Damned if You Do, Damned if You Don’t

In the two short months since the New Year, headlines about college and university boards and governance have abounded. While the headlines paint one picture, those of us who try and keep a thoughtful eye on governance also read the comments sections of the stories reported here and elsewhere. Some of those comments are well formulated and advance the conversation about good governance; others are misinformed or just nasty.

Look at the comments on Inside Higher Ed about the board-president tension at Suffolk University, the actions and inactions at Mount St. Mary’s University, and what is happening at the University of Missouri. While the stories give renewed attention to the power and role of governance and call out some of the tensions, the comments suggest that much more understanding is needed about the role and function of lay boards of trustees, part of our historical structure since America’s first colonial college.

Governance can be arduous, as we will explain. Being a trustee is one difficult volunteer role, and boards often find themselves in “damned if you do, damned if you don’t” situations. In the midst of the vitriol and mudslinging that occurs, our intent is not to play the metaphorical violin and feel sorry for trustees, but we do want to point out a few harsh realities. Boards today must cope with:

Responding to tricky, if not impossible, decisions thrust upon them. Boards do not get to choose the issues that come before them. Some problems and quandaries that end up on board agendas are conceivable -- student concerns (and in some places protests) regarding race and equity are a recent example. Yet, even if foreseeable, the board never knows how an issue will play out in real time, and there often are no right answers or simple paths forward.

Other issues simply cannot be predicted. It is not as if the boards in Louisiana planned for the $940 million budget deficit, or the Mount Saint Mary’s board anticipated the accreditation issues or other fallout from its president’s remarks, including picking up the pieces from his resignation, or the University of Missouri’s Board of Curators wanted to deal with the actions of a faculty member, acting on her own accord and captured on video, that resulted in criminal charges being brought against her and decisions about her employment.

Balancing both immediate and long-term concerns. Taking the long view sometimes seems nearly impossible in a culture obsessed with speed and desirous of instant gratification, especially on college campuses, which have: 1) students who are there for only a short time (in the scheme of things) and are not timid about issuing immediate demands, 2) four generations of faculty with competing interests and who have seen their jobs change a great deal over the years, and 3) administrators who must grapple with crises on a nearly daily basis. Boards find themselves at once caught up in the demands of the immediate while needing to never lose sight of the long term. But, as Harvard sociologist David Reisman said, the role of boards is to “protect the future from the present.”

Boards have three basic, yet sometimes difficult, responsibilities that require them to balance the needs of today with those of future generations:

1. Duty of care: competence and diligence, the care that an ordinarily prudent person would exercise in a like position and under similar circumstances. Board members have the duty to exercise reasonable care when making decisions as stewards of the institution; they are expected to actively participate in organizational planning and decision making and to make sound and informed judgments.
2. Duty of loyalty: allegiance. Board members must give undivided allegiance when making decisions. Board members may not use information obtained as a member for personal gain and must act in the best interests of the institution. When acting on behalf of the institution, board members must put institutional interests before any personal or professional concerns and avoid potential conflicts of interest.
3. Duty of obedience: staying true to mission. Board members are not permitted to act in a way that is inconsistent with the central goals -- the mission -- of the institution. A basis for this rule lies in the public’s trust that the institution will oversee assets (financial, physical and otherwise) to fulfill its mission. Board members must ensure that the institution complies with all applicable federal, state and local laws and regulations.

While it is hoped that all individual members of the campus community would act in such ways, no other group has the same legal and ethical requirement to do so. Board members are not employees and have a fundamentally different relationship with the college, university or state system.

Deciding in the spotlight. Boards are governing in difficult times of heightened scrutiny; in fact, public boards need to govern in front of the public. Imagine trying to having a thoughtful, candid, difficult conversation about controversial issues with your spouse or entire family surrounded by invested onlookers -- and then covered by the press to boot. This is the experience of public boards.

For instance, we would bet that most, if not all, boards should be seriously grappling with how to best deal with the long-term financial health of their institutions. Even well-endowed institutions face economic issues. In January 2013, Moody’s downgraded the entire American higher education sector to negative, an outlook continued in 2014 and 2015. As one trustee put it, “We have a relatively undercapitalized institution, offering a largely undifferentiated product, into an increasingly price-sensitive market, characterized by declining demographics.” Who would be bullish on that? How can boards explore complex and contentious issues, engage in dialogue, and ponder and wonder out loud, when the news media may cover their every thought? Our next point is related.

