José A. Cabranes, a judge on the U.S. Court of Appeals for the Second Circuit, did something rather unexpected last month -- he issued a public dissent.
If he filed the dissent in his capacity as judge, the act would hardly seem noteworthy. But Cabranes did not dissent as a judge. Instead, as a trustee of Columbia University, he penned a column  in the university’s student newspaper, The Columbia Spectator, in which he criticizes the university’s current administration -- alone and without the support of the rest of the board, an act that is rarely seen at private universities.
“At great universities such as our own, we celebrate and claim to protect freedom of expression for all,” Cabranes begins the column. “It is therefore surprising that university trustees rarely exercise the vaunted campus right of free expression. They are apparently to speak only behind the veil of closed, formal deliberations; a kind of omertà keeps the individual views of the trustees private. With due acknowledgement for this tradition of silence, I emphasize that the comments below are entirely my own and do not represent the views of the Columbia trustees as a group.”
Cabranes’s column raises the issue of why trustee dissent -- of both administrators and other board members -- is so rare at private institutions, and whether they are truly better off because of it.
Those who research trustees and university governance say the column also highlights a fundamental tension that comes with the role. On one hand, trustees are often culled from the ranks of informed, engaged, and interested alumni, who are often passionate advocates for particular aspects of the college or university. On the other hand, the board is also the institution’s fiduciary, and researchers say that responsibility requires individual trustees to put aside their own opinions in public for the good of the institution.
“The best advice you can give to a trustee is that they need to be aware of this tension, and they need to work to achieve appropriate balance in the particular situation,” said Bryant Cureton, former president of Elmhurst College and a speaker at this month’s national conference on trusteeship, held by the Association of Governing Boards of Universities and Colleges. “But in the extreme case, they need to be prepared to choose. They may at some point need to decide if they are going to be a public advocate or maintain the role of being a member of a board with governance responsibilities.”
Open debate among trustees is common at public universities, where trustees are required to abide by open-meetings laws and the combination of staggered board terms and turnover in public offices means that many public boards have members selected by governors with widely differing philosophies about higher education. Trustees at these institutions may openly question or clash with administrators, their debates are often covered by the media, and trustees who don’t get their way have turned to the press to make their objections known.
But that sort of debate rarely happens at private institutions, where trustees have the luxury of conducting most of their actions behind closed doors, where board appointments may reflect a similar philosophy year in and year out, and where decisions are often removed from state and local politics.
Individuals who research management often say the private model leads to better institutional governance. It allows board members to speak freely, particularly when pushing ideas that might be good for the institution in the long run but politically unpopular over the short term, such as the elimination of programs or curriculum reform. It also allows the board to present a unified decision, which can give weight to controversial policies.
One of the key recommendations in “Effective Governing Boards ,” a publication by the Association of Governing Boards of Universities and Colleges, is that “An effective board, even when sharply divided, speaks with one voice.”
“Suppressing genuine differences on important matters would seem least acceptable in the governance of an academic institution,” the association states. “Yet the possibility that such divisions may spread beyond the boardroom poses a grave risk to the board’s effectiveness. Although state supported institutions face special challenges from open-meetings laws, their independent counterparts are usually able to confer in closed session to avoid public airing of differences. A special task of the board chair is making sure the board speaks publicly with a single voice and fellow trustees confine their differences to the boardroom.”
Groups like the Association of Governing Boards say a governing board as a whole is given fiduciary responsibility for an institution, so an individual member’s role is to advocate within the board, not outside of it. “The particular role of the trustee is as a member of a group charged with making disinterested judgments in the long-term best interests of institution,” Cureton said. Sometimes that responsibility clashes with what a trustee might want for the institution.
Public dissent by trustees in the minority can drive wedges between board members and undermine their ability to operative effectively, said Richard Chait, a professor at Harvard’s Graduate School of Education who researchers the management and government of colleges and universities. Disclosing differences of opinion among board members could make faculty members less likely to support an administration’s policy.
If a trustee’s opinion differs from that of the group, said Thomas Holland, a professor of social work at the University of Georgia who studies the governance of nonprofit organizations, his job is to try to convince the board that he is right. “The way you make a group strong is to take your best shot inside the group,” he said. “If it turns out the majority disagree with you, go with that majority or risk undermining the group.”
Holland said the minute a trustee makes the board’s deliberations or dissent public, he or she stifles further debate within the board. Members might no longer feel safe sharing controversial ideas or opinions out of fear that other members will take them to the public. If a member truly disagrees with how a board is being run or the policies it is pushing, he is free to step aside and become an outside advocate.
“You look at that person as a person who plays the violin and joins and orchestra, and I don’t like the tempo so I decide I’m going to play by my own timing,” he said. “Yes, you’re free to play at your own tempo, but not while you’re in this orchestra. If you want to do that, get off the board. If you want to be a member of the team, you have to be prepared to play your assigned role in the team.”
A Collegiate Debate
Given the general culture of silence surrounding governing boards, it’s not hard to see why Cabranes’s column made waves at Columbia. The criticism he raises centers on the fate of Columbia College, one of the main undergraduate colleges of the university. In his column and in other public appearances, Cabranes has vocally supported the college and its traditional core curriculum, which he says gives Columbia its identity and brand.
