Quis custodiet ipsos custodes? Review of Cheryl Foy. An introduction to university governance. Irwin Law, 2021. (Director's cut)
A little over a year ago, I published a review of Cheryl Foy’s An introduction to university governance in the CAUT Bulletin.
The book is important, because it appears that incoming Board Members at public universities increasingly are given copies during their orientations, to help them understand their duties and the institutions they are responsible for directing. It is entirely possible in some cases that all a new Board Member will know will come from Foy’s work.
This is a problem, because the book provides what I consider to be a very poor, one-sided, and at times even quite misleading picture of the issues and history involved in University Board governance. While my review of the book had originally touched on a number of these issues in detail, the exigencies of the editorial process — as a newsletter, the Bulletin requires pieces to be quite short, and my review was ultimately edited down to about 700 words — meant that I was able to only hint at some of the major problems in this work.
Since then, I’ve been asked several times by people to share my longer review. Here it is below:
Quis custodiet ipsos custodes? Review of Cheryl Foy. An introduction to university governance. Irwin Law, 2021.
An Introduction to University Governance by Cheryl Foy is a disappointing book, perhaps especially because it represents a lost opportunity for something badly needed in the sector: an orientation to university governance for external board members who are new to the unusual world of academic leadership.
That such a book is necessary is obvious, even from the headlines. As the Ontario Auditor General’s report on the debacle at Laurentian University demonstrated, a board that is not doing its job and does not understand university governance can end up destroying decades worth of tangible and intangible public infrastructure: years of investment in people, programmes — and, yes, even the new buildings that presidents seem to love so dearly — that make Universities points of civic pride and engines of economic development.
And it doesn’t have to lead to (literal) bankruptcy. As the cowardice and failures of leadership across the sector in response to the COVID-19 crisis demonstrated, University Presidents and “Senior Leadership Teams” frequently seem to understand their jobs as being more about representing government to academic communities than standing up for and explaining the value of universities to government ministers. Board members who truly understand how universities work — as a competitive space for the development and evaluation of knowledge and ideas — would refuse to accept the poor-quality leadership that appears to be the norm in most Canadian post-secondary institutions.
As Foy partially suggests, the centrality of debate and consultation in the day-to-day operations of a university can be hard for outsiders to understand. Why should it take a university twelve-to-eighteen months and dozens of stakeholder consultations to choose a president, when corporations can choose a CEO in a few months at most? Why should employees — the faculty and staff that presumably report to the Board through the president — have a say in the choice of their managers and seats on the board itself? How is it possible that educational and research policy — the main “business” a university board is presumably supposed to oversee — can be subject to the recommendations, or even approval, of a senate on which students and faculty may represent the largest voting constituencies?
To somebody whose work-life has been spent in a world of shareholder-value, and “move-fast-and-break-things,” the idea that every decision must go through layers of debate and consultation — and still be open to public criticism from “employees” and “customers” afterwards — might seem very strange indeed. A guide that explained how these institutions operate and why this seeming inefficiency is important to the enterprise would be a very valuable contribution.
This is, however, not that book. An introduction to university governance is less a guide to understanding how universities operate than a primer on what the author believes new board members should think about them. A lawyer who has worked in corporate and university governance for twenty years, Foy was most recently the university secretary and general counsel at Ontario Tech University, as well as its Chief Privacy, Compliance and Risk Officer. And as a self-described “Governance Professional,” she has strong opinions not only about how Boards should operate procedurally, but also what they should decide and how they should engage with the various stakeholder groups and governance organs on campus.
Perhaps the most important of these is that you should always listen to your “Governance Professional.” Ideally, this person will be — like Foy herself, as it so happens — secretary to both the Board and any senate-like organisation on which faculty and students have a strong voice. They will also — ideally and again presumably only incidentally like Foy — be general counsel or occupy some similar position, so that Boards can get both their legal and organisational advice from the same person. Governance Professionals, it turns out, work very closely with University Presidents and other members of the senior administration to ensure things “run smoothly.” Apparently they are also immune to the problems posed by conflicts of interest, special pleading, or bureaucratic empire-building.
Among the other things Foy tells new board members they should understand:
- Board autonomy is the fundamental purpose of a university. If the Board is not autonomous, nothing else matters. Nothing — including academic freedom or faculty and student participation in governance — should get in the way of asserting that autonomy.
- Members of Boards who are not chosen on the basis of a “skills matrix” should not be trusted automatically to put the interests of the institution above those of their constituency. This means pretty much everybody except for members chosen from the corporate world.
- It is particularly true of faculty members, who Foy believes may prove unable to separate their positions as employees, teachers, and researchers from their duties as Board members, despite their ability to do this on a daily basis in the rest of their careers.
- But it is also true of students (who nevertheless do provide a useful insight into this important stakeholder-group’s opinions) and community members, all of whom — unlike corporate board members — can have trouble understanding their duties.