Balancing competing interests. Because the board needs to take the long view (but also provide counsel and make decisions regarding immediate challenges), and because of its duties of care, loyalty and obedience, it must try to balance the competing interests of a range of stakeholders. They include, among others, faculty members from multiple disciplines, staff members, current students, future students, alumni, community and civic groups, neighborhood associations, policy makers, and boosters. In addition to long-term versus short-term views, on all of our campuses, other paradoxical issues are at hand. Should the board drive change or work to help maintain stability? Focus on core businesses or new businesses? Save and build the endowment or innovate and invest? And in the meantime, the public wants everything better, cheaper. Every single decision a board makes is going to please some and upset others. That’s reality.

Acting as a group. We all know how hard it is to make certain decisions alone, right? While some college and university boards are small, the average size of private university boards is 29. Boards must deliberate issues, hear all sides, seek optimal solutions and come to decisions that will be made public as a collective. Imagine that you have to come to a mutually acceptable decision with competing interests, fast, in a group and under the spotlight (and by the way, with interim leadership, as is often the case). We think we can all agree: this is a tough job.

Dealing with challenges of accountability. Board work is difficult because it lacks natural systems of accountability. Who is watching the board, and to what extent does the board see itself as accountable? Boards work well when they take their own accountability seriously, but too often they do not. Yes, the faculty can vote no confidence in the board, and the state attorney general can intervene, as was the recent case at Cooper Union. But for the most part, boards must develop the ability and conscientiousness to establish their own mechanisms for accountability.

Where Good Governance Reigns

Finally, we must not forget that board members are volunteers, the preponderance of whom are members of the general public, not of the academy. Board members are appointed (public boards), elected (alumni, faculty or student representatives, or by general election in some states), or they volunteer when asked. Most college and university boards are composed of influential individuals who care deeply about the institutions they serve. It’s true that some come with an agenda, but, by and large, that’s not the case. They want to do good work, and they want their institutions to succeed. These volunteer boards can and do add value to the institutions they govern by bringing collective expertise, insight and wisdom.

Strong boards share some important ways of thinking about governance that go beyond size and structure. They:

• recognize that the stakes are high, and have perhaps never been higher, for the institutions they serve;
• realize that all trustees and boards have room to improve -- and make a commitment to seeking feedback, reviewing their work and learning;
• have a certain positive restlessness that keeps them always striving to do better;
• are self-aware, think about their collective impact, are cognizant of complexity and the paradoxes surrounding them;
• pay attention to substance, structure, culture, process and boardroom dynamics; and
• can adapt to changing circumstances rather than get trapped in stale routines (however comfortable they may be). They have, as one president said recently, “the ability to pivot.”

Recommendations for Boards

This essay is not an apologist’s perspective on governance today. Given the complexity of the world in which boards must govern, we realize that we run the risk of ridicule for oversimplifying and making broad-brush statements (and fully expect comments below to those effects). And we realize that there are no panaceas, no right answers and no silver-bullet solutions to governance. Still, we offer here six ideas boards might consider to help ensure that they are ready when (not if) the messy issues arise.

1. With the administration, and within the parameters set forth by your bylaws, develop an explicit understanding of good governance. Communicate it to the faculty.
2. Practice (“scrimmage”), when times are good, on easier issues. Boards cannot predict what difficult issues will surface and must be well practiced to take on the most unexpected challenges.
3. Review cases in the news and ask, “What can we learn? What if that were us?”
4. Consider the perspectives of multiple stakeholders by asking, “Who are the stakeholders for this decision? What’s at stake for them, particularly the faculty and students? Why?”
5. When appropriate, seek input from key stakeholders, being especially cognizant of your institution’s shared governance expectations.
6. Communicate not just the decision outcomes but also the deliberations. Help those affected stakeholders understand the different viewpoints that were broached in the boardroom.

Boards will likely face the “damned if you do, damned if you don’t” context for the foreseeable future. The better they are prepared to address the big challenges ahead, the better our institutions will be.