While trustees historically shy away from questions of academic and curriculum, Cabranes said the fate of Columbia College should be an exception. “It is simply incorrect to say that 'academic questions' are invariably matters beyond the competence of trustees,” he wrote in response to an inquiry from Inside Higher Ed. “At an institution like Columbia, the College is a major source of the institution’s reputation. In turn, the undergraduate curriculum — the so-called Core Curriculum — is at the heart of the college’s identity and reputation.”
The college’s dean resigned in August and her views became public  when an e-mail she sent to some alumni was shared with a blog and then spread. She expressed concerns about proposed changes to her position that she said would have diminished her authority over “crucial policy, fund-raising and budgetary matters.” Since then, an interim dean has been appointed, but Cabranes notes in his column that the fate of the college is still unresolved, an issue of concern for him and other alumni. University officials, while not going into detail on the departing dean, have said repeatedly that they remain committed to the college and protecting its interests.
“Where are the ongoing discussion about the future of Columbia College and its deanship headed?” Cabranes writes in his column. “Toward greater college control of its academic and other resources? Or toward an ever-stronger embrace by the central administration? Who knows? Rest assured, I do not know – and I do not think any other Columbia trustee knows the direction in which we are moving (if any).”
Cabranes made clear in his column and statements to the press that he does not take umbrage to underlying policy changes or the personnel matter, but rather the way information has been transmitted to the board. He said he and other trustees and alumni have repeatedly inquired into what the fate of the college will be, but he said they have yet to see any kind of formal written plan. This delay of information is the main reason he decided to make his concerns public, even if other board members might not share his concerns.
“Any policy or action that threatens the vitality and strength of the Core Curriculum is a legitimate concern of the trustees,” he wrote to Inside Higher Ed. “And if a trustee believes that the board, or even the faculty and students, have not been adequately informed about the development of those policies, there is no reason why that trustee should not sound the alarm publicly.”
Cabranes does not characterize his dissent as his policy preference diverging from the wishes of the board. Instead, it is a procedural problem he has challenged. While individual trustees should not generally speak out on board or administration policy, he said, they are empowered to do so when they feel that information is not being freely transmitted in a reasonable amount of time, when the question is one of procedure.
“An individual trustee is perfectly free to speak publicly when he concludes that a university policy or direction has not been explained to the university community or to the trustees over a period of time,” he wrote. “If the future direction of the college and its vaunted curriculum has not been explained with clarity a trustee should not feel bound to remain mute when members of the university community ask for his personal views.
“I am not suggesting that trustees should attempt to devise a curriculum or become deeply involved in academic questions. But trustees always have a right and duty to speak out if a university administration does not reveal to all concerned the direction in which it seeks to move a major academic enterprise.”
A History of Criticism
Even before the current incident, Cabranes, who has also served as a trustee at Colgate University and Yale University, has publicly criticized the role of governing boards, which he views as giving too much leeway to administrators and faculty members.
“In my more than thirty years as a trustee of private universities in the United States leads me to this simple conclusion about the governing boards of such institutions: These governing boards govern very little,” he wrote in a paper for the Fordham Law Review in 2007 . “Except for approving annual budgets submitted by the university administration in omnibus form and supporting projects by their financial largesse, trustees play no role, or a very limited role, in major decisions that shape and define the vital purposes of a university.”
Too many trustees take the view that their main responsibility is to “merely to raise money and support the incumbent administration fully or seek the removal of the president,” he wrote to Inside Higher Ed. Trustees refuse to delve into policy matters they might not think themselves qualified to speak on. He has advocated for trustees to take a more active role in university governance, particularly in examining the nature of a college or university’s academic curriculum. Trustees can still support a president in general without agreeing with everything he or she does.
Cabranes is not alone in criticizing the actions of trustees. The American Council of Trustees and Alumni advocates for trustees to delve more deeply into academic policy matters on their campuses, arguing that administrators and faculty are too deeply rooted in details to take a broad view of the landscape.
“Trustees are the fiduciaries of the institution, responsible for both academic and financial welfare, and they have to speak up and make tough decisions, particularly now when we see higher education under greater scrutiny,” said Anne D. Neal, the association’s president. “If anyone is going to be a check and balance on the internal constituencies, it has to be the trustees.”
In December, a New York-based nonprofit research organization called Public Agenda released a report  about trustee engagement that concluded that most board members believe their role is to select and support a good institutional leader rather than directly question administrators or initiate reform.
“I think there is a fear that so many trustees have that they’d be doing a disservice by suggesting that anything needs improvement,” Neal said. “But that can be counter-productive in the long run.”
At the heart of the disagreement about how board members should behave is the question about where ultimate fiduciary authority for the institution lies. If each individual trustee shares fiduciary responsibility, then they would all be empowered to speak out on issues.
But if the actual responsibility lies with the board, and individual trustees are simply members of that board, then their authority to speak out on individual matters is significantly limited.
Chait says there’s likely some truth in both views. Individual trustees have responsibility to speak out on certain matters, such as things they notice around campus and major issues about the future of higher education. They should be engaged advocates for ideas in the university community. But it is not their place to speak out on policy matters that have been set by the board or to undermine the administration.
That leaves a lot of room for balancing, which comes back to the inherent contradiction of the job. “They always say that the test of first-rate intelligence is the ability to hold two opposed ideas in your head and still maintain the ability to function,” Cureton said.