Epistemic Problems with Executive Appointment Power

The weakness of US democracy has been all over the mainstream media this summer.  For just one example, there's the title of Jamelle Bouie's essay on 1619/2019: "America holds onto an undemocratic assumption from its founding: that some people deserve more power than others."   On our beat, we have less catastrophic but still meaningful failures of American democratic practice: the governance of public universities, which are charged with creating democratic publics and racial justice, and which are governed autocratically nonetheless. 

The still fairly new governor, Gavin Newsom, has made some summer appointments in higher education. The first is new UC regent Janet Reilly (at left, with her husband, Clint Reilly), a sometime journalist and long-time participant in the San Francisco Democratic party.  She has a bachelor's degree and a masters in journalism, but no other stated contact with higher education. 

Board appointments have usually followed a rotten process, one we've noted before could be helped a lot just by following existing law.  This one doesn't either. Here is the official description of the appointee, in its entirety:

Janet Reilly, 55, of San Francisco, has been appointed to the University of California Board of Regents. Reilly has been co-founder and president of the Board of Directors for Clinic by the Bay since 2008. She was appointed by President Barack Obama to be director of The Presidio Trust from 2015 to 2018. Reilly was director of the Golden Gate Bridge, Highway and Transportation District from 2003 to 2015, where she was president of the Board of Directors from 2010 to 2012. She was executive producer and on-air television host of The Mix with Janet Reilly for NBC Bay Area – KNTV from 2014 to 2015, a trustee of the Golden Gate Transit Amalgamated Retirement and Health and Welfare Plans from 2010 to 2015 and director of public relations for Mervyn’s Department Stores from 1997 to 2001. Reilly was a district representative for Los Angeles Mayor Richard Riordan from 1993 to 1995 and an on-air television reporter and anchor for KGWN-TV from 1990 to 1992. She is an advisory board member of the Walt Disney Family Museum and the Leo T. McCarthy Center for Public Service and the Common Good at USF, and a board member of the Dignity Health Foundation and the local governing board of the Seton Medical Center. Reilly earned a Master of Science degree in journalism from the Northwestern University Medill School of Journalism. This position requires Senate confirmation and there is no compensation. Reilly is a Democrat.

The epistemic problems with this statement start with Newsom not saying why he likes Reilly or why she's qualified.  He doesn't say why she should be of interest to the university, that is, what her educational interests are.  This would be less of a problem had she some university management or advocacy background that pops up in her career summary.  She doesn't.  Newsom doesn't present Reilly as a person of interest to an academic community, nor does he address that community, nor does he bother to try to persuade anyone in that community that this is a good appointment.  Apparently none of that matters. The choice becomes an assertion of his power of appointment. Reilly means that Newsome can appoint anyone he wants.  The methodology silently reasserts that regents don't belong to the university but preside over it.

So there's this first issue of executive appointments negating an epistemic system.  Regents arrive epistemically tied to the executive with no experiential or cognitive links to campuses, their activities, their people.  Most people bemoan "post-truth" America.  But post-truth is possible only in the absence of interpretative systems that have to be constituted by ongoing discussion and debate.  We don't have to get all Habermasian to make this basic point: the unilateral, unexplained, non-consultatory appointment negates the shared understandings that constitute both "truth" and learning--two things unversities particularly care about.

There's a second issue of managerial prerogative that sidelines professional knowledge--the epistemic community in the narrower sense. This decision process says that professional competence is irrelevant in the running of a university.  Right.  I love to fly in planes but that doesn't make me a pilot. My father was a doctor but you wouldn't let me operate on your hip.  I have a long-term amateur interest in quantum mechanics and some descendant theories, but no one would make me program manager at CERN.  And yet anyone with the right connections to the governor can run a university.

