An Oakland-based policy and advocacy organization is alleging that the Board of Governors of the California Community Colleges drew up an unlawful regulation more than two decades ago giving excessive power to faculty, in violation of state law.
The nonprofit organization California Competes this week filed a legal challenge against the regulation, which it claims has obstructed efforts to improve student success rates. The legal maneuver relies on a rarely used section of the state education code (§ 70901.5), allowing any outside organization to challenge regulations drawn up by the Board of Governors. California Competes is seeking immediate action by the Board to amend its regulations to ensure that locally elected community college trustees have ultimate authority.
Community college officials did not comment directly on the California Competes assertions, but a statement by Vice Chancellor for Communications Paul Feist seemed to affirm the colleges’ belief in “shared governance” between faculty and college trustees. “The Chancellor’s Office will review the petition filed by California Competes and respond in a timely manner,” said Feist. “California community colleges value the input of faculty and support effective shared governance in the pursuit of helping students achieve their educational and career goals.” The Board of Governors has 45 days to respond to the challenge.
California Competes, which is funded by several local and national foundations, including the Bill and Melinda Gates Foundation, promotes a range of higher education reforms. Members of its council include business leaders, local elected officials and policymakers.
Robert Shireman, executive director of California Competes, blamed the regulation, which he alleged gives excessive power to academic senates representing faculty on individual campuses, for contributing to a host of problems, including preventing colleges from graduating enough students to meet the state’s higher education needs for the 21st century economy.
“Illegal regulations increasingly harm our schools and students by creating a tangled bureaucracy that is unresponsive and unaccountable,” said Shireman in a statement. “The regulations are not only illegal, but they have also contributed to our community colleges’ national reputation for dispute and dysfunction.”
Michelle Pilati, president of the Academic Senate for California Community Colleges, representing faculty at all 112 community colleges, challenged both the charges of illegality and the alleged consequences of the regulation. “The idea that local senates can hold the Board hostage is so astounding, I don’t have words for it,” she said. If that is in fact happening, she argued, it is because the trustees chose to cede control, not because the regulations forced them to do it.
Rely on or mutually agree
At the center of the conflict are provisions in Title 5 of the Education Code allowing local trustees to establish decision-making procedures that “rely primarily upon on the advice and judgment of the academic senate” or “provide for mutual agreement with the academic senate,” or both.
According to the California Competes petition, “relying primarily” on the academic senate violates AB 1725, a 1988 law that required the California Community Colleges Board of Governors – a body appointed by the governor – to establish minimum standards for local boards of trustees to use when developing their governance procedures. The Board of Governors misinterpreted the law when they wrote that into the regulation, said Susan Bray, executive director of the Association of California Community College Administrators. She pointed out that a 1991 legal opinion by the Legislative Counsel found that the “regulation is invalid insofar as it enlarges the scope” of that section of the Education Code. [Read the entire opinion in Exhibit 3 of the legal filing.]
Bray says another disturbing trend emerging from the policy is that it’s affecting accreditation decisions. She noted an argument in the legal filing that says 20 of the 27 community colleges that have been under sanctions by the Accrediting Commission for Community and Junior Colleges were cited by the Commission for problems with leadership and governance.
But that conclusion is misguided, according to some community college policy experts. Dysfunctional governance has nothing to do with the Title 5 regulations, said Tom Henry, who is currently a special trustee appointed by the Board of Governors to guide several community colleges as they work to keep their accreditation. “It all starts with effective leadership. With strong leadership you can accomplish what you need to have accomplished relative to accreditation and fiscal stability. If you don’t have that then things break down all around you whether you have a policy or education code or Title 5,” said Henry.
He and other opponents of the California Competes petition note that the regulations include provisions for cases where trustees can override the faculty senate and make any policy changes necessary for compelling legal, fiscal or organizational reasons including accreditation.
Cooperation running high
Scott Lay, CEO of the Community College League of California, noted that the legal petition comes during a period of unusually strong cooperation among trustees, faculty and administrators at many community colleges and statewide. The Student Success Task Force, composed of faculty, college presidents, researchers, students and trustees, spent a year developing a widely approved report containing some two dozen recommendations that was accepted by the state Legislature. Lawmakers followed it up by passing SB 1456, the Student Success Act of 2012.
“The doom and gloom I’ve heard absolutely ignores the dramatic changes over the last five years,” said Lay, who cited several recent major initiatives including the creation of higher math and English standards for an Associate’s degree, priority enrollment for students who set academic goals and pledge to stick with them, creation of accelerated basic skills courses, and development of a community college transfer degree. “There’s immense creativity and progressive change happening at community colleges within the construct of this law.”
That’s all the more reason to change the regulation, said Susan Bray of the administrators’ association, to make sure that while those important decisions are being made, “we all operate under one structure,” instead of 72 separate interpretations of the regulation by the 72 different community college districts.
Frank Gornick, chancellor of West Hills Community College District in Coalinga, said a conversation about the regulations targeted by California Competes has been a long time in coming. “I don’t think we should be fearful, we should approach it in a positive way and get a good dialogue going,” said Gornick.
Lay agrees that there may be some tweaking necessary to clarify the regulations, but says “that should be a conversation led by Chancellor Harris and with the community college organization, not grenades thrown from the outside saying here’s the solution for what ails California’s community colleges.”