- The main exception to this rule, apparently, are Members of the senior Administration — despite the fact that they are also the only group that negotiate their contracts directly and individually with the Board. Where it is the duty of a Board to be wary of Faculty representatives and avoid being “intimidated” by them on issues of academic freedom, it turns out that they should be much more solicitous of the feelings of university administrators whenever they have “anxiety” over “risks that are overlooked” or “strategies that are incomplete,” making sure they “pick time, place, and tone” in raising such concerns so that they can be “received constructively” by the administrators who supposedly report to them.
- Unions are bad. They were developed in the nineteenth-century in an industrial context and are incompatible with university governance. All attempts by faculty associations (or CAUT) to involve themselves with governance must be resisted.
- CAUT is worse. They have developed a definition of Academic Freedom that is “at odds with tenets of good governance.” Exactly what is wrong with this definition does not need to be explained: it is enough simply to quote it in its entirety (see rule 1: trust your Governance Professional).
- Universities Canada has the correct definition of Academic Freedom. There is no need to discuss this topic further or refer to any literature on its history. You don’t need to know that the Universities Canada definition is controversial or only one formulation of an idea that has developed over centuries.
- Boards should not concern themselves with operational details. But if you were wondering, studies show that faculty members who haven’t published a peer reviewed article in three years should be assigned more teaching.
- Peter MacKinnon is always correct and always quotable on any issue having to do with Canadian universities.
- Always listen to your “Governance Professional.”
Not everything in Foy’s book is this poor. Her discussion of the different stakeholder groups is no doubt useful for a Board Member who is new to public-sector governance — as long as they are able to ignore the author’s fairly obvious mistrust of most groups she identifies with the exception of senior administration. Likewise, her point that Boards work best when they engage constructively, transparently, and proactively with University Senates and Faculty Councils is advice that many in Canada could usefully listen to.
Even here however, Foy’s peculiar and overarching distrust of faculty, faculty associations, and CAUT causes her to miss a real opportunity to both ensure the autonomy she considers the highest goal of a university and improve Board-Senate relations. Having explained that Faculty Associations’ and CAUT’s interest in governance arose in response to a sense that faculty senates were being by-passed in recent years, she then advises her readers to empower faculty senates as a way of resisting these attempts at encroachment — rather than, say, “building on this mutual interest” as a way of ensuring harmonious Board-Faculty relations.
In the end, then, Foy’s book is, unfortunately, the opposite of what one should give a Board member who wants to know more about the unfamiliar world of academic institutional culture and governance. They will come away not with an appreciation of why things are different in a university, but rather that it is exactly what makes them different that needs to be controlled with the heaviest hand.
The problem with this, of course, is that Board-level, institution-wide problems at Universities are rarely caused by the people Foy thinks need watching. Faculty members did not bring about the bankruptcy at Laurentian University; CAUT did not cause the Enbridge/University of Calgary conflict of interest scandal; Students or community-members did not create the governance problems at UBC that led to the resignation of its Board Chair.
But a new board member will learn none of this from Foy’s book. Even if we give her the benefit of the doubt for not mentioning the Laurentian case (the worst failure of Board governance in 50 years came to head in February of the year her book was published), she provides a fairly pro-administration review of the cases she does discuss. Perhaps the most egregious example of this is in her account of the UBC/Berdahl/Montalbano case.
The details of this involve a complaint from a faculty member that pressure from the Board Chair John Montalbano infringed on her academic freedom (you can read a summary of the story here). Ultimately, the situation was investigated by Lynne Smith.
In Foy’s account, the story is about how spurious claims of academic freedom can be resisted successfully: she suggests that the Board chair was exonerated by the university’s report, noting that the “particular allegation” against Montalbano “was not substantiated.”
This is not really how most people would summarise the results of that incident at UBC, however. While the report absolved the Board Chair of deliberately interfering with the Member’s Academic Freedom (the “particular allegation”), it was far more critical of both the Chair and the University than Foy implies. As Foy fails to note, but a Board Member considering this case might want to know:
- the UBC report found systemic fault with the University’s actions and concluded that the faculty member in question “reasonably felt reprimanded, silenced and isolated”;
- the Board Chair resigned as a result of the report; and
- the university’s acting President Martha Piper subsequently expressed her regret that the University did not “adequately support” this same faculty member.
The Montalbano case, in other words, probably should be read as demonstrating the opposite of what Foy wants Board members to take away from it: that poor decision-making and lack of understanding of how and why universities operate the way they do by Board Members who are not careful can create major problems for a university up-to and including the resignation of senior administrators and Board Members.
Universities are complex institutions that operate by different rules from many other industries in a very public and international context. Bringing outside expertise in to help oversee them is a good idea, but only if they are oriented to the problems they are likely to encounter rather than told what they should think. Teaching new Board members that they should watch out for the hens rather than the foxes is no way to govern a henhouse — though it does produce happy and well-fed foxes.
By giving free-reign to her many obvious hobby-horses, Foy ensures that there is still space for a primer on university governance written for new Board members who are unfamiliar with university customs and culture.