There's a third issue of political patronage.  Politicians aren't supposed to be able to hand out jobs as favors for political support--even when the pay is prestige without a salary. It looks a lot like that's what's happening. Janet Reilly is married to Clint Reilly, a commercial real estate developer in San Francisco and a former political consultant.  His political clients included Nancy Pelosi, Dianne Feinstein (he successfully defended her against a recall campaign in 1983), Barbara Boxer, Richard Riordan, Bill Honig and many more.  They are probusiness liberals of the Jerry Brown variety.  They still control the state Democratic Party, and a good chunk of the party's national leadership posts. 

The Reillys operate at what old timey language would call the heart of San Francisco's Democratic power elite.  Their photographic history is that of wealthy socialites with interests in liberal charities.  In short, this looks very much like a patronage appointment for that part of the party's white establishment that wants to keep running minority-majority California.

The fourth issue is the neutralization of checks and balances. These are supposed to help U.S. democracy split the difference between executive autocracy and direct sovereignty.  California's Constitution Sec 9(e) lets the non-ex officio regents be appointed entirely by the governor rather than be at least partially elected or appointed by a range of officials.  On the other hand, it requires that the regents reflect the diversity of the state (Sec 9(d)), and that the governor convene a meeting of "an advisory committee" comprised by members of the public, a student, and a faculty member. It requires that the governor consult with this committee prior to the appointments.  Once the governor formally proposes a new member of the Board of Regents, the State Senate is supposed to accept or decline the appointment via its Standing Committee on Education. 

Neither the state nor the University implement this vetting process.  Thus the public lacks even this weak pro forma voice. Neither the public nor the hundreds of thousands of UC employees have any voice at all. As one group reported, "Despite our efforts to contact the Governor's office reminding them of Article 9, Section 9e, the Governor has just named Janet Reilly to serve as a Regent, without first holding an Article 9 Section 9e meeting." That's how these emails always sound. I can't find any record of State Senate review.  Meanwhile, UCOP listed her as a regent. 

Vetting matters!  Once the regent is appointed, even pro forma checks and balances are gone.  The Board of Regents has autocratic power over the University (Constitution Sec 9(f)) and Bylaw 22 are two places to start your reading).  The President is their executive agent, with similarly unqualified command and control over university policy and personnel. (Ten years ago, the Board gave President Yudof emergency powers virtually overnight, which he used to furlough university employees and which he could have used to close programs unilaterally.)  Faculty have two representatives to the Board of Regents, but they are not members of the Board and do not have a vote.  The Regents are immunized from any communication they do not seek themselves: the general public cannot contact them, but must contact the Board's Secretary.  Chancellors are required to attend regents' meetings but may not speak to regents unless spoken to.  Faculty may not communicate directly with regents, but must route messages through the Office of the President.  Public comment time at the Board meetings rabbalizes students and everyone else trying to get a word in. Most regents do not try to hide an indifference bordering on contempt during these sessions.  It's all rather medieval, isn't it?  Do not address thy sovereign lord unbidden!  Whatever we call it, this system creates cognitive bubbles of highly restricted information.  A further symptom of the closed and undemocratic nature of the system is that we all take it for granted.  Only CUCFA seems even to have noticed that no vetting has taken place.

I'm not saying Janet Reilly will be a bad regent: she has worked as a journalist and has remained a basically progressive Democratic party activist in spite of having not been successful in running for public office (in one case she was accused of policy plagiarism).  She  has a lot of experience with being appointed to boards.  She's not less qualified than the standard collection of governor's office staffers, business consultants, small businesspeople, and Hollywood execs appointed by Jerry Brown.  But this gets us to a fifth issue: the cynical reason that assumes there's no bad substantive fallout from insular and autocratic procedure that we should get off our asses to avoid.

A couple of issues spring to mind.  First, university real estate.  Berkeley chancellor Carol Christ, among others, has advocated public-private partnerships in student and faculty housing.  Student housing has become a commercial property cash cow in the US and UK ever since companies figured out they could charge by the bed rather than the room (4 student room charges per two bedrooms, for example).  These ventures drive up student costs on the back end (and encourage universities to recapture by hiking board fees some of what they've lost from tuition freezes).  They are also part of the "multiple revenue streams" strategy that year-in year-out is the gift that keeps on giving--it gives the state an excuse not to put any more of their own money in.  With her family business, could Janet Reilly rethink the university's privatization strategy? Is it likely she'll study revenue issues independently and come up with some new ideas?  I would guess not. That's a real loss, since the university desperately needs new strategies.

