by James A. Bacon
The primary duty of board members of Virginia’s public colleges and universities is to the commonwealth, not to the individual institutions, Attorney General Jason Miyares wrote Monday in response to an advisory opinion requested by Governor Glenn Younkin.
According to Miyares’ missive, Youngkin asked whether Virginia law imposes upon boards of visitors “a duty to serve the interests of the university or college only, or the Commonwealth more broadly.”
“Although they extend services to non-residents, Virginia’s institutions of higher education exist to fulfill the commonwealth’s commitment to provide education to the students of Virginia,” the AG answered. “It is clear that the boards of visitors serving them, as public officers of the state, have a duty to the Commonwealth as a whole.”
The letter does not elucidate the particular circumstances that led to the request for clarification, but the issue of board members’ primary duty did arise during the September 2023 meeting of the University of Virginia Board of Visitors meeting. Rector Robert Hardie had invited Clayton Rose, former president of Bowdoin College and currently a Harvard University professor, to lead a discussion of “best practices in board governance.” (See our coverage here.)
University board members should “protect the reputation of the institution,” act as “cheerleaders,” and show solidarity once a decision has been made, Rose said. His PowerPoint presentation stated explicitly that boards of high-functioning boards “serve the university’s interests.”
Two members of the Board, Youngkin appointees Paul Harris and Doug Wetmore, took issue with Rose’s formulation. “We’re a public body,” said Wetmore. “Our responsibilities are laid out in the Virginia code. We take a public oath of office to uphold the state constitution.”
Summarizing the legal case for his advisory opinion, Miyares wrote:
Virginia is home to some of the nation’s finest public institutions of higher education. … These institutions are “state agencies; they are statutory corporations created and empowered by acts of the General Assembly.” Although they extend services to non-residents, Virginia’s institutions of higher education exist to “fulfill the Commonwealth’s commitment to provide education to the students of Virginia.” …
The General Assembly has vested the management of Virginia’s colleges and universities in their respective boards of visitors. … Each institution, and its respective governing board, “is part and parcel of the Commonwealth’s higher education system,” as established by law in Title 23.1 of the Code of Virginia. 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[.]” …
The law recognizes that although a public corporation generally may benefit and thus “involve some private interest[,]” strictly speaking, public corporations are such only as are founded by the government for public purposes, where the whole interests belong to the government. Accordingly, “private individuals have no interest in or control over” any of Virginia’s public colleges and universities. … It is clear that the boards of visitors serving them, as public officers of the state, have a duty to the Commonwealth as a whole.”
Virginia law provides that “each board shall at all times be under the control of the General Assembly,” Miyares continued. Boards are subject to open-records and public-meeting provisions of the Freedom of Information Act. Board members are appointed by the Governor, and members are subject to removal by the Governor. Public universities also have extensive obligations to publish reports regarding budgets, tuition increases, student fees, state property, intellectual property, and athletic department funds.
“It is evident,” Miyares wrote, “that a board of visitors simply serves as the vehicle by which the General Assembly has chosen to exercise the Commonwealth’s control over its colleges and universities. … Accordingly, it is my opinion that the primary duty of the board of visitors of each Virginia public institution of higher education is to the Commonwealth.”