somewhat safeguarded by these institutional organizational forms. However, we also should consider, like Kaufman-Osborn, individual and ad hoc efforts. At my university, a subcommittee of the faculty senate spent countless hours assessing enrollment issues during a 10-year period and provided a detailed report of strategies for improving enrollment. Starting before benchmark years conveniently chosen by enrollment consultants, the faculty report showed that the decline was due to not only forces beyond administrative control (e.g., recession, COVID, and demographics) but also poor administrative decisions. I use this example because the authors of this report did not allow it to be shelved as “input” by the constantly changing configuration of administrators at our school. Their persistence is a good example of the type of constructive dissent that Kaufman-Osborn describes in his book. It represents what Gramsci (Reference Gramsci1975) called the optimism of the “will”—in this case, to act as equals in determining how the university will proceed in its basic functions. Although this initiative was not about abolishing governing boards, it demonstrates an optimism of the will among faculty members.

Politics is the art of the possible, not a science driven by the probable. Evidence shows that we are not well governed and that the public is not well served by the current structure of rule in the academy. Moreover, we can demonstrate why that structure undermines the very purpose laid out for the academy: that is, free inquiry carried out on behalf of the public good (Kaufman-Osborn Reference Kaufman-Osborn2023, 263). Kaufman-Osborn advises that a different type of university is possible if we change its corporate structure. With this analysis, I am optimistic that we can summon our reserve to remake our institutions. Doing so entails creating a university that recognizes the collaborative work of citizenship—not only individual attainment—as essential to what it means to be a faculty member.