A second issue is the UCSF-Dignity controversy, in which UCSF proposed a much-expanded alliance with Catholic hospitals that proscribe gender reassignment surgery and most reproductive health services to women (our coverage is here). The systemwide Senate went to war on this, and the final report of the Nondiscrimation in Healthcare Task Force concluded that, "UC should avoid an entity such as a corporation, partnership, limited liability company, or joint venture, or other forms of close legal affiliation, with any external entity that exercises discriminatory policies in healthcare" -- like Dignity.  UCSF backed out of the proposed alliance, but a new task force is likely to try to legitimize the more local relationships UC campuses can have with religious providers who discriminate in this sense.  The issue is not over.  Next thing you know, Gov. Newsom makes as his first appointment to the Board of Regents a member of the Board of Directors of Dignity Health Foundation.  We have the same problem again:, how independent will Janet Reilly be in discussions of UC's health care policy as a public entity?

If you can stand one further example: Gavin Newsom's other summer creation was a new Council for Post-Secondary Education.  It is to

serve as an independent consultative resource to the Governor around the economic and social impact of higher education in the state. They will examine issues relating to future capacity, enrollment planning, community college transfers, general education and coordination at the state and regional levels, and make recommendations to the Governor for action.

This charge used to be filled by an old Master Plan body called the California Postsecondary Commission (CPEC).   It was a regular state agency, not a body of political appointees.  It had a permanent professional staff that collected and analyzed every kind of higher ed data for the state's three systems.  It kept statistics on boring, essential things like assignable square feet of instructional space per enrolled student and proportions of the physical plant that were behind in maintenance.  It made recommendations--in 2007, it said the state didn't need UC Irvine to build a law school--well, it lost that one. In 2011, Jerry Brown killed CPEC by line-item deleting its entire budget (of under $2 million), for reasons that never made sense.  Afterwards, no one was giving Brown professional information about higher ed--and it showed.  CPEC apparently remains established in state law as an unbudgeted shell.  Newsom could have re-funded it, hired some professional staff, and gotten the data flowing again.

Instead, he's created a Council of Appointees, consisting entirely of people who are already running California higher ed.  There is no checking and balancing or outside points of view.  Every single member is the chief executive of a college system or state educational agency (Janet Napolitano, Timothy White, Eloy Ortiz Oakley, etc), or someone who works out of Newsom's office.  There isn't even a UC chancellor or Cal State president, much less a faculty member, an office manager, a scientist, a librarian, etc. (There are also no Republicans.)  It's another epistemic bubble getting filled with hot air and flown off to write another report about how to align UC Merced with the valley's jobs of the future, or touting Fresno's K-16 Pilot program.  There's no independent input and critique in the most banal sense. 

These executive boards are antithetical to democracy and to the nature of education, which requires massively open and diverse inputs and complex mechanisms of analysis and synthesis.  Newsom acknowledges this in a backhanded way by adding that "the Governor has convened – and will continue to engage – higher education advocates and stakeholders to advise him." But he doesn't put any of them on his Council. He doesn't give it the staff and the powers of data collection that would allow it to learn, reflect, have new ideas, and change its mind.

Higher ed is hurt when it mimics a  US culture with deep traditions of board packing and executive rule. This culture is being thoughtlessly and selfishly continued by California governors and university managers.  Executive appointment power lowers both the intelligence and the credibility of universities.  It creates mental complacency and institutional mediocrity.  It could easily be replaced with actual democratic procedures.  We could have good regents--defined as ones with democratic legitimacy within the university, rooted in their direct epistemic connections with campuses, their local knowledge, their reciprocating discussion, their independent judgment regarding the university they rule.  I'd like to see UCOP and the Academic Senate work on this carefully over the next couple of years.