Prophesying to the Lincoln Journal in July 1977, then-University of Nebraska attorney John C. Gourlay noted the significance of a Nebraska Supreme Court ruling that the Board of Regents — and not the Legislature — was the university’s governing authority.
“The decision will chart our relationship with the Legislature for years to come,” Gourlay said.
The ruling in Board of Regents v. Exon, which granted the eight-member board “the power and responsibility to manage and operate the University as free from political influence and control as possible,” has reanimated inside the state Capitol this year.
After Sen. John Kuehn of Heartwell asked NU to devise a new reporting mechanism detailing how it divided its $583 million in state appropriations last July, university leaders responded that any such direction from lawmakers was prohibited by the Exon decision.
It was raised by the university in Education Committee hearings for bills by Lincoln Sen. Adam Morfeld (LB857) and Omaha Sen. Sara Howard (LB898) requiring Nebraska’s colleges and universities to create new mechanisms for reporting on allegations of sexual assault and harassment on campus.
And it loomed as a specter last week during a three-hour hearing for a bill (LB718) by Sen. Steve Halloran of Hastings requiring colleges and universities to draft free-speech policies and report disruptions to free speech to the Legislature.
Testifying at that hearing, Anthony Schutz, an associate professor at the Nebraska College of Law, told the Education Committee the 1977 Exon decision “relieves you of having to deal with these problems.”
Tracing the history of the state Constitution and the Exon decision, Schutz said Nebraska has relied on an elected Board of Regents vested with the “general government” of the university for more than 140 years.
“To make policy and implement it in the university setting, we need a governance structure that attends to our needs, which is what the constitution created,” said Schutz, who has authored a book on the state’s governing document with University of Nebraska at Kearney Professor Peter Longo.
NU sued Gov. J. James Exon in Lancaster County District Court in 1975 not in an “adversarial spirit,” according to then-President Ronald Roskens, but to clarify the duties of regents and lawmakers when it comes to university governance.
Regents gain expertise in attending to the university’s needs “nimbly and adaptively,” Schutz said, and are directly accountable to the districts that elected them.
Regents can’t curry political favor by taking favorable stances on nonuniversity issues, he added.
In interpreting the constitution, the Supreme Court did not read any level of “legislative prerogative over the Board of Regents’ decision-making,” particularly in how NU uses tuition revenue and donations, awards raises to employees, builds or renovates facilities as well as purchased or disposed of property.
“Rather, the court concluded that the constitutional text severely limited the Legislature’s interference with University prerogatives,” Schutz explained.
Exon applauded the decision at the time, saying it reflected his desire for the Legislature to make one bulk appropriation to NU instead of needing to pass dozens of smaller bills to fund university activities.
“I have been maintaining that the Legislature has been attempting to invade the administration of laws,” the conservative Democrat said then. “The Board of Regents and the University administration have the job of making independent decisions.”
Sens. Richard Marvel of Hastings and Jerome Warner of Waverly cautioned the university from celebrating the ruling.
“Whoever has the power assumes the criticism,” Marvel told the Lincoln Journal in 1977. “With additional power goes additional criticism.”
“It’s beautiful for politicians,” Warner told the newspaper. “We in the Legislature can give them the (tax) money and turn around and give them hell for how they are spending it.”
Schutz last week brought those former senators’ arguments to the present, pointing over his shoulder to Regent Rob Schafer of Beatrice as an example, saying voters can judge Schafer on his performance related to university matters “independent of anything else.”
“If you don’t like Schafer, you can throw Schafer out,” he said.
Sitting senators on the Education Committee said they still expected the Legislature to maintain some oversight into the university’s activities.
“Most people who vote for us look for leadership from us on all these issues,” said Sen. Lou Ann Linehan of Elkhorn.
Morfeld, a former student of Schutz’s, said the Legislature provides the budget allowing the university to exist, which can contain some ties guiding how the regents use it. Schutz agreed, in part, saying it would depend on just how many strings were attached to a spending bill.
Sen. Steve Erdman of Bayard encouraged the Legislature to not pause at the Exon decision and pass bills dictating policies to the university, saying it was up to a court to decide which laws were constitutional in Nebraska.
And Sen. Mike Groene of North Platte said Board of Regents v. Exon was only relevant as long as the language in the state constitution made it so.
“The people could get in an uproar right now, add a constitutional amendment and change it,” he noted.
Gourlay, the university’s first full-time legal counsel, died in 1979, long before he could witness the Exon decision rippling in today’s political climate.
“It will obviously increase the need for better management at the university on items that have been dictated to us before,” he said at the time. “We view this as a historic decision with implications which will affect the governing of the University of Nebraska for many years to come.”